HomeMy WebLinkAbout2020-02-25; Municipal Water District; ; License Agreement with Verizon Wireless (VAW), LLC to continue Operation of an existing Wireless Communication Facility at the La Costa High Reservoir Site (APN: 223-792-Verizon Wireless was previously issued a Conditional Use Permit ("CUP 94-llxl") in May 2000,
which had been extended twice since that time. On Sept. 19, 2016, the city approved a new
MCUP to allow for the remodel and improvement of their facilities, which will include
replacement of the existing 40-foot tall non-stealth cellular tower with a faux eucalyptus tree,
compliant with the stealth design guidelines of City Council Policy No. 64, and alteration of the
exterior appearance of the equipment structure to be more consistent with the surrounding
neighborhood. The Agreement updates and aligns the general terms and conditions of the
original agreement to current standard telecommunication license agreement language, as well
as aligning rents to the current market value, and connecting the terms of the Agreement to the
new 2016 MCUP.
This wireless communications facility will continue to provide service reliability to residents
within the proximate area. This Agreement is for an initial term of 10 years with two extension
terms of. five-years each and shall become effective upon approval of the Agreement by the
CMWD Board of Directors.
Fiscal Analysis
Under this Agreement, CMWD will receive annual revenue starting at $46,200, or $3,850 per
month, subject to three-percent increases per year as detailed in the below rent schedule. This
is a 153% increase over the last regular non-holdover monthly rent payment received by CMWD
under the previous license agreement. In addition, CMWD will receive a one-time lump sum
payment of $17,500 as a construction enhancement fee designated to be used by CMWD for
security measures to be installed around the reservoir.
Period (Years) Minimum Annual Rent
1 $46,200
2 $47,586
3 $49,014
4 $50,484
5 $51,999
6 $53,558
7 $55,165
8 $56,820
9 $58,525
10 $60,280
CMWD anticipates total minimum revenue generated from the Agreement over the initial 10-year
term of $529,631.
Feb. 25, 2020 Item #1 Page 2 of 64
Next Steps
Once the Agreement is executed, CMWD will begin collecting rent at the newly negotiated rate.
Environmental Evaluation (CEQA)
This action is categorically exempt from the California Environmental Quality Act pursuant to
CEQA Guidelines section 15301, leasing of existing public or private structures or facilities.
Public Notification
This item was noticed in accordance with the Ralph M . Brown Act and was available for public
viewing and review at least 72 hours prior to the meeting date and time.
Exhibits
1. CMWD resolution
Feb. 25, 2020 Item #1 Page 3 of 64
CMWD RESOLUTION NO. 1633
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISCTRICT BOARD (CMWD), AUTHORIZING THE
EXECUTIVE MANAGER TO EXECUTE A COMMUNICATIONS SITE LICENSE
AGREEMENT WITH VERIZON WIRELESS (VAW), LLC TO CONTINUE
OPERATION OF AN EXISTING WIRELESS COMMUNICATION FACILITY AT
THE LA COSTA HIGH RESERVOIR SITE (APN: 223-792-19)
WHEREAS, city staff has negotiated a license agreement (Agreement) with Verizon Wireless
(VAW), LLC, to operate a wireless communication facility at the La Costa High Reservoir site located at
APN: 223-792-19; and
WHEREAS, Verizon Wireless (VAW), LLC obtained approval of a Conditional Use Permit (CUP
94-llxl) in May 2000 to install a 40-foot tall monopole wireless communication facility (WCF) and
equipment building; and
WHEREAS, Verizon Wireless (VAW), LLC obtained approval of a Minor Conditional Use Permit
(CUP 2019-0001) on June 6, 2019, to demolish the existing WCF and replace with a 61-foot tall faux
mono-eucalyptus tree WCF consisting of 12 panel antennas, as well as modifications and architectural
enhancements to the existing equipment building; and
WHEREAS, CMWD will receive a one-time lump sum payment of $17,500 as a construction
enhancement fee to be used by CMWD for security measures to be installed around the reservoir by
CMWD; and
WHEREAS, the Agreement will generate $46,200 in revenue for the city over the first year of the
agreement and will increase a minimum of 3 percent in January of each year thereafter.
Feb. 25, 2020 Item #1 Page 4 of 64
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of
Directors, as follows:
1. That the above recitations are true and correct.
2. That the Agreement, which is attached hereto as Attachment A, is approved as to form,
and the executive manager is hereby authorized and directed to execute the Agreement.
3. That the executive manager, or his designee, is hereby authorized to take all actions
necessary to implement the Agreement with Verizon Wireless (VAW), LLC, that are
consistent with and in full compliance with the terms and conditions expressed in the
aforementioned Agreement, including any Agreement extensions, and to the satisfaction
of the general counsel, including any amendment to the Agreement.
PASSED, APPROVED AND ADOPTED at a Special Meeting ofthe Carlsbad Municipal Water
District of the City of Carlsbad on the 25th day of February 2020, by the following vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
MATT HALL, PRESIDENT
~ /-Jee tor &nz . Dep•_:j fBARBARA ENGLESON,SlcRETARY I Cif--j
(SEAL) C )t'rJf
Feb. 25, 2020 Item #1 Page 5 of 64
Attachment A
COMMUNICATIONS SITE LICENSE AGREEMENT
between
THE CARLSBAD MUNICIPAL WATER DISTRICT
and
VERIZON WIRELESS (VAW) LLC, d/b/a VERIZON WIRELESS
EFFECTIVE DATE= o;; J;;ti laoao I I
Feb. 25, 2020 Item #1 Page 6 of 64
TABLE OF CONTENTS
BACKGROUND .............................................................................................................. 1
AGREEMENT ................................................................................................................. 2
1. DEFINITIONS .......................................................................................................... 2
2. LICENSE AREA ....................................................................................................... 5
2.1. Grant and Scope .......................................... ; ..................................................... 5
2.2. License Area Condition ...................................................................................... 6
2.3. Certified Access Specialist Disclosure ............................................................... 6
2.4. No Right to Record ............................................................................................. 6
3. USE .......................................................................................................................... 6
3.1. Permitted Use; Equipment ................................................................................. 6
3.2. Prohibited Uses .................................................................................................. 7
3.3. Access ............................................................................................................... 7
3.3.1. Licensee Access .......................................................................................... 7
3.3.2. Entry and Inspection .................................................................................... 7
3.4. Utilities ............................................................................................................... 8
3.5. Tests and Surveys ............................................................................................. 8
3.6. Modifications; Alterations ................................................................................... 8
3.7. Equipment Removal; Replacements; Routine Maintenance .............................. 8
3.8. Construction and Installation Activities ............................................................... 9
3.8.1. Structural Review ........................................................................................ 9
3.8.2. Performance Standards ............................................................................... 9
3.8.3. Licensee's Contractors ................................................................................ 9
3.8.4. Labor and Material Costs ............................................................................. 9
3.8.5. Coordination; Supervision ............................................................................ 9
3.8.6. Staging Area .............................................................................................. 1 O
3.8.7. As-Built Site Plans ..................................................................................... 10
3.9. Mineral and Water Rights ................................................................................. 10
3.9.1. General ...................................................................................................... 10
3.9.2. Mineral Rights ............................................................................................ 10
3.9.3. Notice ........................................................................................................ 11
4. TERM ..................................................................................................................... 11
4.1. Initial Term; Renewal Term(s) .......................................................................... 11
Feb. 25, 2020 Item #1 Page 7 of 64
4.2. Holdover Term ................................................................................................. 12
5. LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT ..................................... 12
5.1. Base License Fee ............................................................................................ 12
5.2. Annual Adjustments ......................................................................................... 12
5.3. Renewal Term Adjustments ............................................................................. 12
5.4. Late Charges .................................................................................................... 13
5.5. Interest ............................................................................................................. 13
5.6. Administrative Fees .......................................................................................... 13
5.7. Access Route Maintenance Fee ...................................................................... 14
5.8. Payment Procedures ........................................................................................ 14
6. GOVERNMENTAL APPROVALS .......................................................................... 14
6.1. Proprietary Capacity Acknowledgment ............................................................ 14
6.2. Permits and Other Governmental Approvals .................................................... 15
7. MAINTENANCE ..................................................................................................... 15
7 .1. Licensee's Maintenance Obligations ................................................................ 15
7.2. CMWD's Maintenance Obligations ................................................................... 15
8. INTERFERENCE ................................................................................................... 16
8.1. Licensee's Interference Obligations ................................................................. 16
8.2. CMWD's Interference Obligations .................................................................... 16
8.3. CMWD's Governmental Communications ........................................................ 16
9. TAXES ................................................................................................................... 17
9.1. Title to Licensee's Equipment and Improvements ............................................ 17
9.2. Possessory Interest Taxes ............................................................................... 17
9.3. Licensee's Tax and Assessment Obligations ................................................... 17
9.4. Licensee's Right to Contest Taxes or Assessments ........................................ 18
10. LIENS .................................................................................................................. 18
11. INDEMNIFICATION ............................................................................................. 18
11.1. Licensee's General Indemnification Obligations ........................................... 18
11.2. Licensee's Indemnification for Personnel Injuries ......................................... 19
11.3. Licensee's Defense of the CMWD ................................................................ 19
12. ENVIRONMENTAL PROVISIONS ...................................................................... 19
12.1. Licensee's General Environmental Obligations ............................................ 19
12.2. Hazardous Substances ................................................................................. 20
12.3. Licensee's Response to Hazardous Substance Release .............................. 20
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Feb. 25, 2020 Item #1 Page 8 of 64
12.4. Self Help ....................................................................................................... 20
12.5. Licensee's Environmental Indemnification Obligations ................................. 20
12.6. Licensee's Liability for Hazardous Substance Release ................................. 21
13. INSURANCE ....................................................................................................... 21
13.1. Licensee's Insurance Obligations ................................................................. 21
13.1.1. Requirements ......................................................................................... 22
13.1.2. lnentionally Omitted ................................................................................ 22
13.1.3. General Aggregate Limit ....................................................................... 22
13.1.4. Insurer Qualifications .............................................................................. 22
13.1.5. Certificates; Effective Dates ................................................................... 22
13.1.6. Self-Insurance ........................................................................................ 23
13.2. Contractors' Bonds Insurance ....................................................................... 23
13.3. No Limitation on Indemnification Obligations ................................................ 23
13.4. CMWD's Termination Right .......................................................................... 23
14. ASSIGNMENT; SUBLICENSE ............................................................................ 23
14.1. Assignment ................................................................................................... 23
14.2. Sublicense (Collocation) ............................................................................... 24
14.3. Continuing Obligation .................................................................................... 24
15. DEFAULT; REMEDIES ....................................................................................... 24
15.1. Defaults and Cure Periods ............................................................................ 24
15.2. Sums Paid During Default.. ........................................................................... 24
15.3. No Consequential Damages ......................................................................... 25
15.4. No Personal Liability for CMWD Officials, Employees or Agents .................. 25
15.5. Cumulative Remedies ................................................................................... 25
16. TERMINATION .................................................................................................... 25
16.1. Grounds for Termination ............................................................................... 25
16.2. Early Termination Fee ................................................................................... 26
17. REMOVAL AND RESTORATION ....................................................................... 26
18. CONDEMNATION ............................................................................................... 26
18.1. Permanent Takings ....................................................................................... 26
18.1.1. Termination and Award .......................................................................... 27
18.1.2. No Statutory Right to Terminate ............................................................. 27
18.2. Temporary Takings ....................................................................................... 27
19. DESTRUCTION .................................................................................................. 27
iii
Feb. 25, 2020 Item #1 Page 9 of 64
20. NOTICES ............................................................................................................ 28
21. BANKRUPTCY .................................................................................................... 28
22. SECURITY DEPOSIT .......................................................................................... 29
22.1. Amount ......................................................................................................... 29
22.2. Application or Use ......................................................................................... 29
23. MISCELLANEOUS .............................................................................................. 29
23.1. Interpretation; Construction ........................................................................... 29
23.2. Unenforceability; Severability ........................................................................ 30
23.3. Time for Performance; Force Majeure .......................................................... 30
23.4. Integration; Entire Agreement ....................................................................... 31
23.5. Successors and Assigns ............................................................................... 31
23.6. Amendments or Modifications ....................................................................... 31
23.7. Waivers ......................................................................................................... 31
23.8. Governing Law; Venue; Attorneys' Fees ....................................................... 31
23.9. Government Claims Act ................................................................................ 32
23.10. Public Records Act Disclosure ................................................................... 32
23.11. Estoppels ................................................................................................... 32
23.12. Brokers ...................................................................................................... 33
23.13. Survival ...................................................................................................... 33
23.14. Submission for Inspection; No Offer .......................................................... 33
23.15. Execution; Counterparts ............................................................................ 33
EXHIBIT A ..................................................................................................................... 35
EXHIBIT 8 ..................................................................................................................... 36
EXHIBIT c.: ................................................................................................................... 37
EXHIBIT D ................................................................................................... 38
iv
Feb. 25, 2020 Item #1 Page 10 of 64
COMMUNICATIONS SITE LICENSE AGREEMENT
This Communications Site License Agreement (this "License") dated
_ __,O ....... a~/-""'-'Q_t-+J---"{l-""tJ'"""'(}=O __ (the "Effective Date") is between the Carlsbad Municipal Water
District,' (the/ "CMWD") and Verizon Wireless (VAW) LLC, d/b/a Verizon Wireless
("Licensee").
BACKGROUND
A. WHEREAS, the CMWD, a subsidiary District of the City of Carlsbad, owns or controls
that certain real property commonly known as La Costa High Reservoir Site in the City
of Carlsbad, County of San Diego, State of California (APN: 223-792-19-00 (the
"Property"), as legally described in Exhibit A attached hereto and incorporated
herein;
B. WHEREAS, Licensee constructs, installs, owns, operates and maintains wireless
communication facilities as its primary business;
C. WHEREAS, CMWD and Licensee are parties to that certain License Agreement dated
December 20, 1995 ("Existing Agreement"), which Existing Agreement granted to
Licensee right to use a portion of the Property for use as a mobile communications
facility.
D. WHEREAS, the Existing Agreement was extended for three (3) years via letter by
CMWD on June 8, 2000, and expired on or about May of 2003; thereafter, the Existing
Agreement has been in holdover status as described in Section eight (8) of the
Existing Agreement. The parties hereto now desire to replace the Existing Agreement
with this License.
E. WHEREAS, Licensee desires to continue its 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 the
corresponding Conditional Use Permit No. CUP 94-11x1 (the "Conditional Use
Permit") attached to this License as Exhibit B and will be made a part of this License.
NOW, THEREFORE, for good, valuable and sufficient consideration received and
acknowledged, the CMWD and Licensee agree as follows:
page 1 / 34 Feb. 25, 2020 Item #1 Page 11 of 64
AGREEMENT
1. DEFINITIONS
"Access Route" means the non-exclusive license for physical ingress and egress over
the Property from Corintia Street to the License Area in the location shown on Exhibit C.
"Access Route Maintenance Expenses" means all costs, if any, incurred by the CMWD,
in its reasonable discretion to: (1) operate, maintain and/or repair the Access Route,
which includes without limitation all related costs for labor and material, so as to keep the
Access Route in a neat, clean, safe and good condition as determined by the CMWD in
its reasonable discretion; (2) add or replace improvements on, under or over the Access
Route mandated under any applicable Laws; or (3) replace improvements on, under or
over the Access Route as amortized over their useful lives. Access Route Maintenance
Expenses does not include any maintenance, repairs or replacements in connection with
damage to the Access Route (other than ordinary wear and tear) caused by Licensee, its
Agents or Invitees.
"Affiliate" means any person or entity that directly or indirectly Controls, is Controlled by
or is under Common Control with Licensee and has a net worth equal to or greater than
at least ten million dollars ($10,000,000).
"Agent" means any agent, employee, officer, official, contractor, subcontractor and/or
representative of a party to this License in relation to the License Area.
"Assignment" means as follows: (a) a merger, acquisition, or other transfer of a
controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee's sale,
assignment, encumbrance, pledge, or other transfer of any part of its interest in or rights
with respect to the License Area; and (c) any action by Licensee to permit any portion of
the License Area to be occupied by anyone other than itself, including a sublicense.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et
seq., as may be amended or superseded.
"Best Management Practices" means all those environmental or operational standards
or guidelines for common and accepted practices appropriate for the business that
Licensee and its Agents or Invitees engage in on the Property and/or such guidelines as
have been articulated by pertinent trade associations, professional associations or
regulatory agencies.
"Broker" means any licensed real estate broker or other person who could claim a right
to a commission or finder's fee in connection with the license contemplated herein.
"Claim" means any and all liabilities, losses, costs, claims, judgments, settlements,
damages, liens, fines, penalties and expenses, whether direct or indirect.
page 2 / 34 Feb. 25, 2020 Item #1 Page 12 of 64
"Commencement Date" means the first day of the month after which the Building Permit
is approved.
"Common Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment;
Sublicense), two entities that are both controlled by the same third entity.
"Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment;
Sublicense), as follows: (a) as to a corporation, the ownership of stock having the right to
exercise more than 50% of the total combined voting power of all classes of stock of the
controlled corporation, issued and outstanding; or (b) as to partnerships and other
business associations forms, ownership of more than 50% of the beneficial interest and
voting control of such association.
"Court" means San Diego County Superior Court.
"Environmental Costs" means any and all damages, fines, costs and fees that arise
from: (i) any violation of or material noncompliance with any applicable Environmental
Laws; (ii) any violation of or material noncompliance with any environmental provision in
this License; (iii) immediate response, remediation and restoration actions; (iv)
governmental oversight and participation; (v) actual fees and costs for project managers,
attorneys, legal assistants, engineers, consultants, accountants and experts, whether
employed with the damaged party or not; (vi) any diminution in value, loss or restriction
on use of the Property; and (vi) any damages, fines, costs or fees whether taxable as
costs or not, incurred before, at or after any administrative or judicial proceeding, appeal
or any other judicial review.
"Environmental Laws" means any and all Laws which govern materials, substances,
regulated wastes, emissions, pollutants, water, storm water, ground water, wellfield and
wellhead protection, cultural resources protection, animals or plants, noise or products
and relate to protection for health, safety or the environment and natural resources,
including land, sediments, water, groundwater and stormwater.
"Equipment" means antennas, antenna support structures and any associated utility or
equipment boxes, and battery backup, transmitters, receivers, radios, amplifiers, ancillary
fiber-optic cables, wiring and ancillary equipment for the transmission and reception of
radio communication signals for voice and other data transmission, including the means
and devices used to install Equipment at the License Area, peripherals, and ancillary
equipment and installations, including wiring, cabling, power feeds and any approved
signage attached to Equipment.
"ETF" is an acronym for "early termination fee" and is defined in Section 16 (Termination).
"Governmental Approvals" means any governmental or regulatory licenses, permits
and other approvals necessary for Licensee to install, operate and maintain Equipment
on the License Area.
page 3 / 34 Feb. 25, 2020 Item #1 Page 13 of 64
"Government Claims Act" means California Government Code§§ 810 et seq., as may
be amended or superseded.
"Hazardous Substance" means any and all substances, materials, pollutants,
contaminants or products defined as or designated as hazardous, toxic, radioactive,
dangerous or regulated wastes or materials or any other similar term in or under any
applicable Environmental Laws. The term "Hazardous Substance" also includes, but is
not limited to, (1) fuels, petroleum or petroleum-based products; or (2) any material or
substance defined as a "hazardous substance," or "pollutant" or "contaminant" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(codified as 42 U.S.C. §§ 9601 et seq.) or California Health & Safety Code§ 25316, as
both may be amended or superseded.
"Holdover Fee" means the increased fee assessed in the event that Licensee continues
to use or occupy the License Area after the License expires or terminates, and as is
defined in Section 4.2 (Holdover Term).
"Holdover Term" means the month-to-month license on the same terms and conditions
that License automatically converts to in the event that Licensee continues to use or
occupy the License Area after the License expires or terminates, and as is defined in
Section 4.2 (Holdover Term).
"Impositions" means any and all taxes, assessments, charges, excises and exactions
whatsoever, and as is defined in Section 9.3 (Licensee's Tax and Assessment
Obligations).
"Indemnified Parties" means the CMWD, its Agents, Invitees and their respective heirs,
legal representatives, successors and assigns.
"Interference" means the same as defined by 47 C.F.R. § 2.1, as may be amended,
which defines the term as the effect of unwanted energy due to one or a combination of
emissions, radiations, or inductions upon reception in a radio communication system,
manifested by any performance degradation, misinterpretation or loss of information
which could be extracted in the absence of such unwanted energy.
"Invitee" means any client, customer, invitee, guest, tenant, subtenant, licensee,
sublicensee, site manager or assignee and sublicensee of a party to this License in
relation to the License Area.
"Laws" means all present and future statutes, ordinances, codes, orders, regulations and
implementing requirements and restrictions of federal, state, county and municipal
authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as
adopted or as amended at the time in question.
"License Area" means that certain ground space on the Property more particularly
described in Exhibit C attached hereto and incorporated herein.
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"Licensee's Share" means six percent (6%) of Access Route Maintenance Expenses,
as determined by the number of days Licensee, its Invitees and Agents are anticipated to
use the Access Route in a 365-day calendar year.
"Permitted Use" means construct, install, operate, maintain, remove and repair the
Equipment, in certain locations and configurations to transmit and receive wireless
communications signals operated in compliance with all applicable Laws, and as is
defined in Section 3.1 (Permitted Use; Equipment).
"Plans" means Exhibit C that shows the particular locations and configurations of the
Equipment permitted under this License.
"Property" means that certain real property commonly known as La Costa High ReseNoir
Site in the City of Carlsbad, County of San Diego, State of California (APN: 223-792-19-
00), as legally described in Exhibit A attached hereto and incorporated herein.
"Release" means, with respect to any Hazardous Substance, any actual or imminent
discharging, disposing, dumping, emitting, emptying, escaping, injecting, jettisoning,
leaching, leaking, pouring, pumping, releasing, or spilling on, under or about the License
Area, Access Route, Utilities Route or Property.
"Staging Area" means certain space on the Property contiguous with the License Area
to the extent reasonably necessary to construct and/or install the Equipment that
Licensee may use on a temporary and non-exclusive basis, and as is defined in Section
3.8.6 (Staging Area).
"Tests" means tests, surveys and other reasonably necessary inspections, and as is
defined in Section 3.5 (Tests and Surveys).
"Utilities Route" means the non-exclusive license for utility installation on, under or over
the Property from Corintia Street to the License Area in the location shown on Exhibit C.
2. LICENSE AREA
2.1. Grant and Scope
Subject to the terms and conditions in this License, the CMWD licenses to Licensee
License Area, together with a non-exclusive right to use the Access Route and Utilities
Route, for only the Permitted Use under this License and for no other purpose whatsoever
without the CMWD's prior written consent, which the CMWD may withhold in its sole and
absolute discretion for any or no reason. Licensee acknowledges that this License does
not grant Licensee any interest in the Property in whole or in part. This License and all
Licensee's rights and/or privileges to use the License Area will remain subject and
subordinate to all leases, subleases, licenses, sublicenses, easements, reservations,
page 5 / 34 Feb. 25, 2020 Item #1 Page 15 of 64
covenants, conditions, restrictions and exceptions, whether recorded or unrecorded, that
exist prior to the Effective Date.
2.2. License Area Condition
Except as may be specifically and explicitly provided otherwise in this License, the CMWD
makes no warranties or representations whatsoever about the Property's condition,
fitness or suitability for Licensee's use. Licensee expressly warrants and represents to
the CMWD that Licensee or its agent inspected the Property and the License Area, and
any environmental or other conditions on the Property and the License Area, and accepts
the License Area in its present "AS-IS" and "WITH ALL FAULTS" condition. Licensee
expressly acknowledges and agrees that neither the CMWD nor its Agents made any
warranties, representations or promises to Licensee or its Agents about the Property, in
whole or in part, the License Area, in whole or in part, or any aspect about the Property
or License Area including without limitation any structures or improvements, utilities or
Hazardous Substances.
2.3. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, and to the extent applicable to this License, the
CMWD expressly advises Licensee, and Licensee expressly acknowledges, that a
Certified Access Specialist (as defined in California Civil Code§ 55.53) has not inspected
any License Area in whole or in part to determine whether it meets all applicable
construction-related accessibility requirements.
2.4. No Right to Record
This License does not create or convey any real property right, title or interest in the
License Area, in whole or in part. Licensee may not record this License or any
memorandum or other instrument in reference to this License without the CMWD's prior
written consent, which the CMWD may withhold or condition in its sole and absolute
discretion.
3. USE
3.1. Permitted Use; Equipment
After the Commencement Date, Licensee may use the License Area to construct, install,
operate, maintain, remove and repair the Equipment, in the locations and configurations
more particularly described in Exhibit C attached hereto and incorporated herein (the
"Plans"), to transmit and receive wireless communications signals operated in
compliance with all applicable Laws (the "Permitted Use"), for purposes reasonably
necessary to accomplish the Permitted Use, but for no other purpose whatsoever without
the CMWD's prior written consent, which the CMWD may withhold for any or no reason
in the CMWD's sole discretion.
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3.2. Prohibited Uses
Licensee shall not use the License Area in whole or in part in any unlawful manner or for
any illegal purpose. In addition, Licensee shall not use the License Area in whole or in
part in any manner that interferes with the maintenance, operation or future operation of
the CMWD's water tank, or constitutes a nuisance either under applicable Laws or as
determined by the CMWD in its reasonable judgment. Licensee shall take all precautions
to eliminate any nuisances or hazards in connection with its uses and activities on or
about the License Area. Licensee acknowledges and agrees that its rights under this
License do not authorize Licensee to erect, post or maintain, or permit others to erect,
post or maintain, any signs, notices, graphics or advertisements whatsoever on the
License Area, except signs that may be required under applicable Laws for site
identification and/or public health and safety reasons.
3.3. Access
3.3.1. Licensee Access
Except as may be specifically provided otherwise in this License, Licensee may use the
Access Route, 24 hours per day and seven days per week, for overland vehicular and
pedestrian ingress and egress between the License Area and Corintia Street for purposes
reasonably related to the Permitted Use. The CMWD may impose reasonable rules and
regulations on the manner in which Licensee uses the Access Route, which includes
without limitation rules and regulations (1) for the locations in which Licensee, its Agents,
Invitees and other personnel may park vehicles and equipment on the Access Route; (2)
necessary to secure the Property; (3) necessary to ensure access to the Property for all
users authorized by the CMWD; and (4) necessary to maintain the safety of the traveling
public on and around the Property. The CMWD will issue to Licensee, and Licensee shall
safeguard and not share with others, any keys or codes necessary to access the License
Area via the Access Route.
3.3.2. Entry and Inspection
The CMWD and its Agents may, after reasonable advance written notice and at any time
without notice in case of emergency or for any purpose related to protecting the Property,
enter onto and inspect the License Area. During the six (6) months before the expiration
of the Term, the CMWD may exhibit the License Area to prospective licensees at times
approved by Licensee and in the presence of Licensee or its Agent. In an emergency, as
reasonably determined by the CMWD, the CMWD may enter on or pass through the
License Area. If, under such emergency circumstances, Licensee is not present to open
the License Area, the CMWD may enter by any means without liability to Licensee except
for failure to exercise reasonable care under the circumstances. The CMWD's actions
under this Section 3.3.2 will not constitute an actual or constructive eviction or relieve
Licensee of any obligation with respect to making any repair, replacement, or
improvement or complying with any law, order, or requirement of any government or other
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authority. No provision of this Section 3.3.2 shall be construed as obligating the CMWD
to perform any maintenance, repairs, alterations or improvements.
3.4. Utilities
Licensee shall be solely responsible to secure its own utilities for its Permitted Use and
will not be permitted to submeter from any electrical service provided to the CMWD.
Licensee shall timely pay when due all charges for all utilities furnished to the Equipment.
3.5. Tests and Surveys
At any time throughout the Term, Licensee will have the right, but not the obligation, to
conduct necessary tests, surveys and other reasonably necessary inspections
(collectively "Tests") on the License Area, Access Route and/or Utilities Route to
determine suitability for the Permitted Use; provided that (1) Licensee has first furnished
the CMWD with all up-to-date insurance documentation required in Section 13
(Insurance) under this License; (2) Licensee has provided the CMWD with at least 24
hours' prior notice; (3) Licensee complies with all the CMWD's reasonable rules and
regulations necessary to avoid undue interference with other authorized activities or
operations on the Property; and (4) Licensee shall promptly return any areas on the
Property affected by any Tests to the condition that existed immediately prior to such
Tests, reasonable wear and tear excepted.
3.6. Modifications; Alterations
Except as expressly provided otherwise in this License, Licensee may not modify or alter
the Equipment or the License Area in any manner other than as shown on the Plans
without the CMWD's prior written consent, which the CMWD will not unreasonably
withhold or condition. After Licensee completes any approved modification or alteration,
Licensee shall produce or cause to be produced a revised Exhibit C that shows all
Equipment and other improvements in their current, as-built location and configuration.
Such revised Exhibit C will not become effective until both parties sign each page thereto.
3.7. Equipment Removal; Replacements; Routine Maintenance
At any time after the Commencement Date, Licensee will have the right to remove any
Equipment, repair or replace any damaged or inoperable Equipment with substantially
similar and technologically equivalent Equipment and perform routine maintenance
without the CMWD's prior consent; provided, however, that Licensee must provide the
CMWD with notice within 10 days after any removal, repair or replacement work occurs.
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3.8. Construction and Installation Activities
3.8.1. Structural Review
Licensee may not commence any construction or installation activities on the Property
that involve new structures or increased loading on existing structures without prior written
approval from the City Engineer or the City Engineer's designee. Licensee shall submit
its written request for approval together with complete engineering plans, specifications
and a structural analysis report, all in a form reasonably acceptable to the City Engineer.
The City Engineer may (but is not obligated to) review all or part of such materials and
may reasonably approve or reject them for cause.
3.8.2. Performance Standards
Licensee, its Agents, employees, contractors and subcontractors shall perform all work
on the Property and License Area in a good, safe and workmanlike manner, in strict
compliance with the Plans and all applicable Laws. All installed Equipment must be high
quality, safe, fire resistant, modern in design and attractive in appearance, all as approved
by the CMWD.
3.8.3. Licensee's Contractors
Licensee shall use only qualified and trained persons and appropriately licensed
contractors for all work performed on or about the License Area. At least 10 business
days before any work commences on or about the License Area that requires the
CMWD's prior approval, Licensee shall provide the CMWD with: (1) a schedule with all
activities to be performed in connection with the work; and (2) a list with all the names,
contractor's license numbers and business addresses for all contractors who will perform
the work.
3.8.4. Labor and Material Costs
Licensee shall be responsible for all direct and indirect costs (labor, materials, and
overhead) in connection with designing, purchasing and installing all Equipment in
accordance with the Plans and all applicable Laws. Licensee shall timely pay for all labor,
materials, Equipment and all professional services related to the Permitted Use or
furnished to the License Area at Licensee's direction or for Licensee's benefit.
3.8.5. Coordination; Supervision
Licensee must coordinate all its installation, construction and other work on or about the
License Area with the CMWD so as to avoid any interference (physical, electronic or
otherwise) with any existing utilities, substructures, facilities, the CMWD or the CMWD's
municipal functions and/or operations. The CMWD may, but will not be obligated to,
supervise any construction activities in connection with this License that require the
CMWD's prior review and approval. Upon a written demand from the CMWD, Licensee
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shall reimburse the CMWD for its reasonable cost to supervise such construction
activities.
3.8.6. Staging Area
For no more than 90 continuous days after Licensee commences construction work,
Licensee may use, on a temporary and non-exclusive basis, certain space on the
Property contiguous with the License Area to the extent reasonably necessary to
construct and/or install the Equipment and subject to the CMWD's prior approval not to
be unreasonably withheld ("Staging Area"). The CMWD may withhold or revoke its
consent to allow Licensee's to use any Staging Area when Licensee's use unreasonably
interferes with other persons or entities authorized to use the Property.
3.8.7. As-Built Site Plans
Within 90 days after Licensee completes any construction work on the Property that
requires the CMWD's prior review and approval, Licensee shall furnish the CMWD with
as-built site plans that depict all the Equipment and any improvements in the then-current
location and configuration. Licensee shall also provide such as-built site plans in a native
or portable document format.
3.9. Mineral and Water Rights
3.9.1. General
The CMWD reserves the right to install, lay, construct, maintain, repair and operate such
sanitary sewers, drains, stormwater sewers, pipelines, manholes and connections; water,
oil, and gas pipelines; telephone and telegraph power lines; and the appliances and
appurtenances necessary or convenient in connection therewith, in, over, upon, through,
across and along the License Area, and any part thereof, and to enter the License Area
for any and all such purposes. The CMWD also reserves the right to grant franchises,
easements, rights-of-way and permits in, over, upon, through, across and along any and
all portions of the License Area for all such purposes described in the preceding sentence.
The CMWD shall not exercise any rights reserved under this Section 3.9.1 so as to
interfere unreasonably with Licensee's operations or access under this License or to
impair the security of any secured creditor of Licensee. The CMWD agrees that rights
granted to third parties by reason of this Section 3.9.1 must contain provisions that the
surface of the License Area will be restored as nearly as practicable to its original
condition upon the completion of any construction.
3.9.2. Mineral Rights
The CMWD reserves to itself, its successors and assigns, and excepts from the License
Area, any and all oil, oil rights, petroleum, minerals, mineral rights, natural gas rights, and
other hydrocarbon substances by any name known whatsoever, geothermal resources
(as defined in California Public Resources Code § 6903), and all products derived from
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any of the foregoing, that may be within or under the land, together with the perpetual
right of drilling, mining, exploring, prospecting and operating therefore and storing in and
removing the same from the License Area or any other land, including the right to
whipstock or directionally drill and mine from lands other than those conveyed hereby, oil
or gas wells, tunnels and shafts into, through or across the subsurface of the License
Area, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts
under and beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel, equip,
maintain, repair, deepen and operate any such wells or mines; without, however, the right
to enter, drill or re-drill, tunnel or re-tunnel, equip, maintain, repair, mine, store, explore,
prospect, remove, whipstock or directionally drill or to bottom and/or operate on, from or
through the surface or the upper 500 feet of the subsurface of the License Area. The
CMWD further reserves to itself, its successors and assigns and exempts from the
License Area, any rights to subsurface storage of brine, carbon, water or other
substances. The CMWD further reserves to itself, its successors and assigns, the
exclusive right to grant and transfer all or a portion of the rights reserved in this Section
3.9.2.
3.9.3. Notice
At least six (6) months prior to exercising any of its mineral rights on the License Area,
the CMWD shall give Licensee written notice of any drilling, exploration or production
plans to that Licensee may relocate any Equipment or operations on the License Area so
as to not interfere with such plans. Licensee's service will not be interrupted, and Licensee
shall have the right to place a temporary cell site and antenna structure on the Property
at a mutually agreed upon location during any such relocation. The CMWD shall pay all
costs incurred by Licensee for relocating Licensee's equipment from the License area as
required by the CMWD.
4. TERM
4.1. Initial Term; Renewal Term(s)
The initial term under this License (the "Initial Term") will commence on the
Commencement Date and will automatically expire ten (10) years from the
Commencement Date, unless earlier terminated in accordance with this License. Upon
determination of the Commencement Date, Licensee shall execute a Commencement
Date Memorandum confirming the actual date the License commences and terminates.
The form of the Commencement Date Memorandum is shown in Exhibit D
("Commencement Date Memorandum") attached hereto and by this reference made
part of this Lease. After the Initial Term expires, this License will automatically renew for
two (2) additional 5-year terms (each a "Renewal Term") unless Licensee is in default at
the time the Initial Term or first Renewal Term, if any, expires or Licensee irrevocably
notifies the CMWD that Licensee does not intend to renew this License within 90 days
before the Initial Term or first Renewal Term, if any, expires. The parties refer to the Initial
Term and any applicable Renewal Term(s) as the "Term".
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4.2. Holdover Term
Licensee will have no right or privilege whatsoever to use or occupy the License Area in
any manner or for any purpose after this License expires or terminates. In the event that
Licensee continues to use or occupy the License Area after this License expires or
terminates, this License will automatically convert to a month-to-month license on the
same terms and conditions (the "Holdover Term"), except that (1) the License Fee will
be automatically increased to one hundred thirty percent (130%) over the License Fee
payable in the immediately previous year (the "Holdover Fee"), and will continue to
increase in accordance with Section 5.2 (Annual Adjustments) and Section 5.3 (Renewal
Term Adjustments); and (2) either the CMWD or Licensee may terminate such license on
30 days' written notice for any or no reason.
5. LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT
5.1. Base License Fee
Licensee shall pay the CMWD Three Thousand Eight Hundred Fifty Dollars
($3,850.00) (the "License Fee") each month, in advance, without any prior demand,
setoff, deduction or counterclaim for any reason.
Additionally, Licensee shall also make a one-time lump sum payment to CMWD of
Seventeen Thousand Five Hundred Dollars ($17,500.00) as a construction
enhancement fee to offset required security facilities to be installed by CMWD due to
Licensee's proximity to a water reservoir within forty-five (45) days of the commencement
date of this License.
5.2. Annual Adjustments
On January 1 each year throughout the Term, the License Fee will be automatically
increased three percent (3%) over the License Fee payable in the immediately previous
year; provided, however, that no such automatic increase will occur in the first year of any
Renewal Term when the parties adjust the License Fee as provided in Section 5.3
(Renewal Term Adjustments).
5.3. Renewal Term Adjustments
Subject to the terms and conditions in this Section 5.3, the parties shall adjust the Monthly
Fee for each Renewal Term, if any, to reflect the current market price (the "Adjusted
License Fee") for similarly situated wireless communications agreements in the Los
Angeles County, Riverside County, Orange County and San Diego County region. The
CMWD shall use good faith efforts to send written notice to Licensee with the Adjusted
License Fee (the "Adjustment Proposal") for the Renewal Term no later than 30 days
before the Initial Term (or the then-current Renewal Term, if applicable) expires. Licensee
shall pay the Adjusted License Fee as determined by the CMWD unless Licensee objects
in a written notice to the CMWD that contains documentation to support Licensee's
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objection (the "Objection Notice") within 20 days after the Adjustment Proposal. Absent
a timely Objection Notice from Licensee, the amount identified in the CMWD's Adjustment
Proposal will automatically become the Adjusted License Fee. If Licensee sends a timely
Objection Notice and the parties cannot agree on the Adjusted License Fee on or before
the date on which the Renewal Term commences, Licensee shall pay the Holdover Fee
until the parties establish the new Adjusted License Fee as provided in this Section 5.3.
In such case, within 10 days after the Renewal Term commences, the parties shall in
good faith mutually appoint an appraiser with at least two years' experience in wireless
facilities appraisal. If the parties cannot mutually appoint such an appraiser within the said
10-day period, then the CMWD and Licensee shall each appoint their own appraiser
within 10 days thereafter. The two appraisers shall appoint a third appraiser within 10
days thereafter, and all three appraisers shall collectively determine the appropriate
Adjusted License Fee in a written report submitted to the parties within 15 days after the
third appraiser's appointment. Licensee shall pay the difference between the Holdover
Fee paid during the Renewal Term and the Adjusted License Fee that would have been
paid during the Renewal Term within 15 days after the parties establish the new Adjusted
License Fee; provided, however, that Licensee will not be entitled to any refund should
the new Adjusted License Fee be less than the Holdover Fee. The CMWD and Licensee
will each pay their respective costs for any unilaterally selected appraiser; the parties shall
equally share the cost for any mutually selected appraisers or any third appraiser selected
by the unilaterally selected appraisers. Notwithstanding anything in this License to the
contrary, in the event that the fair market rate appraises for less than current License Fee,
the parties shall not adjust the License Fee and the License Fee shall escalate as
provided in Section 5.2 (Annual Escalations).
5.4. Late Charges
In the event that Licensee fails to pay any License Fee or any other amount payable to
the CMWD within 10 days after such amounts are due and unpaid, such amounts will be
subject to a late charge equal to six percent (6%) of unpaid amounts. Licensee and the
CMWD agree that the late charge is a reasonable estimate of the amount that the lateness
of the License Fee will cost the CMWD.
5.5. Interest
Any License Fees and all other amounts payable to the CMWD other than late charges
will bear interest at ten percent (10%) per annum or the highest rate permitted by Law
(whichever is greater) from the due date when not paid within 10 days after due and
payable to the CMWD. Any sums received shall be first applied towards any interest, then
to the late charge and lastly to principle amount owed. Any interest or late charge
payments will not alone excuse or cure any default by Licensee.
5.6. Administrative Fees
Within 60 days after the parties fully execute this License, Licensee shall pay to the
CMWD a nonrefundable administrative fee equal to Eight Thousand and 00/100 Dollars
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($8,000.00) (the "Administrative Fee") to cover the CMWD's costs to review and execute
this License. In addition, for any approval under this License for which the CMWD's prior
consent is required, Licensee shall reimburse the CMWD for its reasonable costs directly
related to the CMWD's review and consideration of the request.
5.7. Access Route Maintenance Fee
Throughout the Term, and in addition to the License Fee and any other sums paid by
Licensee to the CMWD in connection with this License, Licensee shall pay to the CMWD
Licensee's Share of Access Route Maintenance Expenses as provided in this Section
5.7. Not more than once in any 12-month period, the CMWD may demand that Licensee
pay Licensee's Share. Licensee shall pay Licensee's Share to the CMWD within 10 days
after the CMWD tenders to Licensee a reasonably detailed statement with the Access
Route Maintenance Expenses. In the event that Licensee objects to any expense on such
statement, Licensee will be permitted to reasonably inspect any invoices and/or receipts
directly related to the disputed expenses so long as Licensee first pays the full amount
under protest.
5.8. Payment Procedures
Licensee shall deliver all payments due under this License to 1635 Faraday Ave.,
Carlsbad, CA 92008. The designated place of payment may be changed from time-to-
time upon written notice. Payments must be made by check payable to the CMWD of
Carlsbad. No payment by Licensee or receipt by the CMWD of a lesser amount than
payment due will be deemed to be other than a payment made on account for the total
payment due, nor will any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction. The
CMWD's acceptance of such checks or payment will be without prejudice to the CMWD's
right to recover the balance of the amount due or pursue any other remedy in this License.
6. GOVERNMENTAL APPROVALS
6.1. Proprietary Capacity Acknowledgment
The CMWD and Licensee expressly acknowledge and agree the CMWD enters this
License solely in its proprietary capacity as the owner or controller of the Property and
not in its regulatory capacity as a local public agency. Licensee acknowledges and agrees
that any federal or state Laws applicable to the CMWD in its regulatory capacity will not
be applicable to the CMWD in its proprietary capacity and Licensee will not seek to have
such Laws applied to the CMWD or any approval, disapproval, act or failure to act in
connection with this License. Licensee further acknowledges and agrees that (1) only the
terms and conditions in this License will govern the criteria and timeframes for the
CMWD's decisions or actions in its proprietary capacity in response to Licensee's
requests for approvals in connection with this License; (2) any approval or disapproval
the CMWD may issue in its proprietary capacity in connection with this License will not
be deemed to be an approval or disapproval the CMWD may be required to issue in its
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regulatory capacity; and (3) any approval or disapproval the CMWD may issue in its
proprietary capacity will not give preference to Licensee or Licensee's applications over
other persons or applications in any regulatory proceeding solely based on this
proprietary relationship.
6.2. Permits and Other Governmental Approvals
Licensee shall not commence any work at the License Area until Licensee obtains all
necessary Governmental Approvals, which includes without limitation a conditional use
permit, grading permit, building permit, and/or any other permit obtained through any
other governmental agency with jurisdiction over the Property or the Equipment, and
tenders full and complete copies for each Governmental Approval to the CMWD. Subject
to the provisions and limitations in Section 6.1 (Proprietary Capacity Acknowledgment),
and only to the extent permissible under applicable Laws, the CMWD will reasonably
cooperate with Licensee's efforts to obtain and maintain all necessary Governmental
Approvals.
7. MAINTENANCE
7.1. Licensee's Maintenance Obligations
At all times throughout the Term, Licensee shall maintain, repair and secure its Equipment
and all other personal property and improvements brought onto the Property in good,
orderly and safe condition. Licensee shall keep the License Area free of debris, graffiti
and any other dangerous, noxious or offensive condition which would create a hazard or
undue vibration, heat, noise or interference, and shall correct any such conditions within
48 hours after notice. Licensee shall post, and at all times maintain in good condition, a
sign on the License Area, in a location reasonably acceptable to both the CMWD and
Licensee, that contains (1) the site operator name; (2) the site identification or reference
number that corresponds with this facility; and (3) a working telephone number that
connects to a live person that can exert power-down control over the Equipment.
7.2. CMWD's Maintenance Obligations
The CMWD shall not be responsible for repairs to or maintenance of the License Area,
Staging Area while being used by Licensee, or Equipment, or for any associated costs
except to the extent caused by the CMWD or its Agents. The CMWD shall maintain, at its
sole expense, the Access Route in a manner sufficient to allow access, weather and
seasonal conditions permitting. For Access Route maintenance purposes, the CMWD, in
its sole discretion, shall assess Licensee an annual Access Route maintenance fee in an
amount reasonably proportional to the accelerated wear and tear caused by Licensee's
Access Route use. Licensee acknowledges that the Access Route as currently
constructed and maintained is sufficient to provide it with access. The CMWD, under no
circumstances, shall be required to expand or enlarge the Access Route. The Access
Route may be altered in design or location by the CMWD provided that the alteration does
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not materially impair Licensee's ability to access the License Area. If Licensee causes
any damage to the Access Route, Lessee shall promptly repair same at its sole expense.
8. INTERFERENCE
8.1. Licensee's Interference Obligations
Licensee shall not operate the Equipment, cause or allow others to operate the
Equipment or use the License Area in a manner that causes Interference with other
communication transmission or reception equipment lawfully used by the CMWD, its
Agents or any third parties authorized by the CMWD to use the Property. Any such
Interference will be deemed a default under this License and, after Licensee receives
notice that such Interference exists, Licensee will be responsible to promptly eliminate
any such Interference at no cost to the CMWD. The CMWD agrees to reasonably
cooperate with Licensee's efforts to locate the Interference source. In the event that
Licensee does not promptly cure such Interference, the parties acknowledge that
continued Interference with communication transmission or reception equipment lawfully
used by the CMWD, its Agents or any third parties authorized by the CMWD to use the
Property may result in irreparable harm and, therefore, the CMWD will have the right to
bring an action against Licensee to enjoin such Interference or terminate this License.
8.2. CMWD's Interference Obligations
The CMWD shall not operate communications equipment on the Property, or cause or
allow any third parties authorized by the CMWD to use the Property to operate
communications equipment on the Property, in a manner that causes Interference with
other communication transmission or reception equipment lawfully used by Licensee, its
Agents or Invitees. Any such Interference will be deemed a default under this License
and, after the CMWD receives notice that such Interference exists, the CMWD will be
responsible to use best efforts to cause such Interference to cease. Licensee agrees to
reasonably cooperate with the CMWD's efforts to locate the Interference source. In the
event that the CMWD does not promptly cure such Interference, the parties acknowledge
that continued Interference with communication transmission or reception equipment
lawfully used by Licensee, its Agents or Invitees may result in irreparable harm and,
therefore, Licensee will have the right to bring an action to enjoin such Interference or
terminate this License. Nothing in this Section 8.2 is intended to limit, prohibit or enjoin
the CMWD from entering into any agreements with any third parties for uses on the
Property similar to the Permitted Use.
8.3. CMWD's Governmental Communications
Licensee acknowledges that the CMWD uses communications equipment on the Property
in connection with its governmental, regulatory and/or operational functions, that such
equipment and/or the frequencies on which such equipment operates may change from
time to time, and that communications in connection with the CMWD's governmental or
regulatory functions are paramount over Licensee's operations. Notwithstanding anything
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in this License to the contrary, any Interference with Licensee's operations or Equipment
caused by any communications equipment used by the CMWD in its capacity as a local
public agency in connection with its governmental or regulatory functions (1) will not be a
default under this License; (2) will not entitle Licensee to demand a cure to such
Interference; and (3) will not entitle Licensee to bring any action for any injunction.
9. TAXES
9.1. Title to Licensee's Equipment and Improvements
All Equipment and other improvements constructed, installed or placed on the License
Area by Licensee or at Licensee's request or direction will be and at all times remain
Licensee's personal property and will not be deemed fixtures or real property for any
purpose, whether such objects would be deemed fixtures or real property under
applicable Laws or not.
9.2. Possessory Interest Taxes
Licensee understands and acknowledges that (1) this License and/or any improvements
placed on the Property may create a possessory interest, as defined in California
Revenue and Taxation Code§ 107, subject to taxation; (2) Licensee will be required to
timely pay any and all such possessory interest taxes; and (3) any transfer, assignment
or sublicense in connection with this License, and any options to extend or renew this
License, may constitute a change in ownership for taxation purposes and therefore result
in a revaluation for any possessory interest created under this License. Licensee further
acknowledges that Licensee will have no claim for damages against the CMWD for any
possessory interest taxes levied against the License Area or the Equipment because it
received actual notice that this License may create a possessory interest and that
Licensee would be solely liable for any and all taxes levied on such possessory interest.
9.3. Licensee's Tax and Assessment Obligations
Licensee agrees to pay when due and prior to delinquency any and all taxes,
assessments, charges, excises and exactions whatsoever (collectively, "Impositions"),
which includes without limitation any possessory interest taxes, that arise from or in
connection with Licensee's uses on the License Area or the Equipment that may be
imposed on Licensee under Law. Licensee shall not allow or suffer any lien for any
Impositions to be imposed on the License Area or Equipment. In the event that the CMWD
receives any Imposition notices on or in connection with the License Area or Equipment,
the CMWD shall promptly (but in no event later than 30 calendar days after receipt)
forward the same, together with reasonably sufficient written documentation that details
any increases in the taxable or assessable amount attributable to Equipment.
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9.4. Licensee's Right to Contest Taxes or Assessments
Licensee will have the right to contest any Impositions that Licensee disputes in good
faith, so long as no lien attaches to the Property and Licensee complies with any bond,
deposit, collateral or other requirements under applicable Law.
10. LIENS
Licensee shall keep the License Area free and clear from any and all liens or other
impositions in connection with any work performed, material furnished or obligations
incurred by orfor Licensee. Licensee will inform all contractors and material suppliers that
provide any work, service, equipment or material to Licensee in connection with the
License Area that the License Area is public property not subject to any mechanics' liens
or stop notices. In the event that any Licensee contractor or material supplier files any
lien or imposition that attaches to the License Area, Licensee shall promptly (but in no
case later than 30 days after discovery) cause such lien or imposition to be released. In
the event that Licensee does not cause such lien or imposition to be released within the
30-day period, the CMWD will have the right, but not the obligation, to cause such lien or
imposition to be released in any manner the CMWD deems proper, which includes without
limitation payment to the lienholder, with or without notice to Licensee. Licensee shall
reimburse the CMWD for all costs and expenses incurred to cause such lien or imposition
to be released (which includes without limitation reasonable attorneys' fees) within 10
days after Licensee receives a written demand from the CMWD together with reasonable
documentation to support such costs and expenses.
11. INDEMNIFICATION
11.1. Licensee's General Indemnification Obligations
Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the
Indemnified Parties harmless from and against any and all Claims incurred in connection
with or arising in whole or in part from: (1) death or personal injury to any person or
property damage or other loss that occurred on or about the License Area or arises in
connection with Licensee's, its Agents' or Invitees' authorized or unauthorized uses on or
about the License Area; (2) any failure or refusal by Licensee to observe or perform any
term, covenant or condition in this License to be observed or performed on Licensee's
part; (3) Licensee's, its Agents' or Invitees' uses or occupancy, or manner of use or
occupancy, of the License Area; (4) any exposure to RF emissions or EMFs from
Licensee's Equipment or uses on or about the License Area; (5) the License Area
condition or any occurrence on or about the License Area attributable to the events
described in clauses (1 ), (2), (3) or (4) in this Section 11; or (6) any act, omission or
negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether
any negligence may be attributed to the Indemnified Parties or not, and all whether liability
without fault is imposed or sought to be imposed on the Indemnified Parties, but except
to the extent that such Claim(s) arise from the Indemnified Parties' willful misconduct or
gross negligence. Licensee's obligations under this Section 11 include, without limitation,
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reasonable fees, costs and expenses for attorneys, consultants and experts, and the
CMWD's costs to investigate any Claim. Licensee specifically acknowledges and agrees
that it has an immediate and independent obligation to defend the Indemnified Parties
from any Claim that actually or potentially falls within this Section 11, even when the
allegations in such Claim are groundless, fraudulent or false, and which obligation arises
at the time the Indemnified Parties tender such Claim to Licensee and continues at all
times until such Claim's final resolution. Licensee's obligations under this Section 11 will
survive the expiration or termination of this License.
11.2. Licensee's Indemnification for Personnel Injuries
Licensee acknowledges that (1) the CMWD has delegated to Licensee control over the
License Area; and (2) the CMWD is not a co-employer of any employee of Licensee or
any employee of Licensee's Agents, and the CMWD shall not be liable for any Claim by
Licensee's or its Agent's employee(s). Licensee agrees to fully indemnify, defend and
hold the CMWD harmless in the same manner as provided in Section 11.1 (Licensee's
General Indemnification Obligations) against any Claim by any employee of Licensee or
its Agents that arises in connection with Licensee's or its Agents' access, uses or other
activities on or about the License Area.
11.3. Licensee's Defense of the CMWD
In the event that any action or proceeding is brought against any Indemnified Party in
connection with any Claim, the CMWD will use good faith efforts to send prompt written
notice to Licensee. At the time Licensee receives such written notice, Licensee shall, at
Licensee's sole cost and expense, resist and defend such action or proceeding with legal
counsel acceptable to the CMWD. Licensee may not admit any liability or enter into any
compromise or settlement agreement on any Indemnified Party's behalf without the
CMWD's prior written consent. The CMWD's legal counsel will be permitted to cooperate
with Licensee and its legal counsel and to participate in any action or proceeding brought
against any Indemnified Party in connection with any Claim.
12. ENVIRONMENTAL PROVISIONS
12.1. Licensee's General Environmental Obligations
Licensee shall manage and conduct its, its Agents' and Invitees' activities on or in
connection with the Property: (1) in compliance with all applicable Environmental Laws
and applicable provisions in this License; (2) in cooperation with the CMWD and the
CMWD's efforts to maintain compliance with all applicable Environmental Laws; and (3)
in accordance with all Best Management Practices applicable to the Equipment and the
Permitted Use. Licensee shall manage its, its Agents' and Invitees' activities on or about
the Property, and as may be appropriate, secure the License Area, so as to prevent any
noncompliance with any applicable Environmental Law or any applicable environmental
provision in this License.
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12.2. Hazardous Substances
Licensee, its Agents and Invitees may use only those Hazardous Substances on or about
the Property that are normally associated with the Permitted Use, and only in strict
compliance with all applicable Environmental Laws. Licensee shall use best efforts to
minimize Hazardous Substance use on the Property and, to the extent commercially
reasonable, use non-hazardous alternatives in Licensee's operations.
12.3. Licensee's Response to Hazardous Substance Release
In the event any actual, threatened or reasonably suspected Release occurs for which
Licensee is responsible under this License, Licensee shall immediately undertake and
diligently pursue, at Licensee's sole cost and expense, all action or actions necessary or
appropriate to investigate, contain, stop, accomplish source control, remove and perform
interim remediation in connection with such Release. Licensee shall promptly send the
CMWD written notice after Licensee discovers facts about (1) an actual or reasonably
suspected violation in connection with any Environmental Law related to the Property or
this License; or (2) an actual or reasonably suspected Release on, under, from or adjacent
to the Property.
12.4. Self Help
Except in an emergency or pursuant to a governmental order that requires immediate
action, the CMWD shall have the right (but not the obligation) to perform Licensee's
environmental obligations under this Section 12 or any applicable Environmental Laws
after the CMWD provides Licensee with seven days' written notice and a demand to
perform the obligations in issue. The CMWD shall charge Licensee, and Licensee shall
promptly reimburse the CMWD upon demand, for any Environmental Costs, which shall
bear interest at the statutory rate then in effect from the date the CMWD expends any
such funds. However, the CMWD may not perform Licensee's obligations under this
Section 12 when, within the 7-day notice period, Licensee promptly notifies the CMWD,
begins and continues thereafter to diligently pursue full performance to completion for all
obligations stated in the CMWD's notice.
12.5. Licensee's Environmental Indemnification Obligations
In the event that Licensee breaches or fails to perform any of its environmental obligations
contained in this Section 12, or if any act, omission or negligence by Licensee or its
Agents or Invitees results in any contamination on or about the Property or the License
Area, in whole or in part, or in a Release from, on, about, in or beneath the Property or
the License Area, in whole or in part, or any Environmental Law violation, then Licensee,
on for itself and its successors and assigns, shall indemnify, defend and hold harmless
the CMWD, including its Agents, and their respective successors and assigns from and
against any and all Claims (including damages for decrease in value of the Property or
License Area, any loss or restriction on the use of usable space on the Property or the
License Area and sums paid to settle any Claims, which include without limitation
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attorneys' fees, consultants' fees, experts' fees and related costs) that arise during or
after the Term and in relation to such Release or violation; provided, however, Licensee
shall not be liable for any Claims to the extent such Release or violation was caused by
the CMWD's or its Agents' gross negligence or willful misconduct. Licensee's
Indemnification obligation includes costs incurred in connection with any activities
required to investigate and remediate any Hazardous Substance brought onto the
Property or the License Area by Licensee, its Agents or Invitees and to restore the
Property or the License Area to its condition that existed immediately before Licensee
introduced such Hazardous Substance or to correct any Environmental Law violation(s).
Licensee specifically acknowledges and agrees that it has an immediate and independent
obligation to defend the CMWD and the other Indemnified Parties from any Claim that
actually or potentially falls within this Indemnification provision even if the allegations that
support the Claim are or may be groundless, fraudulent or false, and which obligation
arises at the time such Claim is tendered to Licensee by the Indemnified Party and
continues until the Claim is finally resolved. Licensee shall afford the CMWD a full
opportunity to participate in any discussions with regulatory agencies regarding any
settlement agreement, cleanup or abatement agreement, consent decree or other
compromise or proceeding involving Hazardous Substances.
12.6. Licensee's Liability for Hazardous Substance Release
Without limiting the Indemnification obligations in Section 12.5 (Licensee's Environmental
Indemnification Obligations), Licensee will be responsible for all response, remediation
and restoration obligations in connection with any Release and associated Environmental
Costs that results from or occurs in connection with Licensee's occupation, possession
or use of the Property and/or License Area from the Commencement Date, throughout
the Term and after this License expires or terminates. Notwithstanding the preceding
sentence, as between the CMWD and Licensee, Licensee will not be responsible for any
Releases or associated Environmental Costs caused by the CMWD, its Agents,
contractors, invitees, licensees or other lessees after the Commencement Date so long
as Licensee has complied with all applicable conditions for non-liability established in 42
U.S.C. §§ 9607(b) or (q) as may be amended.
13. INSURANCE
13.1. Licensee's Insurance Obligations
Licensee shall procure and keep in effect at all times during the Term, at Licensee's cost,
insurance in the following amounts and coverages: (1) Commercial General Liability
insurance (including premises operations; explosion, collapse and underground hazard;
broad form property damage; products/completed operations; contractual liability;
independent contractors; personal and advertising injury) with limits of $2 million
combined single limit for each occurrence and $4 million general aggregate ; (2) Worker's
Compensation Insurance per California statutory limits with Employer's Liability Limits of
$1 million each accident /disease/policy limit; (3) Commercial Automobile Liability
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Insurance with limits of $2 million each occurrence combined single limit for bodily injury
and property damage, covering all owned and non-owned and hired vehicles.
13.1.1. Requirements
Commercial General Liability Insurance and Commercial Automobile Liability Insurance
policies must contain the following: (1) name the CMWD, its officers, employees and
volunteers as additional insureds as their interest may appear under this License; (2) that
such policies are primary insurance to any other insurance available to the additional
insureds with respect to any Claims that arise in connection with this License; (3) that
such insurance applied separately to each insured against whom a Claim is made or
brought; (4) that such policies provide for the severability of interests and that an act or
omission of one of the named insureds that would void or otherwise reduce coverage
shall not void or otherwise reduce coverage as to any other named insured; and (5) that
such policies shall afford coverage for all Claims based on acts, omissions, injury or
damage that occurred or arose (or the onset occurred or arose) in whole or in part during
the policy period.
Upon receipt of notice from its insurer(s), Licensee shall provide CMWD 30 days' prior
written notice of intent to cancel or notice of cancellation for any coverage required under
this License, Licensee shall promptly take action to prevent cancellation, reinstate
cancelled coverage or obtain coverage from a different insurer qualified under Section
13.1.4 (Insurer Qualifications).
13.1.2. Intentionally Omitted
13.1.3. General Aggregate Limit
The general aggregate limit for any required insurance under this License must be double
the per-occurrence or Claims limits specified in Section 13.1 (Licensee's Insurance
Obligations) when coverage includes a general annual aggregate limit or provides that
Claims investigation or legal defense costs will be included in such general annual
aggregate limit.
13.1.4. Insurer Qualifications
Licensee's insurance providers must be licensed to do business in California and must
meet or exceed an A.M. Best's Key Rating A-NII or its equivalent.
13.1.5. Certificates; Effective Dates
Within 10 business days after the Effective Date, Licensee shall deliver to the CMWD all
insurance certificates and blanket additional insured endorsements from Licensee's
insurance providers in a form reasonably satisfactory to the CMWD that evidences all the
required coverages under this License. In addition, Licensee shall promptly deliver to the
CMWD all certificates after Licensee receives a request from the CMWD. The CMWD
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shall not authorize Licensee to access or perform any work on the License Area until and
unless all insurance coverages required to be carried by Licensee under this License
have been obtained. Licensee shall ensure that all insurance coverages required to be
carried by Licensee under this License remain in effect at all time until all Equipment has
been removed from the License Area. The requirements in this Section 13.1.5 shall
survive the expiration or termination of this License.
13.1.6. Self-Insurance
In the event that the CMWD consents to allow Licensee to self-insure as an alternative
insurance program, such consent will not be deemed an amendment or implied waiver to
any other requirement in this License. Any amendment to any insurance requirement
must be in a written agreement.
13.2. Contractors' Bonds Insurance
Licensee shall require its contractors that install, maintain, repair, replace or otherwise
perform any work on or about the License Area: (1) to provide bonds to guarantee the
performance of the work and the payment of subcontractors and suppliers for any
installation of Equipment, and (2) to have and maintain substantially the same insurance
of substantially the same coverage and amounts as required of Licensee.
13.3. No Limitation on Indemnification Obligations
Licensee's insurance obligations under this Section 13 in no way relieves or decreases
Licensee's liability under Section 11 (Indemnification) or any other provision in this
License.
13.4. CMWD's Termination Right
The CMWD may elect, in its sole and absolute discretion, to terminate this License on
written notice to Licensee if Licensee allows any required insurance coverage to lapse
and does not reinstate the lapsed insurance coverage within three days after Licensee
receives such written notice.
14. ASSIGNMENT; SUBLICENSE
14.1. Assignment
Licensee may assign this License at any time without the CMWD's consent (i) to any of
Licensee's partners or parent firms; (ii) to Licensee's successors-in-interest; (iii) in
connection with the sale, exchange, or other transfer of Licensee's FCC authorization for
the geographic market area in which the License Area is located or substantially all of
Licensee's assets in the geographic market area where the License Area is located; or
(iv) in connection with any financing, loan, security interest, pledge, or mortgage of
Lessee's property. Any other assignment or any sublicense shall require the CMWD's
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prior written approval, which approval the CMWD shall not unreasonably withhold, delay
or condition. Any assignment that violates this Section 14.1 shall be deemed void and
without any legal effect whatsoever, and the CMWD shall have the right (but not the
obligation) to terminate this License upon written notice to Licensee. This Section 14.1
shall not preclude Licensee's right to enter into a standard roaming agreement allowing
subscribers of other wireless carriers to use the Equipment specifically constructed for
Licensee's use.
14.2. Sublicense (Collocation)
Licensee may sublicense or in any other manner allow a third party to occupy or use
antenna space on its Equipment; provided, however, any third party must first obtain a
separate license from the CMWD, which the CMWD may, in its sole discretion, deny for
any or no reason. Any act that violates this Section 14.2 shall be deemed void and without
any legal effect whatsoever, and the CMWD shall have the right (but not the obligation)
to terminate this Lease upon written notice to Lessee.
14.3. Continuing Obligation
No assignment or sublicense, even with the CMWD's consent, will relieve Licensee of its
obligation to pay the License Fee and to perform all other obligations to be performed by
License under this License. The acceptance of any payment due under this License by
the CMWD from any other person or entity will not be deemed to be a waiver by the
CMWD of any provision of this License or be construed to be consent to any assignment
or sublicense.
15. DEFAULT; REMEDIES
15.1. Defaults and Cure Periods
The parties agree that it will be a default under this License when either the CMWD or
Licensee: (1) fails to tender any sums payable pursuant to this License when due, and
such failure continues for 10 days after notice from the non-defaulting party; (2) fails to
perform any non-monetary term, provision, covenant or obligation under this License, and
such failure continues for 30 days after notice from the non-defaulting party; provided,
however, that said 30-day cure period will be reasonably extended when the default
cannot be cured within 30 days and the defaulting party commences to cure within said
30-day cure period and diligently pursues the cure to completion.
15.2. Sums Paid During Default
Any sums paid from Licensee to the CMWD after Licensee's default will not constitute a
cure by Licensee or waiver by the CMWD unless the CMWD acknowledges such cure or
waiver in a signed writing.
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15.3. No Consequential Damages
Licensee expressly acknowledges and agrees that the License Fee or any other sums
payable to the CMWD under this License do not take into account any potential liabilities
for consequential or incidental damages. The CMWD would not willingly enter this
License without a complete waiver of liability, to the fullest extent permitted by Law, for
consequential or incidental damages due to the CMWD's or its Agents' acts or omissions,
and Licensee expressly assumes the risk with respect thereto. Accordingly, without
limiting Licensee's Indemnification obligations or other waivers contained in this License
and as a material consideration for this License, Licensee fully releases, waives and
discharges forever any and all Claims against the CMWD for consequential and/or
incidental damages that arise from or in connection with this License, which includes
without limitation any lost profits from disruption to Equipment, any interference with uses
· or activities conducted by Licensee under this License, from any cause whatsoever, and
whether due to the CMWD's or its Agents' active or passive negligence or willful
misconduct or not, and covenants not to sue for such damages the CMWD, and the
CMWD's other departments, and all CMWD agencies, officers, directors and employees,
and all persons acting by, through or under them.
15.4. No Personal Liability for CMWD Officials, Employees or Agents
No elected or appointive board, agency, member, officer, employee or other Agent
of the CMWD will be personally liable to Licensee, its successors and
assigns, in the event of any default or breach by the CMWD or for any amount which may
become due to Licensee, its successors and assigns, or for any obligation of the CMWD
under this License.
15.5. Cumulative Remedies
Except as may be specifically provided otherwise in this License, any and all rights,
benefits and/or remedies provided or afforded to either the CMWD or Licensee under this
License or any other instrument or document executed pursuant to this License are and
will be cumulative and not exclusive of any legal or equitable rights, benefits or remedies
available to either the CMWD or Licensee under applicable Laws.
16. TERMINATION
16.1. Grounds for Termination
In addition to any other provision in this License that authorizes the CMWD or Licensee
to terminate this License, this License may be terminated as follows:
(1) by either the CMWD or Licensee upon 30 days' written notice when the other
remains in default beyond any applicable cure period;
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(2) by Licensee upon written notice to the CMWD at any time prior to the
Commencement Date if any Tests show, in Licensee's opinion, that the License
Area is not suitable for the Permitted Use;
(3) by Licensee upon written notice to the CMWD at any time prior to the
Commencement Date if Licensee cannot obtain all Governmental Approvals
required for the Permitted Use after Licensee exhausts in good faith all
administrative remedies available to Licensee in connection with an application
for such Governmental Approvals;
(4) by Licensee upon 30 days' written notice to the CMWD at any time after the
Commencement Date for any or no reason;
16.2. Early Termination Fee
In the event that Licensee elects to terminate this License pursuant to Section 16.1 (4)
(Grounds for Termination), Licensee shall include with its termination notice a lump sum
payable to the CMWD equal to the then-current License Fee multiplied by either 12 or the
number of months remaining on the Term (whichever is less) (the "ETF"). Licensee will
not be obligated to pay any ETF if Licensee terminates this License prior to the
Commencement Date pursuant to Section 16.1 (1 ), (2) or (3) (Grounds for Termination).
17. REMOVAL AND RESTORATION
Licensee shall remove all Equipment at its sole expense upon the expiration or
termination of this License, including but not limited to facilities used to house Equipment
that the CMWD does not elect to retain. Licensee shall repair any damage to the License
Area caused by such removal, and shall return the License Area to the condition which
existed on the Effective Date, reasonable wear and tear and damage beyond the control
or without the fault or neglect of Licensee excepted. Without limiting the generality of the
foregoing, Licensee shall remove all footings, foundations, utilities, wiring and conduits.
Lessee shall be deemed in actual possession of the License Area until and unless it
completely removes its personal property and restores the License Area consistent with
this Section 17.
18. CONDEMNATION
18.1. Permanent Takings
In the event that any entity with the power to condemn permanently takes any License
Area in whole or in part, or in the event that the CMWD transfers any License Area in
whole or in part to such entity in lieu of eminent domain, the following provisions will apply:
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18.1.1. Termination and Award
This License will automatically terminate on the date the permanent taking or transfer
occurs. The CMWD will be entitled to any award paid or made in connection with the
taking or any sums paid in lieu of such taking. Licensee hereby expressly waives any right
or claim to any portion thereof, including any claim for loss of business or goodwill. All
damages, whether awarded as compensation for diminution in value of the license or to
the fee of the License Area, shall belong to the CMWD. Licensee will have no Claim
against the CMWD for the value of any unexpired Term of this License or otherwise
except that Licensee may claim any portion of the award that is specifically allocable to
Licensee's loss or damage to Licensee's Equipment.
18.1.2. No Statutory Right to Terminate
The parties understand, acknowledge and agree that this Section 18.1 is intended to fully
govern the parties' rights and obligations in the event of a permanent taking. Licensee
and the CMWD each hereby waives and releases any right to terminate this License in
whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and
under any similar Laws to the extent applicable to this License.
18.2. Temporary Takings
Any taking that affects any License Area in whole or in part for less than 90 days will have
no effect on this License, except that Licensee will be entitled to a pro-rata abatement in
the License Fee to the extent that such temporary taking materially impairs Licensee's
use of the License Area. Furthermore, in the event that the CMWD receives an award, if
any, in connection with such temporary taking, Licensee will receive the portion from the
award that represents compensation for the use or occupancy of the License Area during
the Term but not to exceed the License Fees payable by Licensee for the period of the
taking, and the CMWD will retain the balance of the award.
19. DESTRUCTION
In the event that the License Area, in whole or in part, becomes damaged or destroyed
due to any cause, the CMWD will have no obligation to repair, rebuild or replace the
damaged or destroyed License Area.
In the event that the License Area, in whole or in part, becomes so damaged or destroyed
that it materially impairs Licensee's Permitted Use, and such damage or destruction
resulted from a cause not attributable to Licensee or any other person or entity affiliated
with Licensee or under Licensee's direction or control, Licensee may elect to terminate
this License within 60 days after such damage or destruction occurs.
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20. NOTICES
Except as may be specifically provided otherwise in this License, all notices, demands or
other correspondence required to be given under this License must written and delivered
through (1) an established national courier service that maintains delivery records and
confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid
postage and return receipt requested, and addressed as follows:
TOCMWD:
TO LICENSEE:
Carlsbad Municipal Water District
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Curtis M. Jackson, Real Estate Manager
Telephone: 760-434-2836
Email: curtis.jackson@carlsbadca.gov
Verizon Wireless (VAW) LLC,
dba Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
All notices will be deemed effective on receipt or on attempted delivery when delivery is
refused. Telephone, facsimile and email information are provided for convenience and for
couriers who may require such information, and any notice given solely through electronic
means will not be deemed to be effective notice. Any copies required to be given
constitute an administrative step and not actual notice. The parties may change the notice
addresses above from time-to-time through written notice to the addresses above or the
then-current notice address.
21. BANKRUPTCY
In the event that Licensee becomes a debtor in any voluntary or involuntary bankruptcy
proceeding under the Bankruptcy Code, the CMWD and Licensee expressly intend,
acknowledge and agree that this License will be treated as either an unexpired
commercial lease or an executory contract for all purposes in connection with Bankruptcy
Code § 365 and subject to the provisions Bankruptcy Code §§ 365(d)(3) and 365(d)(4)
as those provisions may be amended or superseded in the future. Any person or entity to
which this License is assigned pursuant to the Bankruptcy Code will be deemed without
any further act to have assumed all Licensee's obligations under this License which arose
before or may arise after such assignment, and any such assignee shall execute and
deliver to the CMWD a written instrument that confirms such assumption promptly upon
a written demand from the CMWD. Any monies or other consideration payable or
otherwise to be delivered in connection with such assignment will be promptly paid to the
CMWD, will be the CMWD's exclusive property and will not constitute Licensee's or its
estate's property for the purposes under the Bankruptcy Code. Any such monies or other
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consideration not paid to the CMWD will be held in trust for the CMWD's benefit as paid
to the CMWD as soon as possible.
22. SECURITY DEPOSIT
22.1. Amount
At the time Licensee tenders to the CMWD the first License Fee due under this License,
Licensee must also tender to the CMWD for deposit a sum equal to Five Thousand Five
Hundred and 00/100 Dollars ($5,5000.00) (the "Security Deposit") to secure Licensee's
faithful performance of all terms, covenants and conditions in this License. In the event
that the CMWD applies or uses the Security Deposit in whole or in part to cure any default
by Licensee under this License, Licensee shall replenish the Security Deposit in the
amount and on the date specified in a written notice to Licensee. The CMWD may, in the
CMWD's reasonable judgment, require Licensee to increase the Security Deposit amount
from time-to-time when the CMWD determines that Licensee's past acts or omissions in
connection with the License Area warrants additional security.
22.2. Application or Use
Licensee agrees that the CMWD may use the Security Deposit in whole or in part to
remedy any damage to the License Area caused by Licensee, its Agents or Invitees or
any failure by Licensee to perform any term, covenant or condition in this License
(including without limitation any failure to pay any License Fee or other sums due under
this License either before or after any default). In the event that the CMWD uses the
Security Deposit in whole or in part, the CMWD will not be deemed to have waived any
rights under this License, or legal or equitable rights whatsoever. Licensee expressly
waives any rights it may have under California Civil Code § 1950.7 or any similar Law
and agrees that the CMWD may retain from the Security Deposit any portion reasonably
necessary to compensate the CMWD for any foreseeable or unforeseeable loss or
damage caused by Licensee's, its Agents' or lnvitee's acts or omissions.
The CMWD's obligations with respect to the Security Deposit shall be in the nature of a
debtor, and the CMWD shall not be deemed to hold the Security Deposit in trust for any
reason. The CMWD may (but shall not be obligated to) keep the Security Deposit
separate from general funds. Licensee shall not be entitled to any interest on the Security
Deposit.
23. MISCELLANEOUS
23.1. Interpretation; Construction
The CMWD and Licensee acknowledge and agree that:
(1) both parties have been represented by counsel and that both parties have
participated in the negotiation and drafting process;
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(2) the language in this License will always be construed simply and in accordance
with its fair and ordinary meaning, without any reference to any common
practices, interpretations, customs or definitions that may exist in any industry
or trade to which either the CMWD or Licensee may b.elong;
(3) this License will never be construed either for or against either the CMWD or
Licensee for any reason;
(4) any defined term in this License will be construed to have the same definition
when used in both the singular and plural form;
(5) the word "or" will not be interpreted as a limitation and will be construed to mean
"and/or" unless expressly provided otherwise in this License;
(6) the word "including" or phrase "which includes" will not be interpreted as a
limitation and will be construed to be followed by the phrase "without limitation"
whenever such phrase does not appear in the text;
(7) all references to any "Section" or "Exhibit" will be construed to mean a section
or exhibit attached to this License unless expressly provided otherwise in this
License;
(8) the captions contained in this License (a) are only for convenience, (b) will not
be used to interpret or construe any term or provision in this License and (c)
will not carry any legal effect whatsoever; and
(9) this License is not intended to create, does not create and will not be construed
to create any third-party benefit or beneficiaries, or any joint venture,
partnership, employment or agency relationship between the CMWD and
Licensee.
23.2. Unenforceability; Severability
In the event that a court with competent jurisdiction over this License holds any provision
in this License invalid or unenforceable with respect to either the CMWD or Licensee, or
any third parties to whom this License may become applicable or enforceable, (1) the
valid or enforceable provisions will not be affected whatsoever; (2) the application of such
invalid or unenforceable provision to persons or entities other than those as to whom it is
held invalid or unenforceable shall not be affected; and (3) each provision in this License
shall be valid and enforceable to the fullest extent permitted under Law.
23.3. Time for Performance; Force Majeure
Time is of the essence of this License. Notwithstanding the provisions in this Section 23.3,
the time for performance for any term, provision, covenant or obligation under this License
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will be deemed extended to account for any time lost due to delays that arise from strikes,
civil riots, floods, labor or material shortages or restrictions, governmental intervention or
any other cause not within the control of the party whose performance is due.
23.4. Integration; Entire Agreement
This License contains the entire agreement and understanding between the parties as to
the subject matter concerned in this License, and this License supersedes all prior or
contemporaneous agreements, commitments, conditions, discussions, instruments,
offers, promises and/or proposals between or among the CMWD and Licensee in
connection with the License Area, whether oral or written.
23.5. Successors and Assigns
The parties intend and agree that this License will extend to and bind the parties'
respective heirs, personal representatives, successors and assigns.
23.6. Amendments or Modifications
All amendments or modifications to this License, if any, must be in a written and fully
executed agreement signed by both parties.
23.7. Waivers
No provision in this License may be waived or deemed waived, except in a written waiver
signed by the party against whom enforcement of such waiver is attempted. No custom
or practice which may develop between the parties in the implementation or
administration of the terms of this License will be construed to waive or lessen any right
to insist upon strict and/or timely performance of the terms of this License. Any waiver by
either party of any provision of this License will not be deemed to constitute a waiver of
any other provision, nor will such waiver constitute a continuing waiver.
23.8. Governing Law; Venue; Attorneys' Fees
This License shall be governed and construed in accordance with the laws of the State
of California without regard to conflicts of laws principles. Sole and exclusive venue for
any action or claim between the parties that arises from or in connection with this License
will reside exclusively in the Superior Court of the County of San Diego (the "Court"). All
parties to this License agree to be subject to the Court's jurisdiction and waive all claims
whatsoever that would defeat the Court's jurisdiction to hear and adjudicate any action or
claim between the parties that arises from or in connection with this License. The
prevailing party in any final or non-appealable decision on the merits that arises from or
in connection with this License may be entitled to its reasonable attorneys' fees and costs,
which includes without limitation reasonable witness, expert and consultant fees, at the
Court's sole discretion. With respect to any provision in this License that provides for
payment of attorneys' fees, such fees will be deemed to include reasonable fees incurred
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through any applicable appeal process and will include, but not be limited to, fees
attributable to legal services provided by any in-house counsel and staff to the prevailing
or indemnified party. For purposes in this License, all services rendered by all attorneys
and their staff will be valued at the average rates for independent counsel prevailing in
the County of San Diego, California.
23.9. Government Claims Act
Any claim for money damages by Licensee against the CMWD hereunder will be subject
to California Government Code §§ 810 et seq. (the "Government Claims Act"). The
claims presentation provisions in the Government Claims Act are hereby modified such
that all claims to be presented to the CMWD will be irrevocably waived if not made within
six (6) months after Licensee discovers the facts that either give rise to the claim or would
prompt an investigation that, with reasonable diligence, would lead Licensee to facts that
would give rise to the claim. Neither the CMWD nor its council members, commissioners,
elected or appointed officers or officials, administrators, directors, managers, employees,
attorneys, agents or volunteers will be personally liable to Licensee in the event of any
default or breach of the CMWD, or for any amount which may become due to Licensee
or any successor in interest, or for any obligations directly or indirectly incurred under this
License.
23.10. Public Records Act Disclosure
Licensee acknowledges that the CMWD is a public entity under the laws of the State of
California. Furthermore, the parties acknowledge that this License constitutes a public
record that the CMWD must publically disclose under (i) the California Public Records
Act, California Government Code §§ 6250 et seq.; (ii) Title 17, California Code of
Regulations§§ 91000 et seq.; (iii) Article I,§ 3, of the California State Constitution; and
(iv) any other applicable Law that may require the CMWD to disclose public records.
23.11. Estoppels
Licensee, at any time and from time-to-time on not less than 30 days' notice from the
CMWD, shall execute, acknowledge and deliver to the CMWD or its designee, an
estoppel certificate which states: (a) that Licensee has accepted the License Area (or, if
Licensee has not done so, that Licensee has not accepted all or any part of the License
Area and specifying the applicable portions of the License Area and reasons for non-
acceptance); (b) the Commencement Date, Effective Date and expiration date for this
License; (d) that this License is unmodified and in full force and effect or, if modified, the
manner in which this License is modified; (e) whether any defenses then exist against the
enforcement of any of Licensee's obligations under this License (and if so, specifying the
same); (f) whether any of the CMWD's obligations under this License are outstanding
(and if so, identifying any CMWD obligations that Licensee believes that the CMWD has
failed to meet); (g) the dates, if any, to which the License Fees have been paid; and (h)
any other information that may be reasonably required by any such persons.
page 32 / 34 Feb. 25, 2020 Item #1 Page 42 of 64
23.12. Brokers
Neither the CMWD nor License has had any contact or dealings in connection with the
license of the License Area, or any communication in connection therewith, through a
Broker, whose commission, if any is due, is to be paid pursuant to a separate written
agreement between such Broker and the party through which such Broker contracted. In
the event that any Broker perfects a claim for a commission or finder's fee based upon
any such contact, dealings or communication, Licensee shall indemnify the CMWD from
all Claims brought by the Broker. The representations and indemnification obligations in
this Section 23.12 will survive expiration or earlier termination of this License.
23.13. Survival
The parties to this License intend that all terms and conditions within this License that by
their sense or context should survive this License's expiration, termination or cancellation,
which includes without limitation Section 4.2 (Holdover Term), Section 11
(Indemnification), Section 12.1.5 (Certificates; Effective Dates), Section 16 (Removal and
Restoration), Section 17 (Environmental Provisions), Section 23.8 (Governing Law;
Venue; Attorneys' Fees) and Section 23.12 (Brokers), or any provision in this License
which necessarily requires performance after this License expires or terminates, will
survive this License's expiration, termination or cancellation.
23.14. Submission for Inspection; No Offer
Prior to the Effective Date, the parties may submit this License to each other for inspection
and examination purposes and such submission will not constitute an offer to license the
License Area. This Licensee will become effective only upon full execution by both the
CMWD and Licensee.
23.15. Execution; Counterparts.
This License may be executed simultaneously or in one or more counterparts. In the event
that the parties elect to execute this License in one or more counterparts, Licensee shall
execute first, the CMWD shall execute second, each executed counterpart will be deemed
to be an original but all counterparts taken together will constitute one and the same
agreement.
[END OF LICENSE -SIGNATURES BEGIN ON NEXT PAGE]
page 33 / 34 Feb. 25, 2020 Item #1 Page 43 of 64
IN WITNESS WHEREOF, the parties have executed this License on the Effective Date
first written above:
LICENSOR: LICENSEE:
Carlsbad Municipal Water District
By:~
Its: Ma1-1: /do11
Date: ()J ,~?IJo~o ----=--=-,,f-=-,p<--,/,-.......=--~---Date: -~( +-!_re__,: l~r-~_--? __ ,, ____ _
APPROVED AS TO FORM:
By: {?,,t~L~r<~
Celia Brewer
City Attorney
Date: o·;;. I@{, J 'Ji{)~() --~--,~-, ~~---
APPROVED BY EXECUTIVE BOARD
RESOLUTION NO.
ATTEST: ~
By: ~ /-iectvr Gomez I Def"'ij
ftlBarbara Engleson Ci Hi
City Clerk CJ ) tr J.('
Date: 0:). /Q 6 / 'J. {) c) ~-I J
[END OF SIGNATURES -EXHIBITS BEGIN ON NEXT PAGE]
page 34 / 34 Feb. 25, 2020 Item #1 Page 44 of 64
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL H
A PARCEL OF LAND BEING A PORTION OF PARCEL 4 OF PARCEL MAP 10179 ON
FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
STATE OF CALIFORNIA, BEING A PORTION OF SECTION 30, TOWNSHIP 12
SOUTH, RANGE 3 WEST, OF THE SAN BERNARDINO MERIDIAN, CITY OF
CARLSBAD, SAID COUNTY, SAID STATE, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF LA COSTA MEADOWS, UNIT NO.
2, ACCORDING TO MAP NO. 6905 ON FILE IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, SAN SOUTHEAST CORNER BEING A POINT ON
THE SOUTHEASTERLY RIGHT-OF-WAY OF EL FUERTE STREET AS SHOWN ON
SAID MAP NO. 6905; THENCE NORTH 68°13'07" EAST, 1536.70 FEET TO THE TRUE
POINT OF BEGINNING; THENCE SOUTH 68°01'10" EAST, 99.51 FEET; THENCE
SOUTH 51°54'40" EAST, 141.03 FEET; THENCE SOUTH 22°52'25" WEST, 191.85
FEET; THENCE SOUTH 57°13'00" WEST, 73.07 FEET THENCE NORTH 83°46'00"
WEST, 185.97 FEET; THENCE NORTH 34°25'48" WEST, 144.00 FEET; THENCE
NORTH 55°34'12" EAST, 100.00 FEET TO THE BEGINNING OF A TANGENT 322-
FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 33°35'22" A
DISTANCE OF 188.77 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 1.900 ACRES.
35
Feb. 25, 2020 Item #1 Page 45 of 64
EXHIBIT B
CONDITIONAL USE PERMIT
(see conditional use permit attached behind this cover)
36
Feb. 25, 2020 Item #1 Page 46 of 64
CUP 2019-0001 (DEV090D2) -LA COSTA RESERVOIR WCF
June 6, 2019
Page 2
desirable for the development of the community because of Jhe benefit and demand for digital
communications and data transmissions for -businesses, individuals, public agencies and
emergency service systems in this part of the City; (b) the existing use is consistent with the
General Plan in that the Residential land Use Designation does not preclude the provision of
Wireless Communication Facility (WCF) uses; ·cc) the WCF is consistent witJl City Council Policy No.
64, Wireless Communication Facilities, in that it is located in a preferred location (public
utility/water tank in residential zone) and incorporates a stealth design with the construction of
a faux eucalyptus tree and associated panel antennas painted to match the tree, as well as
architectural upgrades and enhancements ·to the existing equipment building; (d) the project
includes the removal of an existing WCF (monopole) that does not comply with City Council Policy
No. 64 (i.e., does not incorporate a stealth design); and (e) the stealth design of the repl.acement
WCF complies with General Plan objectives that seek to maintain and enhance Carlsbad's
appearance.
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 WCF is located within a preferred
location (public utility/water tank in residential zone) as listed in Location Guideline A.1.g of City
Council" Policy Statement No. 64, and all aspects of the WCF exhibit stealth design. Specifically,
the WCF is designed as a faux eucalyptus tree, the panel antennas will be painted to match the
facility and the equipment building will be upgraded with a design that complements the
architecture in the neighborhood. The WCF use is not precluded by the project site's underlying
P-C zone nor MP 149(R). Furthermore, the removal of the existing non-compliant monopole and
the replacement faux eucalyptus tree WCF represents an upgrade since it incorporates a stealth
design~ In addition, existing l[!Ucalyptus trees on the site provide the appropriate context for the
faux tree WCF. The project has been conditioned to comply with FCC RF Exposure Guidelines.
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 City Planner in order to integrate
the use with other uses in the neighborhood in that the proposed 61-foot-tall faux eucalyptus tree
WCF exhibits a stealth design and is located on a parcel which includes existing eucalyptus trees.
The main structure of the WCF is located 27 feet from the southerly property line and 66 feet from
. the closest residential property line. A private driveway owned by the community Home Owner's
Association is located in between the subject property and the closest property developed with a
single family home. Therefore, the 66-foot setback complies with the intent of the WCF policy
which recommends a setback from residentially-zone property equidistant to the height of the
structure.
4. That the street system serving the proposed use is adequate to properly handle all traffic generated
by the proposed use in that the existing WCF requires, on average,· only monthly maintenance
visits and occasional visits in response to operational problems.
5. That the existing WCF is consistent with City Council Policy No. 64 in that it is located in a preferred
location (public utility/water tank in residential zone) as listed In Location Guideline A.1.g of City
Council Policy Statement No. 64, exhibits stealth design (i.e., faux eucalyptus tree) and the
Feb. 25, 2020 Item #1 Page 48 of 64
CUP 2019-0001 {DEV09002) -LA COSTA RESERVOIR WCF
June 6, 2019
Pa e 3
existing equipment building will be upgraded with a design which enhances the structure's
compatibility with the architecture in the neighborhood.
6. That the City Planner 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 -New Construction or Conversion of Small Structures of
the state CEQA Guidelines. In making this determination, the City Planner has found that the
exceptions listed in Section 15300.2 of the state CEQA Guidelines do not apply to this project.
7. That the request for a Minor Conditional Use Permit was adequately noticed at least ten (10)
calendar days before the date of this decision pursuant to Section 21.54.060 of the Carlsbad
Municipal Code.
8. The City Planner 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 CUP 2019-0001 as shown on Exhibits "A" -"P" dated June 3, 2019 on file
1 in the Planning Division and incorporated herein by reference. Development shall occur
substantially as shown unless otherwise noted in these conditions:
2. If any of the follow_ing conditions fail to occur, or if they are, by their terms, to be implemented
and maintained over time, if any of such conditions fail to be so implemented and maintained
• according to their terms, the City shall have the right to revoke or modify all approvals herein
granted; deny or further condition issuance of all future building permits; deny, revoke, or further
condition all certificates of occupancy issued under the authority of approvals herein granted;
record a notice of violation on the property title; institute and prosecute litigation to compel their
compliance with said conditions or seek damages for their violation. No vested rights are gained
by Developer or a successor in interest by the City's approval of this Minor Conditional Use Permit.
3. Staff is authorized and directed to make, or require the Developer to make, all corrections and
modifications to the CUP 2019-0001 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
Feb. 25, 2020 Item #1 Page 49 of 64
CUP 2019-0001 {DEV09002) -LA COSTA RESERVOIR WCF
June 6, 2019
Page 5
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 City Planner 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. 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 residential housing project
are challenged this approval shall be suspended as provided in Government Code Section 66120.
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.·
11. Prior to the issuance of a building permit, owner/applicant 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 City
Planner, notifying all interested parties and successors in interest that the City of Carlsbad has
issued a Minor Conditional Use Permit on the real property owned by the owner/applicant. 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 City Planner 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 owner/applicant or successor in interest.
12. All roof appurtenances, including air conditioners, shall be architecturally integrated and concealed
from view and the sound buffered from adjacent properties and streets, in substance as provided
in Building Department Policy No. 80-6, to the satisfaction of the Directors of Community and
Economic Development Department and Planning.
13. This approval shall become null and void if building permits are not issued for this project within
24 months from the date of project approval.
14. Developer shall report, in writing, to the City Planner within 30 days, any address change from that
which is shown on the permit application.
15. Prior to the issuance of the building permit, approval is required from the Carlsbad Municipal
Water District (CMWD). In addition, the building plans shall adequately address any security
upgrades required by CMWD. ·
16. Prior to the issuance of the building permit, approval is required from the City's Real Property
Department.
17. The existing wireless communications facility (WCF) approved pursuant to CUP 94-11x1 shall be
removed from the property within three (3) months of the installation/operation of the new
WCF facility. Photo verification shall be submitted to the Planning Division, to the satisfaction of
the City Planner.
Feb. 25, 2020 Item #1 Page 51 of 64
CUP 2019-0001 {DEV09002) -LA COSTA RESERVOIR WCF
June 6, 2019
Page 6
18. Any required battery systems for the antennas shall be submitted to the Fire Department for
approval of construction.
Code Reminders:
19. 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 the date of final approval to protest imposition of these fees/exactions. lf you
protest them, you must follow the protest procedure set forth in Government Code Section 66020{a) and
file the protest and ahy 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 d_ate of this letter. Appeals must be submitted in writing to the Planning Division
at 1635 Faraday Avenue in Carlsbad, along with a payment of $876. The filing of such appeal within such
time limit shall stay the effective date of the order of the City Planner until such time as a final decision
on the appeal is reached. If you have any questions regarding this matter, please feel free to contact
Shannon Harker at (761) 602-4621.
Sincerely,
-le_ · b-~rJ
. TERI DELCAMP
Principal Planner
TD:SH:mf
c: Don Neu, City Planner
Curtis Jackson, Real Estate Manager, City Manager's Office
David Hull, Associate Engineer, Public Works Department
File Copy
Data Entry
HPRM
Feb. 25, 2020 Item #1 Page 52 of 64
EXHIBIT C
PLANS FOR EQUIPMENT AND OTHER IMPROVEMENTS
(see site plans and drawings attached behind this cover)
37
Feb. 25, 2020 Item #1 Page 53 of 64
KEY NOTES: 0 CUS'TlNG VERIZON PRt:-FMIRICATEO EQUIPMENT SHELTER TO REMAIN (SHOWN SH,IJ)ED)
(V EXISlWG EQUIPWDIT SHELTER FOUNOA.TION
<$) OCISffiGCMURETAININGWAU.
<$> EXISTIIIG BLOCK WALL FOOTING
¢, PROPOSED DECOAATJYE COll/MNS WITH STONE FINISH TO W.TCH AD.IACENTRESIOENCES.TYPICAI.OfElC.HT(S)
~ PROPOSED WOOD SIDING
<2> PROPOSED TILE ROOF' TO t.11.TCH ADJACENT RESIDENCES <Y PROPOSED COUJMN FOUNO,.llON
37'-1"
J2'-6"
30'-6"
J0'-0"
~
f------0--
f---I== [J
jjt:==
I= I---
~I .•
11·7>,.·1¼·•·□· . -~
~ -~e "' . ....j j
NORTH ELEVATION SECTION VIEW
,:
1 SCALE, 1 3 ~
KEY NOTES: 0 EXISTING VERIZON PRE-FABRICAlED EQUIPMENT SHELTER TO REM,\IN (SHOWN SHADED)
~ EXISTING EQIJIPMENT SHELTER FOUNDATION
~ ElCISTlNG CMU RETAINING WAil.
<$> EXISTlNG BLOCK WAil. FOOTING·
~ PROPOSED D£CORAT1Vt COLUMNS WITH STONE FlNISH ltl MATCH ADJACENT RESIDENCES, TYPICAi. Of EIGHT (8)
~ PROPOSED WOOD SIDII«<.
<2> PROPOSED TU: ROOF TO MATCH ADJACENT RESIDENCES
<!) PROPOSEDCOlUMN F'OUNMTION
111'-4"
14'-8"
12'-5"
11'-11"
__p.,__
~ ~ ~ ~ ;:::;7'[J LI D Li Li D RJS
~ "I 11 ~ .!. e e
~
d1::-
bl
~ i''wl.~;j
~:J
$~:,·:<.I -3 .·: ••
-~,:
EAST ELEVATION SECTION VIEW SCALE,
3/e·-,·-o·
1
1
PROJECT #CUP 2019-0001
■ JeffreyRomel ASSOCIATES
architecture I telecommunlcatlcns
lll lnnov~tlon Drive, Sult~ !00 Irv In~, Ca 11 r a r n I J 9 2 6 I 7
tel 9U.760.l929 I ru 9~9.760.39ll
PROPRIETARY INF'ORMATION
THE INFORMATION CONTAlN€0 IN THIS scrorcoNSTRUCTIONOOCUMENTSIS PROPRIETAR'l'BYNATURE. m-rus[ OR DISCLOSURE OTHER THAN THAT WHICH RELATES TO VERIZON WIRELESS IS STRICTL"!' PROHISITEO.
verizon"
15~5SANDCANYONAVENUE IRVINE.CAUFORN!A92618
LA COSTA RESERVOIR
(OTHRUP)
3023 ALGA ROAD CARLSBA0,CAUFORNIA92009
ORAWING Di'ITES
05/12/17 PRELIM CD'S (Pl-81) 08/16/17 90X CO'S (P1-82) OB/10/IB 100,: co·s {Pl-BJ} 09/07/1!! ORM COMMENTS {Pl-84)
12/21/1!! ORM COMMENTS {P1-85)
02/28/19 PLANNING COMMENTS (P1-B6}
10/16/19 PWI CHECK COMMENTS (P\-B7)
EQUIPMENT SHELTER
SECTIONS
A-4.1
Feb. 25, 2020 Item #1 Page 61 of 64
Exhibit D
COMMENCEMENT DATE MEMORANDUM
This Commencement Date Memorandum, dated as of ___ , 20_ is executed
between the Carlsbad Municipal Water District, (the "CMWD") and Verizon Wireless (VAW) LLC,
d/b/a Verizon Wireless ("Licensee").
RECITALS
WHEREAS, CMWD and Licensee have entered into that Communications Site License
Agreement ("License") dated ____ , 20_ for that certain real property commonly known
as La Costa High Reservoir Site in the City of Carlsbad, County of San Diego, State of California
(APN: 223-792-19-00); and
WHEREAS, pursuant to the terms of the License the parties are to execute a
memorandum to confirm the commencement date of the License.
NOW, THEREFORE, in consideration of the conditions and covenants contained herein,
the parties hereto mutually agree as follows:
1. The CMWD and Licensee agree that the commencement date of the Lease is ___ _
20 and the termination date is ____ , 20_.
IN WITNESS WHEREOF, the parties hereto for themselves, their heirs, executors,
administrators, successors and assigns do hereby agree to the above, as of the day and year first
written above.
"CMWD" "Licensee"
Carlsbad Municipal Water District Verizon Wireless (VAW) LLC,
By:~
dba Verizo&::::
By:--....,.~------------
Print Name: Matt Hai,
Title: -~P~fi~l~S ...... iJ~e~D~f _____ _ Title:J:?,reckx:= ~ Nr±--wcvll
Dated: O'J /Q6 i@oQb _ ___.,..._.. ..... ,.,__.~..,.., ~~~----Dated: ( It t/ /z.J 7_,c, r 1
38
Feb. 25, 2020 Item #1 Page 63 of 64
VERIZON WIRELESS (VA W) LLC d/b/a VERIZON WIRELESS
ASSISTANT SECRETARY CERTIFICATE
I, Karen M. Shipman, d<;> hereby certify that I am a duly elected. qualified and
acting Assistant Secretary of Verizon Wireless (VAW) LLC, (the. "Company"), a
Delaware limited liability company, and as such I am authorized to execute this
certificate. In such capacity, I further certify that:
Steve Lamb is duly appointed, qualified and acting under delegnted authority to
sign on behalf of Verizon Wireless (VA W) LLC d/b/a Verizon W.ireless as
Director -Network Field Engineering.
Dated: April 21, 2016 ~Vt · ~s~
Assistant. Secretary
Page 752 Feb. 25, 2020 Item #1 Page 64 of 64
AU Receive - Agenda Item # 1
For the Information of the:
CI FY COUNCIL
Dateala5POCA X CC .><
CM COO DCM
CCity of
Carlsbad
Council Memorandum
Feb. 25, 2020
To: Honorable Mayor Hall and Members of the City Council
From: Gary T. Barberio, Deputy City Manager, Community Services
Curtis M. Jackson, Real Estate Manager
Via: Elaine Lukey, Chief Operations Officer
Re: Additional Materials Related to City Council Agenda Item No. 1— License Agreement
with Verizon Wireless
This memorandum provides additional information related to City Council Agenda Item No. 1 —
License Agreement with Verizon Wireless.
Paragraph 1, on page 2 of the Staff Report is amended to read as follows:
Verizon Wireless was previously issued a Conditional Use Permit ("CUP 94-11x1") in May
2000, which had been extended twice since that time. On Sept. 19, 2016, the city
approved a new Minor Conditional Use Permit (CUP 13-02) to allow for the remodel and
improvement of their facilities, which included replacement of the existing 40-foot tall
non-stealth cellular tower with a faux eucalyptus tree, compliant with the stealth design
guidelines of City Council Policy No. 64, and alteration of the exterior appearance of the
equipment structure to be more consistent with the surrounding neighborhood. CUP 13-
02 became null and void on Sept. 18, 2018, as Verizon Wireless failed to obtain necessary
building permits within 24 months of the date of approval. As such, Verizon Wireless was
required to obtain approval of a new Minor Conditional Use Permit (CUP 2019-0001;
approved on June 6, 2019).
The Agreement updates and aligns the general terms and conditions of the original
agreement to current standard telecommunication license agreement language, as well
as aligning rents to the current market value, and connecting the terms of the Agreement
to the new 2019 CUP.
The City Council Resolution, Exhibit 1 to the Staff Report, has also been updated to reflect the
current CUP approval date of June 6, 2019 (CUP 2019-0001).
Attachment:
Redline version of City Council resolution, Exhibit 1 to the Staff Report
Community Services Branch
Real Estate Division
3096 Harding Street I Carlsbad, CA ZIP 92008 I 760-434-2836
Honorable Mayor Hall and Members of the City Council
Feb. 25, 2020
Page 2
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney,
Don Neu, City Planner
Exhibit 1
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISCTRICT BOARD (CMWD), AUTHORIZING THE
EXECUTIVE MANAGER TO EXECUTE A COMMUNICATIONS SITE LICENSE
AGREEMENT WITH VERIZON WIRELESS (VAW), LLC TO CONTINUE
OPERATION OF AN EXISTING WIRELESS COMMUNICATION FACILITY AT
THE LA COSTA HIGH RESERVOIR SITE (APN: 223-792-19)
WHEREAS, city staff has negotiated a license agreement (Agreement) with Verizon Wireless
(VAW), LLC, to operate a wireless communication facility at the La Costa High Reservoir site located at
APN: 223-792-19; and
WHEREAS, Verizon Wireless (VAW), LLC obtained approval of a Conditional Use Permit (CUP
94-11x1) in May 2000 to install a 40-foot tall monopole wireless communication facility (WCF) and
equipment building; and
WHEREAS, Verizon Wireless (VAW), LLC obtained approval of a Minor Conditional Use Permit
(44CUP 13 02 2019-0001) on Sept. 19, 2016 June 6, 2019, to demolish the existing WCF and replace
with a 61-foot tall faux mono-eucalyptus tree WCF consisting of 12 panel antennas, as well as
modifications and architectural enhancements to the existing equipment building; and
WHEREAS, CMWD will receive a one-time lump sum payment of $17,500 as a construction
enhancement fee to be used by CMWD for security measures to be installed around the reservoir by
CMWD; and
WHEREAS, the Agreement will generate $46,200 in revenue for the city over the first year of the
agreement and will increase a minimum of 3 percent in January of each year thereafter.
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of
Directors, as follows:
1. That the above recitations are true and correct.
2. That the Agreement, which is attached hereto as Attachment A, is approved as to form,
and the executive manager is hereby authorized and directed to execute the Agreement.
3. That the executive manager, or his designee, is hereby authorized to take all actions
necessary to implement the Agreement with Verizon Wireless (VAW), LLC, that are
consistent with and in full compliance with the terms and conditions expressed in the
aforementioned Agreement, including any Agreement extensions, and to the satisfaction
of the general counsel, including any amendment to the Agreement.
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water
District of the City of Carlsbad on the day of 2020, by the following vote, to wit:
AYES:
NAYS:
ABSENT:
MATT HALL, PRESIDENT
BARBARA ENGLESON, SECRETARY
(SEAL)
J e f f r ey Rome
ASSOCIATES
arc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
T-1
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16*472
SITE
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T-2
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
T-3
Je f f r ey Rome
ASSOCIATES
arc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-01
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-0.11
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-1
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-21
2
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-2.1
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-3
J e f f r ey Rome
ASSOCIATES
arc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-4
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-4.1
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-5
153
246
A-6
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
6 2
153
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
A-7
4
1 A-8
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
23
4
5
1 S-0
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
S-11
2
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
S-21
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
S-3
1
2
13
10
S-4
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
6
9
14
5
311715
412816
1 S-5
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
24
35
6
1 S-6
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
23
4
5
08-28-2018
08-28-2018
08-28-2018
08-28-2018
08-28-2018
08-28-2018
1 E-12
3
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
E-212
3
4
5
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
4 E-31
2
3
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
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Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
M-2
Je f f r ey Rome
ASSOCIATES
a rc hit ec tur e | t el e com m uni ca ti ons
1 3 1 I n n o v a t i o n D r i v e , S u i t e 1 0 0
I r v i n e , C a l i f o r n i a 9 2 6 1 7
tel 949.760.3929 | fax 949.760.3931
WCPC