HomeMy WebLinkAbout2007/07/17 Item 3
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
CITY COUNCIL
AGENDA STATEMENT
~f:. CITY OF
~-<: <~ (HULA VISTA
JULY 17, 2007, Item~
RESOLUTION ESTABLISHING A MASTER
COMMUNICATIONS SITE LICENSE AGREEMENT WITH
NEW CINGULAR WIRELESS PCS, LLC FOR THE
INSTALLATION AND OPERATION OF AS MANY AS 25
WIRELESS TELECOMMUNICATIONS FACILITIES OR
SUBSTANTIALLY SIMILAR FACILITIES ON CITY-
OWNED AND CONTROLLED PROPERTY, SUBJECT TO
ALL NECESSARY AFPROV ALS, FOR A PERIOD OF 5
YEARS WITH AN OPTION TO RENEW FOR AS MANY AS
FIVE ADDITIONAL 5-YEAR TERMS; AND
AUTHORIZING THE MAYOR TO EXECUTE THE
AGREEMENT
DIRECTOR~RVATION & ENVIRONMENTAL
SERVICES .....
ACTING ASSISTAN~~\l.1 MANAGER S7
CITY MANAGER ~ C)/
4/5THS VOTE: YES D NO ~
SUMMARY
Staff is submitting a Master Communications Site License Agreement (MLA) for the
City Council's review and consideration. Adoption of the proposed resolution would
establish a MLA between the City and the New Cingular Wireless PCS LLC, a Delaware
Limited Liability Company (Cingular), for the installation of as many as 25 total wireless
telephone facilities (WTF) on property owned or controlled by the City. The proposed
MLA includes mutually beneficial and agreed upon terms that are consistent with those
provided other wireless carriers including but not limited to: accommodating Cingular's
requests to formally incorporate Cingular's change in name subsequent to their
disengagement from Pacific Bell Wireless, LLC, and establishing a new MLA for one
five year term with up to five additional five-year options that are subject to the City's
review and approval. The MLA also provides an additional rent reduction incentive for a
smaller site option. The City retains its preferred technical conditions and will receive an
annual fee adjustment of 3% that brings the fees up to current market value and makes
them comparable to other City MLA carriers.
3-1
JULY 17,2007, Item .3
Page 2 of6
BACKGROUND
The City Council approved Resolution 18601 on March 18, 1997, conceptually
approving the marketing of City properties for use by telecommunications companies.
On November 16, 1999, the City Council approved Master License Agreements (MLA)
with AT&T and Cox PCS, Assets, LLC, for installation and operation of as many as 50
wireless communication sites on property owned or controlled by the City. The City also
approved an MLA with Pacific Bell Wireless, LLC for as many as 25 sites on November
5,2002, and Cricket for as many as 35 sites on March 1, 2006. In 1998, when the City
began negotiations, Council originally directed staff to negotiate rates that would provide
wireless carriers an incentive to come to Chula Vista. It was Council's desire at that time
to see Chula Vista commercial and residential consumers have the opportunity to be early
adopters of the technology and benefit from the competition of multiple carriers. Staff
reached out to the industry, held workshops and invited them to the City to structure
"master" agreements that would provide prompt entry at below-market rates. Nine years
later, now that the technology is readily available and provides competitive options,
Council has asked staff to ensure that the City is receiving market rates for its sites.
Additionally, over a relatively short period of time, the technology has evolved from a
unique business tool, used by a few people, primarily in commercial areas, to a common
business and household convenience used almost everywhere. That has put tremendous
demand on sites in predominantly residential areas with few site options. The increase in
sites to cover the varied topography of a growing city increases exponentially by: 1) the
limitations that each site can carry during peak periods, 2) the increased intensity of
bandwidth use for items such as music, video and internet uses versus the original voice
functions, and 3) the desire to accommodate more carriers with the expectation of
fostering greater consumer choice, competition for price and service quality. The public
demand for these services continues to grow and all of these issues place a greater
demand on sites, particularly in residential neighborhoods. Federal and state law does
not allow cities to deny permits based on health or solely on aesthetics issues. The
Council and staff have worked with industry for many years on a "master license
agreement" approach to reduce the pressure on sitting these facilities in less appropriate
areas.
The MLAs provide the City with an opportunity to work cooperatively with the carriers
to expedite their projects, provide adequate volume and coverage needed to meet public
demand, provide incentives to pursue sites that have the least impact to residents and
meet the aesthetic and safety goals of the community, while capturing revenue that helps
the City fund public services at no additional cost to the ratepayer. Above all, the
wireless industry values rapid deployment, and works with the City to accommodate the
community's objectives based predominantly on our ability to demonstrate a record of
timely zoning and construction approvals that support that goal.
Cingular is an existing mobile phone service provider that is seeking to expand and
improve its coverage in the region and accommodate a name change. Staff has been
working on establishing a new MLA with Cingular, subsequent to their disengagement
3-2
JULY 17,2007, Item ...3
Page 3 of6
from the Pacific Bell Wireless MLA and to accommodate their request for a change in
name. Staff is recommending that the City execute an MLA between the City and New
Cingular Wireless PCS, LCC, (Attachment 1) which outlines mutually beneficial terms
based predominantly on the terms and conditions currently in place with other City MLA
partners.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed activity, approval of
a Master Licensing Agreement, for compliance with the California Environmental
Quality Act (CEQA) and has determined that the activity is not a "Project" as defined
under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060
(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Although
environmental review is not necessary at this time, each individual wireless
telecommunication facility will have environmental review once the projects are further
defined and a CEQA determination will be completed prior to installation of any new
facilities.
RECOMMENDATION
That Council adopt the resolution approving the new Master Communications Site
License Agreement with Cingular for the installation and operation of as many as 25 total
WTF or substantially similar facilities on property owned or controlled by the City for a
period of five years, subject to all necessary approvals, with an option to extend the MLA
for up to five additional five-year terms.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
MASTER LICENSE AGREEMENT: The MLA allows Cingular to install as many as 25 total
WTF's on property owned andlor controlled by the City and to operate within the scope
of this MLA for a period of five years. The MLA allows for as many as five additional
five-year terms, each with the written request of Cingular and the subsequent written
approval of the City Manager. Prior to the renewal of each five-year term, the annual
license fee is subject to renegotiation to ensure that the City is receiving market value for
its facilities. Cingular has completed that negotiation on what staff considers to be
mutually beneficial terms. Cimrnlar's annual license fees vary based on the number of
cabinets and antennae at each WTF site. The annual fee for each WTF site that includes
as many as 7 equipment cabinets and 12 antennas would be adjusted as follows:
3-3
JULY 17,2007, Item...3..-
Page 4 of 6
... Maximum lO'x20' area or enclosure
.. Maximum 1 Q'x 16' area or enclosure reduced ree by 25%
... Approximately 3'x3'x3' or 27 cubic reet cabinet
Cingular has also agreed to make a 3% rate adjustment to bring rents inline with market
rates for comparable sites in the region. The 3 % increase is reflected in the 2007 line
item increases. The other line items reflect the standard 3 % annual increase. Staff has
also secured a payment of approximately $107,000 that funds any Annual Fee obligations
that the new Cingular's portion of rents due under the previous Pac Bell Wireless LLC
agreement. Revenue from these projects has been anticipated in the 2008 budget.
In some instances, Cingu1ar will require a site for antennas or cabinets only. Staff has
also accommodated Cingular's request for a rent option for a smaller site configuration
that they expect to use frequently. The annual license fee for those facilities will be less
than a full site as identified in the table above. The MLA would also continue to include a
clause that reduces these rates by as much as 40% with Cingular and other contractors if
they propose projects that under ground the cabinets and pedestals or take other similar
measures to reduce the impacts to land use. Council approved a similar clause in the
2002 Cingular and 2006 Cricket Licenses, and the 2006 Sprint License renewal.
Cingular is required to comply with all local, state and federal applicable laws. The
Schedule of Premises shall be administratively approved for each site and contain
specific conditions that must be satisfied and maintained in order to use the wireless
facility. The Schedule of Premises will be submitted to the Zoning Administrator and
circulated to the Director of Conservation & Environmental Services and all other
appropriate departments. Cingular shall continue to pay the appropriate full staff costs for
processing each submittal.
All of Cingular's construction, installation, maintenance and removal of the WTF
facilities will be at their sole responsibility and cost. If Cingular causes any damage to
the public right of way or City property, they are required to repair it promptly at their
sole cost. Cingular will not be allowed to activate their site until the City signs off on
final construction. The original MLA, the Schedule of Premises for each site and City
Municipal Code provide for a number of risk mitigation measures for the City including:
indemnity; insurance requirements; limitation on remedies available to Cingular in the
event of a City breach; and reservation of the City's emergency and police powers.
3-4
JULY 17, 2007, Ite~
Page 5 of6
IMPACTS ON CITY PROPERTY: The installation will vary depending on the site Cingular
needs. As mentioned, all installations will be required to receive all applicable permits
and Cingular will work closely with Planning, General Services, Engineering,
Conservation & Environmental Services and a representative from the host department to
assure that they do not interfere with City operations or facility maintenance. The three
primary types of installations are building mounted, ground mounted and light standard
mounts. Building mounted installations generally involve mounting antennas on the
facade or on the roof of the building, in addition to accommodating equipment cabinets
on the ground or on the roof. Ground mounted applications involve construction of a
"monopole" or more stealth applications where the monopole is camouflaged as an
artificial pine, broadleaf or palm tree, flagpoles or complimentary structures such as clock
towers or facility signs. In this case the cabinets are generally mounted on a concrete
slab adjacent to the antenna structure. The largest size cabinet systems use an area of
approximately 10 by 20 feet. Both applications will require some trenching and cabling.
The installations will require maintenance and administration on a limited basis. All
proposed facilities would be required to secure all necessary land use, building and
engineering permits. Staff will encourage Cingular to take advantage of reductions in
monthly site payments by undergrounding the cabinets and other structures whenever
possible.
FINANCIAL BENEFITS: Cingular will be compensating the City for use of each site by
paying an annual license fee to the City General Fund for each system installed.
Cingular's annual license fee for a typical site that includes both antennas and cabinets is
approximately $26,000. The MLA authorizes as many as 25 WTF facilities by Cingular.
The annual fee increases by 3% a year beginning January 2008, and is subject to
renegotiation prior to the renewal of each five-year term to ensure the City is receiving
market rate rent. Staff also works with Cingular and other carriers to implement basic
facility improvements or enhancements at each site to help them compliment the
facilities' function when the construction and demolition or site programming warrant it.
For example, it is common for WTF equipment shelters to provide extra storage for
Recreation or the Library, a pad for water fountains, vending machines or other amenities
not currently available in that part of the facility. It is also common for light standards to
be replaced or upgraded when antennae are added. These improvements are typically in
addition to the lease payments.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific and consequently the 500 foot rule found in California Code of
Regulations section 18704.2(a)(I) is not applicable to this decision.
FISCAL IMPACT
Cingular will increase the annual fee paid the City for all future sites by 3%. Staff
believes that will ultimately be approximately 4 sites at the end of this year. The MLA
authorizes as many as 25 WTF facilities at a yearly rate of as much as $25,706 per WTF
site at the current annual rate. If Cingular were to execute all the remaining full sites
3-5
JULY 17,2007, Item~
Page 6 of6
(approximately 23) it could generate up to approximately $650,000 in revenue per year
and be subject to the annual 3% increase each January. Although it is difficult to identify
development trends in the rapidly changing telecommunications field, staff projects the
addition of at least 2-3 sites per year for the immediate future. Staff has also secured a
payment of approximately $107,000. Additionally, the City is reimbursed for staff time
spent on review and approval of each site application submitted for the planning process.
There will be some staff time associated with monitoring and ensuring compliance with
the MLA, which is budgeted as part of the Conservation & Environmental Services
Department annual responsibility. The Finance Department also plays a key role in
tracking and assisting with the collection of annual license revenues.
ATTACHMENTS
Master Communications Site License Agreement
Prepared by: Michael Meacham, Director, Conservation & Errvironmental Services
3-6
RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ESTABLISHING A MASTER
COMMUNICATIONS SITE LICENSE AGREEMENT WITH NEW
CINGULAR WIRELESS PCS, LLC FOR THE INSTALLATION
AND OPERATION OF AS MANY AS 25 WIRELESS
TELECOMMUNICATIONS FACILITIES OR SUBSTANTIALLY
SIMILAR FACILITIES ON CITY-OWNED AND CONTROLLED
PROPERTY, SUBJECT TO ALL NECESSARY APPROVALS, FOR
A PERIOD OF 5 YEARS WITH AN OPTION TO RENEW FOR AS
MANY AS FIVE ADDITIONAL 5- YEAR TERMS; AND
AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT
WHEREAS, the City Council approved Resolution 18601 on March 18, 1997, conceptually
approving the marketing of City properties for use by telecommunications companies; and
WHEREAS, on November 16, 1999, the City Council approved Master License Agreements
("MLA") with AT&T and Cox PCS, Assets, LLC, for installation and operation of as many as 50
wireless communication sites on property owned or controlled by the City; and
WHEREAS, in November 5, 2002, and March 1,2006, the City also approved MLAS with
Pacific Bell Wireless, LLC, for as many as 25 sites, and Cricket for as many as 35 sites,
respectively; and
WHEREAS, Pacific Bell recently went through a divestiture process that resulted, in part, in
the formation of New Cingular Wireless PCS, LLC ("Cingular"), which now seeks to enter into an
MLA with the City; and
WHEREAS, staff is recommending that the City enter into a new Master Communications
Site License Agreement with Cingular to install and operate up to 25 wireless telecommunication
facilities or substantially similar facilities on property owned or controlled by the City for a period of
up to five years, with an option to extend the agreement for up to five additional five-year terms.
NOW, THEREFORE, BE IT RESOLVED the City Council ofthe City ofChula Vista does
hereby approve and authorize the Mayor to execute the Master Communications Site License
Agreement with New Cingular Wireless PCS, LLC, a copy of which is attached to this Resolution.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute the Master Communications Site License Agreement with
Cingular, for and on behalf of the City of Chula Vista.
Presented by
Approved as to form by
Michael Meacham
Director, Department of Conservation
& Environmental Services
~\).fcA \0~lfkn
,
Ann Moore
City Attorney
J:\AlIomey\RESOIAGREEMENTSlCinJ::ular Wireless MLA_07+17-07.doc
3-7
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
~~~~
Ann 'Moore
City Attorney
Dated: &\.~ \ \. ) 1.....acq
Master Communications Site License Agreement
between
New Cingular Wireless PCS, LLC
and
City of Chula Vista
3-8
MASTER COMMUNICATIONS SITE LICENSE AGREEMENT
THIS MASTER COMMUNICATIONS SITE LICENSE AGREEMENT ("Ucensc") dated as of
, 2007 ,Effective Date"), is entered into between New Cingular Wireless PCS, LLC a Delaware
Limited Liability Company ("Cingular"), and the CITY OF CHULA VISTA, A MUNICIPAL CORPORATION
("City") with reference to the following facts.
A. Cingular wishes to attach, install, erect, operate, and maintain up to twenty-five (25) various unmanned
wireless telecommunications facilities, or substantially similar facilities, on public property under the
ownership and/or control of the City for purposes of providing wireless communications services.
B. City is willing to allow Cingular to attach, instal~ erect, operate and maintain the Facilities subject to the
terms and conditions set forth herein and in the site specific Schedule of Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree to the following covenants, terms, and conditions:
1. DEFINITIONS:
1.1. .. Licensed Premises or Premises: The 'City owns in fee, or controls through easement rights,
certain real property located in the City of Chula Vista, California. Portions of such property shall be
described in Ii Schedule (as defined below) approved by the City and attached hereto. The property
described in such Schedules shall constitute and be described and collectively referred to herein as the
"Licensed Premises" or "Premises." Licensed Premises shall include any appurtenant property the City
owns, or controls on which Cingular installs-1ltility and transmission lines with City's prior approval
pursuant to Section 2.4 below.
1.2. Schedule: Attached hereto and incorporated herein by reference shall be various Schedules of
Licensed Premises (hereinafter .Schedule"). Each Schedule shall be substantially in the form attached
hereto as Exhibit B and shall include the description of the specific Cingular Improvements (described
below) or light standards allowed on the Licensed Premises, its configuration, and the site specific
conditions necessary for approval (hereinafter .Conditions of Approval"). Both parties agree that
Schedules may be added or deleted by administrative action by City from time to time subject to and in
accordance with the provisions of this License, including but not limited to Section 5.3 regarding
Governmental Approvals. No more than 25 Schedules may be in effect at anyone time. Both parties also
agree that the City may add to, delete or modiiY the Conditions of Approval at any time during the term
of this License to advance a legitimate and reasonable governmental interest.
1.3. Pre-existing CommuulcatioDs: "Pre_isting Communications" shall be defined as those
communications configurations, equipment and frequencies which exist on City's property or are in use
by the City within or around the City as of the Effective Date of this License or as of a Commencement
Date of an applicable Schedule.
1.4. CinguJar Improvements or CinguJar's Improvements: Cingular Improvements shall be
defined to be those unmanned wireless telecommunications facilities comprised of radio frequency
transmitting and receiving equipment, antennas, cables, conduits, wires, batteries, utility lines,
transmission lines, radio frequency transmitting and receiving antennas and supporting structures and
improvements, which are approved by the City and whicb are located or proposed to be located per this
License, on Licensed Premises. A typical example of the facilities comprising the Cingular
Improvements is set forth in Exhibit A. attached hereto. Cingular Improvements shall exclude light
Chula Vista I Cingular
Master Comm. Site License
Page I of 191?;aQ2Q I
3-9
standards or poles located in City rights-of-way, whether or not said light standards or poles are installed
by City or Cingular. Such excluded improvements shall be owned by City.
1.5. Commencement Date: Upon execution hereof by all parties hereto the Commencement Date of
this License shall be the Effective Date. The Commencement Date of this License with respect to each
individual Licensed Premise shall be as specified in each related Schedule.
2. PREMISES AND LICENSED USES
2.1. Grant of Liceuse. Subject to the following terms and conditions and each Schedule's site
specific Conditions of Approval, City hereby grants to Cingular a non-exclusive license to the Premises
as depicted in the Schedules attached hereto and incorporated herein from time to time. Each Schedule
executed hereunder shall be substantially in the fonn of Exhibit B.
2.2. Use. The Premises may be used by Cingular solely for the transmission and reception of non-
franchised wireless telecommunication signals on various frequencies and the construction, maintenance
and operation of City-approved Cingular Improvements.
2.3. Pre-Coostruction; Testing. Cingular shall have the right (but not the obligation) at any time
following the full execution of this License and prior to the Commencement Date under each Schedule to
enter the Premises for the purpose of making necessary inspections, engineering surveys (and soil tests
where applicalile) and other reasonably necessary tests (collectively "Tests") to determine the suitability
of the Premises for Cingular Improvements and for the purpose of preparing for the construction of
Cingular Improvements at no expense to City. During any Tests or pre-construction work, Cingular shall
have the insurance coverage set forth in Section 4.4, Insurance. Cingular shall provide the City with
prior notice of any proposed Tests or pre-construction work and will coordinate the scheduling of same
with Cicr.-cingular, at Cingular's sole cost and expense, will restore the Premises to the same condition
as existed prior to any such tests or pre-construction work by Cingular.
2.4. Installation of Cingular Improvements.
2.4.1. In General. This License grants to Cingular the right to construct, maintain and operate
Cingular Improvements on the Licensed Premises subject to the terms and conditions set forth
herein and those Conditions of Approval found in each Schedule. All Cinguiar construction and
installation work shall be perfonned at Cingular's sole cost and expense and in a good and
workmanlike manner. Title to Cingular Improvements shall be held solely by Cingular, and all
Cingular Improvements shall remain the personal property of Cingular and shall not be treated as
real property or become a part of any Premises even though affixed thereto. All street light
standards on property owned or controlled by the City, whether installed pursuant to this License
by City or Cingular, shall be owned by the City. Prior to installation and operation of each set of
Cingular Improvements, Cingular must obtain any and all required federal, state and local permits
required for such installation and operation. City pennits required include, without limitation,
building permits and an approved Schedule. City shall exercise its best efforts to process
Improvements applications within forty-five (45) days after the submittal of a completed
application. In addition, all work shall be scheduled in advance and coordinated with parks
operations personnel, onsite recreational staff, Public Works, Engineering or other City staff as
appropriate prior to commencement of the work to minimize tile potential for conflicts with
recreation and other City programs or activities occurring on the site. Cingular agrees that the
site will not be activated until the City has signed off on final construction, which sign off shall
not be unreasonably withheld or delayed. Absent such sign off, Cingular shall have recourse to an
appcallo the City Manager.
Chula Vista I Cingular
Master Comm. Site J..icense
Page 2of191'1:!lBCl I
3-10
;.-'."
2.4.2. Location of CinguIar Improvements. The location of Cingular Improvements on Licensed Premises
shall be subject to the Zoning Administrator's prior approval. In deciding whether to approve a
location, the Zoning Administrator will take into consideration City's goal to assure that wireless
telecommunication networks are completed with the fewest possible facilities, in the least visible
fashion, and with the least disruptive impact on neighborhoods and communities within the City
of Chuta Vista. For example, denying or conditionally approving a location to preserve and
enhance the aesthetic qualities of the City ofChula Vista shall not be deemed unreasonable. City
approval shall be deemed given once the Zoning Administrator has approved the Schedule of
Licensed Premises with associated Conditions of Approval. If a schedule is denied, Cingular
shall have recourse to appeal to the City Manager, whose decision will be final. It is understood
that both parties will work together to find the optimum location for Cingular's antennas on the
Licensed Premises that have the least impact to City and private properly.
Cingular agrees to reimburse City for the reasonable costs, including reasonable administrative
overhead, of processing the approval of each Schedule. The process for reimbursement shall be
conducted in the same or similar manner as the City's processing of a non-administrative
conditional use permit.
2.4.3. Utilities. Cingular shall have the right to install utilities which are necessary for the
operation of Cingular Improvements, at Cingular expense, and to improve the present utilities on
or near the Premises (including, but not limited to the installation of emergency back-up power).
Such utilities shall be subject to City approval and removal in the same manner as other Cingular
Improvements as provided in Section 2.4.2, and 2. I 0, respectively. Cingular shall fully and
promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of
Cingular Improvements. Payment of all costs for said utilities' deactivation and removal,
including any costs, which would survive the term of said License or Schedule, shall be the
exclusive obligation of Cingular. Cingular Improvements shall include separate utility meters.
2.4.4. Street Light Standards. In the case of installations on street light standards or mast
arms, Cingular shall comply with all applicable City regulations for the installation of streetlights.
If the installation is -to be done via replacement of an existing standard and/or mast arm, said
replacement shall meet the same regulations as were applied to the existing standard and/or mast
ann and be completed to the satisfaction of the Zoning Administrator. Said regulations shall
include, but not be limited to, the form, size, strength and construction materials specified for
City street lights. Consistent with the City's lawful exercise of police powers, such regulations
may be amended at the City's sole and absolute discretion including, but not limited to, allowing
for additional space for internal wiring of City and/or Cingular or, altered foundation
requirements to accommodate joint City and Cingular uses, or other technical reasons; provided
that (i) City shall pay costs to modify street light standards or mast arms which it owns in
accordance with such amended regulations and (ii) Cingular shall pay all costs to modify
Cingula!'s Improvements as required by such amended regulations. In making any such
amendments, City shall use reasonable efforts to accommodate and not materially adversely
impact the functioning of existing Cingular Improvements. In the event the amended regulations
make existing Cingular Improvements unusable by Cingular, then City shall use reasonable
efforts to provide a suitable alternate location. Upon reasonable notice and written request by the
Zoning Administrator, Licensee shall provide a replacement pole that is pre-approved by the City
Engineer and shall deliver the existing pole to the City Corporation Yard or some other suitable
site within the City designated by the City Engineer. The design of the pole, method of
attachment for Licensee's equipment and all other connections shall meet the specifications
reasonably required by the Zoning Administrator.
Chula Vista I Cingular
Master Camm. Site License
Page30f~ I
3-11
2.4.5. Compliance with Laws. Cingular's Installation and operations of Improvements must
comply with any and all applicable federal, state and local laws. Installation of improvements in
or near the public right of way shall meet the requirements of the Americans with Disabilities Act
with regard to minimum clearance and public use of sidewalk areas.
2.4.6. Restoration. If any City sidewalk is disturbed in the course of installation, Cingular
shall replace said sidewalk from cold joint to cold joint from each direction from the disturbed
area and to the satisfaction of the City Engineer. If any existing landscaping, irrigation systems,
utilities or other City facilities are disturbed in the course of installation, Cingular shall replace
and restore said property to its pre-installation condition.
2.4.7. Maintenance. Maintenance of the Cingular Improvements shall be the sole
responsibility of Cingular during the entire term of this License, and Cingtllar agrees to keep all
Cingular Improvements in good condition and repair.
2.5. Access.
2.5.1. Cingular and Cingular employees, agents, contractors and subcontractors shall have
access to the Premises twenty-four, (24) hours per day, seven (7) days per week, at no charge to
Cingular, subject to the conditions set forth in each Schedule. City hereby licenses to Cingular all
rights of ingress 'and egress held by City to the extent required to' construct, maintain, install and
operate Cingular Improvements on the Premises. Cingular's exercise of such rights shall not
cause undue inconvenience to City.
2.5.2. In connection with installations on light standards, mast arms or poles, Cingular shall
provide at least seven (7) days written notice to the City Engineer of installation date and time.
Cingular shall pay any and all costs associated with City shut off and reconnect of power to
Premises, installation oversight and/or inspections if City reasonably deems necessary.
2.5.3. In connection with Cingular's maintenance of Cingular Improvements on street light
standards, mast arms or poles, Cingular shall provide at least twenty four, (24) hours notice to the
City Engineer and pay City any and all costs associated with City shut off and reconnect of power
to Premises, maintenance oversight and/or inspections if City deems reasonably necessary. In
case of need for emergency maintenance of Cingular Improvements, Cingular shall use its best
efforts to give prior notice to City Engineer but shall notify City of such work as promptly as
reasonably possible after the work is commenced.
2.5.4. In connection with City's maintenance to street lights which share a standard or mast arm
with such installations, City shall use its best efforts to provide Cingular at least twenty four (24)
hours notice of said maintenance. If City desires to have a technician of Cingular on site during
said maintenance, Cingular shall provide said technician upon at least twenty four, (24) hours
notice. In case of need for emergency maintenance of City's street lights which sbare a standard
or mast arm with such installations, City need not give prior notice to Cingular but shall notilY
Cingular of such work as promptly as reasonably possible after the work is commenced.
2.6. Interference with CommunicatioDS.
2.6.1. Cingular Improvements at any given Premises shall not interfere with Pre-existing
Communications (determined with respect to such Premises at the date the Schedule for such
Premises is executed). Cingular Improvements shall also comply with all noninterference rules
Chula Vista I Cingular
Master Camm. Site License
P.ge40f~ I
3-12
of the Federal Communications Commission ("FCC").
2.6.2. Any radio equipment installed by Cingular on the Premises shall be frequency compatible
with all radio transmitting and receiving equipment existing and in use on the Premises at the
time initial installation of such equipment is made. In the event Cingular installation
electronically or physically interferes with City's installation already existing on the Premises,
Cingular shall take all necessary steps, at its own cost and expense, to eliminate such interference,
whether so required by the FCC or not.
2.6.3. Except to the extent necessary to install, operate or maintain public improvements, or in
the event of an emergency, the City shall not knowingly interfere with the location, configuration,
frequency or operation of Cingular Improvements except in the case of Pre-Existing
Communications that do not materially change their power level, frequency or location. In the
event any equipment installation by City made subsequent to Cingular's installation causes
interference with the location, configuration, frequency or operation of Cingular Improvements,
City shall exercise reasonable best efforts to eliminate such interference after learning of such
interference, whether required by the FCC or not.
2.6.4. Notwithstanding any other provision in this License to the contrary, in the event of an
emergency, City shall have the right, in its sole discretion, to take such action it determines in its
sole discretion is necessary under the circumstances to address the emergency, even though such
actions may cause interference with Cingular Improvements or the operation thereof. If City
must take action which causes or may cause interference, City shall endeavor to (a) give Cingular
oral notice of such action as quickly as practicable and (b) to the extent practicable under the
circumstances, upon notice by Cingular of the existence of interference, minimize the duration
and extent of such interference.
2.6.5. City shall have the responsibility to cooperate with Cingular to identify and remedy to the
extent reasonably necessary, any interference with the communications operations of Cingular
described in Sections 2.6.3 and 2.6.4, above.
2.6.6. Subsequent to the installation of Cingular Improvements, City shall not permIt Its
licensees or future licensees to install new equipment on the Licensed Premises or property
contiguous thereto owned or controlled by City, if such equipment is likely to cause interference
with Cingular's operations. Cingular shall cooperate in good faith with City to determine
whether such interference is likely to be caused by the prospective future licensee. For purposes
of this Section 2.6, the existence of electronic and physical interference shall be reasonably
determined by City and Cingular. [n the event Cingular reasonably determines the likelihood of
interference by newly installed facilities, City shall direct the party installing such facilities to
meet and confer with Cingular in order to develop an approach or design that eliminates or
materially reduces the potential for interference. Notwithstanding the foregoing, Pre-existing
Communications operating on the Commencement Date that do not measurably change from this
power level, frequency or location nn the Commencement Date shall not be deemed to be
interfering at any time.
2.6.7. Cingular agrees to notify immediately the Director of Public Works of the City of any
changes in Cingular frequencies to be used at the Premises.
2.7. Liens. Cingular shall keep the Premises free and clear of any and all liens or claims of liens and
charges on account of labor and materials used in or contributing to any work performed by or related to
this License, failing which City shall have the right, but not the obligation, to discharge any or all such
Chula Vista I Cingular
Master Comm. Site License
P.g.Saf~ I
3-13
liens or claims, and Cingular shall, upon demand therefor, reimburse City for all costs and expenses
incurred by City.
2.8. Removal of Cingular Improvements; Damage or Destructioa.
2.8.1. Upon expiration, cancellation or termination of this License or any Schedule hereunder,
Cingular shall be responsible for: (a) removing from the Premises subject to such expiration,
cancellation, or termination, at its sole cost, all Cingular Improvements except those which the
parties agree shall not be removed or shall be transferred to City, (b) repairing, at its sole cost, all
damage caused by such removal, and (c) surrendering the Premises to City in the Premises'
original condition, ordinary wear and tear and damages caused by third parties excepted. Said
return of Premises in their original condition shall include Cingular's remediation of any
hazardous or toxic material discharge at the Licensed Premises caused by Cingular or its agents
and shall be to the reasonable satisfaction of the City.
2.8.2. Within 30 days after the date this License or an applicable Schedule expires or otherwise
terminates, Cingular at its expense shall remove all Cingular Improvements from the affected
Premises; provided that if five or more Schedules expire or terminate contemporaneously, then
Cingular shall have a reasonable amount of additional time to remove the affected Cingular
Improvements so long as Cingular is diligently proceeding with removal. Any Cingular
Improvements remaining on affected Premises beyond the time period available for removal as
set.forth above shall, at the sole discretion of the City, either (a) in whole or in part become City
property (b) in whole or in part be removed and disposed of by City, with the reasonable costs of
said removal and disposal, including reasonable administrative overhead, to be reimbursed to City
by Cingular within ten days after Cingular receives City's request for reimbursement together
with reasonable evidence of the cost
2.8.3. If the Premises consist of a light standard, mast ann or pole and the same is damaged,
knocked down or destroyed from any cause, the following provisions shall apply:
Chula Vista I Cingular
Master Conon. Site License
a.
If the damage or destruction renders Cingular unable to conduct normal
operations and a temporary site is not available per subsection f. below, the fee
for such Premises shall abate in full from the date such damage or destruction
occurs until Cingular is able to commence normal operations; provided that
Cingular shall have no right to abatement if the damage or destruction is caused
by Cingular or its agents' negligence or willful misconduct.
b.
Non-replacement in case of damage. If Cingular chooses to terminate the use of
any Licensed Premises suffering such damage, Cingular shall notif'y the City
Engineer of such decision within ten (10) days after notice of such damage.
Cingular shall comply with all terms of this License concerning removal of
Cingular improvements. Cingular shall be responsible for any removal or
replacement of wiring, foundation or other associated facilities that may be
required to accommodate the replacement facilities. If this option is chosen by
Cingular, Cingular shall not be obligated to replace or pay to replace the
damaged light standard, mast arm or pole.
c.
Immediately following the damage or destruction, City shall exercise its best
efforts to notif'y Cingular in writing thereof and shall commence 8Ild thereafter
continue diligent efforts to repair or replace the light standard, mast arm or pole;
provided that City shall have no obligation to repair or replace the light standard,
P.&e60f~ I
3-14
.
mast arm or pole if (i) the City, determines, in good faith, that the facility is no
longer required or desirable to serve the public health, safety and welfare and that
the City has no existing or foreseeable intention of replacing or repairing the
facility, or (iI) the damage or destruction occurs during the last 12 months of the
Term or any Renewal Term, and Cingular does nol, within 10 days after
receiving City notice of such destruction, exercise any option to extend or renew
which may then be available regarding the subject Premises hereunder.
d. If within ten days after written notice from Cingular of damage City has not
commenced to repair or replace, then Cingular shall have the right, but not the
obligation, to repair or replace the pole or light standard to the conditions existing
immediately prior to the damage or destruction (or to any better condition
consistent with the City's then-existing standards and regulations for design and
construction of similar facilities); provided that Cingular shall have no obligation
to restore any City operations served by the light standard, mast arm or pole
unless the damage or destruction is caused by Cingular or its agent's negligence
or willful misconduct. Cingular shall perform such work using only contractors
approved by the City. Cingular shall complete such work as expeditiously as
reasonably possible, subject to complying with the provision of Section 2.4,
above.
e. If Cingular repairs and replaces pursuant to subsection d. above, then the City
shall reimburse Cingular for all its reasonable costs of repair and replacement,
provided that (i) City shall have no obligation to reimburse if the City timely
decides in good faith not to repair or replace pursuant to subsection c. above or if
the damage or destruction is caused by Cingular or its agent's negligence or
willful misconduct, and (iI) City shall not be required to pay more than the cost
of repair and replacement the City would have incurred had the City contracted
for the work using its customary method of procurement and customary time
frame for the type of work in question. Reimbursement shall be due and payable
within 30 days after receiving Cingular's request for reimbursement together
with reasonable evidence of the costs. Cingular shall have the right to offSet
license fees under all Schedules by the amount of any reimbursement owing but
not timely paid. If the City timely decides in good faith not to repair or replace
pursuant to subsection c. above, then all such work by Cingular shall be at its
sole expense, but Cingular shall have the option to remove or leave in place any
new or replacement light standard, mast arm or pole upon expiration or
termination of the applicable Schedule.
f. If Cingular is rendered unable to conduct normal operations due to damage or
destruction, City shall use reasonable efforts to identifY and make available to
Cingular, within ten days following the damage or destruction, a temporary site
owned or controlled by City which in Cingular'sjudgment is equally suitable for
Cingular's intended uses (subject to public safety issues). Cingular may
construct and operate substitute Cingular's Improvements thereon until the
Premises are fully repaired and available to Cingular.
2.9. Termination.
2.9.1. Neither this License nor any Schedule shall be revoked or terminated during the Term or
any Renewal Term except as expressly stated in this License.
Chula Vista I Cingular
Master Comm. Site License
Page 7 of ~Jg I
3-15
2.9.2. This License may be terminated by either party for any or no reason by delivering to the
other party, at any time after the initial five (5) year term of this License, written notice of
exercise of this right to terminate (the "Exercise Noticej. If this right to terminate is exercised,
termination of this License shall be effective 12 months after the Exercise Notice is delivered to
the other party. From and after the date the Exercise Notice is delivered to the other party until
the effective date of termination, Cingular shall have no right to receive any further Schedule
attachments to add Licensed Premises that were not executed prior to delivery of the Exercise
Notice. Notwithstanding the foregoing. City retains the right to disapprove extensions of this
License beyond the first five-year term as provided in Section 3.1 hereof.
2.9.3. Cingular shall have the right to terminate a Schedule on 30 days prior written notice to
City (or any shorter notice expressly set forth below), if:
Cingular delivers to City such 3()'day written notice at any time prior to the
Commencement Date under such Schedule for any reason or no reason;
Chula Vista I Cingular
Master Comm. Site Llcen.e
..
b.
Cingular determines at any time after the Commencement Date under such
Schedule that any governmental or non-governmental license, permit, consent,
approval, easement or restriction waiver that is necessary to enable Cingular to
install and operate Cingular Improvements cannot be obtained at acceptable
expense or in an acceptable time period; -
c.
Cingular determines at any time after the Commencement Date under such
Schedule that the Premises are not appropriate or suitable for Cingular operations
for economic, environmental or technological reasons, including without
limitation, any ruling or directive of the FCC or other governmental or regulatory
agency, or problems with signal strength or interference not encompassed by
Section 2.9.3 .d. below; provided that if Cingular exercises the right to terminate
under this subsection, Cingular shall pay City (or City may deduct from any
rebate due Cingular) as a termination fee 25% of the then Annual Fee for the
subject Premises;
d.
Any Pre-existing Communications, or any communications facilities or other
structures of any kind now or hereafter located on or in the vicinity of the subject
Premises, interfere with the location, configuration, frequency or operation of
Cingular Improvements and Cingular is unable to correct such interference
through reasonably feasible means;
e.
City commits a default under this License with respect to such Schedule and fails
to cure such default within the 30-day notice period, provided that if the period to
diligently cure takes longer than 30 days and City commences to CUrl: the default
within the 3().day notice period, then City shall have such additional time as shall
be reasonably necessary to diligently effect a complete cure.
f.
The Premises under such Schedule are totally or partially damaged, knocked
down or destroyed from any cause (other than due to Cingular or its agent's
negligence or willful misconduct) so as, in Cingular judgment, to hinder Cingular
normal operations and City does not provide to Cingular within 10 days after the
casualty occurs a suitable temporary location site for Cingular Improvements
pending repair and restoration of the subject Premises.
Page 8 of 1919~gJg I
3-16
2.9.4. City shall have the right to terminate a Schedule if:
a. Cingular commits a default under this License Agreement with respect to such
Schedule and fails to cure such default within (i) ten business days after Cingular
receives written notice of the default where the default is a failure to pay the
annual fee for the subject Premises when due, or (ii) 30 days after Cingular
receives written notice of any other default and fails to cure such default,
provided that if the period to cure takes longer than 30 days and Cingular
commences to cure the default within the 30-day notice period, then Cingular
shall have such additional time as shall be reasonably necessary to diligently
effect a complete cure. A violation of the Schedule's Conditions of Approval
shall be deemed a default for purposes of this subsection;
b. The Premises are wholly or partially damaged or destroyed so as to interfere with
Cingular's normal operations, City has no obligation to repair under 2.8.3. above
and neither party elects to repair pursuant to Section 2.8.3. above; or
c. The City Manager determines in good faith that there exists an immediate and
substantial threat to public health and safety due to particular circumstances
affecting the Premises which cannot be rectified through means less onerous than
termination (such as temporary emergency cessation of use by Cingular pending
corrective work), in which case termination shall take effect 48 hours after
Cingular receives written notice of termination setting forth the City Manager's
determination and the reasons therefor.
2.9.5. A Scbedule shall automatically terminate as of the date when possession is delivered to
any governmental authority pursuant to the exercise of its power of eminent domain over the
subject Premises of such portion thereof as is sufficient, in Cingular's good faith opinion, to
render the Premises unsuitable for Cingular's normal operations, or pursuant to a transfer of the
subject Premises or such portion thereof under threat or in lieu of exercise of such power.
2.9.6. Upon termination of this License, neither party shall have any further rights, obligations
or liabilities to the other except: (a) with respect to provisions of the License which by their sense
and context survive termination; and (b) with respect to the rights and remedies of the parties
relating to the period prior to termination. Upon termination of any Schedule, neither party shall
have any further rights, obligations or liabilities to the other respecting such Scl1edule or the
Premises thereunder except: (i) with respect to provisions of this License applicable to such
Schedule which by their sense and context survive termination; (Ii) where termination is by
reason of breach or default of the other party; and (Iii) with respect to the rights and remedies of
the parties relating to the period prior to termination.
3. TERM
3.1. Term.
3.1.1. The initial term of this License shall begin on the Effective Date and shall expire on the
date which completes five (5) years after the Effective Date, unless it is earlier terminated by
either party in accordance with the provisions herein. The term of this License may be extended
for up to five (5) additional successive terms of five (5) years (each a "Renewal icrm") on the
same terms and conditions as set forth herein, except as the Annual Fee may be adjusted as
Chula Vista I Cingular
Master Comm. Site License
Page 9 of 1919~g2g I
3-17
provided in Section 4.1, below. Subject to the termination rights set forth in Section 2.9, above,
this License shall automatically be extended for each successive Renewal Term unless Cingular
notifies City of its intention not to renew prior to commencement of the succeeding Renewal
Term.
3.1.2. Subject to the maximum overall License term of 30 years set forth above, the term of any
Schedule shall be as follows: A Schedule shall continue in effect for five years from said
Schedule's Commencement Date; provided that Cingular shall have the right to extend the Term
of such Schedule for five (5) additional periods of five (5) years (the "Renewal Term"). The
Renewal Terms shall be on the same terms and conditions as the first Term except that the
Annual Fee may be adjusted as provided in Section 4.1, below. Each Schedule shall be
automatically extended for each successive Renewal Term unless Cingular notifies the City in
writing of Cingular's intention not to extend such Schedule at least 90 days prior to expiration of
such Schedule's Term.
4. COMPENSATION AND LIABILITY
4.1. Payment.
4.1. I, In consideration for the use of each Licensed Premises, Cingular agrees to pay City (to be
deposited in the City's general fund) an annual fee ("Annual Fee") per Licensed Pre:mises during
the initial term of this License: as folloWs:
Chula Vista! Cingular
Master Comm. Site License
a.
Cingular facilities that include five, six or seven equipment cabinets, and up to
twelve (12) Antennas approximately 72 inches in beight, in addition to necessary
cables, electrical power, telephone service, and other necessary fixtures, in an
area no more than ten feet by twenty teet, for the - period from the
Commencement Date of this License through December 31, 2007, in the amount
of $25,706, ($2,142 per month); and/or
b.
Cingular facilities that include only up to seven (7) equipment cabinets, in
addition to necessary transmission cables, electrical power, telepbone service and
other necessary fixtures for the period from the Commencement Date of this
License througb December 31, 2007, in the amount of $14,009 ($1,167 per
mondl); and/or
c.
Cingular facilities that include only up to twelve antennas approximately 72
inches in height, in addition to necessary transmission cables, electrical power,
telephone service, and other necessary fixtures for the period from
Commencement Date of this License through December 31, 2007, in the amount
of$12,386 ($1,032 per month); and/or
d.
Cingular facilities that include up to four (4) cabinets and six (6) antennae
approximately 72 inches in height in addition to necessary cables, electrical
power, telephone service, and other necessary fixtureS, in an area DO more than
ten (10) by sixteen (16) teet, for the period from the Commencement Date oftbis
License through December 31, 2007, in the amount of $19,280 ($1,606 per
month); and/or
e.
Cingular facilities that include only up to two antennas approximately 72 inches
in height, in addition to necessary transmission cables, electrical power,
PagelOof~ I
3-18
telephone service, and other necessary fixtures and limited to one above ground
cabinet/pedestal of not more than 27 cubic feet, for the period from
commencement Date of this License through December 3 I, 2007, in the amount
of$3,995 ($333 per month).
f. The City may at its sole discretion decrease any of the fees listed above by up to
40% for under grounding cabinets or pedestals in a manner that by the City's sole
judgment reduces the impact to land use and/or aesthetics.
g. For each calendar year thereafter throughout the initial term, an amount equal to
103% of the Annual Fee for the immediately preceding calendar year.
4.1.2. Upon written request of City or Cingular, the Annual Fee for any Renewal Term shall
equal the then fair market rental rate (the "FMRR") that a willing licensee would pay and a
willing licensor would accept for the use of similar installation locations for similar
telecommunications equipment for the same five.year period. The FMRR shall be in the same
amount for each of the Licensed Premises. If the City and Cingular are unable to agree on the
FMRR within 180 days prior to expiration of the term preceding a Renewal Term of this License,
then at the request of either party, both parties shall attempt in good faith to appoint a real estate
appraiser with at least five years' experience in the area in which the Licensed Premises are
located to appraise and set the FMRR. If the parties are unable to agree upon such an appraiser
within IS days after either party requests appointment, then the parties hereto agree that an
appraiser shall be promptly determined in accordance with the rules of the American Arbitration
Association. Within 30 days after the appraiser is selected, he or she shall investigate and report
to the parties in writing his or her determination of the FMRR. The appraiser may in his or her
sole discretion choose to meet with the parties-and take testimony, and may extend the time for
determining the FMRR by not more than 15 days. The appraiser's determination shall be final
and non-appealable, absent fraud. If Cingular is dissatisfied with the determination of FMRR,
then Cingular shall have, as its sole and exclusive remedy, the right to rescind its exercise of the
option to renew and allow this License and the then-existing Schedules to expire at the later of the
end of the initial term of this License or 90 days after the appraiser issues his or her report on
determination of the FMRR (the "Delayed Expiration Date''). The Annual Fee during the period,
ifany, from and after expiration of the initial term of this License to the Delayed Expiration Date
shall he the FMRR, prorated for such time period. If the FMRR is. not yet determined by
expiration of the initial term of this License, then Cingular shall pay the Annual Fee at the at the
immediately preceding year's rate pending such determination; and promptly after such
determination the parties shall adjust such payment as necessary to the Annual Fee rate as
determined by the appraiser, or, if Cingular elects to rescind its exercise of its right to renew, City
shall make a rebate as provided in Section 4.1.6 below. The parties shall share equally the costs
and fees of the appraiser. Notwithstanding the foregoing, in no event shall the Annual Fee for
Licensed Premises adjusted hereunder for any Renewal Term be less than 103% of the Annual
Fee for the Licensed Premises in the last year of the preceding term.
4. 1.3. The Annual Fee for each Licensed Premises shall be set at the rate in effect for the
calendar year in which the Commencement Date for such Schedule occurs, and shall be adjusted
on January 1 of each year thereafter during the term of the Schedule, beginning January I, 2008,
according to the adjustment provisions of Sections 4.1.1 and 4.1.2 above.
4.1.4. The Annual Fee shall be payable in advance on each January I, except that any partial
Annual Fee fer the first partial calendar year during the Term efany Schedule shall be payable in
Chula Vista / Cingular
Master Camm. Site License
Page 11 ef~ I
3-19
advance on the Commencement Date of the subject Schedule. If the Commencement Date occurs
other than JanulllY I, andlor if the Tenn or final Renewal Term ends on a date other than
December 31, the Annual Fcc shall be prorated for the first and last partial calendar years during
the Tenn or final Renewal Term, based on a 360 day year and 12 months of 30 days each.
4.1.5. Ifpayment is not received by JanulllY I, or the respective Commencement Date, a late fee
of 5% of the balance due will be assessed. In addition, interest will accrue at a rate of 6% per
annum until paid.
4.1.6. If a Schedule is tenninated prior to December 31 of any year for any reason other than
Cingular's default, City shall rebate to Cingular the unearned portion of the Annual Fee for the
calendar year in which teimination occurs, provided that City may reduce any such rebate by (a)
any tennination fee owing to City under Section 2.9.3.c above and (b) those sums, if any, due
from Cingular under Section 2.8 above. City shall pay such rebate within 60 days after the
effective date of termination. Whenever Cingular is entitled to abatement of an Annual Fee under
this License or any Schedule, City shall credit the amount of such abatement against the next
Annual Fees due from Cingular; provided that if the amount of the abatement exceeds the total
next Annual Fee (if any) due for the Premises respecting which the abatement has arisen, City
instead shall rebate to Cingular the full abatement amount within 30 days after Cingular delivers
to City written request for such rebate.
4.1. 7. Payments shall be made to The City of Chula Vista, Finance Department, 276 Fourth
Avenue, Chula Vista, CA 91910, or to such other place as City may from time to time designate
by written notice to Cingular. Payments shall be accompanied by a description of payment, which
identifies the sites for which payment is being made.
4.2. Surety Bond. City shall have the right to require Cingular to furnish a bond, or alternative
acceptable to City, to cover the faithful perfonnance by Cingular of its obligations under this License. If
such a bond is required by City, it shall be issued by a commercial bonding company which is authorized
to transact surety insurance business in the State of California and satisfactory to City; shall not be subject
to termination or cancellation except upon ninety (90) days' prior written notice by certified mail to City;
shall be in such fonn and in such amount, not to exceed $25,000, as City shall specitY from time to time;
and, subject to tennination or cancellation as foresaid, shall be maintained in full force and effect
throughout the life of this License and until City, in its sole discretion, detennines that Cingular has
fulfilled all of its obligations under this License.
4.3. Hold Harmless.
4.3.1. Cingular shall defend, indemnitY, protect and hold harmless the City, its elected and
appointed officers and employees (each a 'City Party'), from and against all claims for damages,
liability, cost and expense (including without limitation attorneys' fees) arising out of the
operation of the Cingular Improvements or conduct of the Cingular, or any agent or employee,
subcontractors, or others acting under the direction or control of Cingular or the violation thereby
of any hazardous materials laws or the release thereby of hazardous materials in connection with
this License, except only to the extent of those claims arising from the sole negligence or sole
willful misconduct of a City Party. Cingular 's indemnification shall include any and all costs,
expenses, reasonable attorneys' fees and liability incurred by the City, its officers, agents, or
employees in defending against such claims, whether the same proceed to judgment or not.
Further, Cingular at its own expense shall, upon written request by the City, defend any such
Chula Vista I Cingular
Master Comm. Site License
Page120f~ I
3-20
claims arising from Cingular's operations or conduct that are brought against the City, its officers,
agents; or employees.
Cingular also shall and does hereby agree to indemnify, protect, defend and hold hannless the
City, its elected and appointed officers and employees (each a 'City party'), from and against all
claims for damages, liability, cost and expense (including without limitation attorneys' fees)
incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of
Schedule and (b) City's approval or issuance of any other permit or action, whether discretionary
or non-discretionary, in connection with the use contemplated herein, except only those claims
arising from the sole negligence or sole willful misconduct of a City Party. Cingular 's
indemnification shall include any and all costs, expenses, reasonable attorneys' fees and liability
incurred by the City, its officers, agents, or employees in defending against such claims, whether
the same proceed to judgment or not
4.32. It is agreed between the parties that the City assumes no responsibility or liability for
loss, damage, expenses or claims, direct or consequential, from (a) Cingular's inability to use the
Licensed Premises for its intended purpose, contributed to or caused by the failure of existing
facilities on which Cingular Improvements may be placed, inability to use the site, or otherwise,
(b) Cingular's use of any related access roads, (c) Cingular's operation of the Cingular
Improvements, or Cd) the termination of the License by either party.
4.3.3. Notwithstanding any contrary provision of this License, each party hereby waives any
right to recover from the other party or other party's partners, affiliates, agents and employees any
loss or damage resulting from any cause or hazard to the extent the loss or damage is covered by
property insurance carried by the party suffering loss or damage, including any loss or damage
resulting from loss of the use of any property and provided that at the time of loss the property
insurers for both parties have waived rights of subrogation. These waivers shall apply between
the parties and to any property insurer claiming under or through either party as a result of any
asserted right of subrogation, unless any property insurer has not waived its right of subrogation
(in which case these waivers shall have no effect).
4.4. Insurance. Cingular, at its sole cost and expense, shall maintain in full force and effect at all
times during the term of this License (including the period between the expiration hereof and Cingular's
removal of the Cingular Improvements or other equipment from the Premises or appurtenant property),
Comprehensive General Liability or Commercial General Liability insurance covering bodily injury
(including death), personal injury and property damage. Limits shall be in an amount of not less than one
million dollars ($1,000,000) per occurrence, and two million dollars ($2,000,000) aggregate if applicable.
Such insurance shall name the City, its officers, agents and employees, individually and collectively, as
additional insureds with respect to any covered liability arising out of Cingular's performance of work
under this License. Throughout the term of this License, Cingular, at its sole cost and expense, shall also
maintain in full force and effect, insurance coverage for bodily injury (including death), and property
damage which provides total limits of not less than one million dollars ($1,000,000) combined single
limit per occurrence applicable to all owned, non-owned and hired vehicles/aircraft/watercraft.
Additionally, Cingular shall maintain not less than fifty thousand dollars ($50,000) Fire Legal Liability on
all real property being licensed, including improvements and betterments owned by City. Cingular shall
also provide fire insurance on all personal property contained within or on the Licensed Pl"Bmises. The
policy shall be written on a standard "all risk" contract, excluding earthquake and flood. The contract
shall insure for not less than (90) percent of the actual cash value of the personal property, and shall name
the City as an additional insured. Coverage shall be provided in accordance with the limits specified and
the Provisions indicated herein. Claims-made policies are not acceptable. When an umbrella or excess
Chula Vista I CinguJar
Master Comm. Site License
Pagel3of~ I
3-21
coverage is in effect, coverage shall be provided in following fonn. Such insurance shall not be canceled
or materially altered to reduce coverage until the City has received at least thirty (30) days' advance
written notice of such cancellation or change. Cingular shall be responsible for notifying the City of such
change or cancellation.
4.4.1. Filing of Certificates and Endorsements. Prior to the commencement of any work
pursuant to this License, Cingular shall file with the City the required original certificate(s) of
insurance with endorsements, subject to the City's prior approval, which shall clearly slate all of
the following:
a. Provide on a form approved by the City's Risk Manager, an original plus one (1)
copy of a Certificate of Insurance certifying that coverage as required has been
obtained and remains in force for the period required by the License.
b. All policies shall contain a special provision for thirty (30) days prior written
notice of any cancellation, or change to no longer meet the herein specified
insurance requirements, to be sent to the City's Risk Manager, 276 Fourth
Avenue, Chula Vista, Ca 91910, or to the address shown on the Certificate of
Insurance.; and
c. That Cingular's insurance is primary as respects any other valid or collectible
insurance that the City may possess, including any -self-insured retentions the
City may have; and any other insurance the City does possess shall be considered
excess insurance only and shall not be required to contribute with this insurance.
d. City is an additional insured. The certificate(s) of insurance with
endorsements and notices shall be mailed to the City as the address specified in
4.4.I.b.above.
4.4.2. Workers' Compensation Insurance. Throughout the term of this License, Cingular, at its
sole cost and expense, shall maintain in full force and effect, insurance coverage for:
a. Statutory California Workers' Compensation coverage including a broad form
all-states endorsement.
b. Employer's Liability coverage, for not less than one million dollars ($1,000,000)
per occurrence for all employees engaged in services or operations under this
License.
Policy is to include a wavier of subrogation.
4.4.3. Insurer Criteria. Any bond or insurance provider of Cingular shall be admitted and
authorized to do business in California and shall be rated at least A V in A..M. Best & Company's
Insurance Guide. Insurance policies and certificates issued by non-admitted insurance companies
are not acceptable.
4.4.4. Severability of Interest. Prior to the execution of this License, "Additional insured",
"Cross liability," "severability of interest," or "separation of insured" endorsements/clauses shall
be made a part of the commercial general liability and commercial automobile liability policies.
Chula Vista f Cingular
Master Comm. Site License
Page 14 of 1919~Q10 I
3-22
4.4.5. Contractors' and Subcontractors' Insurance. Cingular shall require that all contractors
and subcontractors obtain insurance meeting the criteria set forth herein and shall furnish to the
City copies of all certificates evidencing such policies of instlrance.
4.4.6 Insurance and Indemnification Obligation. Cingular's compliance with the insurance
requirements herein shall not excuse, replace, or otherwise affect Cingular's duty to indemnify
and defend the City pursuant to 4.4 of this License.
4.4.7 E:'[cept as may be specifically provided for elsewhere in this License, City and Cingular
hereby each mutually waive and all rights of recovery from the other in event of damage to the
premises or property of either caused by acts of God, perils of fire, lightning, and extended
coverage perils as defined in insurance policies and forms approved for use in the State of
California. Each party shall obtain any special endorsements, if required by their insurer, to
evidence compliance with the aforementioned wavier.
4.5. Nuisance. Cingular shall not use the licensed Premises in any manner, which, in the reasonable
opinion of the City, creates a nuisance or disturbs the quiet enjoyment of the surrounding area by persons
in said area. City reserves its rights to exercise its police powers and authority as they may apply to
nuisance response and abatement, as provided by City ordinance exclusive of any contract provisions.
5. MISCELLANEOUS
5.1. Possessory Interest. Cingular shall pay personal property taxes and possessory interest taxes, if
any, assessed against the Cingular Improvements or the Premises arising from the installation of the
Cingular Improvements. Cingular recognizes and understands that this license may create a possessory
interest subject to property taxation and that Cingular may be subject to the payment of property taxes
levied on such interest. Cingular further agrees that such tax payment shall not reduce-any fee paid to
City hereunder and that such tax shall be paid by Cingular before becoming delinquent. City has no
responsibility or liability for any such tax.
5.2. Utility Users' Tax. Cingular acknowledges and agrees that the wireless communication services
utilizing the Cingular Improvements licensed hereunder are subject to the City's utility users' tax ("Utility
Tax") pursuant to City's Municipal Code. Cingular agrees to collect the tax from service users and remit
such tax to the City in accordance with the City's Municipal Code.
5.3. Governmental Approvals. Each Schedule under this License is conditioned upon Cingular, or
Cingular 's assigns, obtaining all governmental permits and approvals enabling Cingular, or its assigns, to
construct and operate mobile/wireless communications facilities on the Cingular Improvements for that
Schedule. Cingular shall at its sole cost and expense comply with all the requirements of all municipal,
state, and federal authorities now in effect or which may hereafter be in effect, which pertain to
Cingular's Improvements and use thereof. City shall have no responsibility or liability for any such
requirements. Cingular shall be responsible for obtaining any permits and approvals from any agency
having jurisdiction over Cingular 's activities.
5.4. Governing LawNenue. This License shall be governed by and construed in accordance with the
laws of the State of California. Any action arising under or relating to this License shall be brought only
in the federal or state courts located in San Diego County, State of California, and if applicable, the City
of Chula Vista, or as close thereto as possible. Venue for this License, and performance hereunder, shall
be the City of Chula Vista.
5.5. Signs. No signs shall be displayed on the Premises without the prior written consent of the City
Chum Vista I Cingular
Master Camm. Site L.icense
Page 150f~Jg I
3-23
in its sole discretion.
5.6. License Administraton. For administrative purposes, any activity covered by this License,
which requires pennission or consent of City shall be referred to the City Manager or Manager's duly
designated representative at the following address:
City Manager, City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Phone: (619) 691-5031
Fax: (619) 585-5884
The designated person, address, and phone number for serving official notice on Cingular shall be:
If to Tenant:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: CinguJar Wireless Cell Site #: ~ Cell Site Name: _
6100 Atlantic Boulevard
Norcross, Georgia 30071
Phone No: 1-877-231-5447
With a copy to:
New Cingular Wireless PCS, LLC
Attn.: Legal Department
Re: Cingular Wireless Cell Site #: _; Cell Site Name: '_
560 I Legacy Drive -_.
Bldg. A
Piano, TX 75024
Local Market contact.
Rhonda Myers
Deployment Manager of Real Estate and Construction
6925 Lusk Blvd
San Diego, CA 92121
Phone: 858 220 5257
5.7. Successon and Assigns.
5.7.1. Except as provided in subsection 2 below, Cingular shall not assign any rights granted by
this License nor any interest therein without the prior written approval of the City. Approval of
any such proposed assignment may be withheld in the sole and absolute discretion of the City.
Any assignment by operation of law shall automatically tenninate this License. Tile terms and
provisions of this License shall extend to and be binding upon and inure to the benefit of any
successors and assigns of the respective parties hereto.
5.7.2. Notwithstanding Section I above, Cingular may, without City's approval and in Cingular's
sole discretion, from time to time, do any of the following:
a. Grant to any person or entity a security interest in some or all of Cingular's
Improvements andlor other property used or to be used in connection with th is License;
Chula ViSlllI Cingular
Master Comm. Site License
Page l~of~JQ I
3-24
b. Assign or pledge Cingular's interest in this License or any Schedule to any person or
entity to finance Cingular's equipment or operate Cingular's business; and
c. Assign (i) to any entity which has, directly or indirectly, a 30% or greater interest in
Cingular (a "parentj or in which Cingular or a Parent has a 30% or greater interest (an
"Affiliate"); (ii) to any entity with whicb Cingular and/or any Affiliate may merge or
consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or
assets of Cingular or any Affiliate; or (iv) to the holder or transferee of the Federal
Communications ("FCC") license under which Cingular's Improvements are operated,
upon FCC approval of any such transfer. Any such assignment shall not be effective
until the assignee signs and delivers to City a document in which the assignee assumes
responsibility for all Cingular's obligations under this License arising from and after the
effective date of assignment.
5.8. Non-Waiver of Breaches. The City's or Cingular's failure to insist, respectively, in anyone or
more instances, upon strict performance of any of the covenants or conditions ofthis License shall not be
considered as a waiver or relinquishment for the future of said covenants, terms or cond itions, but the
same shall continue and remain in full force and effect.
5.9. Entire Agreement. This instrument contains the entire agreement between the parties relating to
the rights herein granied and the obligations herein assumed. No alteration or variation of this 'License
shall be valid or binding unless made in writing and signed by the parties hereto.
5.10. Time is of the Essence. Time is of the essence in performing each and all of the terms and
provisions of this License.
5.11. Waiver of Property, Relocation and Condemnation Rights. Cingular acknowledges and
agrees that this License does not confer any of the following: a property right or interest or, a right to
relocation or relocation assistance.
5.12. Hazardous Materials. Cingular shall not bring any Hazardous Materials onto the Licensed
Premises except for those contained in Cingular's back-up power batteries (e.g. lead-acid batteries) and
properly stored, reasonable quantities of common materials used in telecommunications operation (e.g.
cleaning solvents). Cingular shall handle, store and dispose of all Hazardous Materials it brings onto the
Licensed Premises in accordance with all federal, state and local laws and regulations. "Hazardous
Materials" means any substance, chemical, pollutant or waste that is presently identified as hazardous,
toxic or dangerous under any applicable federal, state or local law or regulation and specifically includes
but is not limited to asbestos and asbestos containing materials, polychlorinated biphenyl's (PCBs) and
petroleum or other fuels (including crude oil or any fraction or derivative thereot). City makes no
representation or warranty regarding the existence of hazardous materials on some or all of the Licensed
Premises, which are being licensed to Cingular in an AS IS condition. Cingular is solely responsible for
investigation of any and all Licensed Premises as it sees fit to determine the suitability of the Premises for
its intended use.
5.13. City Police Powers. Notwithstanding any provision in this License to the contrary, Cingular
acknowledges and agrees that City retains any and all police powers authority available at Law or in
equity to regulate the conduct of Cingular within the City or to otherwise act in accordance with the
public health, safety and welfare of the City and that nothing in this License is intended to or shall have
the affect of condemning or limiting such authority in any way.
Chula Vista I Cingular
Master Comm. Site License
Page 17 of 191VJQ2Q I
3-25
5.14. Limitation on City Liability. Notwithstanding any provision in this License to the contrary
Cingular's sole remedies for the City's breach of the License shall be (I) termination of the License or
one or more Schedules, as appropriate; (2) specific performance or injunction; or (3) the right to withhold
amounts otherwise due and payable to City hereunder with respect to one or more Licensed Premises;
provided that; the foregoing limitation on liability does not apply to City's rebate obligation under Section
4.1.6 above. Except as expressly provided in the preceding sentence, in no event shall Cingular be
entitled to monetary damages against the City for breach of contract hereunder.
5.1 5. Condemnation. If a condemning authority takes all of City's Property, or a portion, which in
both parties' opinion is sufficient to render a Premise unsuitable for Cingular 's use, then the applicable
Schedule shall terminate as of the date when possession is delivered to the condemning authority. In any
condemnation proceeding each party shall be entitled to make a claim against the condemning authority
for just compensation. Sale of all or part of the Premises to a purchaser with the power of eminent
domain, shall be treated as a taking by a condemning authority.
5.16 Authorized Signatory. By its signature below, each party: (i) agrees to the terms of this License;
(ii) warrants and represents that it is authorized to enter into this License; and (iii) warrants and represents
that the person(s) executing this License on its behalf is duly authorized to do so, without the need for any
further action.
[The Next Page is the Signature Page]
Chula Vista I Cingular
Master Comm. Site License
P.geI80f~g I
3-26
SIGNATURE PAGE TO MASTER COMMUNICATIONS SITE LICENSE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this License thereby indicating that they have
read and understood same, and indicate their full and complete consent to its terms as of the date first written
above.
Dated:
2007
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest
Susan Biszelow. CilV Clerk
Aooroved as to Form:
Ann Moore. CilV Attornev
Dated:
CilV
Cimrular:
New Cingular Wireless PCS, LLC, A
Delaware Limited Liability Company,
~d-d Ch(1~A
Na~k"lA..c...... '-- M'f-t.v~
Title: MA~~ Es..J...k. ....c....~
Dated: 1/ II (,,"7
Exhibit List to Agreement
(I) Exhibit A Sample Improvements
(2) Exhibit B Schedule of Premises
MTM:Cin8u1arl License 6-28-07
Chula Vista I Cingular
Master Comm. Site License
Pagelgof~O I
3-27
EXHIBIT A
Sample Cingular Improvements
[To be Inserted]
3-28
P" PI""
Ipr'..1
,Illldl
i'l' el'i
:Inl Ii
1;11 ! j I
,II. 'II ~
li:11 1'1 !il
li!II!, ~
I"'IIIH i
'I III ill
1!ll I I
'oJ,' I
1111 I' ,
'I Ii
"I II
Illl II
lid I
'Ii , 1'1
~l! ii
iii! II"
lUll:!
IlWI
I In"
IJ
sliii i: ~
~I!d; i
ml1i!
ill I;
ill II'"
1.1
I I
I! i
I I
EXHIBIT nAn
III fit"U
'I a j I
, ~.
.:t ; ==i :
.~ iii I !1
~.".... 0;
II ;
a
~
mill nlilll I!III Il)iIU
n!:j mm lllt n.t! ~ ~
il ~ P i!il hi P ! II i
~: I~ I ~
~
'J
II
I.
.j
II
J
I
I ~ II! ! ~ II fi~i il!Pillil~i! I I
! I ~ ih I i II~ II II i Ii :l:i Ill' I II iifim--I
~ ~ I!i ~IJ !II: ,II bl II !I, III !
. e p ? ~ !!I I~! i i i 1'111 IIi! dl I
B' ~ i I ji Ii!: 'II I b!1 I ~
a I ", II !
linni ~
I ilil !
I..d!
llll~ I
luti I ~-
I Jpl!
I
I~II
i~!1
i!1!
III ~
Iii ~
III
i'l
~Il
~.
'0
znz~~z :t!!!!!!!t!!t!t!!ttI!!
100..:.
llIi!IIIIHilmlli!mmHj I
1Illllllil!1 Iii ilPllI1 ~
II II ! II 'I
Jl
~I~ i
i! liF.
r li!1 S
~ 911 "
I:ii ~
I !II
lD
o
(")....z
::1:.....-
C8i~
cn>(")1"""
8<l2~
I\) ~ -iG)
CJl>::D.....
6 - a ~
7(")G)Z
lD>m~
I\) 0
-~>z
8Z"'IJ
I\)m>
:II
"
~
n
--
:J
lC
:EC
;l:l
m
;QJ
VI
VI ....,
..
;!:
!I I' I' ~ II ' ~ _:III I
.~~~~ .-
lliibhh " ei I "! n
-I t~ e'lll!jll!iILijli~I~L i. !; ~. I. !::~
I ~ i ~
..... i m ! I rd" "W -I..r- J I~ e II : 'C i II
i! liMn!!! · ii i' ~I 2 IIIII1I1I1 s~ ~ 5i' IIIIIII!! j 11<;201
-..---..---...
l~
'-I
1m
~
Q)o
""=.
iljll'lllll illl
!q Iii I
IIII i,l'I'
~ill;:! !!
1121 I it
III P.
"
"
111'1 ililll
II II Il!dl
I !Ie'!
I'
ill 'I II '11Ji~ iil
I:! 11_'III'I~i!' ~:I.1
PI'!11 :Rl !!~ 11:1
,i! II ..~ i, ,
III I Ii; II I
i, I
. II \ II ' ~ ~ 11:1 II I
J IS.!:~::- t
IdiUh i ei ! ~~. I U Q. a liP!
i Ii :::::J .
> ~ ~ . W!lli! L u; I. ~il ~ . I. , ~ &. !!: ;!
6 ~ I ~ ~ = II '.I', 'II~. I.... ~~ II il j~ i II .l!lIlCfO
illn W ii i. W n lilt ~
-- -- --
II
Ij
.
I>
l~ .j! fj" .~. .
~ Ii l,,~..
> .~-
, .
~ '.~. .
Z
iiiii !~ Ii lIT ;!U
lill! i11il;IIr;11
I I l!i I I'll ,I lIil
1ll'Id I II
1 I I, i I .J
I ~ Ii I
.~o III
'GfJ::;. III
t
4>UUU. ....
1111111" ,1111
illllPIII~IIU
Ii'!!' II I!I
II! II : '
. i I I !
. I' I. I
!~
I>
:xl
G)
m
c
en
nl
~
.~o
'GfJ=
4> ~.4>_
I! il' j!~1I m II
I:t.:I::.! I! I I . '.1
(+"jlll dH,
I II phlll
I II " III
I . :r.I'> III
I i I I'" II i
I ~ $}
III'! 11m; ii' I;~i r Illi I
IGJ ~II ~l! ~i! ~I ill
ill illli III,III!~ III
!1~1 ill;: I.!. i~!! g !~I
1,1 ';;6 61 'ill II II
i!!! !I~ II! ~!i ~ iil
i.i I
. , .
I ,-, .
, I I I
~~'" '
, 'f" "'....1
~
II
-,
.'
.'
ri~I' 'H
~i!ll
IIi;!
d~
~I:
I mml.I'!;I'~' I\i 11' ~ II:! II I
Lid r' . n
-\- l: -- ';I Il~
)> j!lllll L UI ~ ~~ L j . Ii :::I ' ,I
I r' ',. W I ~~ · ~ ~ ~ ! II 'I -
....... & a ~ ~ ~; ! r:: i ~ ...i! 111901
L~ MUU" ii i. " ~ 11111111 ~ ear
I~
1m
l~
m
r-
m
~
'-I
6
Z
I
I
III
ift
!!I
l~
HI IIII !ill
i Iii IIII
il 10 i~
'I !j 1;1
I I, II
. I.
miiiimmji!ij~
1!~!~~I!iIIIIIIPi~
IIII!I,III I 'Ie
i I II, II
. I
I .
IZ
10
l:ll
:t
J!!
~
::t
o
Z
i
I
!
I,
~ I I imun ~ I h I i~ II i 11 ~ I E~ ~ I
~ I I i I d 1I!I!j1d ~ HI I i~ I ~ I. Ji i I .
-.-J L I j ~ i nlii!!P ph il iiq ~ ~ II n ~ I il ~~ i ~
II !I II I
II~
i!~~1
..llllllfO
EXHIBIT B
Attachment I
Schedule of Premises
Each Licensed Premises Should be described in a Schedule in the format outlined below and made part of this
Attachment I.
Schedule:
Cingular Site No:
Commencement Date:
Location:
APN:
Description of Installation (Attach Site Plan):
Building Permit No:
Conditions of Approval:
Note: Violations of these conditions may result in the termination of the right to use this site for wireless
communications (see Section 2.9.4a of the Master Communications Site License Agreement). Also,
pursuant to Section 1.2 of the Agreement the City may add to, delete or modify this Schedule's
Conditions of Approval at any time during the term of the Agreement to advance a legitimate
governmental interest.
Other:
In addition, all work shall be scheduled in advance and coordinated with parks operations personnel, onsite
recreational staff, City Engineer and Public Works Staff or other City staff as appropriate prior to commencement
of the work to minimize the potential for conflicts with recreation and other City programs occurring on the site.
The applicant agrees that the site will not be activated until the City has signed off on final construction.
City of Chula Vista
Applicant's Authorized City Representatives
3-33