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HomeMy WebLinkAboutC-8584-1 - Master License Agreement for the Use of City-Owned Streetlights for Telecommunication Facilities1 T AMENDMENT NO. 6 TO MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS tJ PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. 6 TO MASTER LICENSE AGREEMPYWmendment No. 6") is made and entered into as of this 113 day of ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"). City and Licensee are each a "Party" and together the "Parties" to this Amendment No. 6. and is made with reference to the following: RECITALS A. On February 12, 2019, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove Telecommunication Facilities as permits are obtained from the City. B. The parties desire to enter into this Amendment No. 6, pursuant to Section 24.3 of the Master License, to terminate Licensee's use of a specific Streetlight location and right to install telecommunications equipment within the corresponding License Area, and to remove that Streetlight location from the Site List. C. The parties further desire to enter into this Amendment No. 6, pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. D. The parties further desire to enter into this Amendment No. 6, pursuant to Section 5 of the Master License, to remove from the Master License the specific License Area(s) corresponding to the terminated Streetlight location. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE SITE LIST Licensee's use of the following Streetlight location and corresponding License Area is terminated, pursuant to Section 24.3 of the Master License, and removed from the Site List, as of the Effective Date: Site ID: CRAN RLOS HBNPB 042 Location: City Streetlight No. SCL4735, Center Median of Avocado Avenue at Kewamee Drive New Cingular Wireless PCS, LLC Latitude / Longitude: 33.604239,-117.877261 City Approved Case#: UP2019-027 (PA2019-108) This Amendment No. 6, the Site List attached hereto as Exhibit 1 as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Master License shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC IN WITNESS WHEREOF, the parties have caused this Amendment No. 6 to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOR EY'S OFFICE Date: By: ar n C. Attorn p ATTEST: 1 ,g Z� Date: I r Le wn City Clerk _ c�`P c,Foa/ CITY OF NEWPORT BEACH, a California municipal corporation Date: I I I Z� 2O2--�2 By: Gr c . Leung t anager LICENSEE: NEW CINGULAR WIRELESS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager Date: Signed in Counterpart By: Annette M. Zoba, Director Access — Construction and Engineering [END OF SIGNATURES] Attachments: Exhibit 1 — Site List New Cingular Wireless PCS, LLC IN WITNESS WHEREOF, the parties have caused this Amendment No. 6 to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date. 2/ � -, B4AtfttoVrn ATTEST: Date: 0 Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: in Grace K. Leung City Manager LICENSEE: NEW CINGULAR WIRELESS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manage( Date -.— By: ��'41�zz Annette M. Zo , Director Acc s — Construction and Engineering [END OF SIGNATURES] Exhibit 1 — Site List New Cingular Wireless PCS, LLC Exhibit 1 SITE LIST Site ID: CRAN RLOS HBNPB 038 Location: City Streetlight No. SCL4653, N/S of Bayside Drive, approx. 900' north of El Paseo Drive Latitude / Longitude: 33.609029,-117.886466 City Approved Case #: UP2019-034 (PA2019-115) Site ID: CRAN RLOS CSTAM 003 Location: City Streetlight No. SCL0796, at the N/W/C of West Balboa Boulevard and 30th Street Latitude / Longitude: 33.613872,-117.931656 City Approved Case #: UP2019-030 (PA2019-111) Site ID: CRAN RLOS HBNPB 047 Location: City Streetlight No. SCL0007, Parkway of South Channel Road and E. Ocean Boulevard Latitude / Longitude: 33.595655,-117.882205 City Approved Case #: UP2019-043 (PA2019-150) New Cingular Wireless PCS, LLC 1 T oo 0 OD AMENDMENT NO. 5 TO MASTER LICENSE AGREEMENT 1 BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS `j PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. 5 TO MASTER LICE I�S EEMENT ("Amendment No. 5") is made and entered into as of this day o ,�022 ("Effective Date"), by and between the CITY OF NEWPORT BEA H, a California municipal corporation and charter city ("City"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"), and is made with reference to the following: RECITALS A. On February 12, 2019, City and Licei Agreement ("Master maintain, and remove the City. License") allowing Telecommunication see entered into a Master License Licensee to attach, install, operate, Facilities as permits are obtained from B. The parties desire to enter into this Amendment No. 5, pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. C. The parties further desire to enter into this Amendment No. 5, pursuant to Section 5 of the Master License, to identify the specific License Area(s) in the License Area Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed to Licensee for installation of its Telecommunication Facilities under the terms and conditions of the Master License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows.- 1 . EXCLUSIVE SITE LIST This Amendment, the Site List attached hereto as Exhibit 1 and the License Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC IN WITNESS WHEREOF, the parties have caused this Amendment No. 5 to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO:IV��(' Z ICE Date: // ((�� By: "orne/y/V ATTEST: � Date: • / II . IAIJ City Clerk* CITY OF NEWPORT BEACH, a California municipal corporation Dal LICENSEE: New Cingular Wireless, LLC a Delaware limited liability company; By: AT&T Date. t ,°l -2) -2.1 Da Area Manager, Real Estate & Construction Corporation, its Manager Annette Zoba Director Access nstruction & Engineering [END OF SIGNATURES] Attachments: Exhibit 1 — Site List Exhibit 2 — License Area Description & Depiction New Cingular Wireless PCS, LLC, Exhibit 1 SITE LIST Site ID: CRAN RLOS HBNPB 038 Location: City Streetlight No. SCL4653, N/S of Bayside Drive, approx. 900' north of El Paseo Drive Latitude / Longitude: 33.609029,-117.886466 City Approved Case #: UP2019-034 (PA2019-115) Site ID: CRAN RLOS HBNPB 042 Location: City Streetlight No. SCL4735, Center Median of Avocado Avenue at Kewamee Drive Latitude / Longitude: 33.604239,-117.877261 City Approved Case #: UP2019-027 (PA2019-108) Site ID: CRAN RLOS CSTAM 003 Location: City Streetlight No. SCL0796, at the N/W/C of West Balboa Boulevard and 30th Street Latitude / Longitude: 33.613872,-117.931656 City Approved Case #: UP2019-030 (PA2019-111) Site ID: CRAN RLOS HBNPB 047 Location: City Streetlight No. SCL0007, Parkway of South Channel Road and E. Ocean Boulevard Latitude / Longitude: 33.595655,-117.882205 City Approved Case #: UP2019-043 (PA2019-150) New Cingular Wireless PCS, LLC, Exhibit 2 LICENSE AREA DESCRIPTION & DEPICTION CRAN_RLOS_HBNPB_047 'E) TREE Irw' TO 3E : RrTFE= t� ti •,,f�Vl � jS\ ' ;Tr r �t, �� _ CT Eq,-H.G -4 STREETII:M1 t24'-4 ti^F!•-1RUCHA14EL RD fEi CAE STREET UTALMva .... .-_-. a.ry ''♦,' H!I% HA4uHfLE -••1j!: J/f iC'AEP _�/ •''1 ;' STti EEWW WO HOLE TV •1'�'�' 'H'f]e'-0• .;/r. FlFT91 Hi.a -.__/ MCM (.) Fl3ER FM!.0 HDIE ct / '' i''1i4 V LE HT , <.>uLREif tiT!EETI.IGMT —i Vt •+ -'; ��� _ =.17 :EL7 -117) w/ ;H; ECAlle.i ( I III HAHfI H-11 Ff1Cw 1. 11E (D ATA'T wIRELhE _HDER SLTAaATE ^'J 'E' RE `AFRB'- CJRD TC 3E _ t E! W10 WA EY � DS74� TUBE _- - - LNE }•7'- ' w / ::HA4HEL R11 ' -- — 10 CC-RETE `7�ET:TLT:HT ('LC TO BE RE)ACvED h RVLACEC Al _AVE Uk:ATILA ,HY 4&7) r I Y7 •*4' -"' �.:/c 13CpER Rl;n FRO. (n') WfR HANDHCLE TL` cone ETE ,T+EETUcM _ 7Fi�LE't% lI/. • -� 'N; f8'-C' J/C Fi�AER Rlv FR"w (1) SzE HAA;H(ILE ;H'87A) TC ;H) ATR H44H,LE * AT&T TO REMOVE (1) EXISTING CONCRETE STREETLIGHT * AT&T TO INSTALL (1) 28'-3"CONCRETE STREETLIGHT * AT&T TO INSTALL (4) NEW AT&T REMOTE RADIO UNITS * AT&T TO INSTALL (1) NEW AT&T OMNI-DIRECTIONAL ANTENNA * AT&T TO INSTALL (1) NEW AT&T EQUIPMENT SHROUD * AT&T TO INSTALL (1) NEW RAYCAP DISCONNECT * AT&T TO INSTALL (1) NEW HANDHOLE New Cingular Wireless PCS, LLC, • AT&T NEW CINGULAR WIRELESS PCS, LLC ASSISTANT SECRETARY'S CERTIFICATE I, Jackie A. Begue, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: l . The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. 3. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." Annette M. Zoba, Director Access — Construction and Engineering, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 8th day of September 2021. a ie A. Begue, Assistant e etary AT&T NEW CINGULAR WIRELESS PCS, LLC ASSISTANT SECRETARY'S CERTIFICATE I, Jackie A. Begue, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: 1. The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." Omar J. Mere, Area Manager — Real Estate and Construction, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 121" day of October 2021. ��. '12. re."', Olie A. Begue, Assistant e etary P01V A, Irn AN l— n U ? C, 'q' / FO V,XA\ September 11, 2020 M Squared Wireless Franklin Orozco forozco(a-)-interlinkpg.com VIA EMAIL CITY 0= NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment Subject: Minor Use Permit No. UP2019-043 Coastal Development Permit No. CD2020-120 (PA2019-150) Streetlight within public ROW near the intersection of Ocean Boulevard and Channel Road (AT&T Small Cell SLC0007) Dear Mr. Orozco, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Zoning Administrator on September 10, 2020 and is now within the required City appeal period until September 25, 2020. If no appeals are filed with the City, a Notice of Final Action will be mailed to the California Coastal Commission. Upon receipt of the notice by the Coastal Commission, the action will be subject to an additional 10-working-day appeal period. You may track status of the Coastal Commission appeal period via the following link: Statewide Appealable Projects PDF At the conclusion of both appeal periods, a building permit may be issued for the project. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, Patrick Achis Assistant Planner RESOLUTION NO. ZA2020-060 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR USE PERMIT NO. UP2019-043 AND COASTAL DEVELOPMENT PERMIT NO. CD2020-120 FOR A SMALL CELL WIRELESS FACILITY LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY ON CITY STREETLIGHT NUMBER SLC0007, WITHIN A PARKWAY, SOUTH OF OCEAN BOULEVARD AT THE INTERSECTION OF CHANNEL ROAD AND OCEAN BOULEVARD(PA2019-150) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by New Cingular Wireless, LLC ("Applicant'), with respect to City of Newport Beach Streetlight Number SLC0007, located within the public right-of- way on City streetlight number SLC0007, with the parkway south of Ocean Boulevard at the intersection of Channel Road and Ocean Boulevard. 2. The Applicant requests a minor use permit and coastal development permit to install small cell wireless facility on a City -owned streetlight pole. Project implementation will be fully contained within a parkway located south of Channel Road and Ocean Boulevard. The project includes the following: (1) Removal and replacement of an existing City streetlight; (2) Installation of a small cell wireless facility that consists of four (4) remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter screening shroud. This equipment would be fixed to the top of the replaced streetlight pole for a maximum height of 33 feet, 9 inches; and (3) Establishment of support equipment below grade. 3. The streetlight pole is located within the public right-of-way. The proposal is regulated by City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City - Owned Property), as well as Newport Beach Municipal Code (NBMC) Chapter 20.49 (Wireless Telecommunication Facilities). 4. The Project is located within the Coastal Zone. Subsection 21.49.020(B) (Permit and Agreement Required) of the NBMC requires a coastal development permit for a wireless telecommunication facility unless said facility is exempted by Subsection 21.49.020(C) (Exempt Facilities). In this case, the Project does not meet any of the prescribed exemptions; therefore, a coastal development permit is required. 5. A telephonic public hearing was held online on September 10, 2020, observing restrictions due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the hearing was Zoning Administrator Resolution No. ZA2020-060 Page 2 of 16 given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one (1) use to another where only minor modifications are made in the exterior of the structure. 2. In this case, the proposal includes the removal and replacement of an existing City streetlight pole to install a small cell wireless facility, including below -grade accessory equipment. 3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. Minor Use Permit In accordance with NBMC Subsection 20.52.020(F) (Conditional Use Permits and Minor Use Permits), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: SLC0007 is designated as Public Right -of -Way (ROW), which is property held in trust by the City, and allows for the construction and maintenance of public roads, crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline, water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property) governs procedures and 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 3 of 16 locations for siting wireless telecommunications equipment in the ROW. Streetlights are eligible for telecom use, subject to entitlements (such as the subject request), yearly rent, and a license agreement. 2. The City of Newport Beach General Plan ("General Plan") Natural Resources Goal NR 21 recommends the "minimized visual impacts of signs and utilities." The proposed design is consistent with NR 21 by introducing no new vertical obstructions in the ROW, employing stealth elements like colorization (painting to match the streetlight pole), and installing the associated equipment below grade. Conditions of Approval No. 21 and 22 prohibit advertising signage or identifying logos on the small cell facility except for small identification, address, warning, and similar information plates. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. 3. General Plan Land Use Policy LU 6.1.3 promotes "architecture and planning that complements adjoining uses." The proposed design adjoins residential uses and aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing streetlight pole to decrease potential disruption of the visual environment. Adverse impact to circulation, aesthetics, sounds, or odor are not anticipated from project implementation. 4. General Plan Land Use Policy LU 4 calls for the "management of growth and change to protect and enhance the livability of neighborhoods and achieve distinct and economically vital business and employment districts, which are correlated with supporting infrastructure and public services and sustain Newport Beach's natural setting." The proposed small cell facility upholds the intent of LU 4 by providing infrastructure to add system capacity for service gaps that may occur for residents and visitors of the area in regular and high demand periods. It also benefits the community by improving the existing coverage and capacity to increase the voice and data system already in use by its customers. The facility is designed to adapt to and accept future technologies, such as 5G, and will help meet local demand and sustain the livability of the area. 5. City streetlight Number SLC0007 is not located within a specific plan area Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: See Fact in Support of Finding A.1, which is hereby incorporated by reference. 2. Wireless telecommunication facilities are regulated by NBMC Chapter 20.49 (Wireless Telecommunication Facilities). Small cell equipment in the ROW assigns the project a Class 3 specification (Public Right -of -Way Installations) and requires the Applicant to 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 4 of 16 obtain a minor use permit from the Zoning Administrator (NBMC Section 20.49.060 [Permit Review Procedures]). 3. NBMC Subsection 20.49.040(A) (Preferred Locations) prioritizes telecom facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of a new facility at an existing facility; (2) Class 1 (Stealth/Screened); (3) Class 2 (Visible Antennas) and Class 3 (Public Right -of -Way); and (4) Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility consists of one (1) small cell facility that is designed to not visually dominate the surrounding area and instead to blend into the existing block. 4. NBMC Section 20.49.050 (General Development and Design Standards) requires projects to be visually compatible with surrounding structures. In reviewing this application, the Zoning Administrator shall consider the proposed facility's use of color blending, equipment screening, and the limited size of the equipment designed consistently with the aforementioned criteria. All telecommunications equipment on top of the streetlight pole would be concealed within a painted -to -match 12-inch diameter shroud. The proposed small cell facility would rely on likeness with the streetlight pole through style, color, and material to help disguise its presence. Engineering of the replacement streetlight pole accommodates and withstands the weight of the small cell equipment and could display a future City banner, if needed. Electrical and wiring components of the telecommunications equipment are designed to be fully contained within the new streetlight pole. The overall height of 33 feet, 9 inches from finished grade to the top of the proposed facility complies with the maximum allowed. Equipment not contained within the shroud on the streetlight pole would be out of sight, located below the ground in the adjacent ROW. Condition of Approval No. 33 requires approved design drawings from Southern California Edison (SCE) of the power supply to the small cell facility before construction of the facility is to commence. 5. The existing development surrounding the subject parkway on Channel Road is residential with the exception of West Jetty View Park to the east/southeast which is zoned for parks and recreation. The zoning designations are R-1 (Single -Unit Residential) and Parks and Recreation (PR) respectively. The height of the replacement streetlight with proposed equipment will not exceed the height limitation of 35 feet and is not anticipated to dominate the streetscape. 6. The streetlight SLC0007 is located within a parkway and separated from the adjacent residence by approximately seven feet of landscape and concrete public sidewalk. There are other City streetlights, street signs, and wayfinding signs common to City streetscapes adorning Channel Road. Unlike other streetscapes, this corridor on Channel Place is unique insofar as it contains one of the City's three tsunami sirens. Parkways on either side of Channel Road enjoy a series of mature palm trees that vary in height and species. On the project side of Channel Road, there are three parkways with a total of four mature palm trees averaging 45 feet tall. While the existing streetlight pole is slightly staggered, it follows the existing pattern of palm trees. In this way, the subject streetlight's location would serve to integrate the antenna shroud into the visual 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Paae 5 of 16 context of the environment. For the reasons listed above, the proposed streetlight and associated equipment is anticipated to coordinate well into the existing streetscape. 7. Submitted materials from the Applicant demonstrate the proposal would conform with Federal Communications Commission (FCC) Rules and Regulations regarding safety and radio frequency (RF) emissions. 8. The Project will comply with applicable requirements of the NBMC with construction as shown on the plans and implementation of the conditions of approval. Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: City of Newport Beach Streetlight No. SLC0007 serves as a part of the City's existing streetlight inventory. The Applicant proposes to remove and replace SLC0007 with a new streetlight in the same location while maintaining the existing luminaire heights of 27 feet, 11 inches. The telecommunications equipment will be installed on top of the new streetlight pole resulting in an overall height of 33 feet, 9 inches. All supporting equipment will be installed below -grade adjacent to the streetlight, within the public right- of-way. 2. The replacement streetlight pole design is consistent with the size, shape, style, and design of that existing, including the attached light arms and luminaire sensors. For safety and circulation of the area during construction, Condition of Approval No. 37 requires traffic control plans illustrating compliance with the 2016 WATCHBook to be reviewed and approved by the Public Works Department prior to the issuance of any building permit. 3. The proposed telecom facility is anticipated to enhance coverage and capacity for residents, visitors and businesses in the neighborhood by providing wireless access to voice and data transmission services. The proposed telecom facility is not expected to result in any material changes to the character of the local community. 4. Under FCC Orders, wireless providers are not required to demonstrate a significant coverage gap, a qualification previously required by local jurisdictions in order to support an application. Pursuant to the Order, the City cannot "materially [inhibit] the introduction of new services or the improvement of existing services." Moreover, pursuant to Section 332(c)(7)(B)(i)(II) of U.S. Code Title 47 (Telecommunications), the City may "not regulate the placement, construction or modification of wireless service facilities in a manner that prohibits the provision of personal wireless services." Although not required, the Applicant produced a coverage map for the project. This map indicates the proposed facility would boost the supply of capacity and coverage in the vicinity. 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 6 of 16 5. See Facts in Support of Finding B.4, B.6, and B.7, which are hereby incorporated by reference. 6. The proposed facility will be unmanned, will have no impact on the circulation system, and, designed and conditioned, will not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. Adequate public and emergency vehicle access, public services, and utilities are provided to and around the subject site, and the proposed use will not change this. 2. The proposed facility will be unmanned and will have no permanent impact on the circulation system and adjacent land uses due to its location in the parkway, outside of existing vehicle or pedestrian circulation areas. 3. The Public Works Department and Utilities Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. The proposed facility will only require periodic maintenance and will not generate any type of significant adverse impacts to the environment, such as noise, odor, smoke, etc. 2. The proposed facility must and will comply with the applicable Federal and State rules, regulations and standards thus, ensuring public health and safety. 3. See Facts in Support of Finding BA, B.6, B.7, B.8, and B.9, which are hereby incorporated by reference. 4. The proposed telecom facility will be effectively blended based upon the design and location with the incorporation of the conditions of approval to the greatest extent feasible. As a result, the proposed facility at this location is not expected to result in 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 7 of 16 conditions that are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. Wireless Telecommunications Facility In accordance with NBMC Subsection 20.49.060(H)(1) (General Findings for Telecom Facilities), the following additional findings and facts in support of such findings are set forth: Finding: F. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support of Finding: See Facts in Support of Finding B.4 to B.7, which are hereby incorporated by reference. 2. There are other City streetlights, street signs, and wayfinding signs common to City streetscapes along Channel Road. Unlike other streetscapes, this corridor on Channel Road is unique given that it contains one of the City's three tsunami sirens. Parkways on either side of Channel Road are landscaped with a series of mature palm trees that vary in height and species. On the project side of Channel Road, there are three parkways with a total of four mature palm trees averaging 45 feet in height. While the existing streetlight pole is slightly staggered, it follows the existing pattern of palm trees. In this way, the proposed project and associated equipment is anticipated to coordinate well into the existing streetscape and surrounding visual context of the environment. 3. Alternative sites studied that are located farther from the residential district and/or West Jetty View Park are not feasible to fulfill the coverage needs that installation at the proposed site provides. 4. The proposed facility and below -grade accessory equipment meets the City's design parameters approved by the City's Master License Agreement, which emphasizes stealth techniques and best practices to not be materially detrimental to the surrounding area. Finding: G. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Finding: The 33-foot, 9-inch tall small cell facility would comply with the maximum height limit of 35 feet for telecom facilities installed on streetlights within the public right-of-way. 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 8 of 16 2. See Facts in Support of Finding B in its entirety. 3. The application includes documentation indicating the need to provide and improve coverage to the residential areas within the City of Newport Beach. Moreover, the additional system capacity provided by the proposed facility will address service gaps that occur during high demand periods, as well as service gaps that exist at all demand periods to the surrounding area. The proposed small cell site will help AT&T to meet its coverage objectives and improve coverage to nearby areas that are currently marginal. Finding: H. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Facts in Support of Finding: See Facts in Support of Finding C.2 and CA. 2. Three (3) alternative existing streetlights neighboring the project were identified and investigated by the Applicant, but these sites were found not practicable. 3. AT&T studied City Streetlight No. SLC0005, SLC0006, SLC0008 as Alternative Site Nos. 1, 2, 3. These alternative sites are all located in West Jetty View Park. SLC0005 is located approximately 130 feet south of the proposed streetlight, SLC0006 is located approximately 55 feet southeast, and SLC0008 is approximately 110 feet northwest. Installation of the small cell in these locations would require major trenching within the public park lawn and landscape area, limiting public access during construction and maintenance activities. Because Alternative sites 1, 2, and 3 are directly within West Jetty Park, the wireless facility would also be in the direct viewshed of the identified protected public viewpoint, resulting in an adverse visual impact to coastal views. In this way, the alternative sites are not superior to the subject facility's location that places the facility inland and outside of the identified public coastal view and access areas. 4. The Applicant studied City Streetlight Nos. SLC0005, SLC0006, SLC0008 as Alternative Site No. 1, 2, 3. These alternative sites are all located in West Jetty View Park. SLC0005 is located approximately 130 feet south of the proposed streetlight, SLC0006 is located approximately 55 feet southeast, and SLC0008 is approximately 110 feet northwest. Installation of the small cell in these locations would require major trenching within the park lawn and landscape area. Alternative sites 1, 2, and 3 would be in the direct viewshed of the identified protected public viewpoint, resulting in an adverse visual impact to coastal views. It should be noted that City staff was not supportive of locating the proposed facility on these streetlights and agrees with the Applicant's conclusion that these are not viable sites. Staffs review of the subject area did not identify any additional alternative sites to be studied. 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 9 of 16 5. Small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Small cell facilities use an omnidirectional antenna that propagates in 360 degrees and function most efficiently on an unobstructed, vertical, structure such as a streetlight or utility pole. Finding: 1. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Facts in Support of Finding: Fact in Support of finding CA is incorporated by reference. 2. The Applicant's analysis concluded that a more preferred location as defined by NBMC Subsections 20.49.040(A) (Preferred Locations), such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. Coastal Development Permit In accordance with Subsection 21.52.015(F) (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: J. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: The project is considered a Class 3 (Public Right -of -Way) installation. Section 21.49.040 (Telecom Facility Preferences and Prohibited Locations) of the NBMC lists Class 3 installations as third on the installation preference list. NBMC Chapter 21.49.040(B) (Telecom Facility Preferences and Prohibited Locations) allows new telecom facilities located on the sea and first public road paralleling the sea when said facilities are on an existing facility. 2. See Fact in Support of Finding 1.2. 3. The subject location is between the first public roadway paralleling the sea and the sea and is adjacent to the viewshed of a public viewpoint at West Jetty View Park, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views). Site evaluation revealed that the proposed project is consistent with the surrounding development context and will not affect the existing views afforded from West Jetty View Park. The 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Paqe 10 of 16 project scope involves the removal and replacement of an existing City streetlight in the same location with the same luminaire height and it complies with all applicable development standards. West Jetty Park is approximately 40 to 50 feet in width and improved with public benches and landscaping that orients and frames views toward the Newport Bay and not over the subject site. 4. Consistent with Local Coastal Plan (LCP) Policies 4.4.1-1, 4.4.1-7, and 4.4.4-1, design elements of the project help to minimize impacts to coastal resources and protect the visual quality of the coastal zone. Within the surrounding residential context, the replacement streetlight is consistent with the size, shape, style, and design of the existing pole and other poles in the vicinity. The proposed replacement streetlight and antenna structure will comply with the maximum allowable height limit of 35 feet from existing finished grade. The location of the existing streetlight pole would not change and, aside from the approximately 6-foot height extension for the antenna shroud and minimum required signage, there are no other detectable changes to the visual environment. 5. See Fact in Support of Finding F.2. 6. The proposed replacement streetlight and antenna structure will comply with the maximum allowable height limit of 35 feet from existing finished grade. 7. There will be no changes or obstructions to the pedestrian right-of-way and access on Channel Road will be unaffected. As such, the project will not affect the public's ability to gain access to, use, and/or view the coast and nearby recreational facilities. Finding: K. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Facts in Support of Finding: Streetlight No. SLC0007 is located between the nearest public road and the sea or shoreline. The project site is within an parkway on Channel Road. All equipment will be either concealed within the replacement pole or vaulted below grade. Vertical access to the beach is provided by way of street -ends in the area, including Channel Road. Lateral access along the beach provided on the beach itself and along the Oceanfront Boardwalk. The equipment will be below grade and will not impact any public way. 2. The project will allow the installation of a small cell facility that complies with all applicable Local Coastal Program (LCP) development standards and maintains development attributes consistent with the existing and anticipated future surrounding neighborhood pattern of development. Therefore, the project does not have the potential to degrade public views within the Coastal Zone. 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 11 of 16 SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 exemption do not apply. 2. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2019-043 and Coastal Development Permit No. CD2020-120, subject to the conditions set forth in "Exhibit A," which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. The project site is located within the appeal area of the coastal zone; therefore, final action by the City may be appealed to the California Coastal Commission. PASSED, APPROVED, AND ADOPTED THIS 10TH DAY OF SEPTEMBER, 2020. Ja e Murillo Zoning Administrator 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Page 12 of 16 EXHIBIT "A" CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the plans, including elevation exhibits and visual simulations, stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this approval. 4. The telecom facility approved by this permit shall comply with all applicable Federal and State rules, regulations, and standards. 5. The replacement pole shall be reconstructed in the exact location of the existing streetlight pole. 6. No construction activity, including staging and/or storage, shall not occur within West Jetty View Park. To the greatest extent feasible, construction activities shall not block the public sidewalk or access immediately adjacent to SLC0007. 7. The reconstructed streetlight pole design shall be consistent with the size (including diameter), shape, style, and design of the existing streetlight pole to the greatest extent feasible, including the attached light arm and luminaire. All mounted equipment shall be painted to match the color and style of the replacement streetlight pole. 8. All accessory support equipment of this facility shall be installed underground. 9. All electrical and antenna wiring shall be fully encased within the reconstructed streetlight pole. 10. The telecom facility approved by the use permit shall comply with any easements, covenants, conditions, or restrictions on the underlying City -trust property upon which the facility is located. 11. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 12. Prior to building permit final, a Height Certification Inspection shall be required prior to final of building permits. The small cell facility and base streetlight pole approved by this permit shall not exceed a total of 33 feet, 9 inches (33' 9") in height from existing grade 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Paoe 13 of 16 (maximum elevation of 46.45 feet based on the North American Vertical Datum of 1988 [NAVD88]). 13. Prior to building permit issuance, all contractors and subcontractors shall have a valid City of Newport Beach business license. 14. The Applicant shall continually maintain the wireless telecom facility so that it retains its original appearance at the time the building permit is finaled by the City of Newport Beach. 15. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless telecom facility, including the small cell facility and below -grade equipment areas, and make all necessary repairs. The Community Development Director may require additional inspections and/or maintenance activities at his/her discretion. 16. The Applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 17. The facility shall transmit at the approved frequency ranges established by the FCC. The Applicant shall inform the City in writing of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 18. The telecommunications facility shall at no time interfere with the frequencies used by the City of Newport Beach for public safety. "Comprehensive advanced planning and frequency coordination" engineering measures shall prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public -Safety Communications Officials -International, Inc. ("APCO"), and as endorsed by the FCC. 19. Should interference with the City's Public Safety radio equipment occur, use of the telecom facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 20. The Applicant shall provide a "single point of contact" for the carrier in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, fax number, and email address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. If the point of contact changes, the City shall be immediately alerted and updated. 21. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning, and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Paae 14 of 16 22. Appropriate information warning signs or plates shall be posted on the base streetlight pole of the transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. Signage required by State or federal regulations shall be allowed in its smallest permissible size. 23. Prior to the final of building permits, the Applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with lighting. The telecom facility shall be lighted to the extent deemed necessary by the Newport Beach Police and Utilities Departments for security lighting and consistency with other streetlights in the area. 24. The Applicant shall maintain the telecom facility in a manner consistent with this approval. 25. The Applicant shall ensure that its telecom facility complies with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The Applicant shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. This information shall be made available by the Applicant upon request of the Community Development Director. 26. The facility shall comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. 27. Prior to final of building permits, the Applicant shall schedule an inspection by the Planning Division to ensure materials and colors match existing architecture as illustrated in the approved photographic simulations and in conformance with NBMC Sections 20.49.050 and 21.49.050. 28. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, or remove the telecom facility and restore the site. 29. The City reserves the right and jurisdiction to review and modify any permit approved pursuant to NBMC Chapters 20.49 and 21.49, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the height or size of the facility; increase the size, shape, or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure ("MPE") limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a review of the modification, and possible amendment to the use permit, prior to implementing any change. 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Paqe 15 of 16 30. Minor Use Permit No. UP2019-043 and Costal Development Permit No. CD2020-120 shall expire unless exercised within 24 months from the date of approval as specified in Sections 20.54.060 and 21.54.060 (Time Limits and Extensions) of the NBMC unless an extension is otherwise granted. 31. Construction activities shall comply with NBMC Section 10.28.040, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday. Noise -generating construction activities are not allowed on Saturdays, Sundays or holidays. 32. This approval may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 33. A copy of the Resolution, including conditions of approval Exhibit "A," and approved drawings from Southern California Edison (SCE) for the power supply and design, shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 34. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of Native Birds pursuant to MBTA: A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 35. The Applicant shall promptly notify the City if the landscaped parkway of the subject streetlight pole is negatively affected or otherwise damaged by project implementation. 36. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, 01-25-19 Zoning Administrator Resolution No. ZA2020-060 Paqe 16 of 16 employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of AT&T Small Cell SLC0007, including, but not limited to, Minor Use Permit No. UP2019-043 and Coastal Development Permit No. CD2020-120 (PA2019-150). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Public Works Department 37. Prior to the issuance of a building permit, an encroachment permit shall be required. 38. Prior to the issuance of a building permit, traffic control plans illustrating compliance with the 2016 WATCHBook requirements shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman. 01-25-19 STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT OFFICE 301 E. OCEAN BLVD., SUITE 300 LONG BEACH, CALIFORNIA 90902-4930 (562) 590-5071 FAX (562) 590-5084 WWW.COASTAL.CA. GOV - "• October 21, 2020 DBA AT&T Mobility, Attn: Ericsson Inc. 330 Commerce, Suite 200 Irvine, CA 92602 This is to inform you that the Commission's 10 working day appeal period on the City of Newport Beach's Coastal Development Permit No. CD2020-120 (PA2019-150) (5-NPB-20-0788) expired on October 12, 2020. The Coastal Commission received no appeals on this permit. The City's permit is therefore final. Sincerely, Zach Rehm District Supervisor cc: File City of Newport Beach STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY \.+�-�' "- "-� �.+� ;, GAVIN NEWSOK GOVERNOR CALIFORNIA COASTAL COMMISSION 'y. SOUTH COAST DISTRICT OFFICE •��.,,.,.. 301 E. OCEAN BLVD., SUITE 300 LONG BEACH, CALIFORNIA 90802AS30 1 0TI V � 1 C 20 FA (562) 590-5071 X (562) 590-5084 .p d WWW.COASTALCA.GOV CFyOF NOTIFICATION OF APPEA I ' PE1R6OD September 29, 2020 To: Patrick Achis City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 From: Amber Dobson, District Manager Re: Application No. 5-NPB-20-0788 Please be advised that on September 28, 2020, our office received notice of local action on the coastal development permit described below: Local Permit #: CD2020-120 (PA2019-150) Applicant: DBA AT&T Mobility, Attn: Ericsson Inc. Description: Installation of a small cell wireless facility, consisting of four remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-in. diameter screening shroud, on a City -owned streetlight pole. Remove and replace existing streetlight. Location: Streetlight Pole No. SLCO07 within public right of way near the intersection of Ocean Blvd. and Channel Rd., Newport Beach, CA 92661 (Orange County) (APN: 048-282-19) Unless an appeal is filed with the Coastal Commission, the action will become final at the end of the Commission appeal period. The appeal period will end at 5:00 PM on October 12, 2020. Our office will notify you if an appeal is filed. If you have any questions, please contact me at the address and telephone number shown above. cc: DBA AT&T Mobility, Attn: Ericsson Inc. File 1 J AMENDMENT NO. 4 TO MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS Oc) PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. 4 TO MASTER LICE EEMENT ("Amendment No. 4") is made and entered into as of this.I day o 022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"), and is made with reference to the following: RECITALS A. On February 12, 2019, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove Telecommunication Facilities as permits are obtained from the City. B. The parties desire to enter into this Amendment No. 4, pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. C. The parties further desire to enter into this Amendment No. 4, pursuant to Section 5 of the Master License, to identify the specific License Area(s) in the License Area Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed to Licensee for installation of its Telecommunication Facilities under the terms and conditions of the Master License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE SITE LIST This Amendment, the Site List attached hereto as Exhibit 1 and the License Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC IN WITNESS WHEREOF, the parties have caused this Amendment No. 4 to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOR IE 'S OFFICE Date: 6 ,� 2�-- B' ty ttorn CITY OF NEWPORT BEACH, a California municipal corporation Date: & A l-//27 City Manager ATTEST: p LICENSEE: Date: D •1�p� New Cingular Wireless PCS, LLC a Delaware limited liability company; By: AT&T Mobility Corporation, its Manager Date: -1 By: By: i�-tA -1 N P- Aj&etz-%1AA . City Clerk Omar Mere Area Manager, Real Estate & Construction H u N FORN% Date: /CJ Annette Zoba Director Access - Construction & Engineering [END OF SIGNATURES] Attachments: Exhibit 1 - Site List Exhibit 2 - License Area Description & Depiction New Cingular Wireless PCS, LLC, Exhibit 1 SITE LIST Site ID: CRAN RLOS HBNPB 038 Location: City Streetlight No. SCL4653, N/S of Bayside Drive, approx. 900' north of El Paseo Drive Latitude / Longitude: 33.609029,-117.886466 City Approved Case #: UP2019-034 (PA2019-115) Site ID: CRAN RLOS HBNPB 042 Location: City Streetlight No. SCL4735, Center Median of Avocado Avenue at Kewamee Drive Latitude / Longitude: 33.604239,-117.877261 City Approved Case #: UP2019-027 (PA2019-108) Site ID: CRAN RLOS CSTAM 003 Location: City Streetlight No. SCL0796, at the N/W/C of West Balboa Boulevard and 30th Street Latitude / Longitude: 33.613872,-117.931656 City Approved Case #: UP2019-030 (PA2019-111) New Cingular Wireless PCS, LLC, Exhibit 2 LICENSE AREA DESCRIPTION & DEPICTION CRAN_RLOS_CSTAM_003 Ji I qq 4-.•r j co.7.` 2'> MAX ... , Q SLDFL '.I I O I �T^ H HOLE ?E I-•TsLLE %- ' 8 9''• _J IY r : r m ELU r 4 E P-TE.-Tr, 4T.4T, --i t. r Fh 1 j 4T H4',-HULE 7REEFI.I.HT 5'r AT&V -- -� - 4 -0j > /f % FIBER HAl DHCLE Tf3 i H fey 1 TREEFLI :HT 1 ' AT 7 <EE NOTE c .L _ - a f 1 FldE•+ HANOHLLE TC BE ICLE -..__- 1',WLLE EL(,4 GRADE ,Fll .4TIT I �� •NIHELIYE LINDE. S,UAh TE �,E•�Iffi• ``�7i• ••25-7 _ �1 2 k+ (E` .'IT' ^F NEWa .EACH CC- RETE' ' \ I I• .^' \.'o, _ ST_iEEIMHT r=L:,J/9b, TJ BE hE E;-'S .% _ k �tUI_ACU 1N 541,+E LKATIC% hi ,' \ CtiNCRETE r-:T�EETLICHT •. , Ne '•.'•.,, .yi ,, E_(dPYE;T ' �= I FROM POLE TO i i OF K. BALBOA BLVD. SON — EXIS 'J1' 8"0 :,E•-AEr - Ey hTIV.] 'AI`�7E": i„ IP 5. y;P ,TRU:'T...E U ,E E + I. A. GALH::A ;+L'J) I s 30TH ST. ' AT&T TO REMOVE • AT&T TO INSTALL • AT&T TO INSTALL ' AT&T TO INSTALL ' AT&T TO INSTALL ' AT&T TO INSTALL ' AT&T TO INSTALL New Cingular Wireless PCS, LLC, (1) EXISTING CONCRETE STREETLIGHT (1) 29'-3" CONCRETE STREETLIGHT (4) NEW AT&T REMOTE RADIO UNITS (1) NEW AT&T OMNI-DIRECTIONAL ANTENNA (1) NEW AT&T EQUIPMENT SHROUD (1) NEW RAYCAP DISCONNECT (1) NEW HANDHOLE AT&T NEW CIIONCV:ILAR WIRELESS PCS, LLC ASSISTANT SECRETARY'S CERTIFICATE 1, Jackie A. Begue, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. 3. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." 5. Annette M. Zoba, Director Access — Construction and Engineering, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this Sty' day of September 2021. ac�<ie A. Begue, Assistant e etary NEW CINGULAR WIRELESS PCS, LLC ASSISTANT SECRETARY'S CERTIFICATE I, Jackie A. Begue, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." 5. Omar J. Mere, Area Manager — Real Estate and Construction, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 12111 day of October 2021. a ie A. Begue, Assistant e4 etary April 17, 2020 CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/cam m u nitydevelopment VIA EMAIL Transmitted via electronic mail only M Square Wireless Attention: Franklin Orozco forozco@interlinkpg.com Subject: Minor Use Permit No. UP2019-030 (PA2019-111) Streetlight No. SLC0796 located in the public right-of-way adjacent to the northeastern corner of the intersection of 30th Street and Balboa Boulevard Dear Franklin, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Zoning Administrator on April 16, 2020 and effective on May 1, 2020. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, 0In . Z eba, AICP nior Pla r cc: City of Newport Beach Attention: Lauren Wooding Whitlinger Iwooding@newportbeachca.gov RESOLUTION NO. ZA2020-030 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR USE PERMIT NO. UP2019-030 FOR A SMALL CELL FACILITY LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY ON CITY STREETLIGHT NUMBER SLC0796, AT THE NORTHWESTERN CORNER OF BALBOA BOULEVARD AND 30TH STREET (PA2019-111) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by New Cingular Wireless, LLC d.b.a. AT&T Mobility (Applicant), with respect to City of Newport Beach Streetlight Number SLC0796, located within the public right-of-way, at the northwestern corner of Balboa Boulevard and 30t' Street, requesting approval of a minor use permit. 2. The Applicant proposes the installation of a small cell wireless facility on a City -owned streetlight pole. Project implementation will be fully contained within the public right-of- way on Balboa Boulevard and includes the following: (1) Removal and replacement of an existing City streetlight; (2) Installation of a small cell wireless facility that consists of four remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter equipment shroud. This equipment would be fixed to the top of the replaced streetlight pole for a maximum height of 34 feet, 9 inches, and (3) Establishment of new below -grade support equipment adjacent to the streetlight. 3. The streetlight is located within the public right-of-way. The proposal is regulated by Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property), as well as Newport Beach Municipal Code (NBMC) Chapter 20.49 (Wireless Telecommunication Facilities). 4. The project site is located within the coastal zone. It is not located between the first public roadway paralleling the sea and the sea. The removal and installation of an existing streetlight pole is exempt from the requirements of a coastal development permit pursuant to Section 21.50.035(C)(4) (Repair and Maintenance) of the NBMC. In consultation with Coastal Commission staff, the modification of a streetlight for a small cell facility remains exempt, provided there is no visual resource impact. The project was reviewed for consistency with the Public View Protection regulations of Section 21.49.050(B) (Public View Protection) of the NBMC. It is not on a coastal bluff or canyon, not adjacent to or within the viewshed of a public view point, coastal view road, public park or beach, or public accessway, as identified on the Coastal Land Use Plan Map 4- 3 (Coastal Views), and does not contain significant natural landforms or vegetation. The project scope involves the removal and replacement of an existing City streetlight in the same location with the same luminaire height. The project has been designed to blend in within the existing streetscape. The replacement streetlight is consistent with the size, Zoning Administrator Resolution No. ZA2020-030 Page 2 of 15 shape, style, and design of the existing pole. No above ground mounted equipment is proposed and the support equipment is proposed to be placed in underground handholes. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within a screening shroud. The installation of a small cell wireless facility will not have a negative impact on coastal views or coastal resources; therefore, a coastal development permit is not required. 5. A public hearing was held on April 16, 2020, in the Community Room at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. 2. In this case, the proposal includes the removal and replacement of an existing City streetlight pole to install a small telecommunications wireless facility, including below - grade accessory equipment. 3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. Minor Use Permit In accordance with NBMC Subsection 20.52.020(F) (Conditional Use Permits and Minor Use Permits), the following findings and facts in support of such findings are set forth: 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 3 of 15 Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The project site is designated as Public Right -of -Way (ROW), which is property held in trust by the City, and allows for the construction and maintenance of public roads, crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline, water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property) governs procedures and locations for siting wireless telecommunications equipment in the ROW. Streetlights are eligible for telecom use, subject to entitlements (such as this minor use permit request), yearly rent, and a license agreement. 2. General Plan Natural Resources Goal NR 21 recommends the "minimized visual impacts of signs and utilities." The proposed design is consistent with NR 21 by introducing no new vertical obstructions in the ROW, employing stealth elements like colorization (painting to match the streetlight pole), and installing the associated equipment below grade. Conditions of Approval No. 20 and 21 prohibit advertising signage or identifying logos on any telecom facility except for small identification, address, warning, and similar information plates. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. 3. General Plan Land Use Policy LU 6.1.3 promotes "architecture and planning that complements adjoining uses." The proposed design adjoins residential uses and aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing streetlight pole to decrease potential disruption of the visual environment. Adverse impact to circulation, aesthetics, sounds, or odor are not anticipated from project implementation. 4. General Plan Land Use Policy LU 4 calls for the "management of growth and change to protect and enhance the livability of neighborhoods and achieve distinct and economically vital business and employment districts, which are correlated with supporting infrastructure and public services and sustain Newport Beach's natural setting." The proposed small cell facility upholds the intent of LU 4 by providing infrastructure to add system capacity for service gaps that may occur for residents and businesses of the area in regular and high demand periods. It also benefits the community by improving the existing coverage and capacity to increase the voice and data system already in use by its customers. The facility is designed to adapt and accept future technologies, such as 5G, and will help meet local demand and sustain the livability of the area. 5. The project site is not located within a specific plan area 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paae 4 of 15 Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. See Fact in Support of Finding A. 1. 2. Wireless telecommunication facilities are regulated by NBMC Chapter 20.49 (Wireless Telecommunication Facilities). To site small cell equipment in the ROW assigns the project a Class 3 specification (Public Right -of -Way Installations) and requires the Applicant to obtain a minor use permit from the Zoning Administrator (NBMC Section 20.49.060 [Permit Review Procedures]). 3. NBMC Subsection 20.49.040(A) (Preferred Locations) prioritizes telecom facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of a new facility at an existing facility; (2) Class 1 Stealth/Screened); (3) Class 2 (Visible Antennas), Class 3 (Public Right -of -Way); and (4) Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility consists of one (1) small cell facility that is designed to not visually dominate the surrounding area and instead to blend into the existing block. 4. NBMC Section 20.49.050 (General Development and Design Standards) requires projects to be visually compatible with surrounding structures. In reviewing this application, the Zoning Administrator shall consider the proposed facility's use of color blending, equipment screening, and the limited size of the equipment designed consistently with the aforementioned criteria. All telecommunications equipment on top of the streetlight pole would be concealed within a painted -to -match 12-inch diameter shroud. The proposed small cell facility would rely on likeness with the streetlight pole through style, color, and material to help disguise its presence. Engineering of the replacement streetlight pole accommodates and withstands the weight of the small cell equipment and has ability to display a future City banner, if needed. Electrical and wiring components of the telecommunications equipment are designed to be fully contained within the new streetlight pole. The overall height of 34 feet, 9 inches from finished grade to the top of the proposed facility complies with the maximum allowed. Equipment not contained within the shroud on the streetlight pole would be out of sight, located below the ground in the adjacent ROW. Condition of Approval No. 32 requires approved design drawings from Southern California Edison (SCE) of the power supply to the small cell facility before construction of the facility is to commence. 5. Existing residential properties contiguous to the site are in the R-2 (Two -Unit Residential) Zoning District. R-2-zoned sites allow for structures up to 24 feet for flat roof elements and 29 feet to the ridge of a sloped roof. The height of the existing streetlight SLC0796 sits just above the maximum allowable height for residential structures. The streetlight is separated from the residences by a large 20-foot vegetated parkway that is landscaped with taller palm trees. Given this buffer between the streetlight and the 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Page 5 of 15 residences, the streetlight is softened and screened by the landscaping from the residential neighborhood beyond. Furthermore, keeping the luminaire the same height as the existing streetlight lessens visual obtrusion from the proposed small cell facility with the line of the existing development. 6. Submitted materials from the Applicant demonstrate the proposal would conform with Federal Communications Commission (FCC) Rules and Regulations regarding safety and radio frequency emissions. 7. The proposed telecom facility will comply with applicable requirements of the NBMC with construction as shown on the plans and implementation of the conditions of approval. Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: City of Newport Beach Streetlight No. SLC0796 is located within the public right-of-way on the northern side of Balboa Boulevard at the northwestern corner of the 30th Street intersection. It is immediately adjacent to an unusually large vegetated parkway that is approximately 20 feet wide. Beyond the parkway to the northeast is a block of two -unit residential development (Attachment No. ZA 2). All surrounding land uses are residential and vary in density from two -unit residential to single -unit residential. The only exception is a Commercial Visitor Serving (CV) zoned parcel across 30th Street from the site, which is presently developed with a laundromat (Beach Coin Laundry). 2. Under the new FCC Order, wireless providers are not required to demonstrate a significant coverage gap, a qualification previously required by local jurisdictions in order to support an application. Pursuant to the Order, the City cannot "materially [inhibit] the introduction of new services or the improvement of existing services." Moreover, pursuant to Section 332(c)(7)(B)(i)(II) of U.S. Code Title 47 (Telecommunications), the City may "not regulate the placement, construction or modification of wireless service facilities in a manner that prohibits the provision of personal wireless services." Although not required, the Applicant produced a coverage map for the project. This map indicates the proposed facility would boost the supply of capacity and coverage in the vicinity. 3. SLC0796 serves as a part of the City's existing streetlight inventory. AT&T proposes to: (1) remove and replace SLC0796 with a new streetlight in the same location; (2) maintain the existing luminaire height of 29 feet, 9 inches; (3) install telecommunications equipment for a small cell wireless facility on top of the new streetlight pole resulting in an overall height of 34 feet, 9 inches; and (4) establish new below -grade support equipment adjacent to the streetlight, within the public right-of-way. 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 6 of 15 4. The replacement streetlight pole design is consistent with the size, shape, style, and design of that existing, including the attached light arm and luminaire. For safety and circulation of the area during construction, Condition of Approval No. 40 requires traffic control plans illustrating compliance with the 2016 watchbook to be reviewed and approved by the Public Works Department prior to the issuance of any building permit. 5. The proposed telecom facility is anticipated to enhance coverage and capacity for residents, visitors and businesses in the neighborhood by providing wireless access to voice and data transmission services. The proposed telecom facility is not expected to result in any material changes to the character of the local community. 6. See Facts in Support of Finding B.4, B.5, and B.6. 7. The proposed facility will be unmanned, will have no impact on the circulation system, and, as conditioned, will not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: Adequate public and emergency vehicle access, public services, and utilities are provided to and around the subject site and the proposed use will not change this. 2. The proposed facility will be unmanned and will have no permanent impact on the circulation system and adjacent land uses due to its location in the parkway, outside of existing vehicle or pedestrian circulation areas. 3. The Public Works Department and Utilities Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: The proposed facility will only require periodic maintenance and will not generate any type of significant adverse impacts to the environment, such as noise, odor, smoke, etc. 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 7 of 15 2. The proposed facility must and will comply with the applicable Federal and State rules, regulations and standards thus, ensuring public health and safety. 3. See Facts in Support of Finding B.4, B.5, B.6, B.7, and B.8. 4. The proposed telecom facility will be effectively blended based upon the design and location with the incorporation of the conditions of approval to the greatest extent feasible. As a result, the proposed facility at this location is not expected to result in conditions that are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. Wireless Telecommunications Facility In accordance with NBMC Subsection 20.49.060(H)(1) (General Findings for Telecom Facilities), the following additional findings and facts in support of such findings are set forth: Finding: F. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support of Finding: 1. See Facts in Support of Finding B.4, B.5, and B.6. 2. The closest residentially zoned property is located approximately 20 feet northeast of the project site and is buffered by a large 20-foot-wide parkway area with vegetation of varying heights. The proposed streetlight is located along the inland side of a well - traveled street and will blend in with the surrounding streetscape. There are no public parks near the proposed project. The proposed facility and below -grade accessory equipment meets the City's design parameters approved by the City's Master License Agreement, which emphasizes stealth techniques and best practices to not be materially detrimental to the surrounding area. Finding: G. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Findinq: 1. The 34-foot, 9-inch tall small cell facility would comply with the maximum height limit of 35 feet for telecom facilities installed on streetlights within the public right-of-way. 2. See Facts in Support of Finding B in its entirety. 3. The application includes documentation indicating the need to provide and improve coverage to the residential areas within the City of Newport Beach. Moreover, the 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Page 8 of 15 additional system capacity provided by the proposed facility will address service gaps that occur during high demand periods, as well as service gaps that exist at all demand periods to the surrounding area. The proposed small cell site will help AT&T to meet its coverage objectives and improve coverage to nearby areas that are currently marginal. Finding: H. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Facts in Support of Finding: 1. See Fact in Support of Finding C.2. 2. Five nearby streetlights were identified and investigated by the Applicant as possible alternate locations for this small cell facility; however, all sites were found by the applicant to be not viable (see Attachment No. ZA 3). 3. Alternative Site #1 is a wooden utility pole located approximately 100 feet north of the proposed streetlight. This pole is located immediately in front of a two -unit residential structure that is oriented towards Balboa Boulevard within a narrower parkway area. Installation of small cell infrastructure at this location would require placement of a crossarm with exposed equipment on either side of the wooden pole and would not be as aesthetically compatible as the proposed location. Most importantly, the wooden utility pole is located within an approved underground assessment and utility district, which will aim to eventually eliminate such above -ground utilities in the area. 4. Alternative Site #2 at City Streetlight No. SLC0767 located approximately 160 feet northwest of the proposed streetlight on the opposite side of Balboa Boulevard. This alternative location is in very close proximity to overhead powerlines, which would make additional height above the existing streetlight pole infeasible. Furthermore, the existing streetlight is located such that accessibility is limited and a girthier pole could not be accommodated without further constraining the sidewalk. 5. Alternative Site #3 is a wooden utility pole located approximately 78 feet west of the proposed streetlight. This pole is located immediately adjacent to the front patio of an existing, single -story residence. Like Alternative Site #1, installation of small cell infrastructure at this location would require placement of a crossarm with exposed equipment on either side of the wooden pole and would not be as aesthetically compatible as the proposed location. Most importantly, the wooden utility pole is located within an approved underground assessment and utility district, which will aim to eventually eliminate such above -ground utilities in the area. 6. Alternative Site #4 at City Streetlight No. SLC0768 is located at the southwest corner of Balboa Boulevard and 30th Street approximately 100 feet from the proposed streetlight. Like Alternative Site #2, this alternative location is in very close proximity to overhead powerlines, which would make additional height above the existing streetlight pole 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Page 9 of 15 infeasible. Accessibility is also limited here and a girthier pole cannot be accommodated without further constraining the sidewalk. 7. Alternative Site #5 at City Streetlight No. SLC0766 is located at the alleyway between 30th Street and 29th Street, approximately 175 feet southeast of the proposed streetlight. Like Alternative Site #2 and Alternative Site #4, accessibility is limited at this location and a girthier pole cannot be accommodated without further constraining the sidewalk. Finding: 1. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Facts in Support of Finding: 1. See Fact in Support of Finding C.2. 2. AT&T's analysis concluded that a more preferred location as defined by NBMC Subsection 20.49.040(A) (Preferred Locations), such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 exemption do not apply. 2. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2019-030, subject to the conditions set forth in "Exhibit A," which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of NBMC Title 20 Planning and Zoning. 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 10 of 15 PASSED, APPROVED, AND ADOPTED THIS 16T" DAY OF APRIL, 2020. Ja e Murillo Zoning Administrator 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paae 11 of 15 EXHIBIT "A" CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the plans, including elevation exhibits and visual simulations, stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 4. The telecom facility approved by this permit shall comply with all applicable Federal and State rules, regulations, and standards. 5. The replacement pole shall be reconstructed in the exact location of the existing streetlight pole. 6. The reconstructed streetlight pole design shall be consistent with the size (including diameter), shape, style, and design of the existing streetlight pole to the greatest extent feasible, including the attached light arm and luminaire. All mounted equipment shall be painted to match the color and style of the replacement streetlight pole. 7. All accessory support equipment of this facility shall be installed underground. 8. All electrical and antenna wiring shall be fully encased within the reconstructed streetlight pole. 9. The telecom facility approved by the use permit shall comply with any easements, covenants, conditions, or restrictions on the underlying City -trust property upon which the facility is located. 10. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 11. Prior to building permit final, a Height Certification Inspection shall be required prior to final of building permits. The small cell facility and base streetlight pole approved by this permit shall not exceed a total of 34 feet, 9 inches in height from existing grade (maximum elevation height of 43.57 feet above mean sea level using the North American Vertical Datum of 1988 [NAVD88]). 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 12 of 15 12. Prior to building permit issuance, all contractors and subcontractors shall have a valid City of Newport Beach business license. 13. The Applicant shall continually maintain the wireless telecom facility so that it retains its original appearance at the time the building permit is finaled by the City of Newport Beach. 14. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless telecom facility, including the small cell facility and below -grade equipment areas, and make all necessary repairs. The Community Development Director may require additional inspections and/or maintenance activities at his/her discretion. 15. The Applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 16. The facility shall transmit at the approved frequency ranges established by the FCC. The Applicant shall inform the City in writing of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 17. The telecommunications facility shall at no time interfere with the frequencies used by the City of Newport Beach for public safety. "Comprehensive advanced planning and frequency coordination" engineering measures shall prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public -Safety Communications Officials -International, Inc. ("APCO"), and as endorsed by the FCC. 18. Should interference with the City's Public Safety radio equipment occur, use of the telecom facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 19. The Applicant shall provide a "single point of contact" for carriers in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, fax number, and email address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. If the point of contact changes, the City shall be immediately alerted and updated. 20. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning, and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 21. Appropriate information warning signs or plates shall be posted on the base streetlight pole of the transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 13 of 15 Signage required by State or federal regulations shall be allowed in its smallest permissible size. 22. Prior to the final of building permits, the Applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with lighting. The telecom facility shall be lighted to the extent deemed necessary by the Newport Beach Police and Utilities Departments for security lighting and consistency with other streetlights in the area. 23. The Applicant shall maintain the telecom facility in a manner consistent with this approval. 24. The Applicant shall ensure that its telecom facility complies with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The Applicant shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. This information shall be made available by the Applicant upon request of the Community Development Director. 25. The facility shall comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. 26. Prior to final of building permits, the Applicant shall schedule an inspection by the Planning Division to ensure materials and colors match existing architecture as illustrated in the approved photographic simulations and in conformance with NBMC Section 20.49.050. 27. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, or remove the telecom facility and restore the site. 28. The City reserves the right and jurisdiction to review and modify any permit approved pursuant to NBMC Chapter 20.49, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the height or size of the facility; increase the size, shape, or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure ("MPE") limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a review of the modification, and possible amendment to the use permit, prior to implementing any change. 29. Use Permit No. UP2019-030 shall expire unless exercised within 24 months from the date of approval as specified in NBMC Section 20.54.060 (Time Limits and Extensions), unless an extension is otherwise granted. 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Page 14 of 15 30. Construction activities shall comply with NBMC Section 10.28.040, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday and 8 a.m. and 6 p.m. on Saturday. Noise -generating construction activities are not allowed on Sundays or holidays. 31. This Use Permit may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 32. A copy of the Resolution, including conditions of approval Exhibit "A," and approved drawings from Southern California Edison (SCE) for the power supply and design, shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 33. The Applicant shall promptly notify the City if the landscaped parkway of the subject streetlight pole is negatively affected or otherwise damaged by project implementation. 34. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of AT&T Small Cell on SLC0796, including, but not limited to, Minor Use Permit No. UP2019-030 (PA2019-111). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Public Works Department 35. Prior to the issuance of a building permit, an encroachment permit shall be required. 36. Prior to the issuance of a building permit, traffic control plans illustrating compliance with the 2016 watchbook requirements shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of 01-25-19 Zoning Administrator Resolution No. ZA2020-030 Paqe 15 of 15 construction vehicles shall be minimized by proper use of traffic control equipment and flagman. Additional Conditions of Approval 37. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds pursuant to MBTA: A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 01-25-19 RESOLUTION NO. PC2020-018 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING COASTAL DEVELOPMENT PERMIT NO. CD2020-052 AND UPHOLDING THE DECISION OF THE ZONING ADMINISTRATOR APPROVING MINOR USE PERMIT NO. UP2019-030 FOR A SMALL CELL FACILITY LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY ON CITY STREETLIGHT NUMBER SLC0796, AT THE NORTHWESTERN CORNER OF BALBOA BOULEVARD AND 30TH STREET (PA2019-111) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by New Cingular Wireless, LLC ("Applicant"), with respect to City of Newport Beach Streetlight Number SLC0796 ("SLC0796"), located within the public right-of-way, at the northwestern corner of Balboa Boulevard and 30th Street, requesting approval of a minor use permit. 2. The Applicant proposes the installation of a small cell wireless facility on a City -owned streetlight pole. Project implementation will be fully contained within the public right-of- way on Balboa Boulevard and includes the following: (1) removal and replacement of an existing City streetlight; (2) installation of a small cell wireless facility that consists of four remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter equipment shroud, with the equipment being fixed to the top of the replaced streetlight pole for a maximum height of 34 feet, 9 inches, and (3) establishment of new below -grade support equipment adjacent to the streetlight. Also included is the review of a coastal development permit. (the "Project"). 3. Since the SLC0796 streetlight is located within the public right-of-way. The proposal is regulated by Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property), as well as Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code ("NBMC"). 4. A public hearing was held on April 16, 2020, in the Community Room located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), Chapter 20.62 and Chapter 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this public hearing. 5. The Zoning Administrator adopted Resolution No. ZA2020-030 approving Minor Use Permit No. UP2019-030. Planning Commission Resolution No. PC2020-018 Page 2 of 16 6. On April 28, 2020, attorney Mark Pollock filed an appeal of the Zoning Administrator's decision primarily citing concerns with the City's Master License Agreement and the Applicant's authority to file for this application. 7. The Project was scheduled for a de novo public hearing by the Planning Commission for June 4, 2020 but was continued from that agenda to allow staff additional time to review the Project. Of concern was whether the Project also required a coastal development permit. 8. The Project is located within the Coastal Zone. Subsection 21.49.020(B) (Permit and Agreement Required) of the NBMC requires a coastal development permit for a wireless telecommunication facility unless said facility is exempted by Subsection 21.49.020(C) (Exempt Facilities). In this case, the Project does not meet any of the prescribed exemptions; therefore, a coastal development permit is required. 9. Upon finding that a coastal development permit is required, the Zoning Administrator deferred action on Coastal Development Permit CD2020-052 and is referring it to the Planning Commission pursuant to Section 21.50.020 footnote (3) (Authority for Decisions) for consideration and final action along with Minor Use Permit No. UP2019- 030. The Project was noticed for the Planning Commission's review. A de novo telephonic public hearing was held by the Planning Commission on July 9, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of this public meeting was given in accordance with the Ralph M. Brown Act, Chapter 20.62 and Chapter 21.62 of the NBMC. The Planning Commission considered evidence both written and oral at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is exempt from the California Environmental Quality Act ("CEQA") pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. 2. In this case, the Project includes the removal and replacement of an existing City streetlight pole to install a small telecommunications wireless facility, including below - grade accessory equipment. Planning Commission Resolution No. PC2020-018 Page 3 of 16 3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. Minor Use Permit In accordance with Subsection 20.52.020(F) (Conditional Use Permits and Minor Use Permits) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: SLC0796 is designated as Public Right -of -Way ("ROW'), which is property held in trust by the City, and allows for the construction and maintenance of public roads, crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline, water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property) governs procedures and locations for siting wireless telecommunications equipment in the ROW. Streetlights are eligible for telecom use, subject to entitlements (such as this minor use permit request), yearly rent, and a license agreement. 2. The City of Newport Beach General Plan ("General Plan") Natural Resources Goal NR 21 recommends the "minimized visual impacts of signs and utilities." The proposed design is consistent with NR 21 by introducing no new vertical obstructions in the ROW, employing stealth elements like colorization (painting to match the streetlight pole), and installing the associated equipment below grade. Conditions of Approval No. 20 and 21 prohibit advertising signage or identifying logos on the small cell facility except for small identification, address, warning, and similar information plates. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. 3. General Plan Land Use Policy LU 6.1.3 promotes "architecture and planning that complements adjoining uses." The proposed design adjoins residential uses and aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing streetlight pole to decrease potential disruption of the visual environment. Adverse impact to circulation, aesthetics, sounds, or odor are not anticipated from project implementation. 4. General Plan Land Use Policy LU 4 calls for the "management of growth and change to protect and enhance the livability of neighborhoods and achieve distinct and economically vital business and employment districts, which are correlated with Planning Commission Resolution No. PC2020-018 Page 4 of 16 supporting infrastructure and public services and sustain Newport Beach's natural setting." The Project upholds the intent of LU 4 by providing infrastructure to add system capacity for service gaps that may occur for residents and businesses of the area in regular and high demand periods. It also benefits the community by improving the existing coverage and capacity to increase the voice and data system already in use by its customers. The small cell facility is designed to adapt and accept future technologies, such as 5G, and will help meet local demand and sustain the livability of the area. 5. SLC0796 is not located within a specific plan area Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. See Fact in Support of Finding A.1. 2. Wireless telecommunication facilities are regulated by Chapter 20.49 (Wireless Telecommunication Facilities) of the NBMC. To site small cell equipment in the ROW assigns the project a Class 3 specification (Public Right -of -Way Installations) and requires the Applicant to obtain a minor use permit from the Zoning Administrator pursuant to Section 20.49.060 (Permit Review Procedures) of the NBMC. In this case, the Zoning Administrator's approval was appealed; therefore, the Planning Commission is the review authority. 3. Section 20.49.040(A) (Preferred Locations) of the NBMC, prioritizes telecom facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of a new facility at an existing facility; (2) Class 1 (Stealth/Screened); (3) Class 2 (Visible Antennas) and Class 3 (Public Right -of -Way); and (4) Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility consists of one (1) small cell facility that is designed to not visually dominate the surrounding area and instead to blend into the existing block. 4. Section 20.49.050 (General Development and Design Standards) of the NBMC, requires projects to be visually compatible with surrounding structures. In reviewing this application, the review authority shall consider the proposed facility's use of color blending, equipment screening, and the limited size of the equipment designed consistently with the aforementioned criteria. All telecommunications equipment on top of the streetlight pole would be concealed within a painted -to -match 12-inch diameter shroud. The Project would rely on likeness with the streetlight pole through style, color, and material to help disguise its presence. Engineering of the replacement streetlight pole accommodates and withstands the weight of the small cell equipment and has ability to display a future City banner, if needed. Electrical and wiring components of the telecommunications equipment are designed to be fully contained within the new streetlight pole. The overall height of 34 feet, 9 inches from finished grade to the top of Planning Commission Resolution No. PC2020-018 Page 5 of 16 the proposed facility complies with the maximum allowed. Equipment not contained within the shroud on the streetlight pole would be out of sight, located below the ground in the adjacent ROW. Condition of Approval No. 32 requires approved design drawings from Southern California Edison ("SCE") of the power supply to the small cell facility before construction of the facility is to commence. 5. Existing residential properties contiguous to the Project are in the R-2 (Two -Unit Residential) Zoning District. R-2-zoned sites allow for structures up to 24 feet for flat roof elements and 29 feet to the ridge of a sloped roof. The height of the existing streetlight SLC0796 sits just above the maximum allowable height for residential structures. The streetlight is separated from the residences by a large 20-foot vegetated parkway that is landscaped with taller palm trees. Given this buffer between the streetlight and the residences, SLC0796 is softened and screened by the landscaping from the residential neighborhood beyond. Furthermore, keeping the luminaire the same height as the existing streetlight lessens visual obtrusion from the proposed small cell facility with the line of the existing development. 6. Submitted materials from the Applicant demonstrate the proposal would conform with Federal Communications Commission ("FCC") Rules and Regulations regarding safety and radio frequency emissions. 7. The Project will comply with applicable requirements of the NBMC with construction as shown on the plans and implementation of the conditions of approval. Finding: C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: City of Newport Beach Streetlight No. SLC0796 is located within the public right-of-way on the northern side of Balboa Boulevard at the northwestern corner of the 30th Street intersection. It is immediately adjacent to an unusually large vegetated parkway that is approximately 20 feet wide. Beyond the parkway to the northeast is a block of two -unit residential development. All surrounding land uses are residential and vary in density from two -unit residential to single -unit residential. The only exception is a CV (Commercial Visitor Serving) zoned parcel across 30th Street from the site, which is presently developed with a Laundromat (Beach Coin Laundry). 2. Under the new FCC Order, wireless providers are not required to demonstrate a significant coverage gap, a qualification previously required by local jurisdictions in order to support an application. Pursuant to the Order, the City cannot "materially [inhibit] the introduction of new services or the improvement of existing services." Moreover, pursuant to Section 332(c)(7)(13)(i)(II) of U.S. Code Title 47 (Telecommunications), the City may "not regulate the placement, construction or modification of wireless service facilities in a manner that prohibits the provision of personal wireless services." Although Planning Commission Resolution No. PC2020-018 Page 6 of 16 not required, the Applicant produced a coverage map for the Project. This map indicates the proposed facility would boost the supply of capacity and coverage in the vicinity. 3. SLC0796 serves as a part of the City's existing streetlight inventory. AT&T proposes to: (1) remove and replace SLC0796 with a new streetlight in the same location; (2) maintain the existing luminaire height of 29 feet, 9 inches; (3) install telecommunications equipment for a small cell wireless facility on top of the new streetlight pole resulting in an overall height of 34 feet, 9 inches; and (4) establish new below -grade support equipment adjacent to the streetlight, within the public right-of-way. 4. The replacement streetlight pole design is consistent with the size, shape, style, and design of that existing, including the attached light arm and luminaire. For safety and circulation of the area during construction, Condition of Approval No. 40 requires traffic control plans illustrating compliance with the 2016 WATCHbook to be reviewed and approved by the Public Works Department prior to the issuance of any building permit. 5. The Project is anticipated to enhance coverage and capacity for residents, visitors and businesses in the neighborhood by providing wireless access to voice and data transmission services. The proposed telecom facility is not expected to result in any material changes to the character of the local community. 6. See Facts in Support of Finding B.4, B.5, and B.6. 7. The Project will be unmanned, will have no impact on the circulation system, and, as conditioned, will not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. Adequate public and emergency vehicle access, public services, and utilities are provided to and around the subject site and the proposed use will not change this. 2. The Project will be unmanned and will have no permanent impact on the circulation system and adjacent land uses due to its location in the parkway, outside of existing vehicle or pedestrian circulation areas. 3. The Public Works Department and Utilities Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. Planning Commission Resolution No. PC2020-018 Paae 7 of 16 Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: The Project will only require periodic maintenance and will not generate any type of significant adverse impacts to the environment, such as noise, odor, smoke, etc. 2. The Project must and will comply with the applicable Federal and State rules, regulations and standards thus, ensuring public health and safety. 3. See Facts in Support of Finding B.4, B.5, B.6, and B.7. 4. The Project will be effectively blended based upon the design and location with the incorporation of the conditions of approval to the greatest extent feasible. As a result, the proposed facility at this location is not expected to result in conditions that are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. Wireless Telecommunications Facility In accordance with Subsection 20.49.060(H)(1) (General Findings for Telecom Facilities) of the NBMC, the following additional findings and facts in support of such findings are set forth: Finding: F. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support of Finding: 1. See Facts in Support of Finding B.4, B.5, and B.6. 2. The closest residentially zoned property is located approximately 20 feet northeast of SLC0796 and is buffered by a large 20-foot-wide parkway area with vegetation of varying heights. SLC0796 is located along the inland side of a well -traveled street and will blend in with the surrounding streetscape. There are no public parks near the Project. The Project and below -grade accessory equipment meets the City's design parameters approved by the City's Master License Agreement, which emphasizes stealth techniques and best practices to not be materially detrimental to the surrounding area. Planning Commission Resolution No. PC2020-018 Paae 8 of 16 Finding: G. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Finding: 1. The 34-foot, 9-inch tall small cell facility would comply with the maximum height limit of 35 feet for telecom facilities installed on streetlights within the public right-of-way. 2. See Facts in Support of Finding B in its entirety. 3. The application includes documentation indicating the need to provide and improve coverage to the residential areas within the City. Moreover, the additional system capacity provided by the Project will address service gaps that occur during high demand periods, as well as service gaps that exist at all demand periods to the surrounding area. SLC0796 will help AT&T to meet its coverage objectives and improve coverage to nearby areas that are currently marginal. Finding: H. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Facts in Support of Finding: 1. See Fact in Support of Finding C.2. 2. Five nearby streetlights were identified and investigated by the Applicant as possible alternate locations for this small cell facility; however, all sites were found by the applicant to be not viable. 3. Alternative Site #1 is a wooden utility pole located approximately 100 feet north of the proposed streetlight. This pole is located immediately in front of a two -unit residential structure that is oriented towards Balboa Boulevard within a narrower parkway area. Installation of small cell infrastructure at this location would require placement of a crossarm with exposed equipment on either side of the wooden pole and would not be as aesthetically compatible as the proposed location. Most importantly, the wooden utility pole is located within an approved underground assessment and utility district, which will aim to eventually eliminate such above -ground utilities in the area. 4. Alternative Site #2 at City Streetlight No. SLC0767 located approximately 160 feet northwest of the proposed streetlight on the opposite side of Balboa Boulevard. This alternative location is in very close proximity to overhead powerlines, which would make additional height above the existing streetlight pole infeasible. Furthermore, the existing streetlight is located such that accessibility is limited and a girthier pole could not be accommodated without further constraining the sidewalk. Planning Commission Resolution No. PC2020-018 Paqe 9 of 16 5. Alternative Site #3 is a wooden utility pole located approximately 78 feet west of the proposed streetlight. This pole is located immediately adjacent to the front patio of an existing, single -story residence. Like Alternative Site #1, installation of small cell infrastructure at this location would require placement of a crossarm with exposed equipment on either side of the wooden pole and would not be as aesthetically compatible as the proposed location. Most importantly, the wooden utility pole is located within an approved underground assessment and utility district, which will aim to eventually eliminate such above -ground utilities in the area. 6. Alternative Site #4 at City Streetlight No. SLC0768 is located at the southwest corner of Balboa Boulevard and 30th Street approximately 100 feet from the proposed streetlight. Like Alternative Site #2, this alternative location is in very close proximity to overhead powerlines, which would make additional height above the existing streetlight pole infeasible. Accessibility is also limited here and a girthier pole cannot be accommodated without further constraining the sidewalk. 7. Alternative Site #5 at City Streetlight No. SLC0766 is located at the alleyway between 30th Street and 29th Street, approximately 175 feet southeast of the proposed streetlight. Like Alternative Site #2 and Alternative Site #4, accessibility is limited at this location and a girthier pole cannot be accommodated without further constraining the sidewalk. Finding: 1. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Facts in Support of Finding: 1. See Fact in Support of Finding C.2. 2. AT&T's analysis concluded that a more preferred location as defined by Subsection 20.49.040(A) (Preferred Locations) of the NBMC, such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. The abutting properties are zoned for residential use and, as such, a building mounted "stealth" facility would not be possible. Coastal Development Permit In accordance with Subsection 21.52.015(F) (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Planning Commission Resolution No. PC2020-018 Pape 10 of 16 Finding: J. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The Project is considered a Class 3 (Public Right -of -Way) installation. Section 21.49.040 (Telecom Facility Preferences and Prohibited Locations) of the NBMC lists Class 3 Installations as third on the installation preference list. It is not proposed at a location that is prohibited by NBMC Subsection 21.49.040(B) (Prohibited Locations). 2. See Fact in Support of Finding 1.2. 3. The Project complies with Section 21.30.100 (Scenic and Visual Quality Protection) of the NBMC. It is not on a coastal bluff or canyon, not adjacent to or within the viewshed of a public view point, coastal view road, public park or beach, or public accessway, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views), and does not contain significant natural landforms or vegetation. The Project scope involves the removal and replacement of an existing City streetlight in the same location with the same luminaire height. The shielded antennas will extend above the pole by approximately 5 feet, 6 inches while the antenna shroud will be visible from the immediate vicinity. The Project has been designed to blend in within the existing streetscape. The replacement streetlight is consistent with the size, shape, style, and design of the existing pole. No above -ground mounted equipment is proposed and the support equipment is proposed to be placed in underground handholes. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within a screening shroud. There will be no negative impacts on coastal views or coastal resources with the Project's implementation. 4. The proposed replacement streetlight and antenna structure will comply with the maximum allowable height limit of 35 feet from existing finished grade. Finding: K. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Facts in Support of Finding: SLC0796 is not located between the nearest public road and the sea or shoreline; therefore, the Project will not affect the public's ability to gain access to, use, and/or view the coast and nearby recreational facilities. Vertical access to the beach is provided by way of street -ends in the area, including 30th Street. Lateral access along the beach provided on the beach itself and along the Oceanfront Boardwalk. The equipment will be below grade and will not impact any public way. Planning Commission Resolution No, PC2020-018 Paae 11 of 16 2. The Project will allow the installation of a small cell facility that complies with all applicable Local Coastal Program (LCP) development standards and maintains development attributes consistent with the existing and anticipated future surrounding neighborhood pattern of development. Therefore, the Project does not have the potential to degrade public views within the Coastal Zone. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: This Project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 exemption do not apply. 2. The Planning Commission of the City of Newport Beach hereby approves Coastal Development Permit No. CD2020-052 and upholds the Zoning Administrator's decision approving Minor Use Permit No. UP2019-030, subject to the conditions set forth in "Exhibit A," which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Office of the City Clerk in accordance with Title 21 (Local Coastal Program Implementation Plan) of the NBMC. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 (Appeals to the Coastal Commission) of the NBMC, California Code of Regulations Title 14, Division 5.5, Chapter 5, Subchapter 2, Sections 13111 through 13120, and Section 30603 of the California Public Resources Code. PASSED, APPROVED, AND ADOPTED THIS 9T" DAY OF JULY, 2020. AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene, and Weigand NOES: I_\Y.IIAI,� ABSENT: A BY: Z_x !W Erik Weigand, thairman BY: Lauren Kleiman, Secretary Planning Commission Resolution No. PC2020-018 Page 12 of 16 EXHIBIT "A" CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the plans, including elevation exhibits and visual simulations, stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this approval. 4. The Project approved by this permit shall comply with all applicable Federal and State rules, regulations, and standards. 5. The replacement pole shall be reconstructed in the exact location of the existing streetlight pole. 6. The reconstructed streetlight pole design shall be consistent with the size (including diameter), shape, style, and design of the existing streetlight pole to the greatest extent feasible, including the attached light arm and luminaire. All mounted equipment shall be painted to match the color and style of the replacement streetlight pole. 7. All accessory support equipment of this Project shall be installed underground. 8. All electrical and antenna wiring shall be fully encased within the reconstructed streetlight pole. 9. The Project approved by the use permit shall comply with any easements, covenants, conditions, or restrictions on the underlying City -trust property upon which the Project is located. 10. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 11. Prior to building permit final, a Height Certification Inspection shall be required. The small cell facility and base streetlight pole approved by this permit shall not exceed a total of 34 feet, 9 inches in height from existing grade (maximum elevation height of 43.57 feet above mean sea level using the North American Vertical Datum of 1988 [NAVD88]). Planning Commission Resolution No. PC2020-018 Page 13 of 16 12. Prior to building permit issuance, all contractors and subcontractors shall have a valid City of Newport Beach business license. 13. The Applicant shall continually maintain the Project so that it retains its original appearance at the time the building permit is finaled by the City of Newport Beach. 14. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless telecom facility, including the small cell facility and below -grade equipment areas, and make all necessary repairs. The Community Development Director may require additional inspections and/or maintenance activities at his/her discretion. 15. The Applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 16. The Project shall transmit at the approved frequency ranges established by the FCC. The Applicant shall inform the City in writing of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 17. The Project shall at no time interfere with the frequencies used by the City of Newport Beach for public safety. "Comprehensive advanced planning and frequency coordination" engineering measures shall prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public -Safety Communications Officials - International, Inc. ("APCO"), and as endorsed by the FCC. 18. Should interference with the City's Public Safety radio equipment occur, use of the Project authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 19. The Applicant shall provide a "single point of contact" for carriers in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, fax number, and email address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. If the point of contact changes, the City shall be immediately alerted and updated. 20. No advertising signage or identifying logos shall be displayed on the Project except for small identification, address, warning, and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 21. Appropriate information warning signs or plates shall be posted on the base streetlight pole of the transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. Planning Commission Resolution No. PC2020-018 Paqe 14 of 16 Signage required by State or federal regulations shall be allowed in its smallest permissible size. 22. Prior to the final of building permits, the Applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with lighting. The telecom facility shall be lighted to the extent deemed necessary by the Newport Beach Police and Utilities Departments for security lighting and consistency with other streetlights in the area. 23. The Applicant shall maintain the Project in good repair, such that it is always consistent with this approval. 24. The Applicant shall ensure that its Project complies with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The Applicant shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. This information shall be made available by the Applicant upon request of the Community Development Director. 25. The Project shall comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. 26. Prior to final of building permits, the Applicant shall schedule an inspection by the Planning Division to ensure materials and colors match existing architecture as illustrated in the approved photographic simulations and in conformance with NBMC Section 20.49.050. 27. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility or remove the telecom facility and restore the site. 28. The City reserves the right and jurisdiction to review and modify any permit approved pursuant to NBMC Chapters 20.49 and 21.49, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the height or size of the facility; increase the size, shape, or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure ("MPE") limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a review of the modification, and possible amendment to the use permit, prior to implementing any change. 29. Coastal Development Permit No. CD2020-052 and Minor Use Permit No. UP2019-030 shall expire unless exercised within 24 months from the date of approval as specified in Planning Commission Resolution No. PC2020-018 Paae 15 of 16 Sections 20.54.060 and 21.54.060 (Time Limits and Extensions) of the NBMC, unless an extension is otherwise granted. 30. Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday. Noise -generating construction activities are not allowed on Saturdays, Sundays or holidays. 31. This approval may be modified or revoked by the Planning Commission if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 32. A copy of the Resolution, including conditions of approval Exhibit "A," and approved drawings from Southern California Edison (SCE) for the power supply and design, shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 33. The Applicant shall promptly notify the City if the landscaped parkway of the subject streetlight pole is negatively affected or otherwise damaged by project implementation. 34. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of AT&T Small Cell on SLC0796, including, but not limited to, Minor Use Permit No. UP2019-030 and Coastal Development Permit No. CD2020-052 (PA2019-111). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Public Works Department 35. Prior to the issuance of a building permit, an encroachment permit shall be required. 36. Prior to the issuance of a building permit, traffic control plans illustrating compliance with the 2016 WATCHbook requirements shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Planning Commission Resolution No. PC2020-018 Page 16 of 16 Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman. Additional Conditions of Approval 37. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds pursuant to MBTA: A. The Project area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. STATE OF CALIFORNIA. NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT OFFICE 301 E. OCEAN BLVD., SUITE 300 LONG BEACH,CALIFORNIA 2-4830 \� 590-5084 COMMUNITY W W W.COASTAL.CA.GOV DEVELGRAEK! C C T 13 2020 CITY OF October 02, 2020 +14t 0ffr 5� ' New Cingular Wireless, LLC c/o Franklin Orozco of M Squared Wireless, Attn: Franklin Orozco 1387 Calle Avanzado San Clemente, CA 92660 This is to inform you that the Commission's 10 working day appeal period on the City of Newport Beach's Coastal Development Permit Nd. CD2020-052 (PA2019-111) (5-NPB-20-0752) expired on September 28, 2020. The Coastal Commission received no appeals on this permit. The City's permit is therefore final. Sincerely, Amber Dobson District Manager cc: File City of Newport Beach STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY 'h, J' GAVIN NEWSOM, GOVERNOR CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT OFFICE LII E. OCEAN BLVD.. SUITE JUULONG ` 0(562) BEACH. CALIFORNIA 9URU2-4XAI 590-SO71 FAX (562) 59U-SUR4WWW.COASTAL.CA.GOV n4'_ :; 1'"� NOTIFICATION OF APPEAL PERIOD September 16, 2020 To: Benjamin M Zdeba, AICP City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 From: Amber R Dobson, District Supervisor Re: Application No. 5-NPB-20-0752 Please be advised that on September 14, 2020, our office received notice of local action on the coastal development permit described below: Local Permit #: CD2020-052 (PA2019-111) Applicant(s): New Cingular Wireless, LLC c/o Franklin Orozco of M Squared Wireless, Attn: Franklin Orozco Description: Installation of a small cell wireless facility on a City -owned streetlight pole Project implementation will be fully contained within the public right-of-way on Balboa Boulevard and includes the following: (1) Removal and replacement of an existing City streetlight; (2) Installation of a small cell wireless facility that consists of four remote radio units, a raycap disconnect, and an Omni -directional antenna within a 12-inch diameter antenna screening shroud at the top of the pole. The overall height of the facility would be 34 feet, 9 inches above the ground. Support equipment will be in an adjacent below -grade vault. Location; Public right-of-way, City streetlight number SLC0796, at the northwestern corner of Balboa Boulevard and 301h Street, Newport Beach, CA 92663 Unless an appeal is filed with the Coastal Commission, the action will become final at the end of the Commission appeal period. The appeal period will end at 5:00 PM on September 28, 2020. Our office will notify you if an appeal is filed. If you have any questions, please contact me at the address and telephone number shown above. cc: New Cingular Wireless, LLC c/o Franklin Orozco of M Squared Wireless, Attn: Franklin Orozco 1 J 00 V) AMENDMENT NO. 3 TO MASTER LICENSE AGREEMENT p� BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS s PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS U FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. 3 TO MASTER LICENSE AGREEMENT ("Amendment No. 3") is made and entered into as of this 11 day a'022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"), and is made with reference to the following. - RECITALS A. On February 12, 2019, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove Telecommunication Facilities as permits are obtained from the City. B. The parties desire to enter into this Amendment No. 3, pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. C. The parties further desire to enter into this Amendment No. 3, pursuant to Section 5 of the Master License, to identify the specific License Area(s) in the License Area Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed to Licensee for installation of its Telecommunication Facilities under the terms and conditions of the Master License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE SITE LIST This Amendment, the Site List attached hereto as Exhibit 1 and the License Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOX(Y'OFjFICE Date: // f�� By:— Attor ATTEST: Date: p' • By:_04kC_r'A City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: 4) h_4h1_ LICENSEE: New Cingular Wireless PCS, LLC a Delaware limited liability company; y: AT&T Mobiffty__Co__rporation, its Manager Date: 2I OBy: C Omar mere Area Manager, Real Estate & Construction Date: 119 IV1122-10--1 nette Zoba [END OF SIGNATURES] Attachments: Exhibit 1 — Site List Exhibit 2 — License Area Description & Depiction New Cingular Wireless PCS, LLC, Exhibit 1 SITE LIST Site ID: CRAN_RLOS_HBNPB_038 Location: City Streetlight No. SCL4653, N/S of Bayside Drive, approx. 900' north of El Paseo Drive Latitude / Longitude: 33.609029,-117.886466 City Approved Case #: UP2019-034 (PA2019-115) Site ID: CRAN RLOS HBNPB 042 Location: City Streetlight No. SCL4735, Center Median of Avocado Avenue at Kewamee Drive Latitude / Longitude: 33.604239,-117.877261 City Approved Case #: UP2019-027 (PA2019-108) New Cingular Wireless PCS, LLC, Exhibit 2 LICENSE AREA DESCRIPTION & DEPICTION (E) SImmMx(FYn DA SCE-1 ~ AT&T TOREMOVE (1) EXISTING CONCRETE STREETLIGHT ~ AT&T TOINSTALL (1) 22'-0'CONCRETE STREETLIGHT ^ AT&T T0INSTALL (4) NEW AT&T REMOTE RADIO UNITS ^ AT&T T0INSTALL (1) NEW AT&T OK8NI-DURECT|ONALANTENNA ^ AT&T TO INSTALL (1) NEW AT&T EQUIPMENT SHROUD ^ AT&T TOINSTALL (1) NEW R/$~CAPDISCONNECT ^ AT&T TOINSTALL (1) NEW HANDHOLE New CingUlar\Ninekess PCS. LLC. ATV NEW CING ULAR WIRELESS PCS, LLC ASSISTANT SECRETARY'S CERTIFICATE 1, Jackie A. Begue, do hereby certify that 1 am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. 3. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." 5. Annette M. Zoba, Director Access — Construction and Engineering, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 8"' day of September 2021. a ie A. Begue, Assistant e etary AT&T NEW CINOULAR WIFELESS PCS, LL(' ASSISTANT SECRETARY'S CERTIFICATE I, Jackie A. Begue, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in frill force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. 3. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." Omar J. Mere, Area Manager — Real Estate and Construction, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 12"' day of October 2021. a ie A. Begue, Assistant e etary VIA EMAIL August 18, 2020 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment Transmitted via electronic mail only M Square Wireless Attention: Franklin Orozco forozco@interlinkpg.com Subject: Minor Use Permit No. UP2019-027 and Coastal Development Permit No. CD2020-101 (PA2019-108) Public right-of-way, City streetlight number SLC4735, center median of Avocado Avenue at Kewamee Drive Dear Franklin, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Zoning Administrator on August 13, 2020 and is now within the required City appeal period until August 28, 2020. If no appeals are filed with the City, a Notice of Final Action will be mailed to the California Coastal Commission. Upon receipt of the notice by the Coastal Commission, the action will be subject to an additional 10-working-day appeal period. You may track status of the Coastal Commission appeal period via the following link: Statewide Appealable Projects PDF At the conclusion of both appeal periods, a building permit may be issued for the project. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, in deba, AICP Senior PI ner cc: City of Newport Beach Attention: Lauren Wooding Whitlinger Iwooding@newportbeachca.gov RESOLUTION NO. ZA2020-056 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING MINOR USE PERMIT NO. UP2019-027 AND COASTAL DEVELOPMENT PERMIT NO. CD2020-101 FOR A SMALL CELL WIRELESS FACILITY LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY ON CITY STREETLIGHT NUMBER SLC4735, ON THE CENTER MEDIAN OF AVOCADO AVENUE AT THE INTERSECTION OF KEWAMEE DRIVE (PA2019-108) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by New Cingular Wireless, LLC ("Applicant"), with respect to City of Newport Beach Streetlight Number SLC4735, located within the public right-of- way, in the center median of Avocado Avenue near Kewamee Drive, requesting approval of a minor use permit and a coastal development permit. 2. The Applicant proposes the installation of a small cell wireless facility on a City -owned streetlight pole. Project implementation will be fully contained within the public right-of- way on Avocado Avenue and includes the following: 1) Removal and replacement of an existing City streetlight; (2) Installation of a small cell wireless facility that consists of four (4) remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter equipment shroud. This equipment would be fixed to the top of the replaced streetlight pole for a maximum height of 27 feet, 5 inches; and (3) Establishment of new below -grade support equipment adjacent to the streetlight. 3. The streetlight pole is located within the public right-of-way. The proposal is regulated by City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City - Owned Property), as well as Newport Beach Municipal Code (NBMC) Chapter 20.49 (Wireless Telecommunication Facilities). 4. The Project is located within the Coastal Zone. Subsection 21.49.020(B) (Permit and Agreement Required) of the NBMC requires a coastal development permit for a wireless telecommunication facility unless said facility is exempted by Subsection 21.49.020(C) (Exempt Facilities). In this case, the Project does not meet any of the prescribed exemptions; therefore, a coastal development permit is required. 5. A public hearing was held on August 13, 2020, in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with the NBMC. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. Zoning Administrator Resolution No. ZA2020-056 Paae 2 of 16 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. 2. In this case, the proposal includes the removal and replacement of an existing City streetlight pole to install a small cell wireless facility, including below -grade accessory equipment. 3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. Minor Use Permit In accordance with NBMC Subsection 20.52.020(F) (Conditional Use Permits and Minor Use Permits), the following findings and facts in support of such findings are set forth: Finding: A. The use is consistent with the General Plan and any applicable specific plan. Facts in Support of Finding: 1. The project site is designated as Public Right -of -Way (ROW), which is property held in trust by the City, and allows for the construction and maintenance of public roads, crosswalks, pedestrian walkways, electric transmission lines, oil or gas pipeline, water line, sanitary or storm sewer, or other similar uses. City Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property) governs procedures and locations for siting wireless telecommunications equipment in the ROW. Streetlights are eligible for telecom use, subject to entitlements (such as this minor use permit request), yearly rent, and a license agreement. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Page 3 of 16 2. General Plan Natural Resources Goal NR 21 recommends the "minimized visual impacts of signs and utilities." The proposed design is consistent with NR 21 by introducing no new vertical obstructions in the ROW, employing stealth elements like colorization (painting to match the streetlight pole), and installing the associated equipment below grade. Conditions of Approval No. 20 and 21 prohibit advertising signage or identifying logos on any telecom facility except for small identification, address, warning, and similar information plates. Signage required by State or Federal regulations shall be allowed in its smallest permissible size. 3. General Plan Land Use Policy LU 6.1.3 promotes "architecture and planning that complements adjoining uses." The proposed design adjoins residential uses and aligns with LU 6.1.3 by copying the size, shape, style, and design of the existing streetlight pole to decrease potential disruption of the visual environment. Adverse impact to circulation, aesthetics, sounds, or odor are not anticipated from project implementation. 4. General Plan Land Use Policy LU 4 calls for the "management of growth and change to protect and enhance the livability of neighborhoods and achieve distinct and economically vital business and employment districts, which are correlated with supporting infrastructure and public services and sustain Newport Beach's natural setting." The proposed small cell facility upholds the intent of LU 4 by providing infrastructure to add system capacity for service gaps that may occur for residents and businesses of the area in regular and high demand periods. It also benefits the community by improving the existing coverage and capacity to increase the voice and data system already in use by its customers. The facility is designed to adapt and accept future technologies, such as 5G, and will help meet local demand and sustain the livability of the area. 5. The project site is not located within a specific plan area Finding: B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code. Facts in Support of Finding: 1. See Fact in Support of Finding A.1. 2. Wireless telecommunication facilities are regulated by NBMC Chapter 20.49 (Wireless Telecommunication Facilities). Small cell equipment in the ROW assigns the project a Class 3 specification (Public Right -of -Way Installations) and requires the Applicant to obtain a minor use permit from the Zoning Administrator (NBMC Section 20.49.060 [Permit Review Procedures]). 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Page 4 of 16 3. NBMC Subsection 20.49.040(A) (Preferred Locations) prioritizes telecom facilities from most preferred (1) to least preferred (4) as follows: (1) collocation of a new facility at an existing facility; (2) Class 1 (Stealth/Screened); (3) Class 2 (Visible Antennas) and Class 3 (Public Right -of -Way); and (4) Class 4 (Freestanding Structure). Although lower on the listing of priority facilities, the proposed facility consists of one (1) small cell facility that is designed to not visually dominate the surrounding area and instead to blend into the existing block. 4. NBMC Section 20.49.050 (General Development and Design Standards) requires projects to be visually compatible with surrounding structures. In reviewing this application, the Zoning Administrator shall consider the proposed facility's use of color blending, equipment screening, and the limited size of the equipment designed consistently with the aforementioned criteria. All telecommunications equipment on top of the streetlight pole would be concealed within a painted -to -match 12-inch diameter shroud. The proposed small cell facility would rely on likeness with the streetlight pole through style, color, and material to help disguise its presence. Engineering of the replacement streetlight pole accommodates and withstands the weight of the small cell equipment and has ability to display a future City banner, if needed. Electrical and wiring components of the telecommunications equipment are designed to be fully contained within the new streetlight pole. The overall height of 27 feet, 5 inches from finished grade to the top of the proposed facility complies with the maximum allowed. Equipment not contained within the shroud on the streetlight pole would be out of sight, located below the ground in the adjacent ROW. Condition of Approval No. 32 requires approved design drawings from Southern California Edison (SCE) for the power supply to the small cell facility before construction of the facility is to commence. 5. The project has been reviewed pursuant to Subsection 20.49.050(B) of the NBMC. In accordance with Section 20.30.100 (Public View Protection) and General Plan Natural Resources Policy NR 20.3 (Public Views), the location is not located within a protected public view corridor and, therefore, would not have any impact to public views. 6. The existing development which surrounds the median on Avocado Avenue is entirely residential. The zoning designations range from R-1 (Single -Unit Residential) to the west, R-2 (Two -Unit Residential) to the east and to the south, and RM (Multiple Residential) to the north. Both the R-1-and R-2 zoning districts allow for principal structures up to 29 feet in height for sloped roof elements, while RM allows up to 33 feet for sloped roof elements. The height of the replacement streetlight with proposed equipment will not exceed the height limitations of the surrounding structures and will not stick out. 7. An existing Hong Kong Orchid tree is located within the center median, immediately adjacent to the streetlight. -rhe Hong Kong Orchid has large thick leaves and vibrant purplish red flowers. The tree helps to provide a visual distraction from the proposed equipment. Additionally, there are tall palm and eucalyptus trees in the median that will help screen the equipment. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Page 5 of 16 8. Submitted materials from the Applicant demonstrate the proposal would conform with Federal Communications Commission (FCC) Rules and Regulations regarding safety and radio frequency (RF) emissions. 9. The proposed telecom facility will comply with applicable requirements of the NBMC with construction as shown on the plans and implementation of the conditions of approval. Findin : C. The design, location, size, and operating characteristics of the use are compatible with the allowed uses in the vicinity. Facts in Support of Finding: 1. City of Newport Beach Streetlight No. SLC4735 serves as a part of the City's existing streetlight inventory. The Applicant proposes to remove and replace SLC4735 with a new streetlight in the same location while maintaining the existing luminaire heights of 21 feet, 1 inch for the left luminaire sensor and 20 feet, 11 inches for the right luminaire sensor, as viewed when looking north on Avocado Avenue. The telecommunications equipment will be installed on top of the new streetlight pole resulting in an overall height of 27 feet, 5 inches. All supporting equipment will be installed below -grade adjacent to the streetlight, within the public right-of-way. 2. The replacement streetlight pole design is consistent with the size, shape, style, and design of that existing, including the attached light arms and luminaire sensors. For safety and circulation of the area during construction, Condition of Approval No. 37 requires traffic control plans illustrating compliance with the 2016 WATCHBook to be reviewed and approved by the Public Works Department prior to the issuance of any building permit. 3. The proposed telecom facility is anticipated to enhance coverage and capacity for residents, visitors and businesses in the neighborhood by providing wireless access to voice and data transmission services. The proposed telecom facility is not expected to result in any material changes to the character of the local community. 4. Under FCC Orders, wireless providers are not required to demonstrate a significant coverage gap, a qualification previously required by local jurisdictions in order to support an application. Pursuant to the Order, the City cannot "materially [inhibit] the introduction of new services or the improvement of existing services." Moreover, pursuant to Section 332(c)(7)(B)(i)(II) of U.S. Code Title 47 (Telecommunications), the City may "not regulate the placement, construction or modification of wireless service facilities in a manner that prohibits the provision of personal wireless services." Although not required, the Applicant produced a coverage map for the project. This map indicates the proposed facility would boost the supply of capacity and coverage in the vicinity. 5. See Facts in Support of Finding BA, B.6, and B.7. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 6 of 16 6. The proposed facility will be unmanned, will have no impact on the circulation system, and, designed and conditioned, will not generate noise, odor, smoke, or any other adverse impacts to adjacent land uses. Finding: D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities. Facts in Support of Finding: 1. Adequate public and emergency vehicle access, public services, and utilities are provided to and around the subject site, and the proposed use will not change this. 2. The proposed facility will be unmanned and will have no permanent impact on the circulation system and adjacent land uses due to its location in the parkway, outside of existing vehicle or pedestrian circulation areas. 3. The Public Works Department and Utilities Department have reviewed the project proposal and do not have any concerns regarding access, public services, or utilities provided to the existing neighborhood and surrounding area. Finding: E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Facts in Support of Finding: 1. The proposed facility will only require periodic maintenance and will not generate any type of significant adverse impacts to the environment, such as noise, odor, smoke, etc. 2. The proposed facility must and will comply with the applicable Federal and State rules, regulations and standards thus, ensuring public health and safety. 3. See Facts in Support of Finding B.4, B.6, B.7, B.B, and B.9. 4. The proposed telecom facility will be effectively blended based upon the design and location with the incorporation of the conditions of approval to the greatest extent feasible. As a result, the proposed facility at this location is not expected to result in conditions that are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 7 of 16 Wireless Telecommunications Facility In accordance with NBMC Subsection 20.49.060(H)(1) (General Findings for Telecom Facilities), the following additional findings and facts in support of such findings are set forth: Finding: F. The proposed telecom facility is visually compatible with the surrounding neighborhood. Facts in Support of Finding: See Facts in Support of Finding B.4, B.6, and B.7. 2. The streetlight is located within a landscaped median and separated from any surrounding residence by two (2) lanes of travel on Avocado Avenue. There are other City streetlights, street signs, and wayfinding signs ccmmon to City streetscapes adorning Avocado Avenue. The proposed streetlight and associated equipment will blend into the existing streetscape. 3. There are no public parks near the proposed project. 4. The proposed facility and below -grade accessory equipment meets the City's design parameters approved by the City's Master License Agreement, which emphasizes stealth techniques and best practices to not be materially detrimental to the surrounding area. Finding: G. The proposed telecom facility complies with height, location and design standards, as provided for in this chapter. Facts in Support of Finding: The 27-foot, 5-inch tall small cell facility would comply with the maximum height limit of 35 feet for telecom facilities installed on streetlights within the public right-of-way. 2. See Facts in Support of Finding B in its entirety. 3. The application includes documentation indicating the need to provide and improve coverage to the residential areas within the City of Newport Beach. Moreover, the additional system capacity provided by the proposed facility will address service gaps that occur during high demand periods, as well as service gaps that exist at alldemand periods to the surrounding area. The proposed small cell site will help AT&T to meet its coverage objectives and improve coverage to nearby areas that are currently marginal. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 8 of 16 Finding: H. An alternative site(s) located further from a residential district, public park or public facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. Facts in Support of Finding: Three (3) alternative streetlights neighboring the project were identified and investigated by the Applicant, but these sites were found not practicable. 2. Alternative Site #1 at City Streetlight No. SLC4734 is located approximately 150 feet southwest of the proposed streetlight. This location is also in a landscaped median along Avocado Avenue and is situated between two (2) tall eucalyptus trees. The trees are taller than the streetlight and most of the foliage of these trees grows near the top of the tree, above the height of the streetlight, while the trunk is somewhat barren. Furthermore, the trees are located over 25 feet away from the streetlight and are not immediately adjacent. The trees in this location provide less screening than the proposed location and the small cell facility is anticipated to be more visually intrusive in this location. 3. Alternative Site #2 at City Streetlight No. SLC4736 is located approximately 240 feet northeast of the proposed streetlight, at the intersection of Fourth Avenue and Avocado Avenue. This location is also in a landscaped median on Avocado Avenue and abuts a pedestrian ramp. While the pedestrian ramp does not prevent the installation of the necessary below grade equipment, the lack of surrounding trees to provide visual distraction, screening, or masking renders the proposed equipment more likely to be visually intrusive at this location. 4. Alternative Site #3 at City Streetlight No. SLC4720 is located approximately 310 feet northwest of the proposed streetlight. This streetlight is located within the sidewalk of Kewamee Drive and immediately adjacent to a condominium building. The sidewalk in this location is narrow. There is less than 3 feet in width from the back of the existing streetlight to the edge of sidewalk and a replacement streetlight would not be able to be installed in accordance with American with Disabilities Act (ADA) requirements. The proposed project is infeasible at this location. 5. There is an existing condominium complex at the intersection of Avocado Avenue and Kewamee Drive. The property is zoned RM (Multiple Residential) and while the RM zoning district does permit the installation of wireless telecommunication facilities where the maximum allowable number of dwelling units is more than four (4), a small cell facility at this location would not be technically feasible from an RF perspective. Small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Small cell facilities use an omnidirectional antenna that propagates in 360 degrees and function most efficiently on an unobstructed, vertical, structure such as a streetlight or utility pole. Most of the signal would be blocked by the structures of the condominium complex. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 9 of 16 Finding: 1. An alternative plan that would result in a higher preference facility class category for the proposed facility is not available or reasonably feasible and desirable under the circumstances. Facts in Support of Finding: 1. Fact in Support of finding H.5 is incorporated by reference. 2. The Applicant's analysis concluded that a more preferred location as defined by NBMC Subsection 20.49.040(A) (Preferred Locations), such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. Coastal Development Permit In accordance with Subsection 21.52.015(F) (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: J. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: The project is considered a Class 3 (Public Right -of -Way) installation. Section 21.49.040 (Telecom Facility Preferences and Prohibited Locations) of the NBMC lists Class 3 installations as third on the installation preference list. It is not proposed at a location that is prohibited by NBMC Subsection 21.49.040(B) (Prohibited Locations). 2. See Fact in Support of Finding 1.2. 3. The project has been reviewed pursuant to Subsection 21.49.050(B) of the NBMC. The project complies with Section 21.30.100 (Scenic and Visual Quality Protection) of the NBMC. The subject location is not located between the first public roadway paralleling the sea and the sea, is not on a coastal bluff or canyon, not adjacent to or within the viewshed of a public viewpoint, coastal view road, public park or beach, or public accessway, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views), and does not contain significant natural landforms or vegetation. The project scope involves the removal and replacement of an existing City streetlight in the same location with the same luminaire heights. The project has been designed to blend with its surroundings while it will be visible. The replacement streetlight is consistent with the size, shape, style, and design of the existing pole. No above -ground mounted equipment is 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 10 of 16 proposed, and the support equipment is proposed to be placed in underground handholes. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within a screening shroud. There will be no negative impacts on coastal views or coastal resources with the project's implementation. 4. The proposed replacement streetlight and antenna structure will comply with the maximum allowable height limit of 35 feet from existing finished grade. Finding: K. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Facts in Support of Finding: 1. Streetlight No. SLC4735 is not located between the nearest public road and the sea or shoreline. The project site is within an existing street median on Avocado Avenue. All equipment will be either concealed within the replacement pole or vaulted belowgrade. There will be no changes or obstructions to the pedestrian right-of-way and access on Avocado Avenue will be unaffected. As such, the project will not affect the public's ability to gain access to, use, and/or view the coast and nearby recreational facilities. 2. The project will allow the installation of a small cell facility that complies with all applicable Local Coastal Program (LCP) development standards and maintains development attributes consistent with the existing and anticipated future surrounding neighborhood pattern of development. Therefore, the project does not have the potential to degrade public views within the Coastal Zone. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 exemption do not apply. 2. The Zoning Administrator of the City of Newport Beach hereby approves Minor Use Permit No. UP2019-027 and Coastal Development Permit No. CD2020-101, subject to the conditions set forth in "Exhibit A," which is attached hereto and incorporated by reference. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 11 of 16 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 21 Local Coastal Implementation Plan, of the Newport Beach Municipal Code. The project site is not located within the appeal area of the coastal zone; therefore, final action by the City may not be appealed to the California Coastal Commission. PASSED, APPROVED, AND ADOPTED THIS 13TH DAY OF AUGUST, 2020. Jarf6e Murillo Zoning Administrator 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 12 of 16 EXHIBIT "A" CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the plans, including elevation exhibits and visual simulations, stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this approval. 4. The telecom facility approved by this permit shall comply with all applicable Federal and State rules, regulations, and standards. 5. The replacement pole shall be reconstructed in the exact location of the existing streetlight pole. 6. The reconstructed streetlight pole design shall be consistent with the size (including diameter), shape, style, and design of the existing streetlight pole to the greatestextent feasible, including the attached light arm and luminaire. All mounted equipment shall be painted to match the color and style of the replacement streetlight pole. 7. All accessory support equipment of this facility shall be installed underground. 8. All electrical and antenna wiring shall be fully encased within the reconstructed streetlight pole. 9. The telecom facility approved by the use permit shall comply with any easements, covenants, conditions, or restrictions on the underlying City -trust property upon which the facility is located. 10. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 11. Prior to building permit final, a Height Certification Inspection shall be required prior to final of building permits. The small cell facility and base streetlight pole approved by this permit shall not exceed a total of 27 feet, 5 inches (27' 5") in height from existing grade (maximum elevation of 117.2 feet based on the North American Vertical Datum of 1988 [NAVD88]). 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 13 of 16 12. Prior to building permit issuance, all contractors and subcontractors shall have a valid City of Newport Beach business license. 13. The Applicant shall continually maintain thewireless telecom facility so that it retains its original appearance at the time the building permit is finaled by the City of Newport Beach. 14. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless telecom facility, including the small cell facility and below -grade equipment areas, and make all necessary repairs. The Community Development Director may require additional inspections and/or maintenance activities at his/her discretion. 15. The Applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at anytime. 16. The facility shall transmit at the approved frequency ranges established by the FCC. The Applicant shall inform the City in writing of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 17. The telecommunications facility shall at no time interfere with the frequencies used by the City of Newport Beach for public safety. "Comprehensive advanced planning and frequency coordination" engineering measures shall prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public -Safety Communications Officials -International, Inc. ("APCO"), and as endorsed by the FCC. 18. Should interference with the City's Public Safety radio equipment occur, use of the telecom facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 19. The Applicant shall provide a "single point of contact" for the carrier in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, fax number, and email address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. If the point of contact changes, the City shall be immediately alerted and updated. 20. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning, and similar information plates. Adetail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 21. Appropriate information warning signs or plates shall be posted on the base streetlight pole of the transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Page 14 of 16 Signage required by State or federal regulations shall be allowed in its smallest permissible size. 22. Prior to the final of building permits, the Applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with lighting. The telecom facility shall be lighted to the extent deemed necessary by the Newport Beach Police and Utilities Departments for security lighting and consistency with other streetlights in the area. 23. The Applicant shall maintain the telecom facility in a manner consistent with this approval. 24. The Applicant shall ensure that its telecom facility complies with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The Applicant shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. This information shall be made available by the Applicant upon request of the Community Development Director. 25. The facility shall comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. 26. Prior to final of building permits, the Applicant shall schedule an inspection by the Planning Division to ensure materials and colors match existing architecture as illustrated in the approved photographic simulations and in conformance with NBMC Section 20.49.050. 27. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, or remove the telecom facility and restore the site. 28. The City reserves the right and jurisdiction to review and modify any permit approved pursuant to NBMC Chapters 20.49 and 21.49, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the height or size of the facility; increase the size, shape, or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure ("MPE") limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a review of the modification, and possible amendment to the use permit, prior to implementing any change. 29. Minor Use Permit No. UP2019-027 and Costal Development Permit No. CD2020-10' shall expire unless exercised within 24 months from the date of approval as specified in 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Paae 15 of 16 Sections 20.54.060 and 21.54.060 (Time Limits and Extensions) of the NBMC unless an extension is otherwise granted. 30. Construction activities shall comply with NBMC Section 10.28.040, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7 a.m. and 6:30 p.m., Monday through Friday. Noise -generating construction activities are not allowed on Saturdays, Sundays or holidays. 31. This approval may be modified or revoked by the Zoning Administrator if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 32. A copy of the Resolution, including conditions of approval Exhibit "A," and approved drawings from Southern California Edison (SCE) for the power supply and design, shall be incorporated into the Building Division and field sets of plans prior to issuance ofthe building permits. 33. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of Native Birds pursuant to MBTA: A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longeractive. 34. The Applicant shall promptly notify the City if the landscaped parkway of the subject streetlight pole is negatively affected or otherwise damaged by project implementation. 35. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and 01-25-19 Zoning Administrator Resolution No. ZA2020-056 Page 16 of 16 court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of AT&T Small Cell SLC4735, including, but not limited to, Minor Use Permit No. UP2019-027 and Coastal Development Permit No. CD2020-101 (PA2019-108). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Public Works Department 36. Prior to the issuance of a building permit, an encroachment permit shall be required. 37. Prior to the issuance of a building permit, traffic control plans illustrating compliance with the 2016 WATCHBook requirements shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman. 01-25-19 400 u) AMENDMENT NO.2 TO MASTER LICENSE AGREEMENT co BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS I PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS V FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. 2 TO MASTER LICENSE AGREEMENT ("Amendment No. 2") is made and entered into as of this II day oA�022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"), and is made with reference to the following: RECITALS A. On February 12, 2019, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove Telecommunication Facilities as permits are obtained from the City. B. The parties desire to enter into this Amendment No. 2, pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. C. The parties further desire to enter into this Amendment No. 2, pursuant to Section 5 of the Master License, to identify the specific License Area(s) in the License Area Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed to Licensee for installation of its Telecommunication Facilities under the terms and conditions of the Master License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE SITE LIST This Amendment, the Site List attached hereto as Exhibit 1 and the License Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY',ATTORNEY',S OFFICE Date: tty ttorney ATTEST: OIf)/ Date: b ( CITY OF NEWPORT BEACH, a California municipal corporation Date: &1Ly91LL _ By. Cit anager LICENSEE: New Cingular Wireless PCS, LLC a..-*-, Date: By=S\ /I Omar Mere Area Manager, Real Estate & Construction Date: 0�-Z1"z VAnriette Zoba Director Access- Construction & Engineering [END OF SIGNATURES] Attachments: Exhibit 1 — Site List Exhibit 2 — License Area Description & Depiction New Cingular Wireless PCS, LLC, , its Manager Exhibit 1 SITE LIST Site ID: CRAN_RLOS_HBNPB_038 Location: City Streetlight No. SCL4653, N/S of Bayside Drive, approx. 900' north of El Paseo Drive Latitude / Longitude: 33.609029,-117.886466 City Approved Case #: UP2019-034 (PA2019-115) New Cingular Wireless PCS, LLC, Exhibit 2 LICENSE AREA DESCRIPTION & DEPICTION CRAN RLOS_HBNPB_038 _ _ _ _ i- t t p e � rxtiruacu sa[ wv rvwen nvn: TRENCHED OR BORED FROM (EI SCE VAULT VV6M 154 TO IN) H 154A HANOHOLE LIMITS TO WORM. VI A (BY AT&T). SEE NOTE 7 (BY AAUT) I 3.3 4=1 I I ' i RESIDENTIAL PROPERTY Vf �- iN)23W-0' USG POWER RUN FROM IN) 3.5 H154A HANDHOLE (BY ATUI TO ft �3 ' WTR HANDHOLE (BY AT&T) IN) WTR HAND HOLE TO BE M15TALLED 7.9 � �� t BELOW GRADE ?BY AT&T) i C£y i �— IN) 37(5' BORE PR I SCE ViV tANO PROPOSED POWER P O.C. .. I i t7 1718ORE 1-2 I SEE NOTE 7 381'-0' URi POWER RUN FROM HAND HOLE(E) (ST I A-2 tFROM LANFYCAPE EE TO (N) STREETLIGHT(N) FIBER HANDHOLE TO BE INSTALLED BELOW GRADE 113Y AT&T WIREUNEI UNDER SEPARATE PERMIT, I IA'! FT 1 2%MA% I 1 (Ny VIG FIBER RUN FROM {NI N I j FBER HIWDHOLE TO (N) 1 CONCRETE STREETLIGHTI.BY 43 O I I AT&T): SEE NOTE 6 to 1 } 1 I I 2-10' 21'-3" / (E) CITY OF NEWPORT BEACH t CONCRETE STREETLIGHT m I (SLC4653) TO BE REMOVED & S-I I 1 23-3. cr Y REPLACED IN SAME LOCATION 1 5 W1(N) CONCRETE STREETLIGHT D-t FROM 4 OF IN) POLE IN) B ORE PR TO t OF BAYS�E DR. W7(N)EW)Pp'�NT �- I � LIMITS TO WORK ( 11 �2'-4—' -+ { - {E)IMIVEWAY Tf1'P.) ri 1 ) (n I 45-0—a�. 20'_i 1.. 47 �4 -P. I " AT&T TO REMOVE (1) EXISTING CONCRETE STREETLIGHT • AT&T TO INSTALL (1) 22'-0"CONCRETE STREETLIGHT • AT&T TO INSTALL (4) NEW AT&T REMOTE RADIO UNITS • (1) NEW AT&T OMNI-DIRECTIONAL ANTENNA AT&T TO INSTALL • (1) NEW AT&T EQUIPMENT SHROUD AT&T TO INSTALL ' AT&T TO INSTALL (1) NEW RAYCAP DISCONNECT • AT&T TO INSTALL (1) NEW HANDHOLE New Cingular Wireless PCS, LLC, TT NEW CINGULAR WIRELESS PCS, LLC ASSISTANT SECRETARY'S CERTIFICATE 1, Jackie A. Begue, do hereby certify that 1 am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC, a Delaware limited liability company (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. 3. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." Annette M. Zoba, Director Access — Construction and Engineering, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 8"' day of September 2021. Olie A. Begue, Assistant e etary AT&T NEW CINGULAR WIRELESS PCS, LLB' ASSISTANT SECRETARY'S CERTIFICATE I, Jackie A. Begue, do hereby certify that I am a duly elected, qualified and acting Assistant Secretary of AT&T Mobility Corporation, the Manager of New Cingular Wireless PCS, LLC (the "Company"), and as such I am authorized to execute this certificate. In such capacity, I further certify that: 1. The Schedule of Authorizations for Affiliates of AT&T Inc. (the "Schedule") has been duly adopted by the Company, and said Schedule remains in full force and effect on the date hereof. 2. Section 5.1 of the Company's Limited Liability Company Operating Agreement as amended on August 29, 2007 designates AT&T Mobility Corporation as the Manager (the "Manager") of the Company, and AT&T Mobility Corporation remains the Manager of the Company on the date hereof. The Manager of the Company has the authority under Section 5.6 of the Company's Limited Liability Company Operating Agreement to manage all of the business affairs of the Company. 4. Section 5.15 of the Company's Limited Liability Company Operating Agreement states as follows: "Any person or entity dealing with the Company may rely on a certificate signed by the Manager or officer on any document purporting to bind the Company shall constitute exclusive evidence to third parties of the authority of such person to execute such document on behalf of the Company and so bind the Company." Omar J. Mere, Area Manager — Real Estate and Construction, is authorized and empowered under the Schedule and by the Manager of the Company to execute and deliver, in the name of and on behalf of the Company, any and all amendments to that that certain Master License Agreement Between the City of Newport Beach and the Company For the Use of City -Owned Streetlights for Telecommunications Facilities. IN WITNESS WHEREOF, the undersigned has affixed her signature this 12"' day of October 2021. 60ic A. Begue, Assistant e etary VIA EMAIL November 17, 2020 M Square Wireless Attention: Franklin Orozco forozcoainterlinkpg.com CITY Or NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/commu nitydeve Iopment Subject: Coastal Development Permit No. CD2020-119 (PA2019-115) Public right-of-way, City streetlight number SLC4653, on the north side of Bayside Drive Appeal of AT&T Small Cell SLC4653 Dear Mr. Orozoco, It was a pleasure working with you on the above referenced application. Please be advised that the subject application was approved by the Planning Commission on October 22, 2020 and is now within the required City appeal period until November 6, 2020. If no appeals are filed with the City, a Notice of Final Action will be mailed to the California Coastal Commission. Upon receipt of the notice by the Coastal Commission, the action will be subject to an additional 10-working-day appeal period. You may track status of the Coastal Commission appeal period via the following link: Statewide Appealable Projects PDF At the conclusion of both appeal periods, a building permit may be issued for the project. A copy of the approved resolution with findings and conditions is attached. If you have any questions, please do not hesitate to contact me directly. Thank you and I look forward to working with you again in the future. Sincerely, Me w 1 i6selyn Per z Assistant Planner BMZ/1P RESOLUTION NO. PC2020-035 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, UPHOLDING THE DECISION OF THE ZONING ADMINISTRATOR APPROVING COASTAL DEVELOPMENT PERMIT NO. CD2020-118 FOR A SMALL CELL FACILITY LOCATED WITHIN THE PUBLIC RIGHT- OF-WAY ON CITY STREETLIGHT NUMBER SLC4653, ON THE NORTH SIDE OF BAYSIDE DRIVE, APPROXIMATELY 900 FEET NORTH OF EL PASEO DRIVE (PA2019-115) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by New Cingular Wireless, LLC ("Applicant"), with respect to City of Newport Beach ("City") Streetlight Number 4653 ("SLC4653"), located within the public right-of-way, on the north side of Bayside Drive approximately 900 feet northwest of El Paseo Drive, requesting approval of a coastal development permit ("CDP"). 2. The Applicant proposes the installation of a small cell wireless facility on a City -owned streetlight pole. Project implementation will be fully contained within the public right-of- way on Bayside Drive and includes: removal and replacement of an existing City streetlight; installation of a small cell wireless facility that consists of four (4) remote radio units, a raycap disconnect, and an omni-directional antenna within a 12-inch diameter equipment shroud, with the equipment being fixed to the top of the replaced streetlight pole for a maximum height of 27 feet, 5 inches; and establishment of new below -grade support equipment adjacent to the streetlight ("Project"). 3. Since SLC4653 is located within the public right-of-way, the proposal is regulated by Council Policy L-23 (Siting of Wireless Telecommunications Equipment on City -Owned Property), as well as Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code ("NBMC"). Pursuant to Section 20.49.060 (Permit Review Procedures) of the NBMC, a minor use permit is required for this type of installation. 4. The City's regulatory review of wireless telecom siting is limited by three federal laws: (1) the Communications Act of 1934; (2) Telecommunications Act of 1996 (Telecommunications Act); and (3) the Middle -Class Tax Relief and Job Creation Act of 2012 (Spectrum Act), which aim to facilitate wireless infrastructure development and restrict certain aspects of local authority in review and permitting of wireless telecommunications facilities; 5. On January 14, 2019, the Federal Communications Commission ("FCC") Declaratory Ruling and Order FCC 18-133 ("Order"), modified in part by City of Portland v. United States, No. 18-72689 (9th Cir. 2020), removed barriers to wireless infrastructure deployment and established accelerated timelines for processing wireless applications at the local level. This Order also limited the City's rights as a property owner, restricting 05-14-19 Planning Commission Resolution No. PC2020-035 Paqe 2 of 11 the type and amount of fees that can be collected for private use of public property such that the City's review and approval is primarily limited to reasonable aesthetic requirements, environmental concerns, and land use compatibility. 6. A public hearing was held on April 16, 2020, in the Community Room located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), as well as Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by the Zoning Administrator at this public hearing. 7. The Zoning Administrator adopted Resolution No. ZA2020-031 approving Minor Use Permit No. UP2019-034 for this Project. Although a call for review was attempted by the Planning Commission, said call for review occurred after the designated appeal period had expired in accordance with Section 20.64.030 (Filing and Processing of Appeals and Calls for Review) of the NBMC therefore rendering UP2019-034 effective. 8. The Project is located within the Coastal Zone. Subsection 21.49.020(B) (Permit and Agreement Required) of the NBMC requires a CDP for a wireless telecommunication facility unless said facility is exempted by Subsection 21.49.020(C) (Exempt Facilities). In this case, the Project does not meet any of the prescribed exemptions; therefore, a CDP is required. Upon finding that a CDP is required, the Applicant revised the request to include said permit. 9. A telephonic public hearing was held on August 27, 2020 in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19 A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act and Chapter 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this public hearing. 10. The Zoning Administrator adopted Resolution No. ZA2020-058 approving CDP No. CD2020-118. 11. On September 9, 2020, Mr. Jim Mosher filed an appeal of the Zoning Administrator's decision citing an inadequate consideration of alternative locations. 12. A de novo telephonic public hearing was held online on October 22, 2020, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California, observing restrictions due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act, Chapter 20.62 and Chapter 21.62 of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commissioner at this hearing. 02-03-2020 Planning Commission Resolution No. PC2020-035 Paqe 3 of 11 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. The Project is exempt from the California Environmental Quality Act ("CEQA") pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Class 2 consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Class 3 consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. 2. In this case, the Project includes the removal and replacement of an existing City streetlight pole to install a small cell wireless facility, including below -grade accessory equipment. 3. The exceptions to the Class 3 categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. In accordance with Subsection 21.52.015(F) (Coastal Development Permits, Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: The Project is considered a Class 3 (Public Right -of -Way) installation. Section 21.49.040 (Telecom Facility Preferences and Prohibited Locations) of the NBMC lists Class 3 installations as third on the installation preference list. It is not proposed at a location that is prohibited by NBMC Subsection 21.49.040(B) (Prohibited Locations). 2. After a thorough review of the area, the Applicant concluded that a more preferred location as defined by NBMC Subsection 21.49.040(A) (Preferred Locations), such as a collocation or a Class 1 or 2 facility, would not be technically feasible from an RF or construction perspective. The analysis explained that small cell facilities are low powered and must be located at the precise location selected to serve the network traffic 02-03-2020 Planning Commission Resolution No. PC2020-035 Page 4 of 11 demands of the specific limited area. Further, this type of service cannot be accomplished with a traditional macro collocation or building mounted site in the area. 3. Four nearby streetlights were identified and investigated by the Applicant as possible alternate locations for the small cell facility however none of the sites were found to be suitable alternatives due to factors such as either the surrounding topography or a lack of available screening. 4. While a Class 1 (Stealth/Screened) wireless facility (PA2018-151) was approved approximately 800 feet southeast on the Bahia Corinthian Yacht Club building at 1601 Bayside Drive, that project was ultimately never constructed due to technical challenges that rendered its construction infeasible. 5. The Project site abuts a residentially zoned property; however, the physical residence at that property is set back from the property line approximately 115 feet and is separated from the right of way by a steep slope. The slope is densely landscaped with a variety of plants. The vegetation provides visual interest and distraction from the streetlight. 6. Given the significant grade differential between the adjacent single-family residence and the street, the general visibility of the Project is lessened for the existing residential development. Across Bayside Drive, approximately 50 feet west, there are residences zoned Multi -Unit Residential ("RM") with grades that are approximately five feet below the grade of the proposed facility. 7. Bayside Drive is a well -traveled, two-lane, street. It also features bike lanes in both directions and street parking on the northbound side. It is developed with typical street infrastructure including streetlights, utility cabinets, and storm drains. The Project is visually compatible with the existing streetscape environment. 8. The location of the existing streetlight is along a straight portion of road and in line with the surrounding streetscape and existing light poles. The replacement streetlight pole will be installed in the same location as the existing streetlight pole and it will not visually protrude. 9. While Bayside Drive is considered the first public road paralleling the sea, the Project is located on the landward side of the road and not between the first public road and the sea. Pursuant to Subsection 21.49.050(B) of the NBMC, the Project has been reviewed to ensure compliance with Section 21.30.100 (Scenic and Visual Quality Protection). The subject location is located within the first public roadway paralleling the sea and the sea but is not between the first public roadway paralleling the sea and the sea. It further is not proposed on a coastal bluff or canyon, not adjacent to or within the viewshed of a public viewpoint, coastal view road, public park or beach, or public accessway, as identified on the Coastal Land Use Plan Map 4-3 (Coastal Views), and does not contain significant natural landforms or vegetation. 10. The Project involves the removal and replacement of an existing City streetlight in the same location with the same luminaire height. It has been designed to blend with its 02-03-2020 Planning Commission Resolution No. PC2020-035 Paqe 5 of 11 surroundings and, while it will be visible, the replacement streetlight is consistent with the size, shape, style, and design of the existing pole. No above -ground mounted equipment is proposed, and the support equipment is proposed to be placed in underground handholes. All transmission equipment, including remote radio units and the raycap disconnect switch, are fully concealed within a screening shroud. There will be no negative impacts on coastal views or coastal resources with the Project's implementation. 11. The proposed replacement streetlight and antenna structure will comply with the maximum allowable height limit of 35 feet from existing finished grade. Finding: B. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Facts in Support of Finding: As discussed in Fact in Support of Finding A.9, SLC4653 is not located between the nearest public road paralleling the sea or shoreline. There is no pedestrian right-of-way or access on the north side of Bayside Drive and, as such, the Project will not affect the public's ability to gain access to, use, and/or view the coast and nearby recreational facilities. 2. The Project will allow the installation of a small cell facility that complies with all applicable Local Coastal Program ("LCP") development standards and maintains development attributes consistent with the existing and anticipated future surrounding neighborhood pattern of development. Therefore, the Project does not have the potential to degrade public views within the Coastal Zone. SECTION 4. DECISION. Now, therefore, BE IT RESOLVED: The City's Planning Commission hereby finds this Project is categorically exempt from CEQA pursuant to Sections 15302 and 15303 under Class 2 (Replacement or Reconstruction) and Class 3 (New Construction or Conversion of Small Structures), respectively, of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. The exceptions to the Class 3 exemption do not apply. 2. The City's Planning Commission hereby approves CDP No. CD2020-118, subject to the conditions set forth in "Exhibit A," which is attached hereto and incorporated by reference, in addition to the minor use permit already granted via Use Permit No. UP2019-034. 02-03-2020 Planning Commission Resolution No. PC2020-035 Paae 6 of 11 3. This action shall become final and effective ten (10) working days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Office of the City Clerk in accordance with Title 21 (Local Coastal Program Implementation Plan) of the NBMC. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 (Appeals to the Coastal Commission) of the NBMC, California Code of Regulations Title 14, Division 5.5, Chapter 5, Subchapter 2, Sections 13111 through 13120, and Section 30603 of the California Public Resources Code. PASSED, APPROVED, AND ADOPTED THIS 22ND DAY OF OCTOBER, 2020. AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene, and Weigand NOES: ABSTAIN: ABSENT: BY: Erik Weigand, C irman BY: Lauren Kleiman, Secretary 02-03-2020 Planning Commission Resolution No. PC2020-035 Paae 7 of 11 EXHIBIT "A" CONDITIONS OF APPROVAL Planning Division 1. The development shall be in substantial conformance with the plans, including elevation exhibits and visual simulations, stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this approval. 4. The Project approved by this permit shall comply with all applicable Federal and State rules, regulations, and standards. 5. The replacement pole shall be reconstructed in the exact location of the existing streetlight pole. 6. The reconstructed streetlight pole design shall be consistent with the size (including diameter), shape, style, and design of the existing streetlight pole to the greatest extent feasible, including the attached light arm and luminaire. All mounted equipment shall be painted to match the color and style of the replacement streetlight pole. 7. All accessory support equipment of this Project shall be installed underground. 8. All electrical and antenna wiring shall be fully encased within the reconstructed streetlight pole. 9. The Project approved by the use permit shall comply with any easements, covenants, conditions, or restrictions on the underlying City -trust property upon which the Project is located. 10. Anything not specifically approved by this permit is not permitted and must be addressed in a separate and subsequent review. 11. Prior to building permit final, a Height Certification Inspection shall be required prior to final of building permits. The small cell facility and base streetlight pole approved by this permit shall not exceed a total of 27 feet, 5 inches in height from existing grade. The top of the new luminaire shall not exceed a total of 21 feet, 1 inch in height from existing grade and shall match the height and shape of the existing luminaire. 12. Prior to building permit issuance, all contractors and subcontractors shall have a valid City of Newport Beach business license. 02-03-2020 Planning Commission Resolution No. PC2020-035 Paqe 8 of 11 13. The Applicant shall continually maintain the wireless telecom facility so that it retains its original appearance at the time the building permit is finaled by the City of Newport Beach. 14. On an annual basis, the Applicant shall conduct maintenance inspections of the wireless telecom facility, including the small cell facility and below -grade equipment areas, and make all necessary repairs. The Community Development Director may require additional inspections and/or maintenance activities at his/her discretion. 15. The Applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 16. The Project shall transmit at the approved frequency ranges established by the FCC. The Applicant shall inform the City in writing of any proposed changes to the frequency range in order to prevent interference with the City's Public Safety radio equipment. 17. The Project shall at no time interfere with the frequencies used by the City of Newport Beach for public safety. "Comprehensive advanced planning and frequency coordination" engineering measures shall prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public -Safety Communications Officials - International, Inc. ("APCO"), and as endorsed by the FCC. 18. Should interference with the City's Public Safety radio equipment occur, use of the telecom facility authorized by this permit may be suspended until the radio frequency interference is corrected and verification of the compliance is reported. 19. The Applicant shall provide a "single point of contact" for the carrier in its Engineering and Maintenance Departments that is monitored 24 hours per day to ensure continuity on all interference issues, and to which interference problems may be reported. The name, telephone number, fax number, and email address of that person shall be provided to the Community Development Department and Newport Beach Police Department's Support Services Commander prior to activation of the facility. If the point of contact changes, the City shall be immediately alerted and updated. 20. No advertising signage or identifying logos shall be displayed on the Project except for small identification, address, warning, and similar information plates. A detail of the information plates depicting the language on the plate shall be included in the plans submitted for issuance of building permits. 21. Appropriate information warning signs or plates shall be posted on the base streetlight pole of the transmitting antenna. In addition, contact information (e.g., a telephone number) shall be provided on the warning signs or plates. The location of the information warning signs or plates shall be depicted on the plans submitted for construction permits. Signage required by State or federal regulations shall be allowed in its smallest permissible size. 02-03-2020 Planning Commission Resolution No. PC2020-035 Paqe 9 of 11 22. Prior to the final of building permits, the Applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with lighting. The telecom facility shall be lighted to the extent deemed necessary by the Newport Beach Police and Utilities Departments for security lighting and consistency with other streetlights in the area. 23. The Applicant shall maintain the Project in a manner consistent with this approval. 24. The Applicant shall ensure that its Project complies with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The Applicant shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. This information shall be made available by the Applicant upon request of the Community Development Director. 25. The Project shall comply with all applicable provisions of U.S. Code Title 47 (Telecommunications) rules and regulations, including those related to FCC Radio Frequency safety. 26. Prior to final of building permits, the Applicant shall schedule an inspection by the Planning Division to ensure materials and colors match existing architecture as illustrated in the approved photographic simulations and in conformance with NBMC Section 21.49.050. 27. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Division by certified mail no less than thirty (30) days prior to such action. The operator shall have ninety (90) days from the date of abandonment or discontinuance to reactivate use of the facility, or remove the telecom facility and restore the site. 28. The City reserves the right and jurisdiction to review and modify any permit approved pursuant to NBMC Chapter 21.49, including the conditions of approval, based on changed circumstances. The operator shall notify the Planning Division of any proposal to change the height or size of the facility; increase the size, shape, or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure ("MPE") limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a review of the modification, and possible amendment to the use permit, prior to implementing any change. 29. Costal Development Permit No. CD2020-118 shall expire unless exercised within 24 months from the date of approval as specified in Section 21.54.060 (Time Limits and Extensions) of the NBMC unless an extension is otherwise granted. 30. Construction activities shall comply with Section 10.28.040 of the NBMC, which restricts hours of noise -generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday. Noise -generating construction activities are not allowed on Saturdays, Sundays or holidays. 02-03-2020 Planning Commission Resolution No. PC2020-035 Page 10 of 11 31. This approval may be modified or revoked by the Planning Commission if determined that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 32. A copy of the Resolution, including conditions of approval Exhibit "A," and approved drawings from Southern California Edison (SCE) for the power supply and design, shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 33. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of Native Birds pursuant to MBTA: A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 34. The Applicant shall promptly notify the City if the landscaped parkway of the subject streetlight pole is negatively affected or otherwise damaged by Project implementation. 35. The applicant shall replace any privately installed landscaping disturbed as a result of the telecom installation. Any removed landscaping shall be replaced with the same species and size, wherever feasible, and provided the replacement is in compliance with any applicable encroachment agreements. 36. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of AT&T Small Cell SLC4653, including, but not limited to, Coastal Development Permit No. CD2020-118 (PA2019-115). This 02-03-2020 Planning Commission Resolution No. PC2020-035 Paqe 11 of 11 indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Public Works Department 37. Prior to the issuance of a building permit, an encroachment permit shall be required. 38. Prior to the issuance of a building permit, traffic control plans illustrating compliance with the 2016 WATCHBook requirements shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagman. 02-03-2020 PA2019-115 STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT OFFICE 301 E. OCEAN BLVD., SUITE 300 LONG BEACH, CALIFORNIA 90802-4830 (562) 590-5071 FAX (562) 590-SOR4 WWW COASTAL.CA.GOV (�ryry(� -.�. 0L l 2 1 ?V0 (:I I y 09. December 11, 2020 M squared Wireless, Attn: Franklin Orozco 1387 Calle Avanzado San Clemente, CA 92660 This is to inform you that the Commission's 10 working day appeal period on the City of Newport Beach's Coastal Development Permit No. 2020-118 (5-NPB-20-0926) expired on December 01, 2020. The Coastal Commission received no appeals on this permit. The City's permit is therefore final. Sincerely, a �- -Amber Dobson Coastal Program Analyst cc: CCC file City of Newport Beach 8�, ��c,�►v�n COMMUNITY pppp��((��1q 11 STATE OF CALIFMIAR <�IA�RAL RESOURCES AGENCY p EV €LnT:)MENT GAVIN NEWSOM, GOVERNOR CALIFORNIA COASTAL COMMISSION Nov ? 0 Z029 SOUTH COAST DISTRICT OFFICE 301 E. OCEAN BLVD., SUITE 300 LONG BEACH, CALIFORNIA 9080E-0830 (562) 590-5071 FAX (562) 590-5084 t:l i`( OF W W W.COASTAL.CA.GOV rl�, Corrected NOTIFICATION OF APPEAL PERIOD November 17, 2020 To: Joselyn Perez City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 From: Amber R Dobson, District Manager Re: Application No. 5-NPB-20-0926 Please be advised that on November 13, 2020, our office received notice of local action on the coastal development permit described below: Local Permit #: 2020-118 Applicant(s): M squared Wireless, Attn: Franklin Orozco Description: To allow the installation of a small cell wireless facility on a city -owned streetlight pole. Location: On the north side of Bayside Drive, approximately 900 feet north of the El Paseo Drive. Newport Beach, CA 92625 Unless an appeal is filed with the Coastal Commission, the action will become final at the end of the Commission appeal period. The appeal period will end at 5:00 PM on December 01, 2020. Our office will notify you if an appeal is filed. If you have any questions, please contact me at the address and telephone number shown above. cc: M squared Wireless, Attn: Franklin Orozco PA2019-115 STATE OF CALIFORNIA-NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR CALIFORNIA COASTAL COMMISSION SOUTH COAST DISTRICT OFFICE 301 E. OCEAN BLVD., SUITE 300 LONG BEACH, CALIFORNIA 908024830 (562) 390-5071 FAX (562) 590-3084 W W W.COASTAL.CA.GOV +cmonr�� NOTIFICATION OF APPEAL PERIOD November 13, 2020 ooMmUNITY i.F tr l.oPMENT To: Joselyn Perez NOV 18 2020 City of Newport Beach 100 Civic Center Drive GiTY of Newport Beach, CA 92660 `I/'vpORT From: Amber R Dobson, District Manager Re: Application No. 5-NPB-20-0926 Please be advised that on November 13, 2020, our office received notice of local action on the coastal development permit described below: Local Permit #: 2020-118 Applicant(s): M Squared Wireless, Attn: Franklin Orozco Description: To allow the installation of a small cell wireless facility on a city -owned streetlight pole. Location: 1387 Calle Avanzado, San Clemente, CA 92660 Unless an appeal is filed with the Coastal Commission, the action will become final at the end of the Commission appeal period. The appeal period will end at 5:00 PM on December 01, 2020. Our office will notify you if an appeal is filed. If you have any questions, please contact me at the address and telephone number shown above. cc: M squared Wireless, Attn: Franklin Orozco 1. 1 AMENDMENT NO. ONE TO MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS V PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. ONE TO MASTER LICENSE AGREEMENT ("Amendment No. One") is made and entered into as of this 9 TV day of JvntE , 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Licensee"), and is made with reference to the following: RECITALS A. On February 12, 2019, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove certain Telecommunication Facilities on certain City -owned Streetlights located within certain areas of the Public Right -of -Way (collectively, the "License Area"). B. The parties desire to enter into this Amendment No. One to amend the Approved Telecommunications Facility Design as set forth in Exhibit B of the Master License to reflect updated, additional designs based on advancements in the technology. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. APPROVED DESIGNS Exhibit B to the Master License is replaced in its entirety with the amended and updated Approved Telecommunications Facility Design as set forth in the attached Exhibit B, which shall be effective once this Amendment No. One is fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC Page 1 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO E,Y'S OFFICE Date: S;/ 12-t ►n C. F Attorn ATTEST: Date: . 0 thM a+I'm VT1 Bw ►.�� 1, -MM .�l Leilani 1. BrowrY City Clerk EWA-4 U - , Attachment: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: 4"�L, Gr K. Leung C' Manager LICENSEE: New Cingular Wireless PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Managing .Me er Date: By: Annette M. Zo Director Access - Construction and Engineering [END OF SIGNATURES] Exhibit B — Approved Telecommunications Facility Design New Cingular Wireless PCS, LLC Page 2 EXHIBIT B APPROVED TELECOMMUNICATIONS FACILITY DESIGN New Cingular Wireless PCS, LLC Page B-1 1.l�• i'!4 ,:� 1. - „�#. Y. r m O 0 Q CK X 9 t b_ 9 o •�1��, ww 'u () " J L Ih J� Mb :F U;;m .. co ((j S i OS 7 � u a Pi Ila yy 4 4 1. ;IAN f6 C L C1 N J 7z L O u H 06 Q 5P.id r ODO w IA b_ 9 P � � 3 _ � � � _ ��l :�� S t �� 5 4 A a `��?,� K��' _. �. � _ �. ��y. I. � i•/ .. ! •__.. MII� t 'y a�_ •�r.�' k .� t � i�l 1 � - � 1 � �� �{ _ F `� _. .. -� = +� :_. r ;.i:. ., .. - p� l l; fir,. � Y' . =t�4 � � °�: .>> it i� � z �` �,'� ' \ �; 9 ,. � �.. �'` ,,,' it � r' � _ -, �� pppp f}}`` � e t �� � � � 1 `-... _ _I�i. ` '` R r.• ;.. -: .. s _.... �._ .. .,�:y �y.t': .. Valli SHIA -3 NO 2. T777 iS Zt r T I IS I0 i u . 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'-OOH m � � d F- �o N J_ D �"UZ O Z IL O N OZ^ co G Lu w O d w Q 0 w Q �O`" Y� c� L U N W JQ QON Z I N O Z Q m Z � mph O 2 W d �A OwQ �_ Z UWo OZn VHF O Lu W N Zw ^ O W L Lu W �W �~ XJ XCL OCL VJ CL O m rily MIS � � W cnjl2 Z N N ^ W oQ0 /,: o cl— W �Iv LL BOOv w w w ��� _ /� Nw �af rd Z Lu n I00 W uj W ^Io) fl� /Mll cn w U _ 0ouj _� '�� ' O o U m ¢ 0 O Z N co G Lu w O d w Q 0 Q c� L N W O Z Z � Z U-1 W N W d � O� O H = W wWC L VHF j W O W L W p:2 >og XJ XCL OCL OZa wa �—LU a_ =7- Q ¢ V m Q Z O J CL W f J � °' 0 Q � O C m d' U 00 LLJ Z)O J m� Q U LU J JOQ OZO o � 0 z \ � N Oo \ � h \ G zz e • < UJQ W d N< LU zLU \ Q zrwOD Q J J U Lu �QNO < / m OLLj 00 � -Uz Q z - Z JO 00 ANO U N>- m 0 O� U ae0 Lu 0 Q ODD Jam. 0 MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEW CINGULAR WIRELESS PCS, LLC FOR THE USE OF CITY -OWNED STREETLIGHTS FOR TELECOMMUNICATION FACILITIES This MASTER LICENSE AGREEMENT ("Master License") is entered into between the City of Newport Beach, a California municipal corporation and charter city ("City"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("Licensee") on this 12th day of February, 2019 ("Effective Date"). City and Licensee are each a "Party" and together the "Parties" to this Master License. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the City Charter; B. City is the fee title owner of certain Streetlight(s) located within the Public Right -of - Way in the City of Newport Beach, California, C. Licensee desires to license from City, on a non-exclusive basis, the right to attach, install, operate, maintain, and remove certain Telecommunication Facilities on certain City -owned Streetlights located within certain areas of the Public Right -of - Way (collectively, the "License Area"); D. The Parties anticipate amending this Master License from time -to -time by attaching and incorporating herein the specific License Area(s) to this Master License to include additional City -owned Streetlights to allow for the attachment, installation, operation, maintenance, and removal of additional Telecommunication Facilities as permits are obtained from the City; E. Pursuant to the Newport Beach Municipal Code ("NBMC") and City Council Policy L-23, City sought the assistance of an appraiser to determine the maximum or fair market value rent for the License Area; and F. City is willing to make the License Area available to Licensee, subject to the covenants and conditions set forth in this Master License on a non-exclusive basis, to facilitate the efficient and orderly deployment of communications facilities in the City of Newport Beach. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS 1.1 "Amendment" means that document prepared by City in substantially the form attached hereto as Exhibit "A" itemizing the City -owned Streetlight(s) and describing and depicting the License Area(s) on which Licensee is authorized to install a Telecommunication Facility. New Cingular Wireless PCS, LLC, Page 1 entity. 1.2 "FCC" means the Federal Communications Commission or successor 1.3 "License Year" refers to successive twelve (12) month periods, commencing with the Effective Date of this Master License. 1.4 "Public Right -of -Way" means the improved or unimproved surface or subsurface of any public street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and/or pedestrian related use. Public Right -of -Way includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. The Public Right -of -Way does not include private streets. 1.5 "Replacement Streetlight' means a streetlight furnished by Licensee, in accordance with Section 8 of this Master License. A Replacement Streetlight shall be in accordance with the current City specifications for streetlights, subject to approval by the City. 1.6 "Streetlight' or "City -owned Streetlight' means the streetlights owned and operated by the City within the Public Right -of -Way, including any Replacement Streetlight approved and accepted by the City, for which the Parties have executed an Amendment to this Master License. The Streetlight shall include the pole, light fixture, photocell and all structures associated with the operation of the Streetlight. 1.7 "Telecommunication Facility" or "Telecommunication Facilities" means Licensee owned and operated antennas, equipment cabinets, utilities and fiber optic cables, wires, brackets, conduit, screening elements, and all and related equipment for providing wireless telecommunication services from the License Area, as further described and depicted on in the applicable Amendment(s) to this Master License. Telecommunication Facilities under this Master License shall be limited to "small cell" facilities attached to existing or Streetlights or Replacement Streetlights. Antennas and all related equipment consists of three (3) or fewer antennas and four (4) or fewer radio units, with a small broadcast radius, and shall include screening elements to the maximum extent feasible so a facility blends into the area, does not create visual clutter, and does not negatively affect public views. Each Telecommunication Facility installed pursuant to this Master License shall match the designs shown on Exhibit "B" ("Approved Design"), attached hereto and incorporated herein by this reference. Licensee shall seek prior written approval from City for any Telecommunication Facility where installation of the Approved Design is not feasible. Support equipment for the Telecommunication Facility must be placed on the Streetlight or underground within the Public Right -of -Way or otherwise be located on private property. If support equipment is placed on private property, a separate agreement may be required by the private property owner and written authorization from the property owner shall be secured by Licensee and provided to City. 1.8 "Telecommunication Services" means the transmission and reception of wireless, cellular telephone, and/or data communications. 1.9 "Temporary Streetlight' means a standard design streetlight of equal version to surrounding Streetlights that is temporary in nature. New Cingular Wireless PCS, LLC, Page 2 2. LICENSE 2.1 City grants a non-exclusive license to Licensee for the term of this Master License, to install, operate, maintain, and remove Telecommunication Facilities in the License Area(s). City further grants to Licensee a non-exclusive license to access the License Area(s), subject to the conditions of the permits issued by the Public Works Department and the Community Development Department, and to the terms of all governmental licenses, permits and approvals required by federal, state or local governmental agencies, for construction, installation, operation, maintenance and removal of the Telecommunication Facilities. All construction, installation, operation, maintenance and removal activities shall be at Licensee's sole cost and expense, including but not limited to the fees and costs associated with the installation and government approvals described in this Master License, and pursuant to plans approved in advance in writing by the City. The Master License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this Master License, to keep and perform each and every term, covenant and condition of this Master License. 2.2 Licensee shall be responsible for all maintenance associated with the Telecommunication Facilities, including all costs and expenses associated therewith. Except in connection with an outage or emergency, Licensee shall provide five (5) calendar days' written notice to the Municipal Operations Director or his/her designee at 949 West 16th Street, Newport Beach, CA 92663 prior to performing any maintenance on Telecommunication Facilities that are located on Streetlights. 2.3 City shall be responsible for all maintenance associated with the Streetlights, including but not limited to, the working Streetlights themselves, and the wires and equipment necessary to operate the Streetlights. In the interest of the safety of its employees, City shall have the right to temporarily turn off the power to any and all Telecommunications Facilities if any required maintenance for the Streetlights requires City employees to be within ten (10) feet of the transmitting antennas, provided however, City provides no less than twenty-four (24) hours' notice of same by calling the phone number identified in Section 35 (except in an emergency, in which case, no notice shall be required). City shall not be required to notify Licensee when maintenance does not interfere with operation of Licensee's Telecommunication Facilities. 3. USES 3.1 Licensee shall use the License Area for the sole purpose of constructing, installing, operating, and maintaining, securing and operating Telecommunication Facilities to transmit and receive radio communication signals on various frequencies as authorized by the FCC, all in compliance with the approved site plans and related drawings on file with the City Community Development Department, the conditions of approval contained in the permit issued by the Community Development Department in accordance with Chapter 20.49 and Chapter 21.49 of the Newport Beach Municipal Code, as may be amended from time to time, and any permit issued by the Public Works Department. The Telecommunication Facilities may not be expanded or modified except upon prior written approval by the City as well as issuance of any permits or approvals that may be required under federal, state and local laws and regulations. Notwithstanding the foregoing, but with prior written notice to the City describing and depicting the New Cingular Wireless PCS, LLC, Page 3 change(s), Licensee shall not be required to obtain a new building permit for modification of equipment for a Telecommunication Facility within a License Area, so long as such modification does not alter the appearance of the Approved Design, increase pole loading beyond the approved specifications, or involve placement of Telecommunication Facilities outside of the License Area and Approved Design. Construction, installation, operation, maintenance, repair, replacement, and removal of the Telecommunication Facilities shall be at Licensee's sole expense. Licensee shall keep the Telecommunication Facilities free from hazards or risk to the public health, safety or welfare. 3.2 Except as provided under this Master License, Licensee shall not make or permit to be made any alterations, additions or improvements to the Streetlights, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the Streetlights without the prior written consent of the City Manager or his/her designee and any necessary permits. Notwithstanding the foregoing, Licensee shall place warning signs on or about the Telecommunication Facilities in the manner required by federal, state or local law, which signs shall be shown as to type, size, and location on the permit set of plans. 4. PERMITS, APPROVALS AND PUBLIC NOTIFICATION 4.1 This Master License is expressly made contingent upon Licensee obtaining all applicable certificates, permits, entitlements, environmental review, studies, and other approvals that any federal, state, or local authority may require to enable Licensee to construct, install, operate, maintain, repair and remove the Telecommunication Facilities. Licensee shall bear the sole cost and expense related to the procurement of these approvals. Licensee shall obtain any required permits and approvals as set forth in the NBMC and City Council Policies, and Licensee agrees to comply with the City's ordinances and policies regarding such installations and removals, including public notification when required, as well as any future regulations that may be adopted by the City respecting such installations that are consistent with the City's rights under applicable law. 4.2 For an Amendment(s) to the Master License to be prepared and executed to include a new License Area(s), Licensee shall provide the City's Real Property Administrator with a copy of all required permits, licenses and approvals that are required to enable Licensee to install and operate the Telecommunication Facilities. Licensee shall submit all required items along with the processing fee, as outlined in Section 7.1, below. 5. AMENDMENT TO MASTER LICENSE 5.1 The City may approve, approve with conditions, or disapprove the installation of a Telecommunication Facility or a Replacement Streetlight, at its sole discretion to the extent consistent with applicable laws. 5.2 Upon receipt of the necessary approvals and permits, Licensee shall prepare a list of sites ("Site List") to identify the location of City -owned Streetlights to be licensed to Licensee as well as a description and depiction of the License Area(s) ("License Area Depiction") to be licensed under an Amendment(s) to this Master License. The Amendment(s) will grant Licensee an exclusive right to install Telecommunication New Cingular Wireless PCS, LLC, Page 4 Facilities on the License Area(s) as described and depicted in the Amendment(s) to this Master License from the date of execution of the Amendment until the expiration of this Master License. Should the Licensee determine a location on the Site List is no longer necessary, or wish to obtain a License Area for a location not on the Site List, Licensee shall be responsible for obtaining the necessary approvals and permits for any site where they wish to install Telecommunication Facilities, and execute an Amendment to the Master License adding the new Streetlight location(s) or removing the existing location(s). 5.3 Approval of the Site List and the License Area Depiction shall be at the sole and absolute discretion of the City Manager. City reserves the right to require Licensee to exchange locations on the Site List to allow for appropriate spacing throughout a neighborhood and the City. 5.4 The Parties shall execute an Amendment to this Master License updating the Site List and License Area Depiction once the installation of a Telecommunication Facility on a Streetlight is approved by City. The Amendment shall be effective and incorporated into this Master License once the Amendment is fully executed by the Parties. A sample form of the Amendment is attached hereto as Exhibit A. 5.5 The City Manager is authorized to execute Amendments on the City's behalf with the approval as to form by the City Attorney. 5.6 Licensee shall only install Telecommunication Facilities within the License Areas identified on the Site List, incorporated into this Master License by a fully executed Amendment to Master License. 6. TERM 6.1 The initial term of the license granted hereunder ("Initial Term") shall commence on the Effective Date and continue for a period of ten (10) years. After the Effective Date, this Master License shall not be revoked or terminated except as expressly provided in this Master License. 6.2 This Master License shall automatically be extended on the same terms and conditions as set forth in this Master License, for up to two (2) successive terms of five (5) years (each, a "Renewal Term"), unless at least thirty (30) calendar days prior to the expiration of the Initial Term or the applicable Renewal Term, either Party notifies the other Party in writing of their intention not to extend this Master License. Notwithstanding the above, this Master License shall not be automatically extended if Licensee has defaulted in the performance of any term or condition of the Master License and has failed to cure such default after notice as provided in this Master License. "Term" shall refer to the Initial Term and all Renewal Terms (if applicable), unless expressly stated elsewhere within this Master License. 7. RENT AND FEES 7.1 Processing Fee. For each Amendment, Licensee shall pay City a non- refundable document preparation fee in the amount of Two Hundred Sixty -Six Dollars and 00/100 ($266.00), as adjusted from time -to -time in accordance with the City's then current fee schedule. This amount shall be paid upon request to prepare an Amendment and prior to execution of the Amendment by the Parties. New Cingular Wireless PCS, LLC, Page 5 7.2 Rent. Licensee shall pay the City rent ("Rent") as follows: 7.2.1 For the period of time from the Effective Date until the end of the second calendar year, Licensee shall pay to City, commencing forty-five (45) calendar days after execution of any Amendment, the amounts listed in the most current published rents schedule approved by the City Manager and available on the City's website, for each Streetlight, per month, based upon the License Year at the time of Amendment to the Master License, and the number of License Areas. 7.2.2 After the time period set forth in Section 7.2.1, the Rent for each Streetlight, shall either be: (1) Twenty -Two Dollars and Fifty Cents ($22.50) per month (i.e. Two Hundred and Seventy Dollars ($270) per year); or (2) any higher amount allowed to be charged by the City pursuant to Federal Communications Commission's Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018 ("FCC 2018 Order"), or any FCC subsequent order or ruling related to small wireless facilities use of the Public Right -of Way. 7.2.3 In the event the FCC 2018 Order provisions related charges for small wireless facilities use of the Public Right -of -Way, are determined to be invalid, removed, stayed, or altered in a significant manner by the FCC or a court of competent jurisdiction ("Subsequent Significant Action"), either Party to this Agreement may request that the Parties meet and confer as to whether the Rent provisions in this Master License should be modified. If after good faith negotiation the Parties are unable to reach an agreement regarding the Rent to be paid hereunder, the Rent for each Streetlight, per month, shall revert to the most current published rents schedule approved by the City Manager and available on the City's website. 7.2.4 Rent shall be calculated per Streetlight, and includes all Telecommunications Facilities and appurtenant equipment and facilities. 7.2.5 During the period commencing two (2) calendar years after the Effective Date of this Master License, through the end of the Initial Term, the City shall not offer rental rates in an amount less than the Rent under this Master License, pursuant to the terms of this Section 7.2, to a licensee under the same type of master license agreement for the installation of small cell Telecommunication Facilities on City -owned Streetlights, unless, in any such case, Licensee is provided with the same rental rates for installation of new Telecommunication Facilities incorporated into this Master License by Amendment from and after the date such rental rates are agreed to by City, as evidenced by a fully executed agreement. The Parties expressly agree that this provision will not apply to agreements that have a non -monetary component, such as, but not limited to, the agreement between Los Angeles SMSA Limited Partnership (doing business as Verizon Wireless) and the City, which has an effective date of February 13, 2018, and is incorporated herein. 7.2.6 In exchange for City's agreement to the provisions outlined in Section 7.2, Licensee, in furtherance of its intent to improve wireless telecommunication signals in the City, hereby agrees to submit use and construction permit applications for installation of new Telecommunication New Cingular Wireless PCS, LLC, Page 6 Facilities on no fewer than twenty (20) Streetlights, pursuant to this Master License, within ninety (90) calendar days of the Effective Date of this Master License. Licensee further agrees to submit all documents and information necessary to enter into an Amendment for no fewer than twenty (20) Streetlights within ten (10) business days of obtaining said permits. Licensee shall execute and return said Amendment to City, approved as to form by the City Attorney, within ten (10) business days of receipt of the Amendment. 7.3 Time and Place of Payment. Commencing forty-five (45) calendar days following the execution of an Amendment to this Master License, and on the first (1St) day of each month during the Term, Licensee shall pay to City, Rent for each Streetlight. Rent for any partial month shall be prorated in accordance with the actual number of days in that month. All payments of Rent shall be made in lawful money of the United States of America and shall be paid to City in person or by United States mail, or overnight service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Licensee. If requested by City, Licensee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Licensee's cost). Licensee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. 7.4 Delinquent Payments. A ten percent (10%) penalty shall be added to the Rent if not received by City within five (5) calendar days after the due date. In addition, all unpaid Rent shall accrue interest on the amount due at the rate of ten percent (10%) interest per annum from the date due and payable by the terms of this Master License until paid in full. All late charges and interest payments hereunder, shall, as incurred, become Rent due under this Master License. 7.5 Adjustment of Rent Upon Modification of Use The City and Licensee intend this Master License and any Amendment to cover only "small cell" installations, as those terms are commonly understood to mean small, low-power, low -elevation, unobtrusive wireless facilities intended to cover relatively small geographic areas. Licensee expressly acknowledges and agrees that the permitted uses under this Master License does not include the right to use any Streetlight for any other purpose. Rental rates, as set out in Section 7.2, are based upon the scope of the project outlined. Changes to the Telecommunication Facility, Telecommunication Facilities, Telecommunications Services, the Streetlight, or License Area may increase the value of the Master License. To the degree that a change in the Telecommunication Facility(ies) requires amendment or modification to the permit beyond what is outlined in Section 1.7 and 3.1, City and Licensee understand and mutually agree that a corresponding increase in the market rate of the Telecommunications Facilities shall be commensurate with the additional License Area being used to reflect an adjustment to the Rent. Such an adjustment may be defined at the time at which Licensee seeks City's approval for modifications in the Telecommunications Facility, and shall be mutually agreed to by the Parties as a condition of the City's approval of such expanded service by the Licensee. New Cingular Wireless PCS, LLC, Page 7 8. REPLACEMENT OF STREETLIGHTS 8.1 If the Telecommunication Facilities require replacement of a City -owned Streetlight, Licensee shall be responsible for all costs to remove the existing Streetlight and design, procure, and install a Replacement Streetlight. The Replacement Streetlight shall be subject to the review and approval of City. Upon completion of the installation of the Replacement Streetlight and acceptance by City Manager, or his/her designee, the Replacement Streetlight shall become the City's property, in its then existing "as -is" condition, with no payment owed to Licensee. Licensee shall execute any documents required by City to cause the Replacement Streetlight to transfer ownership to City, including transfer of manufacturer's warranty, or provide copy of manufacturer's warranty to City and assist City in processing a claim against such manufacturer's warranty. Alternatively, Licensee may self -warranty the Replacement Streetlight to the City, in a scope and value equal to or greater than that provided by the manufacturer to the Licensee. 8.2 Upon approval of the installation of a Replacement Streetlight, Licensee shall have one hundred eighty (180) calendar days to install the Replacement Streetlight. The existing Streetlight shall remain in operating condition until such time the Replacement Streetlight is installed. Licensee shall have seventy-two (72) hours to complete the installation of the Replacement Streetlight once the existing Streetlight is removed. 8.3 In the event Licensee removes a Streetlight or Temporary Streetlight, Licensee shall use its best efforts to remove the Streetlight or Temporary Streetlight in a manner whereby the Streetlight or Temporary Streetlight can be reused. Licensee shall contact the Municipal Operations Director or his/her designee at (949) 644-3011 at least five (5) working days prior to removal for instructions on where to deliver the Streetlight upon removal. 8.4 In the event a Streetlight has been removed and a Replacement Streetlight for that Streetlight has not been accepted by City prior to removal of the License Area from the Site List, Licensee shall be responsible for all costs and expenses associated with making such adjustments to the Replacement Streetlight so that it is consistent with City standards. Such Streetlight shall be subject to the review and approval process set forth in Section 8.1. 9. INTERFERENCE WITH CITY TELECOMMUNICATION FACILITIES 9.1 Licensee agrees that its operation of the Telecommunication Facilities shall at all times comply with all FCC requirements and shall not cause any direct or indirect interference with the operation of the Streetlights as streetlights or City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist ("City's Facilities"). 9.2 In the event of any interference with City Police or Fire Department public safety communications, Licensee shall work with the affected department(s) to correct the interference within twenty-four (24) hours of City's written or telephone notice to New Cingular Wireless PCS, LLC, Page 8 Licensee. In the event of interference with City's Streetlight or own wireless communications system or external radio signals and communications other than Police or Fire Department, Licensee shall work with City to correct the interference within seventy-two (72) hours of City's written or telephone notice to Licensee. If it is determined the interference is caused by the Telecommunication Facilities and if Licensee is unable to correct interference to City's satisfaction, Licensee shall cease its operation of the interfering Telecommunication Facilities immediately, until the cause of the interference is corrected to City's satisfaction. If Licensee fails to correct any interference, City may, in addition to and without compromising any other available remedy, cut off power to the Telecommunication Facilities in the manner set forth in this License. 9.3 Should Licensee make any changes to the frequency or operating conditions approved by any permit issued by the City, which interferes with City's Facilities, then Licensee shall submit plans for the changes to City for its review and approval. Licensee agrees to fund any studies required to ensure that any contemplated changes to the frequency or operating conditions will be compatible with the City's Facilities. No further changes to the interfering frequency or Telecommunications Facility shall be made, pursuant to this Section 9.3, prior to the City's written approval. 10. EMERGENCY 10.1 Licensee understands that the Telecommunication Facilities are located on a public structure or on public property and emergency situations may develop from time - to -time that require power to the Telecommunication Facilities to be immediately shut off and thereby interfere or temporarily terminate the Licensee's use of its Telecommunication Facilities on the Streetlights and License Area. Notwithstanding any other provision in this Master License, Licensee agrees that if such a situation occurs, and/or there are frequency interferences of any nature between City's Police or Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Licensee in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Telecommunication Facilities and any equipment of Licensee's located on the Streetlights or License Area for the duration of the emergency. However, City agrees to use reasonable efforts to provide notice to Licensee prior to shutting -off power to the Telecommunications Facilities. Licensee agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Telecommunication Facilities or other communication facilities by the shutoff of power, as permitted hereunder. 10.2 Licensee agrees to install a clearly marked and accessible master power "cut-off" switch on the Telecommunication Facilities for the purpose of assisting City in such an emergency. 10.3 Unless otherwise specifically provided in a notice of termination of this Master License, City's exercise of the right to shut off any power to the Telecommunication Facilities pursuant to this Master License is not intended to constitute a termination of this Master License by either Party and such event is a risk accepted by the Licensee. Licensee and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. New Cingular Wireless PCS, LLC, Page 9 10.4 City shall have the right to determine what constitutes an "emergency situation" pursuant to this Section. 11. ACCEPTANCE OF CONDITION OF LICENSE AREA Licensee accepts use of the Streetlights and License Area in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the Streetlights and License Area, including their suitability for the use intended by Licensee. To the best of City's knowledge, the Streetlights and the License Area have not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in this Master License. The Licensee has conducted its own appropriate due diligence investigation of the Streetlights and License Area prior to its execution of this Master License or any Amendment hereto, or will do so prior to its installation of Telecommunications Facilities within the License Area(s). 12. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the Streetlights, License Area, or any Public Right -of -Way, other than a real property license to use and access the Streetlights and License Area, revocable and for a term as set forth in this Master License. 13. RESERVATION OF RIGHTS Licensee understands, acknowledges and agrees that any and all authorizations granted to Licensee under this Master License are non-exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 14. UTILITIES Licensee shall not do anything, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the Streetlights, or utility, heating, air conditioning or ventilation systems located in the License Area, except as may be specifically permitted by any permit issued by the City. The Telecommunication Facilities shall be separately metered. In addition to the Rent, Licensee shall be responsible for the cost of all utility services necessary for the operation of the Telecommunication Facilities, and if required by City, shall have such utilities installed underground and/or connected if already installed, and maintained at Licensee's sole cost and expense (along with all ongoing use charges). Subject to City's approval, Licensee shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. Alternatively, Licensee may tap into City's power source within each License Area. Licensee shall pay to City a monthly fee as outlined in the Rate Sheet for Telecommunications Facilities, approved by the City Manager and available on the City's website, for estimated utility costs based on Licensee's equipment and consumption history, to pay for the use of the City's Utility services ("Utility Use Fee"). City, upon not less than thirty (30) days' notice to Licensee, may increase or decrease the Utility Use Fee commensurate with costs incurred by City for Licensee's use of City New Cingular Wireless PCS, LLC, Page 10 provided utilities. City's costs incurred for Licensee's use of City provided utilities shall be determined in City's sole and absolute discretion, and Licensee agrees not to dispute the accuracy of any fee charged hereunder, either during the Term of the Agreement or at any time thereafter, on the basis that it exceeds the cost(s) actually incurred by City for Licensee's use of City provided utilities. 15. INSPECTION 15.1 City shall be entitled, at any time, to inspect the Streetlights and Telecommunication Facilities for compliance with the terms of this Master License, and with all applicable federal, state and local (including those of the City) government regulations, provided any changes to such regulations shall not apply retroactively unless required by applicable laws 15.2 The Telecommunication Facilities shall be structurally and aesthetically compatible with the NBMC and in accordance with this Master License. If Telecommunication Facilities are not compliant with this foregoing requirement, Licensee, at Licensee's sole cost and expense, shall remove any such non-compliant Telecommunication Facilities or make Telecommunication Facilities compliant upon the request of the City. Licensee shall remove non-compliant Telecommunication Facilities or make Telecommunication Facilities compliant within the timeframes required by the City in writing. In the event Licensee fails to complete the foregoing within the timeframes required by the City, the City may terminate Licensee's use of the affected Streetlight in accordance with Section 23.3. Any termination is subject to the Licensee complying with the surrender obligations in this Master License. 16. CITY RETENTION RIGHTS Licensee's right to use the Streetlights and License Area during the term of this Master License shall be subordinate and junior to the rights of City to use and occupy the Streetlights and License Area for any purpose that does not interfere with Licensee's use of the Streetlights and License Area as provided herein. 17. LICENSEE'S RETENTION OF TITLE Title to the Telecommunication Facilities placed on the Streetlights and License Area by Licensee shall be held by Licensee or its equipment lessors, successors, or assigns. The Telecommunication Facilities shall not be considered fixtures. Licensee has the right to remove any or all of the Telecommunications Facilities at its sole expense from time -to -time during the term of the Master License. Licensee shall remove all of the Telecommunications Facilities, at its sole cost and expense, within ninety (90) calendar days of expiration or termination of this Master License. 18. SURRENDER Within ninety (90) calendar days of expiration or termination of this Master License, or relocation or termination of a specific Streetlight or License Area, Licensee at its sole cost and expense, shall remove the Telecommunication Facilities, restore the Streetlights and License Area to a condition satisfactory to and approved in writing by City, and vacate the Streetlights and License Area. Should Licensee fail to restore the Streetlights and License Area to a condition satisfactory to City, City may perform such work or have such ..... New Cingular Wireless PCS, LLC, Page 11 work performed by others and Licensee shall reimburse City within thirty (30) calendar days for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Any Telecommunication Facility that is not removed by Licensee within the time frames set forth in this Section may be declared by the City to have become its sole and exclusive property, after which the City may utilize or dispose of the Telecommunication Facility as it sees fit. Licensee shall continue to pay the Rent until the Telecommunications Facilities have been removed, and the Streetlights and License Area are restored as required by this Master License. Licensee shall be liable for and pay any Rent owed until such time as the Telecommunications Facilities have been removed from the License Area. 19. ASSIGNMENT 19.1 All of the terms and provisions of this Master License shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Master License and the rights and obligations of Licensee shall not be assigned, transferred, or hypothecated (collectively, "transferred"), in whole or in part, without the express written consent of the City Manager or his/her designee. Any attempted transfer in violation of this Section shall be null and void. Except as provided below, the transfer of the rights and obligations of Licensee to any successor in interest or entity acquiring fifty-one percent (51 %) or more of Licensee's stock or assets, shall be deemed an assignment requiring consent. Licensee shall provide City at least thirty (30) calendar days advance written notice of any proposed transfer. 19.2 If Licensee desires at any time to effect a transfer, it shall first deliver to City: (a) a written request for approval; (b) the name, address and most recent financial statements of the proposed transferee; (c) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Master License arising from and after the effective date of assignment, and (d) any other reasonable information requested by the City Manager to assist him/her in making their decision. 19.3 Notwithstanding Section 19.1 above, Licensee may, without prior approval from time -to -time, do any of the following: 19.3.1 Grant to any person or entity a security interest in some or all of Licensee's Telecommunication Facilities which lien shall be subordinate and junior to this Master License. A security interest shall not include the Streetlights or other City property, and does not imply approval of any other use of the Telecommunication Facilities or License Area; and 19.3.2 Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30%) or greater interest in Licensee (a "Parent") or in which Licensee or a Parent has a thirty percent (30%) or greater interest (an "Affiliate"); (ii) to any entity with which Licensee and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of Licensee or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Telecommunication Facilities is operated, upon FCC and, if applicable, California Public Utilities Commission approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until Licensee New Cingular Wireless PCS, LLC, Page 12 cures any defaults under this Master License and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of Licensee's post, current and future obligations under the Master License. 19.4 No assignment by the Licensee shall release Licensee from continuing liability under this Master License with the exception of a buyout of the Licensee by another entity that formally assumes all past, current and future obligations of the Licensee under this Master License. 19.5 Telecommunication Facilities shall be mounted by Licensee and shall not be otherwise assigned, transferred, contracted, or subcontracted out without the prior written approval of City. 20. TAXES Licensee shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable directly or indirectly to the Telecommunication Facilities authorized herein. City hereby gives notice to Licensee, pursuant to California Revenue and Tax Code Section 107.6 that this Master License may create a possessory interest, which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Licensee. 21. RELOCATION Licensee agrees that whenever any City improvements may be required (for example, the widening of a street or replacement of a bridge or City utility), the City may require the removal or relocation of any such Telecommunication Facility at the Licensee's expense, without Licensee making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Telecommunication Facilities, City shall provide Licensee with not less than ninety (90) calendar days written notice of removal or relocation specifying a date by which the relocation is to take place. When a removal or relocation is required by the City, the City shall take reasonable steps to provide a suitable alternative for Licensee to relocate its affected Telecommunication Facility. If, however, a suitable alternative location is not available, City or Licensee, at their sole discretion, may terminate use of the Streetlight and require removal of the Telecommunication Facilities. Any relocation or removal of a Streetlight from Site List shall require a new Amendment to be executed by the Parties. If Licensee fails to remove the Telecommunication Facilities to a condition satisfactory to City within the ninety (90) calendar day period, City may perform such work or have such work performed by others and Licensee shall reimburse City within thirty (30) calendar days for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. 22. DAMAGE AND DESTRUCTION OF STREETLIGHT 22.1 In the event of (a) partial or total destruction of a Streetlight during the term of this Master License which requires repairs to the Streetlight, or (b) the Streetlight being declared unsafe by any authorized public authority for any reason other than Licensee's act, use or occupation, which declaration requires repairs to the Streetlight, City shall use reasonable efforts to make said repairs or remove the Streetlight within one hundred New Cingular Wireless PCS, LLC, Page 13 eighty (180) calendar days of the date of destruction or the date the declaration was served on City. If the City determines it is necessary for the Telecommunication Facility to be removed in order to make said repair to or remove the Streetlight, Licensee shall do so within forty-eight (48) hours of written notice from the City. Licensee shall have the right to either (a) use reasonable efforts to repair or replace the Streetlight that needs repair or replacement, or (b) remove the Telecommunications Facility from the Streetlight and from the Site List by Amendment to the Master License by providing written notice to the City within sixty (60) calendar days following the date of such destruction or the date the declaration was served on Licensee. Licensee shall be responsible for installing a Replacement Streetlight within ninety (90) calendar days of notice from the City. The City has the option to install a Temporary Streetlight, until a Replacement Streetlight is installed. Licensee shall be responsible for removing the Temporary Streetlight and installing the Replacement Streetlight as set forth in Section 8. 22.2 If Licensee elects not to terminate their use of the Streetlight pursuant to this Section, the Rent shall remain in full force and effect. If Licensee elects to terminate their use of the Streetlight pursuant to this Section, Rent shall remain in full force and effect until the date of removal of a Telecommunication Facility from a Streetlight and execution of an Amendment by the Parties to remove the Telecommunication Facility from the Site List. 22.3 Any termination is subject to the Licensee complying with the surrender obligations in this Master License. 23. DEFAULT 23.1 Default by Licensee. The occurrence of any one or more of the following events shall constitute a default and material breach of this Master License by Licensee: 23.1.1 Failure of Licensee to pay Rent due hereunder within ten (10) calendar days after written notice from City; 23.1.2 Any failure by Licensee to perform any of the other terms, conditions or covenants of this Master License to be observed or performed by Licensee after thirty (30) calendar days written notice from City; 23.1.3 Licensee becoming insolvent or filing any debtor proceedings, or should any adjudications in bankruptcy be rendered against Licensee, or should Licensee take or have taken against it, in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Licensee's property, and should the same not be discharged within one hundred twenty (120) calendar days thereafter; 23.1.4 Licensee permitting the License Area to become vacant or unoccupied for thirty (30) consecutive calendar days after written notice to Licensee (except for vacancies caused by any force majeure or by remodeling, reconstruction, alteration or repairs permitted under this Master License); or 23.1.5 The appointment of a trustee or receiver to take possession of substantially all of the assets of Licensee located at the License Area or Licensee's New Cingular Wireless PCS, LLC, Page 14 interest in this Master License or the License Area, where possession is not restored within thirty (30) calendar days. 23.2 Cure Period. Except for the payment of Rent and unless explicitly stated elsewhere in this Agreement, if the nature of Licensee's default or breach under this Master License is such that more than thirty (30) calendar days are reasonably required for its cure, then Licensee shall not be deemed to be in default or breach if Licensee commences such cure within such thirty (30) calendar day period and diligently proceeds with such cure to completion. 23.3 Remedies. In the event of a default or breach by Licensee and Licensee's failure to cure such default or breach, City may at any time and with or without notice, except as expressly required below, do any or more of the following: 23.3.1 If Licensee is in default of: (i) its obligation to pay Rent for twenty percent (20%), or more, Streetlights of the total number of Streetlights set forth on the most recent Site List, (ii) its maintenance obligations, as set forth in this Master License, or other conditions set forth in an applicable permit, and the default relates in any way to twenty percent (20%), or more, of the Streetlights set forth on the most recent Site List, or (iii) Licensee's other monetary obligations, set forth herein, in an amount of One Hundred Thousand Dollars ($100,000), or more, the City may exercise the remedies set forth in Subsection 23.3.4. 23.3.2 If Licensee is in default of: (i) its obligation to pay Rent for less than twenty percent (20%) of the Streetlights set forth on the most recent Site List, (ii) its maintenance obligations, set forth in this Master License, or other conditions set forth in an applicable permit, and the default relates in any way to less than twenty percent (20%) of the Streetlights set forth on the most recent Site List, or (iii) Licensee's other monetary obligations, set forth herein, in amount less than One Hundred Thousand Dollars, ($100,000), the City may exercise any remedy set forth in Subsection 23.3.4, except the City hall not have the right to terminate the Master License under Subsection 23.3.4.2. 23.3.3 If Licensee is in default of any maintenance obligations, set forth in this Master License, or other conditions set forth in an applicable permit, and if the default does not cause a risk of harm to the public, as determined by the City in its sole discretion, prior to exercising the remedies authorized under this Subsections 23.3.1, or 23.3.2, , the City shall send Licensee a notice stating that the City intends to exercise its rights pursuant to Subsection 23.3.4, if Licensee does not comply with the applicable maintenance obligation or permit condition and cure the default within one hundred and twenty (120) calendar days. 23.3.4 As provided herein and for all other breaches and defaults, the City may do any of the following: 23.3.4.1 Re-enter the portion of the License Area giving rise to the default, remove all persons and property, and repossess and enjoy such License Area. 23.3.4.2 Terminate the entire Master License and Licensee's right of possession of the License Area. Such termination shall be effective upon New Cingular Wireless PCS, LLC, Page 15 City's giving written notice and upon receipt of such notice, Licensee shall immediately surrender possession of the License Area to City. 23.3.4.3 Terminate Licensee's right of possession of the portion of the License Area giving rise to the default, by entering into an Amendment to modify the Site List and remove the Streetlight(s) in default. Licensee agrees to execute said Amendment at the request of the City within ten (10) calendar days. 23.3.4.4 Exercise any other right or remedy, which City may have at law or equity. 23.4 City's Right to Cure Licensee's Default. Upon continuance of any material default beyond applicable notice and cure periods, City may, but is not obligated to, cure the default at Licensee's cost. If City pays any money or performs any act required of, but not paid or performed by, Licensee after notice, the payment and/or the reasonable cost of performance shall be due as additional Rent not later than thirty (30) days after service of a written demand accompanied by supporting documentation. No such payment or act shall constitute a waiver of default or of any remedy for default or render City liable for any loss or damage resulting from performance. 23.5 Waiver of Rights. Licensee waives any right of redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 or 1179, or under any other present or future law, in the event Licensee is evicted or City takes possession of the License Area by reason of any default by Licensee. 24. TERMINATION 24.1 This Master License is not a lease; it is a license to use City -owned property. As such, the Parties hereby acknowledge and agree that City, as the licensor, may revoke this Master License at will and at any time during the Term, for any reason, with or without cause, by giving thirty (30) calendar days' written notice to the Licensee. However, City agrees that City will not exercise its right to revoke this Master License at will unless City determines, in its sole discretion, that Licensee is in default of this Master License, the events of default being set forth in Section 23. The decision of whether to revoke the Master License when the basis of the revocation is an event of default as set forth in Section 23 shall be in the City's sole and absolute discretion. 24.2 In the event of City's material breach of any material obligation contained in this Master License and City's failure to cure such material breach within thirty (30) calendar days of receiving Licensee's written notice thereof, Licensee may terminate this Master License or license to use a specific License Area upon thirty (30) calendar days' prior written notice to City. Notwithstanding the above, if the nature of City's material breach under this Master License is such that more than thirty (30) calendar days are reasonably required for its cure, then City shall not be deemed to be in material breach if City commences such cure within such thirty (30) calendar day period and diligently proceeds with such cure to completion. Notwithstanding the foregoing, during a Renewal Term and upon one hundred eighty (180) days' written notice to City, Licensee may terminate this Master License or license to use a specific License Area for any reason; provided, however, if Licensee terminates this Master License or license to use a specific New Cingular Wireless PCS, LLC, Page 16 License Area under this subsection for any reason other than City's uncured material breach, Licensee shall pay to the City, concurrently with the delivery of its written termination notice, a termination fee equal to twelve (12) months' Rent in effect as of the date of such termination for the specific License Area(s) affected thereby. 24.3 Termination of use of a specific Streetlight or License Area must be effected by amending the Master License and removing the location from the Site List and/or License Area Depiction. Upon Licensee's termination of this Master License or removal of any Streetlight and/or License Area from the Site List or License Area Depiction during the Term or any exercised Renewal Term, pursuant to the terms of Section 24.2 above, Licensee shall pay to the City that pro -rated portion of Rent and/or fees specified in this Master License that is unpaid prior to the effective date of termination. Licensee shall be liable for and pay any Rent owed for the Streetlight until such time as the Telecommunications Facilities have been removed from the License Area and the Master License has been amended to remove the location, whichever is later. 24.4 Any termination is subject to the Licensee complying with the surrender obligations of this Master License. 25. CONSTRUCTION 25.1 Licensee agrees to take all prudent action to protect the Telecommunication Facilities and City facilities from any damage or injury caused by any work performed by or on behalf of Licensee regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of its Telecommunication Facilities or the failure, deterioration or collapse of such Telecommunication Facilities. 25.2 Licensee shall, at its sole cost and expense, continually maintain in a first- class manner, and repair any damage to the Streetlights and License Area to the extent such damage is caused by Licensee or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Licensee shall immediately notify the City's emergency contact listed in Section 35 of this Master License and the appropriate public safety agency (e.g., police and fire department) of any damage or injury caused by work authorized pursuant to this Master License. 25.3 In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages, if applicable, in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the work under this Master License. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. If applicable, all parties to the Master License shall be governed by all provisions of the California Labor Code — including, but not limited to, the requirement to pay prevailing wage rates (Sections 1770-7981 inclusive). If applicable, a copy of the prevailing wage rates shall be posted by the Licensee at the job site. 25.4 Without limitation of any other remedy available hereunder or at law or in equity, if Licensee fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Licensee shall New Cingular Wireless PCS, LLC, Page 17 reimburse City of all costs and expenses incurred in such repair or refinishing within thirty (30) calendar days of receipt of invoice from City. 25.5 Prior to the installation of a Telecommunication Facility, Licensee shall submit to the City and, throughout the Term plus ninety (90) calendar days thereafter, maintain in effect, a Faithful Performance Bond, in the form attached hereto as Exhibit "C," letter of credit or other security ("Security"), in the principal amount of ten thousand dollars ($10,000) per License Area to ensure and secure faithful compliance with the conditions of this Master License. Alternatively, upon execution of this Master License, and prior to the entering into any Amendment itemizing Streetlights on a Site List, or installation of any Telecommunication Facility, the Licensee may submit and maintain one Faithful Performance Bond, in the form attached hereto as Exhibit "C," letter of credit or other security, in the principal amount of One Million Dollars ($1,000,000), to ensure and secure faithful compliance with the conditions of this Master License. The Security shall be in a form acceptable to the City's Real Property Administrator, and shall remain in effect throughout the Term of this Master License plus ninety (90) calendar days thereafter. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Master License, including but not limited to costs of repairs and cost of removal of the Telecommunication Facilities upon expiration or termination of this Master License should Licensee fail to do so as required by this Master License. The Security shall in no way limit the liability or obligations of Licensee or its insurers under this Master License. If the funds represented by the Security become exhausted, Licensee shall immediately provide the City with a new security in the amount necessary to provide full -required Security. 25.6 Upon the installation of each Telecommunication Facility, Licensee shall promptly furnish to City a current list and map that identifies the exact location of each of the Telecommunication Facilities. This information shall be provided in a format that is compatible with City's geographic information system. 26. FACILITY MAINTENANCE At its sole cost and expense, Licensee shall take good care of the Telecommunication Facilities and keep the Telecommunication Facilities neat, clean, in good condition and free from graffiti, dirt and rubbish at all times. City may perform maintenance in the event Licensee fails to commence required maintenance within the time provided by City in the notice requesting such maintenance. The cost of any maintenance by the City pursuant to this Section shall be payable as additional Rent. 27. MULTIPLE COMPANIES The Parties recognize that this Master License contemplates installation and use by multiple entities or companies, other than City, seeking to place Telecommunication Facilities in or about the Streetlights or License Area. Licensee shall use its best efforts to coordinate its activities with those other entities to reduce the costs of all such parties and to avoid interference with each such party's realizations of benefits of this and similar licenses, but in no way shall Licensee sublease or authorize use of the Streetlight or License Area by another entity/carrier without the City's express written consent. If City deems reasonably necessary, City shall coordinate any such cooperative efforts. City will not enter into a subsequent Master License with another entity to place New Cingular Wireless PCS, LLC, Page 18 Telecommunication Facilities on the Streetlight or in proximity to the Streetlight if Licensee has shown to City's satisfaction, after compliance with this Section, that additional Telecommunication Facilities are technically incompatible with the operation of the Telecommunication Facilities under this Master License. 28. INDEMNIFICATION To the fullest extent permitted by law, Licensee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim;" collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Master License, any latent or patent defects in design and construction of Streetlights, Telecommunication Facilities, or work thereon conducted under this Master License including, without limitation, defects in workmanship or materials or Licensee's presence or performance of duties on the License Area and/or Streetlights (including the negligent and/or willful acts, errors and/or omissions of Licensee, its principals, officers, agents, employees, vendors, suppliers, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Master License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Licensee. 29. INSURANCE Without limiting Licensee's indemnification of City, and prior to commencement of work under this Master License or any Amendment to the Master License, Licensee shall obtain, provide and maintain at its own expense during the term of this Master License, policies of insurance of the type and amounts described in Exhibit "D," for each Streetlight and/or License Area. 30. HAZARDOUS SUBSTANCES 30.1 From the date of execution of this Master License throughout the Term, Licensee shall not use, store, manufacture or maintain on the Streetlights and License Area any Hazardous Substances except: (i) in such quantities and types found customary in construction, repair, maintenance and operations of Telecommunication Facilities approved by this Master License, or (ii) natural gas, petroleum and petroleum products contained within regularly operated motor vehicles. Licensee shall handle, store and dispose of all Hazardous Substances it brings onto the Streetlights and License Area in accordance with applicable laws. New Cingular Wireless PCS, LLC, Page 19 30.2 For purposes of this Master License, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 etseq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to - time may be amended, (the above-cited statutes are here collectively referred to as "the Hazardous Substances Laws") or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 30.3 Notwithstanding any contrary provision of this Master License, and in addition to the indemnification duties of Licensee set forth in Section 28, Licensee agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the License Area provided under this Master License, arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area by Licensee or its agents, employees, or contractors. This Section 30 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. 30.4 City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the License Area in violation of any law or regulation. City and Licensee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or Master License contained in this Section 30. This Section 30 shall survive the termination of this Master License. Upon expiration or New Cingular Wireless PCS, LLC, Page 20 earlier termination of this Master License, Licensee shall surrender and vacate the Streetlights and License Area and deliver possession thereof to City, in accordance with the terms of this Agreement, free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Licensee. 31. COMPLIANCE WITH LAWS Licensee, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all radio frequency safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Licensee shall not occupy or use the Streetlight and License Area or permit any portion of the Streetlight and License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 32. NOT SUBJECT TO CEQA This Master License is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. Further, this Master License is exempt from the provisions of CEQA under Class 3, section 15303. Class 3 exempts the construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. 33. NOT AGENT OF CITY Neither anything in this Master License nor any acts of Licensee shall authorize Licensee or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 34. NO THIRD PARTY BENEFICIARIES City and Licensee do not intend, by a provision of this Master License, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Master License, to the other Party. 35. NOTICES AND EMERGENCY NUMBERS All notices and other communications required or permitted to be given under this Master License, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the Party intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: New Cingular Wireless PCS, LLC, Page 21 To City: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 With a copy to: Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 City's emergency contact.- City ontact:City of Newport Beach Municipal Operations Department Phone: 949-644-3011 To Licensee: New Cingular Wireless PCS, LLC Attn: Tower Asset Group — Lease Administration Re: Wireless Installation on Public Structures (City of Newport Beach) (CA) 575 Morosgo Drive NE Atlanta, GA 30324 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept — Network Operations Re: Wireless Installation on Public Structures (City of Newport Beach) (CA) 208 S. Akard Street Dallas, TX 75202-4206 Licensee's emergency contact: Email: nocnoc@att.com Phone: 1-800-638-2822, Option 9, 1 36. CITY BUSINESS LICENSE Licensee shall obtain and maintain during the duration of this Master License, a City business license as required by the NBMC. 37. TIME IS OF THE ESSENCE Time is of the essence for this Master License. 38. STANDARD PROVISIONS 38.1 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Master License, or of any ordinance, law or regulation, shall New Cingular Wireless PCS, LLC, Page 22 not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any Rent, performance, or other consideration which may become due or owing under this Master License, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Master License or any applicable law, ordinance or regulation. 38.2 Integrated Contract. This Master License represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto related to the subject matter herein, and all preliminary negotiations and licenses of whatsoever kind or nature are merged herein. No verbal license or implied covenant shall be held to vary the provisions herein. 38.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Master License and the exhibits attached hereto, the terms of this Master License shall govern. 38.4 Interpretation. The terms of this Master License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the Master License or any other rule of construction which might otherwise apply. 38.5 Amendments. This Master License may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 38.6 Severability. If any term or portion of this Master License is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Master License shall continue in full force and effect. 38.7 Controlling Law and Venue. The laws of the State of California shall govern this Master License and all matters relating to it and any action brought relating to this Master License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 38.8 Exhibits. All exhibits referenced and attached to this Master License are incorporated by reference. 38.9 Equal Opportunity Employment. Licensee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 38.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Master License, the prevailing Party shall not be entitled to attorney's fees. 38.11 Claims and Damages. 38.11.1 Waiver of Claims. Licensee waives any and all claims, demands, causes of action, and rights it may assert against the City on account of New Cingular Wireless PCS, LLC, Page 23 any loss, damage, liability or injury to any Telecommunication Facilities or any loss or degradation of the Telecommunication Services as a result of any event or occurrence which is beyond the reasonable control of the City. Licensee also waives any claims, demands, causes of action and rights related in any way to the calculation of Rent. 38.11.2 Limitation of Damages. Neither Party shall be liable to the other, or any of their respective agents, representatives, or employees for any loss of revenue, loss of profits, loss of business opportunity, loss of goodwill, loss of use, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. The parties expressly agree that nothing in Subsection 38.11.2 limits Licensee's liability for any express monetary obligations set forth herein, including, but not limited to, Licensee's obligation to pay Rent, fees, penalties, delinquent charges, costs incurred by City, taxes and interest. 38.11.3 Notice Requirement. No lawsuit shall be filed against the City for any alleged breach of this Master License unless Licensee has first provided the City with ninety (90) calendar days' notice of the alleged breach and provided the City with an opportunity to cure the alleged breach. If the alleged breach under this Master License is such that more than ninety (90) calendar days are reasonably required for its cure, then City shall not be deemed to be in breach if City commences such cure within such ninety (90) calendar day period and diligently proceeds with such cure to completion. 38.12 Counterparts. This Master License may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 38.13 Powers to Enter Into Master License. The individuals executing this Master License represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Master License on behalf of the respective legal entities of the Licensee and the City. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC, Page 24 IN WITNESS WHEREOF, the Parties hereto have caused this Master License to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: - Aaron C. Harp City Attorney ATTEST: Date: 3, 11. M c Leilani I. Brown e City Clerk _,00m•.., CITY OF NEWPORT BEACH, a California municipal corporation Date: By: A--- (�'rK. Leung Manager LICENSEE: NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: --�� - mes Stickney Director Construction & Engineering Date:/ [END OF SIGNATURES] Attachments: Exhibit A: Form of Amendment to Master License with Site List Exhibit B: Approved Telecommunications Facility Design Exhibit C: Faithful Performance Bond Exhibit D: Insurance Requirements New Cingular Wireless PCS, LLC, Page 25 Exhibit "A" FORM OF AMENDMENT TO MASTER LICENSE WITH SITE LIST New Cingular Wireless PCS, LLC, Page A-1 AMENDMENT NO. TO MASTER LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND FOR THE USE OF CITY -OWNED STREETLIGHTS FOR TELECOMMUNICATIONS FACILITIES THIS AMENDMENT NO. TO MASTER LICENSE AGREEMENT ("Amendment No. ") is made and entered into as of this day of 20_ ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and , a ("Licensee"), and is made with reference to the following: RECITALS A. On , 20_, City and Licensee entered into a Master License Agreement ("Master License") allowing Licensee to attach, install, operate, maintain, and remove Telecommunication Facilities as permits are obtained from the City. B. The parties desire to enter into this Amendment No. , pursuant to Section 5 of the Master License, to itemize specific Streetlight locations on the Site List, attached hereto as Exhibit 1, to be licensed to Licensee on a nonexclusive basis under the terms and conditions of the Master License. C. The parties further desire to enter into this Amendment No. _, pursuant to Section 5 of the Master License, to identify the specific License Area(s) in the License Area Description and Depiction, attached hereto as Exhibit 2, to be exclusively licensed to Licensee for installation of its Telecommunication Facilities under the terms and conditions of the Master License. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. EXCLUSIVE SITE LIST This Amendment, the Site List attached hereto as Exhibit 1 and the License Area Description and Depiction attached hereto as Exhibit 2, as outlined in Section 5 of the Master License, shall be effective and incorporated into the Master License once fully executed by the parties. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] New Cingular Wireless PCS, LLC, Page A-2 IN WITNESS WHEREOF, the parties have caused this Amendment No. _ to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: City Attorney ATTEST: Date: By: City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: City Manager LICENSEE: a Date: By: Date: By: [END OF SIGNATURES] Attachments: Exhibit 1 — Site List Exhibit 2 — License Area Description & Depiction New Cingular Wireless PCS, LLC, Page A-3 Exhibit 1 SITE LIST New Cingular Wireless PCS, LLC, Page A-4 Exhibit 2 LICENSE AREA DESCRIPTION & DEPICTION New Cingular Wireless PCS, LLC, Page A-5 Exhibit "B" APPROVED TELECOMMUNICATION FACILITY DESIGN New Cingular Wireless PCS, LLC, Page B-1 k� G 0 T ri n W of M. t,l k A 1.J / v y 4r1. Ill ,Y7 m Z 00 D n. 0 u F 1 o n 1 G 0 T ri M. k 1.J / m Z D n. u F 1 «rLiA n 1 E -v �brjR 'O O rn 9rn^k G 0 T ri 0 m k 1.J / m Z D I E -v O CD 0 rD 1 3 rD rt' l 1 SO rDO D v I rt u• r+ -• O 0 . 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'o a n i ,p j 8 as a aa3 E o 3 O rDi /3 1 V r -f O r-+ SO 0 - Ln Ln r+ rt No 3 n 0 s ` O rDi /3 1 V r -f O r-+ SO 0 - Ln Ln r+ rt No 3 n 0 0 0 CL n 0 0 0- rD 0 v I I D 90 0 70 (' v Z3 0- 0 3 -, Q r� cu N N (40 0 fm z r m (A O fD CD 0 E (7 lU 3 CD O -h n r -F O fD Q r+ CD CD r -r I 0 70 rD' v a� 0 D CL v j-. 9 0 m cn G) z L) D r m cn I O CD fD n CD 3 fD O h n O fD n W 0 (D fl.J Q(U 0 m t_n G) z V) D r m c.n -v O rD CD 0 i rD 3 rDO +1 l 1 SO C rD 0- rD CD f+ 0 V m G )) z V) m V) 3 0 Exhibit "C" FAITHFUL PERFORMANCE BOND New Cingular Wireless PCS, LLC, Page C-1 CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ WHEREAS, the City of Newport Beach, State of California, has entered into a Master License Agreement with hereinafter designated as the "Principal," a license to install the Telecommunication Facility described and depicted in Attachment 1 at the designated Streetlight and area as further described and depicted in Attachment 2 (the "License Area"), in the City of Newport Beach, in strict conformity with the Master License and any Amendment thereto on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Master License Agreement or any Amendment thereto and the terms thereof require the furnishing of a Bond for the faithful performance of the Master License Agreement. NOW, THEREFORE, we, the Principal, and duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Dollars and _/100 ($ ) lawful money of the United States of America, said sum being equal to 100% of the estimated cost of repairs and removal of the Telecommunication Facilities under the Master License and any Amendment thereto, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the covenants, conditions, and agreements in the Master License and any Amendment thereto and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond, otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Master License and any Amendment thereto or to the covenants, conditions, and agreements to be performed thereunder shall in any New Cingular Wireless PCS, LLC, Page C-2 way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Master License Agreement and any Amendment thereto. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for the Term of the Master License plus ninety (90) calendar days thereafter. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Attachments: Attachment 1 — Description & Depiction of Telecommunication Facility Attachment 2 — Description & Depiction of License Area New Cingular Wireless PCS, LLC, Page C-3 Attachment 1 DESCRIPTION & DEPICTION OF TELECOMMUNICATION FACILITY New Cingular Wireless PCS, LLC, Page C-4 Attachment 2 DESCRIPTION & DEPICTION OF LICENSE AREA New Cingular Wireless PCS, LLC, Page C-5 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) New Cingular Wireless PCS, LLC, Page C-6 Exhibit "D" Insurance Requirements 1. Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of work on License Area by Licensee or Licensee's agents, representatives, consultants, contractors and/or subcontractors, Licensee shall obtain, provide and maintain at its own expense during the term of this Master License policies of insurance of the type and amounts described below and in a form satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California, with an assigned policyholders' rating of A - (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Self -Insurance. Notwithstanding the above, Licensee shall have the right to self - insure pursuant to the coverages required in this Exhibit D. In the event Licensee elects to self -insure, Licensee shall be obligated to include City as an additional insured, and in addition to the provisions set forth in Sections 4-6 of this Exhibit D, the following provisions shall apply: A. City shall promptly provide Licensee written notice of any claim, demand, or lawsuit, for which it seeks coverage pursuant to this Section, and provide Licensee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, or lawsuit; B. City shall not settle any such claim, demand, or lawsuit without prior written notice to Licensee; and C. City shall fully cooperate with Licensee in the defense of such claim, demand, or lawsuit. 4. Coverage Requirements. A. Workers' Compensation Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to City, along with the certificate of New Cingular Wireless PCS, LLC, Page D-1 insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Licensee and Licensee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain commercial general liability insurance with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount of one million dollars and 00/100 ($1,000,000) per occurrence, two million dollars and 00/100 ($2,000,000) general aggregate. The policy shall cover liability arising from License Area, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract per coverage under ISO CGL form 00 01 or equivalent. C. Automobile Liability Insurance. Licensee and Licensee's consultants, contractors and/or subcontractors shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Licensee or all activities of Licensee's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the License Area, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars and 00/100 ($1,000,000) combined single limit each accident. D. Builder's Risk Insurance. During construction, Licensee shall require that Licensee's construction contractors and subcontractors maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the work for "all risk" or special causes of loss form with limits equal to one hundred percent (100%) of the completed value of the work, with coverage to continue until final acceptance of the work by Licensee and City. City shall be included as an insured on such policy. Licensee may self -insure this risk. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as an additional insured under all general liability policies with respect to liability arising out of Licensee's ongoing and completed operations related to this Master License and with respect to use or occupancy of the License Area. City, its elected or appointed officers, officials, employees, agents and volunteers shall be named as an additional insured on any of Licensee's contractor's and subcontractor's policies. B. Primary and Non Contributory. Policies shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or New Cingular Wireless PCS, LLC, Page D-2 liability arising directly or indirectly from Licensee's operations. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Master License shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. F. Notice of Cancellation. The insurance required by this Master License shall not be cancelled or non -renewed, or reduced in coverage or in limits except after thirty (30) calendar days written notice has been sent to City. It is Licensee's obligation to ensure that provisions for such notice have been established. G. Reserved. 6. Additional Requirements. A. In the event City determines that (i) the Licensee's activities on the License Area creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Licensee agrees that the minimum limits of any insurance policy required to be obtained by Licensee or Licensee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from Licensee's then -existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Licensee's then- existing insurance carrier, Licensee shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice. New Cingular Wireless PCS, LLC, Page D-3 B. Reserved. C. Licensee and Licensee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Licensee shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Licensee shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 20 38 04 13 and CG 20 37. E. If Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Licensee. F. To the extent allowed by law, Licensee shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Licensee or Licensee's agents, representatives, consultants, contractors or subcontractors performance under this Master License. G. Licensee shall provide certificates of insurance, with original endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Master License. H. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Master License. In addition, the cost of all required insurance shall be borne by Licensee or by Licensee's consultants, contractors or subcontractors. If Licensee or Licensee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Master License, or fail to provide proof of insurance, City has the right to declare this Master License in default without further notice to Licensee, and City shall be entitled to exercise all available remedies. J. Licensee agrees not to use the License Area in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the License Area or on adjacent premises, or that will cause cancellation of any other insurance coverage for the License Area or adjoining premises. Licensee further agrees not to keep on the License Area or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the License Area. Licensee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the License Area. New Cingular Wireless PCS, LLC, Page D-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 2/15/19 Dept./Contact Received From: Sunny Date Completed: 3/11/19 Sent to: Sunny By: Jan Company/Person required to have certificate: AT&T Type of contract: Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 6/1/18 — 6/1/19 A. INSURANCE COMPANY: Old Republic Insurance Company B. AM BEST RATING (A-: VII or greater): A+ / XII INSURANCE COMPANY: Old Republic Insurance Company C. ADMITTED Company (Must be California Admitted): B. Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $1M/$10M E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must Is Company admitted in California? include): Is it included? (completed Operations status does ❑ No D. not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND UM, $2M min for Waste Haulers): What is limits provided? COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it N/A included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be ® Yes ❑ No included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured ❑ No H. is not limited solely by their negligence) Does endorsement ❑ N/A ❑ Yes include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 6/1/18 — 6/1/19 A. INSURANCE COMPANY: Old Republic Insurance Company B. AM BEST RATING (A- : VII or greater) A+ / XII C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. ADDITIONAL INSURED WORDING: ❑ N/A ® Yes ❑ No G. PRIMARY & NON-CONTRIBUTORY WORDING: ❑ N/A ® Yes ❑ No H. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ❑ No I. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 6/1/18 — 6/1/19 A. INSURANCE COMPANY: Old Republic Insurance Company B. AM BEST RATING (A-: VII or greater): A+/X11 C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY ® N/A ❑ Yes ❑ No V POLLUTION LIABILITY ® N/A ❑ Yes ❑ No VI BUILDERS RISK OR INSTALLATION FLOATER— 2/22/19-3/1/29 SELF INSURED ❑ N/A ® Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 3/11/19 Date RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Risk Management approval required for Self Insurance by vendor for Construction in Process exposure 3/7/19 RM approved self insurance on Builders Risk/Construction in Process exposure. Approved: Risk Management * Subject to the terms of the contract. Date