HomeMy WebLinkAboutC-3145 - Bonita Creek Telecommunications FacilityCITE' OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
P.O. 130X 1 -68, NEWPORT BEACH. CA 92658 -8915
Joe Morales
Government Relations Department
L.A. Cellular
P.O. Box 6028
Cerritos, CA 90702
(;14) 644 -3131
July 15, 1998
Re: L.A. Cellular /City of Newport Beach Telecommunications Agreement,
Mutual Release
Dear Joe:
Enclosed please find a fully executed copy of the Mutual Release as well as the original
checks identified in Exhibit A to the Release. I believe this concludes all the issues
regarding the License Agreement. Hopefully our next dealings with each other will be
more productive. Thanks again for your cooperation. Your candid approach to resolving
the concerns raised by the community made my job much easier.
Very tryly yours,
Robin L— "Clauson
Assistant City Attorney
Enclosures
RLC:alb
F: \CATI\ Ag\L.acell\IerterVMremmchecks
3300 Newport Boulevard, Newport Beach
,.
L.A�A
CELLULAR
Post Office Box 6028
Cerritos, California 90702 -6028
DATE: June 26, 1998
TO: Robin L. Clauson
Transmittal Le /tWr. 199(9 ..
Government Relations Department
Los Angeles Cellular Telephone Company
Office of the City Attorney
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92658
Telephone (310) 924 -0000
Facsimile (310) 403 -1823
RE: L.A. Cellular /City of Newport Beach Telecommunications Agreement, Mutual
Release
Please find the following enclosed:
Executed Mutual Release
REMARKS:
If you should have any questions or require any additional assistance, please contact me at (562)
468 -6156. Your attention in this matter is greatly appreciated.
Thank you, ,
Davianne M. H. Souza
for Joe Morales of
Government Relations Department
Engineering & Operations
Enclosure
mason
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
P.O. BOX 1762+, NEWPORT BEACH, CA 92655 -8915 I' � ,•.: + -
(714) 644 - 3131
June 4, 1998
Joseph Morales, Manager
Government Relations
LA CELLULAR
17785 Center Court Drive North
Cerritos, CA 90703 -8575
Re: LA Cellular /City of Newport Beach Telecommunications Agreement,
Mutual Release
Dear Joe:
I have made the requested amendments to the draft Mutual Release. If the
Release is now acceptable, please let me know and process it for signature by the
authorized representative of LA Cellular. Once I hear from you, I will concurrently
process the release for signature on the City's side.
Please let me know if there are any further changes to the agreement and
whether the exhibit listing the checks received thus far by the City is accurate.
Very truly yours,
ROBIN`L. CLAUSON
Assistant City Attorney
RLC:ks
Enclosures
f:\ cat \ag \lacell \IetterWmrelease2.doc �vv l
3300 Newport Boulevard, Newport Beach
MUTUAL RELEASE
This Mutual Release is made and entered into by and between the CITY OF
NEWPORT BEACH, a Municipal corporation ( "CITY "), and LOS ANGELES CELLULAR
TELEPHONE COMPANY, a California General Partnership ( "LA CELLULAR "), on this
�5 -day of June 1998 with reference to the following facts:
1. RECITALS
A. CITY and LA CELLULAR entered into a Telecommunications
License Agreement dated July 28, 1997 ( "License Agreement "). The License Agreement
permitted LA CELLULAR to install a sixty -foot (60') antenna and related facilities in a
CITY park known as Bonita Creek Park. After the CITY Council's approval of the License
Agreement, there arose a dispute between a local community association and citizens
which opposed the License Agreement and raised various legal issues, threatening a
lawsuit to challenge the CITY's approval of the agreement. LA CELLULAR disputed the
claims made by the association and asserts that the License Agreement was legally
approved by CITY.
B. Subsequently, LA CELLULAR made a good faith effort to locate an
alternative to the Bonita Creek Park site. Through that good faith effort, LA CELLULAR
made alternative arrangements to provide cellular service.
C. The parties desire to resolve and dispose of all disputes or
differences over the License Agreement and in doing so have agreed to terminate the
agreement with no further responsibility and a mutual release of all claims.
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained in this release and for other good and valuable consideration, the sufficiency
and adequacy of which is hereby acknowledged, CITY and LA CELLULAR agree as
follows:
1. The License Agreement dated July 28, 1997, and approved on May
27, 1997, is hereby terminated and of no further force and effect.
2. LA CELLULAR is relieved of all obligations and all other performance
required under the License Agreement including, but not limited to, the payment of rent.
CITY agrees to return to LA CELLULAR all rent payments received from LA CELLULAR
pursuant to the License Agreement. LA CELLULAR agrees that all payments received
are shown on Exhibit "A" attached hereto which reflects the check nos. as well as the
amounts received.
3. CITY is relieved of all obligations to be performed under the License
Agreement including, but not limited to, further processing or issuance of permits to LA
CELLULAR to construct the antenna and related facilities.
4. Upon execution of this Release, the parties acknowledge their desire
to settle all differences, disagreements and disputes which exist or may exist between
them regarding the License Agreement. Each party denies any wrongdoing, illegal
conduct or liability whatsoever on its part, but nevertheless has concluded that it is both
parties' best interests to terminate the agreement on the terms set forth herein.
5. LA CELLULAR does hereby for itself, its assigns, successors,
agents and representatives, release and absolutely forever discharge the CITY OF
NEWPORT BEACH, its officers, directors, employees, attorneys, agents, successors and
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assigns from any and all claims, demands, debts, liabilities, obligations, accounts and
causes of action of every kind and nature whatsoever, whether now known or unknown,
suspected or unsuspected, which it may have had or now has against CITY relating to all
matters which may be alleged to arise or have arisen in any manner in connection with
the License Agreement, proceedings to enter into the License Agreement or procedures
to issue permits pursuant to the License Agreement or or LA CELLULAR's efforts to
locate an alternative facility. After the date hereof, LA CELLULAR shall have no claim of
any kind or nature whatsoever on or against CITY relating to the License Agreement,
directly or indirectly, on any contract or account, express or implied in fact or in law, or on
any supposed liability or thing or act undertaken, done or admitted to be done, at any time
prior to the date hereof.
6. CITY does hereby for itself, its assigns, successors, agents and
representatives, release and absolutely forever discharge the LA CELLULAR, its officers,
directors, shareholders, employees, attorneys, agents, successors and assigns from any
and all claims, demands, debts, liabilities, obligations, accounts and causes of action of
every kind and nature whatsoever, whether now known or unknown, suspected or
unsuspected, which it may have had or now has against LA CELLULAR relating to all
matters which may be alleged to arise or have arisen in any manner in connection with
the License Agreement, proceedings to enter into the License Agreement or procedures
to issue permits to construct the identified facilities or LA CELLULAR's efforts to locate an
alternative facility. After the date hereof, CITY shall have no claim of any kind or nature
whatsoever on or against LA CELLULAR relating to the License Agreement, directly or
indirectly, on any contract or account, express or implied in fact or in law, or on any
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supposed liability or thing or act undertaken, done or admitted to be done, at any time
prior to the date hereof.
7. Each party hereby acknowledges that it has been informed by its
respective attorneys of and that it is familiar with Section 1542 of the Civil Code of the
state of California which provides as follows:
"1542. A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Each party express waives and relinquishes all rights and benefits which it
has or may have under Section 1542 of the Civil Code to the full extent it lawfully may
waive such rights and benefits.
8. Each party hereby acknowledges that it is aware that it or its'
attorney may hereafter discover facts different from or in addition to those which it or its'
attorney now know or believe to be true with respect to the claims, demands, debts,
liabilities, accounts, obligations and causes of action of every kind so released, and each
agrees that the general relief so given shall remain in effect as a full and complete release
of demands, debts, liabilities, accounts, obligations and causes of actions released
notwithstanding any such different or additional facts.
9. Each party has read this release and understands its contents. Each
parry acknowledges that it has executed this release without fraud, duress, or undue
influence, and that execution of this release is free and voluntary.
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10. Neither party, nor any officer, agent, employee, representative or
attorney for either parry, has made any statement, representation, or promise regarding
any facts relied upon in entering into this release, and each party does not rely upon any
statement, representation, or promise of any officer, agent, employee, representative or
attorney of the other party, in executing this release, or in the making of the settlement
provided for herein, except as expressly stated in this release.
11. Neither party has assigned, transferred, or granted, nor purported to
assign, transfer or grant any of the disputes, claims, demands, causes of action,
obligations, agreements, liens, judgment, orders, damages, liabilities, losses, costs and
expenses of any kind, in law or in equity, whether known or unknown, that either parry
holds, will ever hold, or has ever held against the other.
12. Each party will execute all such further and additional documents as
may be reasonable, convenient, necessary or desirable to carry out the provisions of this
release.
13. This release shall be deemed to have been executed and delivered
within the State of California, and the rights and obligations of the parties hereto shall be
construed and enforced in accordance with, and shall be governed by, the laws of the
State of California.
14. This release is binding upon and shall inure to the benefit of the
parties hereto, their respective divisions, affiliates, parents, subsidiaries, predecessor and
successor corporations, and the past and present directors, officers, shareholders,
agents, servants, employees, representatives, administrators, partners, general partners,
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0
managing partners, limited partners, assigns, heirs, successors or predecessors in
interest, adjusters and attorneys.
15. This release constitutes a single, integrated written contract and
expresses the entire agreement of the parties. There is no other agreement, written or
oral, express or implied, between the parties with respect to the subject matter of this
release, except as provided for in this release.
16. The provisions of this release are contractual and not mere recitals.
The release shall be considered severable, such that if any provision or part of the
release shall remain in force and effect to the extent allowed by law, and all other
provisions or parts shall remain in full force and effect.
1 \1
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17. This release may be signed in counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the same
release.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement by their authorized representatives.
DATED: June, , 1998
0
APPROVED AS TO FORM AND CONTENT
Counsel to LA Cellular
DATED: Ju;� 1?, , 1998
CITY OF NEWPORT BEACH
By: l�
Its
APPROVED AS TO FORM AND CONTENT
i
;� I 'PI
By: ROBIN L. CLAUSON
Assistant City Attorney
f.'%g \Lace I I \Relea se060198.doc
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City of Newport Beach /LA Cellular
Mutual General Release
Attachment
EXHIBIT "A"
Date
Check No.
Amount
09 -19 -97
317479
$ 2,500.00
10 -27 -97
321914
$ 2,500.00
11 -21 -97
324698
$ 2,500.00
12 -29 -97
328417
$ 2,500.00
01 -28 -98
331516
$ 2,500.00
02 -25 -98
334521
$ 2,500.00
03 -26 -98
337160
$ 2,500.00
04 -29 -98
340465
$ 2,500.00
f:\cat\agVace11\ExhibitA.doc
— — -- _
.Os Angeles Cellular Telephone Company
704121
C686
a4/23/98
PERMIT PHASE RENT
2,500.00
2,500.00
2,500.00
2,500.00
�
| U�ft GENERAL DISBURSEMENT ACCOUNT
CELLULAR, L.A. r0ftmh,
u.~pm��wa�"".^=w�
A PAY
pI. BOX oo00
nERRlTOS,CAoo7o3-uyoo
� �T' TH0V5AND F1VE HUNDRE1) AND
nr� CITY OF NEWPORT BEACH
� �
OF 3300 NEWPORT BLVD.
U NEWPORT BEACH CA 92663
90-477 ��- NO
WELLS p«000 CENTRAL BANK 7222 340765
CaL^axn^o.oaupoom»
/
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
114 3K^[]L, G Son 1: 4 2 2 2[]1^??0: L,759 4[l2[l76I's
Los Angeles Cellular Telephone Co/upuu?
Ch
|
03/26/9t.3 Stub i
PERMIT PHASE RENT
� [heck Na. ` 337i6(. |
2/500^gO
—~—~~~^~~ �------ --^ |
2,50000 21500.0c
90-477 N 0. 337160
GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222
CALABASAS, CALIFORNIA
CELLULAR, CERRITOS, CA 90703-3900
PAY
TWO THOUSAND FIVE 1-IUiqDRr,.D (�Nj)
rorHE CITY OF NEWPORT BEACH
onncn
OF 3300 NEWPORT BLVD.
| NEWPORT BEACH CA 92663
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
o"3 37I C3[)118 n: 12 2 20L,?? 0: L,?S9L[]2[)?611"
Los Angeles Cellular Telephone Company
ChPA& Date — 02/2"5/9 ;- u b 1. Al&f :L (-.heck No.
OUR REF
NUMBER
YOUR INVOICE
NUMBER IINVOICE
DATE I
DESCF31PTION
INVOICEAMOUNT
NETCHECKAMOW
70,4121
PERMITS C402/23/98
PERMIT PHASE.REN•
2,500.00
2,500.0(
---------- -------------
2,500.00
2,500.0(
I& GENERAL DISBURSEMENT ACCOUNT
L. A. raft 6,
CELLULAR.
1— kngri, Cdlular el,phone (:o,np—v
PAY
P.O. BOX 3900
CERRITOS, CA 90703-3900
TWO THOUSAND FIVE HUNDRED AND
TO THE CITY OF iNEWF:'ORT BEACH
ORDER
OF 3300 NEWPORT Di—VD,
NEWP(."R T' BEACH CA 92663
.
WELLS FARGO CENTRAL BANK 1222 90-477 NO 334521
CALABASAS, CALIFORNIA
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
1113345 2 Lill 1: 1, 2 2 20 L. ? ? 0: 475940207611'
Los Angeles Cellular Telephone Company
704121
MEMEM
PERMITS C601/23/98
INVOICE DATEI
DESCRIPTION
PERMIT PHASE RENT
I I g klej 1-1 Ila=
2,500,00
IRKTIMT-TTIM
2,500.0(
VOID AFTER 6 MONTHS
2 '-p'00 -00
2,
90-477 NO. 3r.
GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222
LAIRAfthh, P.O. BOX 3900 -3900 CALABASAS. CALIFORNIA 101
CERRITOS, CA 90703 . 11 1
CELLULARj
Los Angeles Ccllui- relephone IIumpanv
PAY
TO THE
ORDER
OF
NE-1
lie 3 3 1 S L F. 0 1: L 2 2 2 0 L. 7 7 1 a: L. 7 5940 2 0 76'
li
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
lie 3 3 1 S L F. 0 1: L 2 2 2 0 L. 7 7 1 a: L. 7 5940 2 0 76'
li
Los Angeles Cellular Telephone Company
7
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GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222 90-477 NO 328417 .
CALABASAS, CALIFORNIA
LAS�iwAO P.O. BOX 3900
CELLULAR-
CERRITOS, CA 90703-3900
PAY
TO THE y Fi "j: T
ORDER
OF
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
1" 3 213 to I ?01 1:112220477i1: 475940207611'
DESCRIPTION
oil
701=1
PERMITS Cei2/23/97
PERMIT PHASE RENT
2,500.00
2,'--OC;.O(
1!
GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222 90-477 NO 328417 .
CALABASAS, CALIFORNIA
LAS�iwAO P.O. BOX 3900
CELLULAR-
CERRITOS, CA 90703-3900
PAY
TO THE y Fi "j: T
ORDER
OF
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
1" 3 213 to I ?01 1:112220477i1: 475940207611'
LOS Angeles Cellular Telephone Company
1 7041211 SITE 0686 It
PERMIT PHASE RENT
2,5100.00
2, .".;00.00
2,500.0(
2 - t,00.0!
90-477 NO� 324698
GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222
AIWA6, P.O. BOX 3900 CALABASAS. CALIFORNIA
L
CERRITOS, CA 90703-3900
GI ,t AAR.
Cc11W- I
PAY
TO THE I, Ed- ACH
ORDER
OF
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
11'32469811' 1: 1 2 2 20L, ? ? W: 47591207611•
LOS Angeles Cellular Telephone Company
90-477 No. 321914
GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222
Q, LA CALABASAS. CALIFORNIA
L.A. P.O. BOX 3900
CELLULARt CERRITOS, CA 90703-3900
Lo, 1,,1- T�111h—1 1:-1-1
PAY
TO THE !" :�; J!" I �.
ORDER y ..,!
OF r I
V7�
I CHECK DATE
ICONTROL NUMBER
I CHECK AMOUNT
DESCRIPTION
704121
SITE 0686
10/23/97
PERMIT 'PHASE RENT
2,500.00
2,500.0�
2,.°10,0,.00
2,500.0(
90-477 No. 321914
GENERAL DISBURSEMENT ACCOUNT WELLS FARGO CENTRAL BANK 1222
Q, LA CALABASAS. CALIFORNIA
L.A. P.O. BOX 3900
CELLULARt CERRITOS, CA 90703-3900
Lo, 1,,1- T�111h—1 1:-1-1
PAY
TO THE !" :�; J!" I �.
ORDER y ..,!
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I CHECK DATE
ICONTROL NUMBER
I CHECK AMOUNT
.o., .... .
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
1111 3 2 19 1 L, 111 1:1222047711: 475940207611•
Los Angeles Cellular Telephone Coinpanv
'Ask 31747,
;704t2i
CK C,' =i697 C9/16/97
DESCRIPTION
**YP PHASE RENT SITE 686.1.0
INVOICE AMOUNT
2, "F50c, 00
I NET CHECK AMOI
I "N
00 0',
2, 00
F22,500.00
0o
00
Ila GENERAL DISBURSEMENT ACCOUNT
L.A. r&fta h,
CELLULAR.
I., kngcmn Cctlular Tdcphonc Compa,
PAY
P.O. BOX 3900
CERRITOS, CA 90703-3900
No 317479
WELLS FARGO CENTRAL BANK 9222 2
CALABASAS. CALIFORNIA
CHECK DATE I CONTROL NUMBER1 CHECK AMOUNT
Q. iv
TO THE
ORDER
OF
ut 3 17 L, ? 9 0 1: 1, 2 2 20 L. ? ? W: L. ? S9L,0 20 ?rmi'O
AUTHORIZED SIGNATURE
VOID AFTER 6 MONTHS
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CJ
DATE:
TO:
FROM:
SUBJECT:
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CITY OF NEWPORT BEACH
OFFICE OF THE CITY MANAGER
May 27,1997
Agenda Item 12
, 7Y •i-iE C 'I CO! : !L
{ Cii'' Oc ��p•,nr�nnr ,r.�rgCN
MAY 2 71997
!"ti�l 1t0 F L D —`
Honorable Mayor and Members of the City Council a,9
Peggy Ducey, Assistant to the City Manager
Bonita Creek Telecommunications Facility
BACKGROUND
Last year, L.A. Cellular approached City staff about locating a telecommunications
facility in Bonita Creek Park. In July, the City Council Public Works Committee
directed staff to continue discussions with L.A. Cellular to further develop the
proposal. A committee, consisting of the Public Works Director, the Community
Services Director, the Planning Director, the Parks and Tree Superintendent, and the
Assistant to the City Manager, met with L.A. Cellular representatives to further
refine their proposal.
DISCUSSION
L.A. Cellular has proposed to lease a portion of Bonita Creek Park to construct a
telecommunications substation consisting of a 12' x 28' underground vault and a
cellular microwave antenna mounted on a lightpole. The vault will be located in
the northeast corner of the park, next to the existing baseball field. It will be placed
underground, next to an existing City vault, and out of the actual play area, so above
ground fixtures will not interfere with any sports events. The vault will have a few
above - ground fixtures, including a 3'x4' manhole to allow for access to the
underground vault, a 4'x9' cabinet that would house an emergency generator, and
an electrical meter. Routine maintenance of the vault equipment is expected to take
place twice a month.
The facility would also include a microwave antenna mounted on the existing 70'
lighting fixture at the baseball field. L.A. Cellular will replace the existing lightpole
with a new pole that would match the other lights in appearance, but can
accommodate the weight of the microwave attachments. Once the pole is replaced,
the existing light fixtures would be attached to the new pole. The facility does not
generate any noise, fumes, smoke or odors.
t
The facility houses a low power device that emits non - ionizing electromagnetic
radiation. Given the current health concerns regarding electromagnetic fields •
(EMF), L.A. Cellular retained Dr. Jerrold Bushberg, (University of California, Davis)
to evaluate the proposed Bonita Creek telecommunications site. Dr. Bushberg's
findings are attached. The analysis indicates that under the broadest operating and
exposure conditions, the maximum exposure a Park user could expect from the
Bonita Creek telecommunications site is .07% of the current FCC public exposure
standards. This is 138 times lower than the FCC permitted exposure standards.
Given this low exposure level, the report concludes that there is no evidence that
the Bonita Creek telecommunications facility will have any harmful effects on
residents or users of the Park.
L.A. Cellular will be responsible for all costs associated with the planning,
permitting, installation, and maintenance of the facility. In addition to City
permitting, the project will also require a Coastal Development permit. Once all
necessary permits are obtained, construction of the facility should take
approximately one month.
Once the final proposal was agreed upon, the proposed design was presented to the
Parks, Beaches and Recreation Commission and the City Council Public Works
Committee for approval. Both Committees approved the design and forwarded the
proposal to the Council Finance Committee for review of the terms of the lease as
well as the design of the project.
Before staff began the actual lease negotiations, a number of cities were surveyed to .
determine their lease rates for similar telecommunications facilities, as well as other
lease provisions. Cities are currently charging a lease rate of $9,600 - $20,000
annually. City staff negotiated an annual lease rate of $30,000, with an escalator of
3% beginning in year two. However, since the telecommunications industry is
relatively new and technology is changing quickly, it is important that the lease
agreement provides some flexibility for future market fluctuations. Staff also
negotiated a "most favored nation" clause that provides that if L.A. Cellular
negotiates a more lucrative lease with another public agency or private entity after
the City's lease is approved, the City will receive that same lease rate or provision.
L.A. Cellular is responsible for notifying the City of these changes at the renewal of
each option period. However, if the City becomes aware of changes at any time
during the contract period, we have the ability to amend the lease at that time.
The key lease provisions are as follows:
• Term of Agreement- The agreement is for five years, with three additional five
year options. However, provisions of the lease can be changed based on other
L.A. Cellular agreements that contain more favorable provisions.
• Lease Rate- The annual lease is $30,000, paid in monthly increments of $2,500.
Based on our survey, this is the highest rate that any governmental agency is •
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receiving. The contract also specifies that the lease rate cannot be reduced below
• this amount.
• Termination of Agreement for Health Reasons- L.A. Cellular shall immediately
cease operations if a governmental health agency issues a report or a court issues
a judgment determining that operation of similar telecommunications facilities
poses a human health risk.
• Co- Location- If the City executes agreements with other telecommunication
providers for facilities in Bonita Creek Park, those providers can co- locate their
equipment/ facilities with L.A. Cellular facilities as appropriate. This ensures
that antenna facilities, etc. can be used by more than one provider.
• Removal of Equipment- Upon termination of the lease for any reason, L.A.
Cellular will restore the facility area to its original condition, at no cost to the
City.
The Finance Committee directed staff to notify any affected homeowner associations
in the area to ensure some community outreach was done. A letter was sent to both
Newport North Villas and Newport North Townhomes providing an overview of
the project and offering to make a presentation at their next association meeting.
Both associations responded that a presentation was not necessary.
The Finance Committee voted 2 -1 (Glover - no) to direct staff to agendize the license
agreement for City Council action.
• RECOMMENDATION
Approve the License Agreement with L.A. Cellular and authorize the City Manager
to execute the Agreement.
1h
0
0
JERROLD T. BUSHBERG Ph.D., DABMP, DABSNM
WEALTHAND MEDICAL PHYSICS CONSULTING
7784 Oak Bay Circle Sacramento, CA 95831
(9I6)393 -6168
Jackie Hare
J.L. Hare Associates
17581 Irvine Blvd., Suite 200
Tustin, California 92680
Dear Ms. Hare:
September4,1996
At your request, I have reviewed the technical specifications and calculated the maximum radiofrequency,
(RF), power density from the proposed cellular telecommunication antennas (referenced as L.A. Cellular site
686.10) to be located at Bonita Creek Park, University Drive, Newport Beach, California 92660 as depicted
in attachment 1.
The proposed L.A. Cellular telecommunication site consists of three sectors of directional transmit antennas
(Decibel Products Model Number DB844H80), which are planned to be mounted on a monopole at the subject
property with their radiation center at 48 feet above grade directed at 100 (sector 1), 220 (sector 2) and 340
(sector 3) degrees true north. Technical specifications of the antenna are provided in attachment 2. The
sectorized antennas are designed to transmit up to 19 channels simultaneously for each sector at an effective
radiated power (ERP) of 40 watts per channel within a bandwidth between approximately 820 and 900 MHz.
These maximum transmission conditions would be expected to occur infrequently during normal operations.
Calculations were made in accordance with the recommendations contained in the Federal Communications
Commission, Office of Science and Technology Bulletin 65 (page 8, equation 3) entitled "Evaluating
Compliance, with FCC - Specified Guidelines for Human Exposure to Radiofrequency Radiation." Several
assumptions were made in order to provide the most conservative or "worse case" projections of power
densities. Calculations were made assuming that all channels were operating simultaneously at their maximum
design effective radiated power. Attenuation (weakening) of the signal that would result from surrounding
foliage or buildings was ignored. Buildings can reduce the signal strength by a factor of 10 (i.e., 10 dB) or
more depending upon the construction material. Exposures were calculated for persons six feet tall.
Exposures closer to ground level will be lower. The ground or other surfaces were considered to be perfect
reflectors (which they are not) and were assumed to overlap and interact constructively at all locations (which
they would not) thereby resulting in the calculation of the maximum potential exposure. In fact the
accumulations of all these very conservative assumptions will significantly overestimate the actual exposures
that would typically be expected from such a facility. However this method is a prudent approach that errs
on the side of safety.
•
The maximum exposure from this facility at head height (i.e., 6 feet above ground level) was calculated to be •
less than 4.2 µW /cm2 ( i.e., — 0.8% of the public safety standard) at 79 feet from the base of any sector at the
0
transmission site. See appendix A -1 for details of exposure profiles. The maximum exposure from this facility
at head height within the closest two or three -story building (i.e., up to 26.5 feet above ground level) was
calculated to be less than 3.4 µW /cm' ( i.e., — 0.6% of the public exposure safety standard) at 250 feet from
the base of any sector at the transmission site. Exposures closer to or further away from the transmission site,
at or below the heights specified, will be lower than the stated maximum given above.
The two most widely recognized standards for protection against RF field exposure are those published by
the American National Standards Institute (ANSI) C95.1 and the National Council on Radiation Protection
and measurement (NCRP) report #86.
The NCRP is a private, congressionally chartered institution with the charge to provide expert analysis of a
variety of issues (especially health and safety recommendations) on radiations of all forms. The scientific
analyses of the NCRP are held in high esteem in the scientific and regulatory community both nationally and
internationally. In fact, the vast majority of the radiological health regulations currently in existence can trace
their origin, in some way, to the recommendations of the NCRP.
All RF exposure standards are frequency specific, in recognition of the differential absorption of RF energy
as a function of frequency. The most restrictive exposure levels in the standards are associated wi e
frequencies that are most readily absorbed in humans. Maximum absorption occurs at approximate 89 MHz
in adults. Tlie NCRP maximum allowable continuous occupational exposure at this frequency
µW /cm'. This compares to 2,895 µW /cm' at cellular fre uencies that are absorbed much less efficiently than
exposures in the VHF TV band.
The traditional NCRP philosophy of providing a higher standard of protection for members of the general
population compared to occupationally exposed individuals, prompted a two- tiered safety standard by which
levels of allowable exposure were substantially reduced for "uncontrolled " (e.g., public) and continuous
exposures. This measure was taken to account for the fact that workers in an industrial environment are
typically exposed no more than eight hours a day while members of the general population in proximity to a
source of RF radiation may be exposed continuously. This additional protection factor also provides a greater
margin of safety for children, the infirmed, aged, or others who might be more sensitive to RF exposure.
After several years of evaluating the national and international scientific and biomedical literature, the
members of the NCRP scientific committee'selected,931 publications in the peer- reviewed scientific literature
on which to base their recommendations. The current NCRP recommendations limit continuous public
exposure at cellular frequencies (e.g., - 869 MH z yi -o 579 µW /cm .
The current ANSI standard was developed by Scientific Coordinating Committee 28 (SCC 28) under the
auspices of the Institute of Electrical and Electronic Engineers (IEEE). This standard, entitled "IEEE
Standards for Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 3
kHz to 300 GHz" (IEEE C95.1- 1991), was issued in April 1992 and subsequently adopted by ANSI in
November 1992. The current ANSMEEE standard is identical to the current NCRP recommendation for
public exposure at cellular frequencies (579 µW /cm2 for continuous exposure at 869 MHz) and incorporates
•the convention of providing for a greater margin of safety for public as compared with occupational exposure.
Higher whole body exposures are allowed for brief periods provided that no 30 minute time- weighted average
exposure exceeds 579 µW /cm2.
Recently, (August 9, 1996), the Federal Communications Commission (FCC) established a RF exposure
standard that is a hybrid of the current ANSI and NCRP standards. The maximum permissible exposure
values used to assess environmental exposures are those of the NCRP (i.e., maximum public continuous
exposure at cellular frequencies of 579 pW /cmZ ). The FCC issued these standards in order to address its
responsibilities under the National Environmental Policy Act (NEPA) to consider whether its actions will
"significantly affect the quality of the human environment." In as far as there was no other standard issued
by a federal agency such as the Environmental Protection Agency (EPA), the FCC utilized their ruelmaking
procedure to consider which standards should be adopted. The FCC received thousands of pages of comments
over a three -year review period from a variety of sources including the public, academia, federal health and
safety agencies (e.g., EPA & FDA) and the telecommunications industry. The FCC gave special consideration
to the recommendations by the federal health agencies because of their special responsibility for protecting
the public health and safety. In fact, the maximum permissible exposure (MPE) values in the FCC standard
are those recommended by EPA and FDA. The FCC standard incorporates various elements of the 1992 ANSI
and NCRP standards which were chosen because they are widely accepted and technically supportable.
The FCC standards "Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation"
(Report and Order FCC 96 -326) adopted the ANSUIEEE definitions for controlled and uncontrolled
environments. In order to use the higher exposure levels associated with a controlled environment, RF
exposures must be occupationally related (e.g., cellular company RF technicians) and they must be aware of
and have sufficient knowledge to control their exposure. All other environmental areas are considered
uncontrolled (e.g., public) for which the stricter (i.e., lower) environmental exposure limits apply. All carriers
must be in compliance with the new FCC RF exposure standards by January 1, 1997. These standards apply
for existing as well new telecommunications facilities.
The task for the physical, biological, and medical scientists that evaluate health implications of the RF data
base has been to identify those RF field conditions that can produce harmful biological effects. No panel of
experts can guarantee safe levels of exposure because safety is a null concept, and negatives are not
susceptible to proof. What a dispassionate scientific assessment can offer is the presumption of safety when
RF -field conditions do not give rise to a demonstrable harmful effect
Cellular radio transmitters, by design and operation, are low -power devices. Even under maximal exposure
conditions in which all the channels from all antennas are operating at full power (a rare circumstance during
routine operation), the maximum exposure from this facility will not result in power densities in excess of
4.2 pW /cm2 at any location occupied by members of the public. This maximum exposure is approximately
I39 times lower than the current FCC public exposure standards. A chart of the electromagnetic spectrum and
a comparison of RF power densities from various common sources is presented in figures 1 and 2 respectively
in order to place exposures from cellular telecommunications systems in perspective.
)It is important to realize that the FCC maximum allowable exposures are not set at a threshold between safety
and known hazard but rather at 50 times below a level that the majority of the scientific community believes
may pose a health risk to human populations. Thus the previously mentioned maximum exposure from the
site (i.e., 4.2 pW /cm') represents a "safety margin" from this threshold of potentially adverse health effects
of more than 6,900 times! 0
Given the very low levels of radiofrequency fields that would be generated, even in proximity to this facility,
and given the evidence on biological effects in a large data base, there is no scientific basis to contend that
3
0
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harmful effects will attend the utilization of this cellular telecommunication facility. This conclusion is
supported by a large numbers of scientists that have participated in standard - setting activities in the United
States who are overwhelmingly agreed that RF radiation exposure below the FCC guidelines has no demon-
strably harmful effects on humans.
These findings are based on my professional evaluation of the scientific issues related to the health and safety
of non - ionizing electromagnetic radiation and my analysis of the technical specification as provided by L.A.
Cellular. The opinions expressed herein are based on my professional judgement and are not intended to
necessarily represent the views of the University of California. Please contact me if you require any additional
information.
Sincerely,
Jerrold T. Bushberg Ph.D., DABMP, DABSNM
Diplomate, American Board of Medical Physics (DABMP)
Diplomate, American Board of Science in Nuclear Medicine ( DABSNM)
Enclosures: Figures 1 -2, Attachment 1 -2, Appendix A -1 &2 and Statement of Experience.
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TELECOMMUNICATIONS LICENSE AGREEMENT
This License is made and entered into by and between the CITY OF NEWPORT
BEACH, a municipal corporation (hereinafter referred to as "CITY ") and LOS
ANGELES CELLULAR TELEPHONE COMPANY, a California general partnership
(hereinafter referred to as "LICENSEE ") and is effective on the earlier of when
LICENSEE commences construction or October 1, 1997 (the "Effective Date ").
1. License Area. Subject to the provisions of this License, CITY hereby
grants a non - exclusive license to LICENSEE for the term of this Agreement, to use that
certain parcel of real property, approximately 700 square feet in area, located in Bonita
Creek Park, in the City of Newport Beach, California, and more particularly shown as
crosshatched and described in Exhibit A to this License (the "License Area "). CITY
further grants to LICENSEE a non - exclusive license for ingress and egress to the
License Area seven (7) days a week, twenty -four (24) hours a day and, to install and
maintain underground utility wires, cables, conduits and other telecommunication
facilities, as specified in Exhibit A. All installation and maintenance activities shall be at
LICENSEE's sole cost and expense, pursuant to plans approved in advance in writing
by CITY. This License is subject to the terms, covenants and conditions hereinafter set
forth and LICENSEE covenants, as a material part of the consideration for this License,
to keep and perform each and every term, covenant and condition of this License.
2. Term. •
A. The term of this License shall be for five (5) years, commencing
upon the Effective Date, subject to three (3) five (5) year renewals, if exercised as
provided in 2(13) below.
B. If LICENSEE has not defaulted in the performance of any term or
condition under this License (with all cure periods having lapsed), then upon ninety (90)
calendar days before the expiration of the original License term, or any renewal term,
LICENSEE may give City written notice of the exercise of the option to renew this
License. During any renewal period, all of the terms and conditions of this License
shall remain in full force and effect, except the fee for the License Area shall be
increased in accordance with the provisions set forth in paragraph 3 below.
The option(s) to renew shall be exercised by personal delivery or by
certified mail, postage prepaid, of such notice of exercise of option to CITY at the
address set forth herein for notices. Such exercise of the option(s) granted hereunder
shall automatically extend the term of this License upon the terms and conditions set
forth herein, and no further writing need be exercised by LICENSEE or CITY. Upon
exercise, LICENSEE shall not have the right to revoke its election to exercise the
option. In the event that any option to renew is not exercised, as provided, within the •
1
time period provided, then the option and remaining options, if any, shall expire, and
• LICENSEE shall not have any right to renew this License.
C. Upon expiration or termination of this License, both parties shall be
relieved of any further obligations under this License, although each shall continue to
have available all remedies for any breach of this License occurring prior to the date of
termination. Within sixty (60) days following the expiration or termination of this
License, LICENSEE shall remove all the telecommunications facilities and restore the
License Area to its original condition existing as of the Effective Date, reasonable wear
and tear and damage not caused by LICENSEE excepted and further excepting
landscaping and related irrigation equipment, or other aesthetic improvements made by
LICENSEE to the License Area. Upon written request of CITY, Licensee shall not be
required to remove the equipment shelter and any alterations, additions or
improvements thereto which shall become a part of the realty and belong to CITY and
shall be surrendered with the License Area.
3. Fee. Commencing on the date the CITY issues a permit to commence
construction of the telecommunications facilities ( "Commencement Date "), LICENSEE
agrees to pay to CITY a fee, without prior notice or demand by CITY, in the sum of
Thirty Thousand Dollars ($30,000.00) per year, to be paid in equal monthly installments
in advance on or before the first day of each month during the term of this License. The
fee shall be paid to CITY, without deduction or offset, in lawful money of the United
States of America, at 3300 Newport Boulevard, Newport Beach, California 92663, or at
such other place as CITY may designate, in writing.
A. The Parties agree that the Fee shall be increased by three percent (3 %)
annually throughout the term of this License (including any extensions or continuations
thereof) on each anniversary of the Commencement Date.
B. Notwithstanding any of the terms or provisions of this paragraph, the fee
for any term, or portion thereof, shall not be decreased. The fee for any partial month
shall be prorated at the rate of 1 /30th of the current monthly fee per day.
C. Upon any renewal of this License, the amount of the fee shall be
amended at the request of CITY should LICENSEE execute or amend any other similar
agreement with any other public agency or private entity to include provisions and /or
rent for similar telecommunications facilities which is for a fee or rental rate more
favorable than the then existing fee payable under this License.
4. U-Sa.
A. LICENSEE shall use the License Area for the sole purpose of
constructing, maintaining, securing and operating a cellular telecommunications
• antenna and related facilities, including the construction of an equipment shelter and
installation of required monopole and related communications equipment in substantial
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compliance with the site plan and related drawings dated and approved by
CITY. (Collectively "Telecommunications Facilities ") Each approved antenna or •
antenna support structure may be configured as required by LICENSEE, provided
LICENSEE obtains all permits and approvals required by CITY and /or any other public
agency having jurisdiction over the matter. The telecommunications facilities may be
modified (added to and /or substituted from time -to -time) upon written approval by CITY.
Construction of LICENSEE's telecommunications facilities shall be at LICENSEE's sole
expense. Further, LICENSEE shall maintain the License Area free from hazards or risk
to the public health, safety or welfare.
B. CITY agrees that LICENSEE's ability to use the License Area is
dependent upon LICENSEE obtaining and complying with all necessary certificates,
permits and /or other approvals which may be required from any federal, state or local
authority. CITY agrees to cooperate with LICENSEE as to LICENSEE obtaining such
certificates, permits or other approvals. In the event LICENSEE is unable to obtain any
necessary certificate, permit or other approval to operate its telecommunications
facilities, or if due to technological changes, or if any adverse soil surface or subsurface
conditions of the License Area exist which LICENSEE is unable or unwilling to correct,
LICENSEE, in its sole discretion, determines that it will be unable to use the License
Area for LICENSEE's intended purposes, LICENSEE may terminate this License as
provided herein, upon thirty (30) days prior written notice to CITY.
C. LICENSEE shall immediately cease operations upon receipt of written .
notice from CITY in the event that a determination is made by a local, state or national
governmental health agency, or a judgment is issued by any federal or state court, that
the operation of telecommunications facilities similar to LICENSEE'S
telecommunications facilities which LICENSEE is operating on the License Area poses
a human health hazard. If the operation of LICENSEE's telecommunications facilities
poses a health hazard that in the opinion of the agency making such determination, can
be remediated and if LICENSEE promptly remediates such health hazard to the
reasonable satisfaction of CITY, then LICENSEE may resume operations of its
telecommunications facilities upon the completion of such remediation. If LICENSEE is
unable to complete such remediation within one hundred eighty (180) days after receipt
of CITY's written notice to LICENSEE, CITY may terminate this License. The parties
acknowledge and agree that if LICENSEE fails to immediately cease operation as
required under this paragraph, CITY shall be entitled to petition a court of competent
jurisdiction to compel such cessation by injunction.
D. LICENSEE shall not do or permit anything to be done in or about the
License Area nor bring or keep anything therein which will cause cancellation of any
insurance policy covering the License Area or part thereof or portion of its contents.
LICENSEE agrees to pay any reasonable increase in the rate of fire or other insurance
policy covering the License Area which is due to LICENSEE's licensing of the License
Area. LICENSEE shall not do or permit anything to be done in or about the License •
Area which will in any way obstruct or interfere with the rights of other parties, or injure
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or annoy them, or use or allow or permit the License Area to be used for any improper,
• unlawful or objectionable purpose. Nor shall LICENSEE cause, maintain or permit any
nuisance in or about the License Area. LICENSEE shall not commit or suffer to be
committed any waste in or upon the License Area.
E. Any and all construction work performed pursuant to the rights granted
under this Agreement, including the installation, operation and maintenance of the
telecommunications facilities, shall be subject to prior review and approval of City Public
Works Department by means of submission and department approval of an
encroachment permit application, payment of any applicable permitting fees, and the
City's ordinary administrative review. Upon the completion of construction work,
Licensee promptly shall furnish to the City, in hard copy and in LICENSEE's electronic
format, suitable documentation showing the exact location of the facilities in the License
area.
F. Licensee in the performance and exercise of its rights and obligations
under this License shall not interfere in any manner with the existence and operation of
any public and private rights -of -way, sanitary sewers, water mains, storm drains, gas
mains, poles, aerial and underground electrical and telephone wires, electroliers, cable
television, and other telecommunications, utility, or municipal property, without the
express written approval of the owner or owners of the affected property or properties.
0 5. Compliance with Law.
LICENSEE shall not use the License Area or permit anything to be done in or
about the License Area which will in any way conflict with any law, statute, ordinance or
other governmental rule or regulation now in force or which may hereinafter be enacted
or promulgated. Subject to LICENSEE's right to terminate as provided in paragraph
4.6, LICENSEE shall, at its sole cost and expense, promptly comply with all laws,
statutes, ordinances and other governmental rules, regulations or requirements now in
force or which may hereinafter be enacted or promulgated, relating to, or affecting the
condition, use or occupancy of the License Area, excluding structural changes not
related to or affected by LICENSEE's improvements and acts. The judgment of a court
of competent jurisdiction or the admission by LICENSEE in any action against
LICENSEE, whether CITY be a party thereto or not, that LICENSEE has violated any
law, statute, ordinance or any other governmental rule or regulation related to the
License Area shall be conclusive of that fact as between CITY and LICENSEE.
6. Alterations and Additions.
Other than as expressly required or permitted herein, LICENSEE or any
Contractor or person selected by LICENSEE shall not make or suffer to be made any
alterations, additions or improvements in or to or about the License Area or any part
• thereof without the prior written consent of CITY.
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7. Phvsical Condition of License Area: Waiver.
A. By acceptance of this License and use of the License Area, LICENSEE
shall be deemed to have accepted the License Area as being in good sanitary order,
condition and repair. LICENSEE shall, at LICENSEE's sole cost and expense, keep the
License Area and any part thereof in good condition and repair. CITY shall have no
obligation whatsoever to alter, improve or repair the License Area, or any part thereof,
and the parties hereto affirm that CITY has made no representations to LICENSEE
respecting the condition of the License Area except as specifically set forth herein.
LICENSEE further agrees that it shall submit to CITY, prior to applying for any permits
to renovate, reconstruct, improve, alter or in any way modify the License Area, plans
and specifications for CITY's approval.
B. CITY shall not be liable for any failure to make any repairs, or to perform
any maintenance except as specifically provided herein. Except as may otherwise be
provided herein, there shall be no fee abatement and no liability of CITY by reason of
any injury to or interference with LICENSEE's business arising from CITY's use of
Bonita Creek Park or CITY or LICENSEE making any repairs, alterations or
improvements in or to any portion of the License Area or in or to any fixtures,
appurtenances and equipment therein. LICENSEE hereby specifically waives the right
to make repairs at CITY's expense under any law, statute or ordinance now or hereafter
in effect. Notwithstanding the foregoing, CITY shall be responsible to repair any
damage to LICENSEE's equipment or facilities caused by CITY's negligent activities.
C. LICENSEE shall accept possession of the License Area in an "as is"
physical condition with no warranty, express or implied, by CITY as to the condition of
the soil, its geology, the presence of known or unknown faults, its suitability for the use
intended by LICENSEE, any on -site soils contamination or any similar matters. It shall
be the sole responsibility and obligation of LICENSEE to investigate and correct any
adverse soil, surface or subsurface conditions of the License Area, and to take such
action as may be necessary to place the License Area in a condition entirely suitable for
the use intended by LICENSEE and agreed to by CITY as is set forth herein.
D. LICENSEE hereby specifically waives any rights LICENSEE may have
against CITY with regard to the condition of the License Area, including, but not limited
to, soils, toxic or hazardous materials, fill material, compaction, geologic constraints and
faults, and agrees to indemnify, defend and hold City harmless from all claims, losses,
liabilities, damages, demands, actions, judgments, causes of action, assessments,
penalties, costs and expenses (including without limitation, the reasonable fees and
disbursements of legal counsel, expert witnesses and accountants) and all foreseeable
and unforeseeable consequential damages which might arise or be asserted against
CITY as a result of a claimed violation of any and all present and future federal, state
and local laws (whether under common law, statute, rule, regulation or otherwise)
arising from this License Agreement including, but not limited to, the Comprehensive •
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42
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U.S.C. App. §§ 1801 through 1813, inclusive; the Federal Resource Conservation and
• Recovery Act (RCRA), 42 U.S.C. §§ 6901 through 6992, inclusive; 40 C.F.R. Parts 260
through 271, inclusive; the California Hazardous Substance Account Act (HSAA),
California Health and Safety Code §§ 25300 through 25395, inclusive; the California
Hazardous Waste Control Act (HWCA), California Health and Safety Code §§ 25100
through 25249, inclusive; the Proter - Cologne Water Quality Control Act, California
Water Code §§ 13000 through 13999.16, inclusive; and the Underground Storage Tank
Act (USTA), California Health and Safety Code §§ 24280 through 24299.7, inclusive, all
as the same may be amended from time to time, relating to the environment or to any
hazardous substance, activity or material connected with the condition of the License
Area. Notwithstanding any other provision of this License, this environmental indemnity
shall survive the expiration or termination of this License as to activities taking place or
occurring on or about the License Area prior to such expiration or termination.
E. CITY shall, upon request and at LICENSEE's cost, provide to LICENSEE
copies of all reports, studies, surveys and other data and information on the License
Area which is now available to CITY. CITY represents that it has no information
disclosable pursuant to California Health and Safety Code §§ 25359.7(a).
8. Co- Location
From time -to -time during the term of this License, another wireless
communication company may wish to co- locate its communication facilities within
LICENSEE's License Area. CITY hereby reserves the right to require LICENSEE, by
separate agreement (hereinafter "LICENSEE- CARRIER License "), to provide space
and utilities to such wireless communication company, (hereinafter "CARRIER ") on the
monopole or tower structure constructed by LICENSEE within the License Area
provided that the following requirements for co- location by CARRIER are met:
A. CITY shall request that CARRIER submit preliminary plans and
specifications to LICENSEE. LICENSEE shall have ten (10) business days to respond
to CITY in writing with preliminary comments concerning CARRIER's proposed plans
and specifications and LICENSEE's approval or disapproval of such plans and
specifications, which approval shall not be unreasonably withheld, conditioned or
delayed.
B. If CARRIER's plans and specifications are not approved by LICENSEE in
accordance with the foregoing, then CARRIER shall revise its plans and specifications
to meet the reasonable objections thereto set forth in LICENSEE's written disapproval.
No construction, installation, testing, or operation of CARRIER's transmitting /receiving
equipment shall be permitted until LICENSEE approves CARRIER's plans and
specifications in accordance with the foregoing.
C. If CARRIER's plans and specifications are approved by LICENSEE,
CARRIER shall notify LICENSEE in writing as to the scheduled date and time of
51
commencement of construction and installation of CARRIER's transmitting /receiving
equipment not less than five (5) business days prior to such date. 0
D. CARRIER shall also notify LICENSEE in writing five (5) business days
prior to CARRIER's pre- operation transmit test as to the date and time such test will
commence. The pre- operation transmit test shall measure:
(i) The signal transmit levels at the output after the final filter stage on
CARRIER's transmit line with all transmitters keyed up at maximum power.
(ii) Antenna isolation between the output of the final filter stage on
CARRIER's transmit line and input line to LICENSEE's multicoupler in LICENSEE's
frequency band of operation.
(iii) The combination of (a) worst case level measured out of
CARRIER's transmit line added to (b) worst case antenna isolation. Such value shall
be no greater than - 120dBm. If LICENSEE reasonably determines that it is
experiencing interference, LICENSEE shall notify CARRIER to immediately cease the
pre- operation transmit test. Thereafter, LICENSEE shall have two (2) business days to
submit its written approval, disapproval or conditional approval of CARRIER's intended
equipment installation to CITY, which approval shall not be unreasonably withheld,
conditioned or delayed.
E. CITY and LICENSEE understand and agree that it shall be CARRIER's
responsibility to ensure that proper filtering and isolation are in place for the pre -
operation transmit test and operation of CARRIER's antenna system. Any change to
CARRIER's approved antenna type and location and /or change in transmitter types and
power output shall first follow each of the steps set forth in this clause ( "C" and "D ")
above.
F. The LICENSEE - CARRIER License between LICENSEE and CARRIER
shall be based upon reasonable terms and conditions found in similar co- location
agreements within the telecommunications industry. LICENSEE agrees that, in the
event it subleases a portion of its License Area to accommodate a CARRIER, with the
consent of CITY, as required herein, any sublease rental rate shall be fair and
reasonable, based upon the market prices charged by competing and /or comparable
businesses.
CITY reserves the right to require CARRIER to pay CITY a fee for the portion of
License Area co- located with LICENSEE. LICENSEE's fee paid the CITY, as required
in paragraph 3 of this License, shall not be reduced and is completely separate from the
LICENSEE - CARRIER Agreement.
Such co- location of communication service shall be reasonably implemented by
CITY's Director of Public Works based upon the physical and engineering feasibility of
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the License Area. Any such LICENSEE - CARRIER License for co- location shall be
subject to Director of Public Works' approval and subject to the terms and conditions of
this License. Notwithstanding the foregoing, CITY shall not cause or permit any use of
the License Area for co- location purposes that interferes with or impairs the quality of
the telecommunications services being rendered by LICENSEE from the License Area.
LICENSEE agrees to use reasonable best efforts to minimize any interference or
disruption of CARRIER's telecommunication operations so long as CARRIER operates
it communications equipment in accordance with plans approved by LICENSEE and
CITY.
9. Claims Against License Area.
LICENSEE shall not suffer or permit to be enforced against the License Area, or
any part thereof, any mechanic's, material man's, contractor's or subcontractor's liens
arising from, or any claim for any work of construction, repair, restoration, replacement
or improvement of or to the License Area for work for which LICENSEE is financially
liable, or any other similar claim or demand howsoever the same may arise, but
LICENSEE shall pay or cause to be paid any and all such claims or demands before
any action is brought to enforce the same against the License Area. LICENSEE agrees
to indemnify, defend and hold CITY and the License Area free and harmless of all
liability for any and all such claims and demands, together with CITY's reasonable
attorneys' fees and all costs and expenses in connection therewith.
10. Utilities.
LICENSEE shall pay the cost of any and all water, electrical, gas or other utility
services delivered to the License Area during the term hereof and shall have such
utilities installed underground and /or connected if already installed, and maintained at
LICENSEE's sole cost and expense and subject to CITY's approval. LICENSEE shall
submit plans for underground construction of required utility lines to CITY for review
prior to commencement of construction thereof. CITY shall approve or disapprove of
same within fourteen (14) days.
11. Taxes.
LICENSEE shall pay, or cause to be paid, before delinquency, any and all taxes
levied or assessed and which become payable during the term hereof upon all of
LICENSEE's possessory interest in and to the License Area, leasehold improvements,
equipment fixtures and personal property located in or abut the License Area.
LICENSEE agrees that, without prior demand or notice by CITY, LICENSEE shall, not
less than fifteen (15) days prior to the day upon which any such possessory interest or
other such tax is due, provide CITY with proof of payment of such tax.
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12. Rules and Regulation.
LICENSEE shall faithfully observe and comply with all the rules and regulations 0
that CITY shall from time -to -time promulgate. CITY reserves the right from time -to -time
to make all reasonable modifications to said rules and regulations. The additions and
modifications to those rules and regulations shall be binding upon LICENSEE upon
delivery of a copy thereof to LICENSEE. Nothing contained in said rules and
regulations shall require LICENSEE to expend money or take action to make any
alterations, additions, improvements or replacements on or to the License Area. In the
case of any conflict between any rules and regulations established by CITY and this
License, the License shall control.
13. Holding Over.
If LICENSEE remains in possession of the License Area or any part thereof after
the expiration of the term as provided in paragraph 2, with the express written consent
of CITY, this License may continue in force upon the same terms and conditions for a
further period of one (1) year, and for like annual periods thereafter, until and unless
terminated by either party by giving to the other written notice of intention to so
terminate, at any time, without cause, upon at least ninety (90) days prior written notice.
14. Entry by CITY.
LICENSEE hereby agrees that representatives of the CITY, as designated by the
City Manager, shall, during normal business hours and in the accompaniment of a
representative of LICENSEE, have the right to enter the License Area and inspect the
same to determine if the same complies with each and every term and condition of this
License and with all applicable City, County, State and Federal laws, rules, ordinances
and regulations relating to building occupancy and the conduct of LICENSEE's
business, provided CITY gives LICENSEE no less than seventy -two (72) hours prior
written notice. LICENSEE hereby waives any claim for damages or for any injury or
inconvenience to or interference with LICENSEE's business, and loss of occupancy or
quiet enjoyment of the License Area, and any loss occasioned thereby. CITY shall at
all times have and retain a key with which to unlock any entrances to any perimeter
enclosures (fencing, etc.) surrounding LICENSEE's telecommunications facility. It is
expressly agreed that CITY shall not have a key to LICENSEE's telecommunications
facility, except as provided above. Any entry to the License Area obtained by CITY, as
provided above, shall not, under any circumstances, be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the License Area, or an eviction of
LICENSEE from the License Area or any portion thereof.
15. Default.
The occurrence of any one or more of the following events shall constitute a
default and breach of this License by LICENSEE:
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A. Vacating or abandonment of the License Area by LICENSEE and non-
. payment of the fee;
B. The failure by LICENSEE to make any fee payment or any other payment
required to be made by LICENSEE hereunder, as and when due, where such failure
shall continue for a period of seven (7) days after receipt of written notice thereof by
LICENSEE from CITY;
C. A failure by LICENSEE to observe or perform any of the covenants,
conditions or provisions of this License to be observed or performed by LICENSEE,
other than as described in subparagraph 15B, above, where such failure shall continue
for a period of twenty (20) days after mailed written notice thereof by CITY to
LICENSEE; provided, however, that if the nature of the default involves such that more
than twenty (20) days are reasonably required for its cure, then LICENSEE shall not be
deemed to be in default if LICENSEE commences such cure within such twenty (20)day
period and thereafter diligently prosecutes said cure to completion; or
D. The making by LICENSEE of any general assignment or general
arrangement for the benefit of creditors, or the filing by or against LICENSEE of a
petition to have LICENSEE adjudged a bankrupt, or a petition or reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a petition filed
against LICENSEE, the same is dismissed within sixty (60) days); or the appointment of
. a trustee or a receiver to take possession of substantially all of LICENSEE's assets
located in or about the License Area or of LICENSEE's interest in this License, where
possession is not restored to LICENSEE within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of LICENSEE's assets located in
or about the License Area or of LICENSEE's interest in this License, where such
seizure is not discharged in thirty (30) days.
16. Remedies in Default.
In the event of any such default or breach by LICENSEE, CITY may at any time
thereafter and without notice or demand, and without limiting CITY in the exercise of
right or remedy CITY may have by reason of such default or breach:
A. Terminate LICENSEE's right to possession of the License Area by any
lawful means, in which case this License shall terminate and LICENSEE shall
immediately surrender possession of the License Area to CITY. In such event, CITY
shall be entitled to recover from LICENSEE all damages incurred by CITY by reason of
LICENSEE's default including, but not limited to, the cost of recovery of possession of
the License Area, expenses of reletting, including necessary removal of improvements,
renovation and alteration of the License Area, for reasonable attorney's fees and costs,
any real estate commission actually paid, or the worth at the time of award by the court
• having jurisdiction thereof of the amount by which the unpaid fee for the balance of the
term after the time of such award exceeds the amount of such fee loss for the same
10
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period that LICENSEE proves could be reasonably avoided. Unpaid installments of
unpaid fees or other sums shall bear interest from due date thereof at the rate of •
eighteen percent (18 %) per annum or at the maximum legal rate then in effect in
California, whichever is higher. In the event LICENSEE shall have abandoned the
License Area, CITY shall have the option of (1) taking possession of the License Area
and recovering from LICENSEE the amount specified in this subparagraph, or (2)
proceeding under the provisions of the following subparagraphs.
B. Maintain LICENSEE's right to possession, in which case this License shall
continue in effect whether or not LICENSEE shall have abandoned the License Area.
In such event, CITY shall be entitled to enforce all of CITY's rights and remedies under
this License, including the right to recover the fee as it becomes due hereunder.
C. Pursue any other remedy now or hereafter available to CITY under the
laws or judicial decisions of the State of California. Furthermore, LICENSEE agrees
that no election by CITY as to any rights or remedies available hereunder or under or
pursuant to any law or judicial decisions of the State of California shall be binding upon
CITY until the time of trial of any such action or proceeding.
17. Eminent Domain.
If more than fifty percent (50 %) of the License Area shall be taken or
appropriated by any public or quasi - public authority under the power of eminent .
domain, either party hereto shall have the right, at its option, to terminate this License,
and CITY shall be entitled to any and all income, fee, award, or any interest therein
whatsoever which may be paid or made in connection with such public or quasi - public
use or purpose, and LICENSEE shall have no claim against CITY for the value of any
unexpired term of this License. If either less than or more than fifty percent (50 %) of
the License Area is taken, and neither party elects to terminate as herein provided, the
fee thereafter to be paid shall be equitably reduced. Nothing contained in this
paragraph 17 shall prevent LICENSEE from seeking an award in its own right, from the
public or quasi - public authority so long as such award, if any, does not diminish or
reduce that paid to CITY.
18. Offset Statement.
LICENSEE shall, at any time and from time -to -time upon not less than ten (10)
days prior written notice from CITY, execute, acknowledge and deliver to CITY a
statement in writing (a) certifying that this License is unmodified and in full force and
effect, or, if modified, stating the nature of such modification and certifying that this
License, as so modified, is in full force and effect and the date to which the fee and
other charges are paid in advance, if any; and (b) acknowledging that there are not, to
LICENSEE's knowledge, any uncured defaults on the part of CITY hereunder, or
specifying such defaults if any are claimed. Any such statement may be relied upon by •
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any prospective purchaser or encumbrance of all or any portion of which the License
Area are a part.
19. Assignment and Subletting.
LICENSEE shall not assign, sublet or transfer this License or any right hereunder
to any other party or parties nor shall LICENSEE assign all or any portion of the
License Area without first obtaining the written consent of CITY. Any assignment or
subletting of the License Area without such prior written consent shall be void for all
purposes and CITY may, at its option, declare a forfeiture of the same in any manner
provided by law. Notwithstanding the foregoing, however, LICENSEE may assign this
License, (A) to any entity which has, directly or indirectly, a 30% or greater interest in
LICENSEE (a "Parent ") or in which LICENSEE or a Parent has a 30% or greater
interest (an "Affiliate "); (B) to any entity with which LICENSEE and /or any Affiliate may
merge or consolidate; (C) to a buyer of substantially all of the outstanding ownership
units or assets of LICENSEE or any Affiliate; or (D) if LICENSEE transfers LICENSEE's
Federal Communications Commission cellular license, to the recipient of that transfer
any such assignment or transfer shall not be effective unless, LICENSEE shall provide
CITY with thirty (30) days prior written notice, together with documentation satisfactory
to CITY's City Manager establishing that such assignee, transferee or sublettee is
qualified as provided herein. Consent to any other assignment, transfer or subletting
shall be at CITY's sole discretion and CITY is not required hereunder to consent to any
• such proposed assignment, transfer or subletting of the License Area
20. Attorney's Fees.
In the event that any action or proceeding is brought by either party to enforce
any term or provision of this License, the prevailing party shall recover its reasonable
attorneys' fees and costs incurred with respect thereto.
21. Fixtures.
All trade fixtures and /or temporary facilities including LICENSEE's antennas and
telecommunications equipment installed or on the License Area by LICENSEE may be
removed by LICENSEE at any time during the term of this License so long as the same
may be removed without permanent damage to the License Area. LICENSEE shall
repair all damage which may result therefrom to the reasonable satisfaction of CITY.
22, Indemnification.
LICENSEE agrees to defend, indemnify and hold CITY and its elected officials,
officers, agents and employees free and harmless from all claims, demands, losses,
liabilities, fines, penalties, administrative and judicial proceedings, including costs of
• defense, for damage to persons or property by reason of LICENSEE's negligence or
LICENSEE's acts or omissions or those of LICENSEE's employees, agents, or
12
contractors in connection with LICENSEE's telecommunications facilities or use and
occupancy of the License Area. •
23. Insurance.
A. Fire and Extended Coverage - LICENSEE's Duty to Keep Improvements.
Throughout the term hereof, at LICENSEE's sole cost and expense, LICENSEE shall
keep or cause to be kept insured, all improvements located on the License Area against
loss or damage by fire and such other risks as are now or hereafter included in an
extended coverage endorsement in common use for such structures, including
vandalism and malicious mischief. The amount of insurance shall be the then
replacement cost, excluding costs of replacing excavations and foundations but without
deduction for depreciation (herein called "full insurable value "). CITY shall not carry
any insurance, the effect of which would be to reduce the protection or payment to
LICENSEE under any insurance that this License obligates LICENSEE to carry. If any
dispute as to whether the amount of insurance complies with the above cannot be
resolved by agreement, CITY may, not more than once every three (3) months, request
the carrier of the insurance then in force to determine the full insurable value as defined
in this provision, and the resulting determination shall be conclusive between parties for
the purposes of this paragraph. LICENSEE shall include the holder of any mortgage on
the License Area as a loss payee to the extent of that mortgage interest.
B. Commercial General Liability Insurance. Throughout the term hereof, at .
LICENSEE's sole cost and expense, LICENSEE shall keep or cause to be kept in full
force and effect, for the mutual benefit of LICENSEE, and CITY as an additional
insured, commercial general liability insurance against claims and liability for personal
injury, death, or property damage arising from the use, occupancy, disuse, or condition
of the License Area, improvements, or adjoining areas or ways, providing protection of
at least Two Million Dollars ($2,000,000.00) per occurrence for bodily injury or death,
and at least Five Hundred Thousand Dollars ($500,000.00) for property damage. Any
policies containing an annual general aggregate shall be subject to CITY's prior
approval.
C. Policy Form. Contents and Insurer. All insurance required by express
provision of this License shall be carried only in responsible insurance companies
licensed to do business in the State of California with a current A.M. Best rating of no
less than A -IX. All such policies shall contain language to the effect that: (1) the
policies are primary and non - contributing with any insurance that may be carried by
CITY; (2) they cannot be canceled or materially altered except after thirty (30) days'
notice by the insurer to CITY; (3) the CITY OF NEWPORT BEACH and each of CITY's
elected officials, officers and employees are additional insureds; (4) any failure by
LICENSEE to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect the required coverage; and (5) the required
insurance applies separately to each insured against whom claim is made or suit is •
brought, except with respect to the limits of the insurer's liability. LICENSEE shall
13
furnish CITY with copies of all certificates and endorsements evidencing the insurance.
LICENSEE may effect for its own account any insurance not required under this
License.
D. Failure to Maintain Insurance: Proof of Compliance. LICENSEE shall
deliver to CITY, in the manner required for notices, copies of endorsements to all
insurance policies required by this License, within the following time limits: (1) For
insurance required at the commencement of this License, within ten (10) days after
execution of this License and prior to LICENSEE's occupancy of the License Area; (2)
For insurance becoming required at a later date, at least ten (10) days before that
requirement takes effect, or as soon thereafter as the requirement, if new, takes effect;
(3) For any renewal or replacement of a policy already in existence, prior to expiration
or other termination of the existing policy.
If LICENSEE fails or refuses to procure or maintain insurance as required by this
License, or fails or refuses to furnish CITY with required proof that the insurance has
been procured and is in full force and paid for, CITY shall have the right, at CITY's
election and on five (5) days notice, to procure and maintain such insurance. The
premiums paid by CITY shall be treated as added fee due from LICENSEE with interest
at the rate of eighteen percent (18 %) per year or the maximum allowable legal rate in
effect in the State of California on the date when the premium is paid, whichever is
higher, to be paid on the first day of the month following the date on which the premium
. was paid. CITY shall give LICENSEE prompt notice and provide LICENSEE with a
certificate of insurance and agent's invoice evidencing payment of such premiums,
stating the amounts paid and the names of the insurer or insurers, and interest shall run
from the Effective Date of coverage.
24. Authority of Parties.
Each individual executing this License on behalf of each party represents and
warrants that he or she is fully authorized to execute and deliver this License on behalf
of such party and that this License is binding upon such party in accordance with its
terms.
25. Waiver.
The waiver by CITY of any term, covenant or condition herein contained shall not
be deemed to be a waiver of such term, covenant or condition on any subsequent
breach of the same or any other term, covenant or condition herein contained. The
subsequent acceptance of fee hereunder by CITY shall not be deemed to be a waiver
of any preceding breach by LICENSEE of any term, covenant or condition of this
License, other than the failure of the LICENSEE to pay the particular fee so accepted,
regardless of CITY's knowledge of such preceding breach at the time of acceptance of
• such fee
14
26. Time.
Time is of the essence of this License and each and all of its provisions in which
performance is a factor.
27. Late Charges.
LICENSEE hereby acknowledges that late payment by LICENSEE to CITY of fee
or other sums due hereunder will cause CITY to incur costs not contemplated by this
License, the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges. Accordingly, if any
installment of fee or of a sum due from LICENSEE shall not be received by CITY or
CITY's designee with ten (10) days after the first of each month that said amount is past
due, then LICENSEE shall pay to CITY a late charge equal to ten percent (10 %) of
such overdue amount. The parties hereby agree that such late charges represent a fair
and reasonable estimate of the cost that CITY will incur by reason of the late payment
by LICENSEE. Acceptance of such late charges by CITY shall in no event constitute
waiver of LICENSEE's default with respect to such overdue amount, nor prevent CITY
from exercising any of the other rights and remedies granted hereunder.
28. Inability to Perform.
This License and the obligations of LICENSEE hereunder shall not be affected •
or impaired because CITY is unable to fulfill any of the obligations hereunder or is
delayed in doing so, if such inability or delay is caused by reason of strike, war, civil
insurrection, acts of God, or any other cause beyond the reasonable control of CITY.
29. Sale of License Area by CITY.
In the event of any sale or conveyance of Bonita Creek Park, the property on
which the License Area is situated, CITY shall be and hereby is entirely freed and
relieved of all liability under any and all of the covenants and obligations contained in or
derived from this License arising out of any act, occurrence or omission occurring after
the consummation of such sale or conveyance. The purchaser at such sale or any
subsequent sale of Bonita Creek Park, or other subsequent owner of Bonita Creek
Park, shall be deemed, without any further agreements between the parties or their
successors in interest or between the parties and any such purchaser, to have
assumed and agreed to carry out each and all of the covenants and obligations of CITY
under this License.
30. Signs.
LICENSEE shall not place any sign upon the License Area without CITY's prior
written consent and approval thereof. •
W61
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31. Successors.
Subject to the provisions of this License with respect to assignment and
subletting, each and all of the covenants and conditions of this License shall be binding
on and shall inure to the benefit of the successors of the respective parties.
32. Notices.
Except where otherwise required herein, any notice required or permitted under
the terms of this License shall be deemed served when personally served on
LICENSEE or CITY or when the same has been placed in the United States mail, First
Class mail, postage prepaid, and addressed as follows:
LICENSEE:
Los Angeles Cellular Telephone Company
Attention: Real Estate Department
P. O. Box 6028
Cerritos, California 90702 -6028
with copy to:
Los Angeles Cellular Telephone Company
Attention: Erich E. Everbach
17785 Center Court Drive North
Cerritos, California 90703 -8575
33. Execution by CITY Not a Waiver.
CITY:
City of Newport Beach
Attention: City Manager
3300 Newport Boulevard
Newport Beach, California 92663
LICENSEE understands and agrees that CITY, by entering into and executing
this License, shall not have waived any right, duty, privilege, obligation or authority
vested in the City of Newport Beach to approve, disapprove or conditionally approve
any application which LICENSEE may be required to make under any laws, rules,
ordinances or regulations now or hereafter in effect which said City may be empowered
to apply, including, but not limited to any use permit or approval, whether similar in
nature or not.
34. Entire License.
This License contains the entire agreement between the parties. No promise,
representation, warranty, or covenant not included in this License has been or is relied
. on by either party. Each party has relied on its own examination of this License, the
counsel of its own advisors, and the warranties, representations, and covenants in the
16
License itself. The failure or refusal of either party to inspect the License Area or
improvements, to read the License or other documents or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim
that might have been based on such reading, inspection or advice.
35. Controlling Law.
This License will be interpreted and enforced according to the laws of the State
of California and according to its fair meaning, and not in favor of or against either
party.
36. Severability.
The invalidity or unenforceability of any part of this License will not affect the
remainder of this License.
37. Additional Licenses.
Each party will promptly sign or cause to be signed and delivered to the other
party, all instruments or documents, and take all actions, as may reasonably be
requested by the other party to carry out the intent or purpose of this License.
38. Headings. 0
All paragraph headings are for convenience only and do not affect the
interpretation of this License.
39. Exhibits.
The following exhibits to this License are made a part of this License as if they
were included in the main body of this License:
Exhibit A: Description and Plot Plan of the License Area and LICENSEE's
telecommunications facilities.
C J
17
! •
WHEREFORE, the parties hereto have entered into the License as of the date
set forth below opposite the name of each signatory hereto.
! "LICENSEE"
Dated:
Dated:
Dated:
F Acat\da\ag \clean \laceil. doc
05 -16 -97
LOS ANGELES CELLULAR TELEPHONE
COMPANY, a California general partnership
Laren Whiddon
Chief Financial Officer
"CITY"
CITY OF NEWPORT BEACH, a municipal
corporation
0
Kevin J. Murphy
City Manager
By:
LaVonne Harkless
City Clerk
APPROVED AS TO FORM:
go
City Attorney
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TELECOMMUNICATIONS LICENSE AGREEMENT
This License is made and entered into on this28 day of JULY , 1997, by and
between the CITY OF NEWPORT BEACH, a municipal corporation (hereinafter
referred to as "CITY ") and LOS ANGELES CELLULAR TELEPHONE COMPANY, a
California general partnership (hereinafter referred to as "LICENSEE ").
1. License Area. Subject to the provisions of this License, CITY hereby
grants a non - exclusive license to LICENSEE for the term of this Agreement, to use that
certain parcel of real property, approximately 700 square feet in area, located in Bonita
Creek Park, in the City of Newport Beach, California, and more particularly shown as
crosshatched and described in Exhibit A to this License (the "License Area "). CITY
further grants to LICENSEE a non - exclusive license for ingress and egress to the
License Area seven (7) days a week, twenty -four (24) hours a day and to install and
maintain underground utility wires, cables, conduits and other telecommunication
facilities, as specified in Exhibit A. All installation and maintenance activities shall be at
LICENSEE's sole cost and expense, pursuant to plans approved in advance in writing
by CITY. This License is subject to the terms, covenants and conditions hereinafter set
forth and LICENSEE covenants, as a material part of the consideration for this License,
to keep and perform each and every term, covenant and condition of this License.
2. Term.
A. The term of this License shall be for five (5) years, commencing
upon the Commencement Date (as defined in paragraph 3), subject to three (3) five (5)
year renewals, if exercised as provided in 2(B) below.
B. If LICENSEE has not defaulted in the performance of any term or
condition under this License (with all cure periods having lapsed), then upon at least
ninety (90) calendar days before the expiration of the original License term, or any
renewal term, LICENSEE may give City written notice of the exercise of the option to
renew this License. During any renewal period, all of the terms and conditions of this
License shall remain in full force and effect, except the fee for the License Area shall be
increased in accordance with the provisions set forth in paragraph 3 below.
The option(s) to renew shall be exercised by personal delivery or by
certified mail, postage prepaid, of such notice of exercise of option to CITY at the
address set forth herein for notices. Such exercise of the option(s) granted hereunder
shall automatically extend the term of this License upon the terms and conditions set
forth herein, and no further writing need be exercised by LICENSEE or CITY. Upon
exercise, LICENSEE shall not have the right to revoke its election to exercise the
option. In the event that any option to renew is not exercised, as provided, within the
time period provided, then the option and remaining options, if any, shall expire, and
LICENSEE shall not have any right to renew this License.
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C. Upon expiration or termination of this License, both parties shall be
relieved of any further obligations under this License, although each shall continue to
have available all remedies for any breach of this License occurring prior to the date of
termination. Within sixty (60) days following the expiration or termination of this
License, LICENSEE shall remove all the telecommunications facilities and restore the
License Area to its original condition existing as of the Effective Date, reasonable wear
and tear and damage not caused by LICENSEE excepted and further excepting
landscaping and related irrigation equipment, or other aesthetic improvements made by
LICENSEE to the License Area. Upon written request of CITY, Licensee shall not be
required to remove the equipment shelter and any alterations, additions or
improvements thereto which shall become a part of the realty and belong to CITY and
shall be surrendered with the License Area.
3. Fee. Commencing on the date the CITY issues a permit to commence
construction of the telecommunications facilities or October 1, 1997 which ever comes
first ( "Commencement Date "), LICENSEE agrees to pay to CITY a fee, without prior
notice or demand by CITY, in the sum of Thirty Thousand Dollars ($30,000.00) per
year, to be paid in equal monthly installments in advance on or before the first day of
each month during the term of this License. The fee shall be paid to CITY, without
deduction or offset, in lawful money of the United States of America, at 3300 Newport
Boulevard, Newport Beach, California 92663, or at such other place as CITY may
designate, in writing.
A. The Parties agree that the Fee shall be increased by three percent (3 %)
annually throughout the term of this License (including any extensions or continuations
thereof) on each anniversary of the Commencement Date.
B. The fee for any partial month shall be prorated at the rate of 1 /30th of the
current monthly fee per day.
C. Upon any renewal of this License, the amount of the fee shall be
amended at the request of CITY should LICENSEE execute or amend any other similar
agreement with any other public agency or private entity to include provisions and /or
rent for similar telecommunications facilities which is for a fee or rental rate more
favorable than the then existing fee payable under this License.
4. Use.
A. LICENSEE shall use the License Area for the sole purpose of
constructing, maintaining, securing and operating a cellular telecommunications
antenna and related facilities, including the construction of an equipment shelter and
installation of required monopole and related communications equipment in substantial
compliance with the site plan and related drawings dated 06/26/97 and approved by
CITY (Collectively 'Telecommunications Facilities "). Each approved antenna or
antenna support structure may be configured as required by LICENSEE, provided
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LICENSEE obtains all permits and approvals required by CITY and /or any other public
agency having jurisdiction over the matter. The telecommunications facilities may be
modified (added to and /or substituted from time -to -time) upon written approval by CITY.
Construction of LICENSEE's telecommunications facilities shall be at LICENSEE's sole
expense. Further, LICENSEE shall maintain the License Area free from hazards or risk
to the public health, safety or welfare.
B. CITY agrees that LICENSEE's ability to use the License Area is
dependent upon LICENSEE obtaining and complying with all necessary certificates,
permits and /or other approvals which may be required from any federal, state or local
authority. CITY agrees to cooperate with LICENSEE as to LICENSEE obtaining such
certificates, permits or other approvals. In the event LICENSEE is unable to obtain any
necessary certificate, permit or other approval to operate its telecommunications
facilities, or if due to technological changes, or if any adverse soil surface or subsurface
conditions of the License Area exist which LICENSEE is unable or unwilling to correct,
LICENSEE, in its sole discretion, determines that it will be unable to use the License
Area for LICENSEE's intended purposes, LICENSEE may terminate this License as
provided herein, upon thirty (30) days prior written notice to CITY.
C. LICENSEE shall immediately cease operations upon receipt of written
notice from CITY in the event that a determination is made by a local, state or national
governmental health agency, or a judgment is issued by any federal or state court, that
the operation of telecommunications facilities similar to LICENSEE'S
telecommunications facilities which LICENSEE is operating on the License Area poses
a human health hazard. If the operation of LICENSEE's telecommunications facilities
poses a health hazard that in the opinion of the agency making such determination, can
be remediated and if LICENSEE promptly remediates such health hazard to the
reasonable satisfaction of CITY, then LICENSEE may resume operations of its
telecommunications facilities upon the completion of such remediation. If LICENSEE is
unable to complete such remediation within one hundred eighty (180) days after receipt
of CITY's written notice to LICENSEE, CITY may terminate this License. The parties
acknowledge and agree that if LICENSEE fails to immediately cease operation as
required under this paragraph, CITY shall be entitled to petition a court of competent
jurisdiction to compel such cessation by injunction.
D. LICENSEE shall not do or permit anything to be done in or about the
License Area nor bring or keep anything therein which will cause cancellation of any
insurance policy covering the License Area or part thereof or portion of its contents.
LICENSEE agrees to pay any reasonable increase in the rate of fire or other insurance
policy covering the License Area which is due to LICENSEE's licensing of the License
Area. LICENSEE shall not do or permit anything to be done in or about the License
Area which will in any way obstruct or interfere with the rights of other parties, or injure
or annoy them, or use or allow or permit the License Area to be used for any improper,
unlawful or objectionable purpose. Nor shall LICENSEE cause, maintain or permit any
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nuisance in or about the License Area. LICENSEE shall not commit or suffer to be
committed any waste in or upon the License Area.
E. Any and all construction work performed pursuant to the rights granted
under this Agreement, including the installation, operation and maintenance of the
telecommunications facilities, shall be subject to prior review and approval of City Public
Works Department by means of submission and department approval of an
encroachment permit application, payment of any applicable permitting fees, and the
City's ordinary administrative review. Upon the completion of construction work,
Licensee promptly shall furnish to the City, in hard copy and in LICENSEE's electronic
format, suitable documentation showing the exact location of the facilities in the License
area.
F. Licensee in the performance and exercise of its rights and obligations
under this License shall not interfere in any manner with the existence and operation of
any public and private rights -of -way, sanitary sewers, water mains, storm drains, gas
mains, poles, aerial and underground electrical and telephone wires, electroliers, cable
television, and other telecommunications, utility, or municipal property, without the
express written approval of the owner or owners of the affected property or properties.
5. Compliance with Law.
LICENSEE shall not use the License Area or permit anything to be done in or
about the License Area which will in any way conflict with any law, statute, ordinance or
other governmental rule or regulation now in force or which may hereinafter be enacted
or promulgated. Subject to LICENSEE's right to terminate as provided in paragraph
4.13, LICENSEE shall, at its sole cost and expense, promptly comply with all laws,
statutes, ordinances and other governmental rules, regulations or requirements now in
force or which may hereinafter be enacted or promulgated, relating to, or affecting the
condition, use or occupancy of the License Area, excluding structural changes not
related to or affected by LICENSEE's improvements and acts. The judgment of a court
of competent jurisdiction or the admission by LICENSEE in any action against
LICENSEE, whether CITY be a party thereto or not, that LICENSEE has violated any
law, statute, ordinance or any other governmental rule or regulation related to the
License Area shall be conclusive of that fact as between CITY and LICENSEE.
6. Alterations and Additions.
Other than as expressly required or permitted herein, LICENSEE or any
contractor or person selected by LICENSEE shall not make or suffer to be made any
alterations, additions or improvements in or to or about the License Area or any part
thereof without the prior written consent of CITY.
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7. Physical Condition of License Area: Waiver.
A. By acceptance of this License and use of the License Area, LICENSEE
shall be deemed to have accepted the License Area as being in good sanitary order,
condition and repair. LICENSEE shall, at LICENSEE's sole cost and expense, keep the
License Area and any part thereof in good condition and repair. CITY shall have no
obligation whatsoever to alter, improve or repair the License Area, or any part thereof,
and the parties hereto affirm that CITY has made no representations to LICENSEE
respecting the condition of the License Area except as specifically set forth herein.
LICENSEE further agrees that it shall submit to CITY, prior to applying for any permits
to renovate, reconstruct, improve, alter or in any way modify the License Area, plans
and specifications for CITY's approval.
B. CITY shall not be liable for any failure to make any repairs, or to perform
any maintenance except as specifically provided herein. Except as may otherwise be
provided herein, there shall be no fee abatement and no liability of CITY by reason of
any injury to or interference with LICENSEE's business arising from CITY's use of
Bonita Creek Park or CITY or LICENSEE making any repairs, alterations or
improvements in or to any portion of the License Area or in or to any fixtures,
appurtenances and equipment therein. LICENSEE hereby specifically waives the right
to make repairs at CITY's expense under any law, statute or ordinance now or hereafter
in effect. Notwithstanding the foregoing, CITY shall be responsible to repair any
damage to LICENSEE's equipment or facilities caused by CITY's negligent activities.
C. LICENSEE shall accept possession of the License Area in an "as is"
physical condition with no warranty, express or implied, by CITY as to the condition of
the soil, its geology, the presence of known or unknown faults, its suitability for the use
intended by LICENSEE, any on -site soils contamination or any similar matters. It shall
be the sole responsibility and obligation of LICENSEE to investigate and correct any
adverse soil, surface or subsurface conditions of the License Area, and to take such
action as may be necessary to place the License Area in a condition entirely suitable for
the use intended by LICENSEE and agreed to by CITY as is set forth herein.
D. LICENSEE hereby specifically waives any rights LICENSEE may have
against CITY with regard to the condition of the License Area, including, but not limited
to, soils, toxic or hazardous materials, fill material, compaction, geologic constraints and
faults, and agrees to indemnify, defend and hold City harmless from all claims, losses,
liabilities, damages, demands, actions, judgments, causes of action, assessments,
penalties, costs and expenses (including without limitation, the reasonable fees and
disbursements of legal counsel, expert witnesses and accountants) and all foreseeable
and unforeseeable consequential damages which might arise or be asserted against
CITY as a result of a claimed violation of any and all present and future federal, state
and local laws (whether under common law, statute, rule, regulation or otherwise)
arising from LICENSEE's conduct or activities, under this License Agreement including,
but not limited to, the Comprehensive Environmental Response, Compensation, and
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Liability Act of 1980 (CERCLA), 42 U.S.C. App. §§ 1801 through 1813, inclusive; the
Federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 through
6992, inclusive; 40 C.F.R. Parts 260 through 271, inclusive; the California Hazardous
Substance Account Act (HSAA), California Health and Safety Code §§ 25300 through
25395, inclusive; the California Hazardous Waste Control Act (HWCA), California
Health and Safety Code §§ 25100 through 25249, inclusive; the Proter - Cologne Water
Quality Control Act, California Water Code §§ 13000 through 13999.16, inclusive; and
the Underground Storage Tank Act (USTA), California Health and Safety Code §§
24280 through 24299.7, inclusive, all as the same may be amended from time to time,
relating to the environment or to any hazardous substance, activity or material
connected with the condition of the License Area. Notwithstanding any other provision
of this License, this environmental indemnity shall survive the expiration or termination
of this License as to activities taking place or occurring on or about the License Area
prior to such expiration or termination.
E. CITY shall, upon request and at LICENSEE's cost, provide to LICENSEE
copies of all reports, studies, surveys and other data and information on the License
Area which is now available to CITY. CITY represents that it has no information
disclosable pursuant to California Health and Safety Code §§ 25359.7(a).
8. Co- Location
From time -to -time during the term of this License, another wireless
communication company may wish to co- locate its communication facilities within
LICENSEE's License Area. CITY hereby reserves the right to require LICENSEE, by
separate agreement (hereinafter "LICENSEE- CARRIER License "), to provide space
and utilities to such wireless communication company, (hereinafter "CARRIER ") on the
monopole or tower structure constructed by LICENSEE within the License Area
provided that the following requirements for co- location by CARRIER are met:
A. CITY shall request that CARRIER submit preliminary plans and
specifications to LICENSEE. LICENSEE shall have ten (10) business days to respond
to CITY in writing with preliminary comments concerning CARRIER's proposed plans
and specifications and LICENSEE's approval or disapproval of such plans and
specifications, which approval shall not be unreasonably withheld, conditioned or
delayed.
B. If CARRIER's plans and specifications are not approved by LICENSEE in
accordance with the foregoing, then CARRIER shall revise its plans and specifications
to meet the reasonable objections thereto set forth in LICENSEE's written disapproval.
No construction, installation, testing, or operation of CARRIER's transmitting /receiving
equipment shall be permitted until LICENSEE approves CARRIER's plans and
specifications in accordance with the foregoing.
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C. If CARRIER's plans and specifications are approved by LICENSEE,
CARRIER shall notify LICENSEE in writing as to the scheduled date and time of
commencement of construction and installation of CARRIER's transmitting /receiving
equipment not less than five (5) business days prior to such date.
D. CARRIER shall also notify LICENSEE in writing five (5) business days
prior to CARRIER's pre- operation transmit test as to the date and time such test will
commence. The pre- operation transmit test shall measure:
(i) The signal transmit levels at the output after the final filter stage on
CARRIER's transmit line with all transmitters keyed up at maximum power.
(ii) Antenna isolation between the output of the final filter stage on
CARRIER's transmit line and input line to LICENSEE's multicoupler in LICENSEE's
frequency band of operation.
(iii) The combination of (a) worst case level measured out of
CARRIER's transmit line added to (b) worst case antenna isolation. Such value shall
be no greater than - 120dBm. If LICENSEE reasonably determines that it is
experiencing interference, LICENSEE shall notify CARRIER to immediately cease the
pre- operation transmit test. Thereafter, LICENSEE shall have two (2) business days to
submit its written approval, disapproval or conditional approval of CARRIER's intended
equipment installation to CITY, which approval shall not be unreasonably withheld,
conditioned or delayed.
E. CITY and LICENSEE understand and agree that it shall be CARRIER's
responsibility to ensure that proper filtering and isolation are in place for the pre -
operation transmit test and operation of CARRIER's antenna system. Any change to
CARRIER's approved antenna type and location and /or change in transmitter types and
power output shall first follow each of the steps set forth in this clause ( "C" and "D ")
above.
F. The LICENSEE - CARRIER License between LICENSEE and CARRIER
shall be based upon reasonable terms and conditions found in similar co- location
agreements within the telecommunications industry. LICENSEE agrees that, in the
event it subleases a portion of its License Area to accommodate a CARRIER, with the
consent of CITY, as required herein, any sublease rental rate shall be fair and
reasonable, based upon the market prices charged by competing and /or comparable
businesses.
CITY reserves the right to require CARRIER to pay CITY a fee for the portion of
License Area co- located with LICENSEE. LICENSEE's fee paid the CITY, as required
in paragraph 3 of this License, shall not be reduced and is completely separate from the
LICENSEE - CARRIER Agreement.
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Such co- location of communication service shall be reasonably implemented by
CITY's Director of Public Works based upon the physical and engineering feasibility of
the License Area. Any such LICENSEE - CARRIER License for co- location shall be
subject to Director of Public Works' approval and subject to the terms and conditions of
this License. Notwithstanding the foregoing, CITY shall not cause or permit any use of
the License Area for co- location purposes that interferes with or impairs the quality of
the telecommunications services being rendered by LICENSEE from the License Area.
LICENSEE agrees to use reasonable best efforts to minimize any interference or
disruption of CARRIER's telecommunication operations so long as CARRIER operates
it communications equipment in accordance with plans approved by LICENSEE and
CITY.
9. Claims Against License Area.
LICENSEE shall not suffer or permit to be enforced against the License Area, or
any part thereof, any mechanic's, material man's, contractor's or subcontractor's liens
arising from, or any claim for any work of construction, repair, restoration, replacement
or improvement of or to the License Area for work for which LICENSEE is financially
liable, or any other similar claim or demand howsoever the same may arise, but
LICENSEE shall pay or cause to be paid any and all such claims or demands before
any action is brought to enforce the same against the License Area. LICENSEE agrees
to indemnify, defend and hold CITY and the License Area free and harmless of all
liability for any and all such claims and demands, together with CITY's reasonable
attorneys' fees and all costs and expenses in connection therewith.
10. Utilities.
LICENSEE shall pay the cost of any and all water, electrical, gas or other utility
services delivered to the License Area during the term hereof and shall have such
utilities installed underground and /or connected if already installed, and maintained at
LICENSEE's sole cost and expense and subject to CITY's approval. LICENSEE shall
submit plans for underground construction of required utility lines to CITY for review
prior to commencement of construction thereof. CITY shall approve or disapprove of
same within fourteen (14) days.
11. Taxes.
LICENSEE shall pay, or cause to be paid, before delinquency, any and all taxes
levied or assessed and which become payable during the term hereof upon all of
LICENSEE's possessory interest in and to the License Area, leasehold improvements,
equipment fixtures and personal property located in or abut the License Area.
LICENSEE agrees that, without prior demand or notice by CITY, LICENSEE shall, not
less than fifteen (15) days prior to the day upon which any such possessory interest or
other such tax is due, provide CITY with proof of payment of such tax.
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12. Rules and Regulation.
is
LICENSEE shall faithfully observe and comply with all the rules and regulations
that CITY shall from time -to -time promulgate. CITY reserves the right from time -to -time
to make all reasonable modifications to said rules and regulations. The additions and
modifications to those rules and regulations shall be binding upon LICENSEE upon
delivery of a copy thereof to LICENSEE. Nothing contained in said rules and
regulations shall require LICENSEE to expend money or take action to make any
alterations, additions, improvements or replacements on or to the License Area. In the
case of any conflict between any rules and regulations established by CITY and this
License, the License shall control.
13. Holding Over.
If LICENSEE remains in possession of the License Area or any part thereof after
the expiration of the term as provided in paragraph 2, with the express written consent
of CITY, this License may continue in force upon the same terms and conditions for a
further period of one (1) year, and for like annual periods thereafter, until and unless
terminated by either party by giving to the other written notice of intention to so
terminate, at any time, without cause, upon at least ninety (90) days prior written notice.
14. Entry by CITY.
LICENSEE hereby agrees that representatives of the CITY, as designated by the
City Manager, shall, during normal business hours and in the accompaniment of a
representative of LICENSEE, have the right to enter the License Area and inspect the
same to determine if the same complies with each and every term and condition of this
License and with all applicable City, County, State and Federal laws, rules, ordinances
and regulations relating to building occupancy and the conduct of LICENSEE's
business, provided CITY gives LICENSEE no less than seventy -two (72) hours prior
written notice. LICENSEE hereby waives any claim for damages or for any injury or
inconvenience to or interference with LICENSEE's business, and loss of occupancy or
quiet enjoyment of the License Area, and any loss occasioned thereby. CITY shall at
all times have and retain a key with which to unlock any entrances to any perimeter
enclosures (fencing, etc.) surrounding LICENSEE's telecommunications facility. It is
expressly agreed that CITY shall not have a key to LICENSEE's telecommunications
facility, except as provided above. Any entry to the License Area obtained by CITY, as
provided above, shall not, under any circumstances, be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the License Area, or an eviction of
LICENSEE from the License Area or any portion thereof.
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15. Default.
•
The occurrence of any one or more of the following events shall constitute a
default and breach of this License by LICENSEE:
A. Vacating or abandonment of the License Area by LICENSEE and non-
payment of the fee;
B. The failure by LICENSEE to make any fee payment or any other payment
required to be made by LICENSEE hereunder, as and when due, where such failure
shall continue for a period of seven (7) days after receipt of written notice thereof by
LICENSEE from CITY;
C. A failure by LICENSEE to observe or perform any of the covenants,
conditions or provisions of this License to be observed or performed by LICENSEE,
other than as described in subparagraph 15B, above, where such failure shall continue
for a period of twenty (20) days after mailed written notice thereof by CITY to
LICENSEE; provided, however, that if the nature of the default involves such that more
than twenty (20) days are reasonably required for its cure, then LICENSEE shall not be
deemed to be in default if LICENSEE commences such cure within such twenty (20)day
period and thereafter diligently prosecutes said cure to completion; or
D. The making by LICENSEE of any general assignment or general
arrangement for the benefit of creditors, or the filing by or against LICENSEE of a
petition to have LICENSEE adjudged a bankrupt, or a petition or reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a petition filed
against LICENSEE, the same is dismissed within sixty (60) days); or the appointment of
a trustee or a receiver to take possession of substantially all of LICENSEE's assets
located in or about the License Area or of LICENSEE's interest in this License, where
possession is not restored to LICENSEE within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of LICENSEE's assets located in
or about the License Area or of LICENSEE's interest in this License, where such
seizure is not discharged in thirty (30) days.
16. Remedies in Default.
In the event of any such default or breach by LICENSEE, CITY may at any time
thereafter and without notice or demand, and without limiting CITY in the exercise of
right or remedy CITY may have by reason of such default or breach:
A. Terminate LICENSEE's right to possession of the License Area by any
lawful means, in which case this License shall terminate and LICENSEE shall
immediately surrender possession of the License Area to CITY. In such event, CITY
shall be entitled to recover from LICENSEE all damages incurred by CITY by reason of
LICENSEE's default including, but not limited to, the cost of recovery of possession of
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the License Area, expenses of reletting, including necessary removal of improvements,
renovation and alteration of the License Area, for reasonable attorney's fees and costs,
any real estate commission actually paid, or the worth at the time of award by the court
having jurisdiction thereof of the amount by which the unpaid fee for the balance of the
term after the time of such award exceeds the amount of such fee loss for the same
period that LICENSEE proves could be reasonably avoided. Unpaid installments of
unpaid fees or other sums shall bear interest from due date thereof at the rate of
eighteen percent (18 %) per annum or at the maximum legal rate then in effect in
California, whichever is higher. In the event LICENSEE shall have abandoned the
License Area, CITY shall have the option of (1) taking possession of the License Area
and recovering from LICENSEE the amount specified in this subparagraph, or (2)
proceeding under the provisions of the following subparagraphs.
B. Maintain LICENSEE's right to possession, in which case this License shall
continue in effect whether or not LICENSEE shall have abandoned the License Area.
In such event, CITY shall be entitled to enforce all of CITY's rights and remedies under
this License, including the right to recover the fee as it becomes due hereunder.
C. Pursue any other remedy now or hereafter available to CITY under the
laws or judicial decisions of the State of California. Furthermore, LICENSEE agrees
that no election by CITY as to any rights or remedies available hereunder or under or
pursuant to any law or judicial decisions of the State of California shall be binding upon
CITY until the time of trial of any such action or proceeding.
17. Eminent Domain.
If more than fifty percent (50 %) of the License Area shall be taken or
appropriated by any public or quasi - public authority under the power of eminent
domain, either party hereto shall have the right, at its option, to terminate this License,
and CITY shall be entitled to any and all income, fee, award, or any interest therein
whatsoever which may be paid or made in connection with such public or quasi - public
use or purpose, and LICENSEE shall have no claim against CITY for the value of any
unexpired term of this License. If either less than or more than fifty percent (50 %) of
the License Area is taken, and neither party elects to terminate as herein provided, the
fee thereafter to be paid shall be equitably reduced. Nothing contained in this
paragraph 17 shall prevent LICENSEE from seeking an award in its own right, from the
public or quasi - public authority so long as such award, if any, does not diminish or
reduce that paid to CITY.
18. Offset Statement.
LICENSEE shall, at any time and from time -to -time upon not less than ten (10)
days prior written notice from CITY, execute, acknowledge and deliver to CITY a
statement in writing (a) certifying that this License is unmodified and in full force and
effect, or, if modified, stating the nature of such modification and certifying that this
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License, as so modified, is in full force and effect and the date to which the fee and
other charges are paid in advance, if any; and (b) acknowledging that there are not, to
LICENSEE's knowledge, any uncured defaults on the part of CITY hereunder, or
specifying such defaults if any are claimed. Any such statement may be relied upon by
any prospective purchaser or encumbrance of all or any portion of which the License
Area are a part.
19. Assignment and Subletting.
LICENSEE shall not assign, sublet or transfer this License or any right hereunder
to any other party or parties nor shall LICENSEE assign all or any portion of the
License Area without first obtaining the written consent of CITY. Any assignment or
subletting of the License Area without such prior written consent shall be void for all
purposes and CITY may, at its option, declare a forfeiture of the same in any manner
provided by law. Notwithstanding the foregoing, however, LICENSEE may assign this
License without the written consent of CITY, (A) to any entity which has, directly or
indirectly, a 30% or greater interest in LICENSEE (a "Parent ") or in which LICENSEE or
a Parent has a 30% or greater interest (an "Affiliate "); (B) to any entity with which
LICENSEE and /or any Affiliate may merge or consolidate; (C) to a buyer of substantially
all of the outstanding ownership units or assets of LICENSEE or any Affiliate; or (D) if
LICENSEE transfers LICENSEE's Federal Communications Commission cellular
license, to the recipient of that transfer; and, provided further, however, any such
assignment or transfer shall not be effective unless LICENSEE shall provide CITY with
thirty (30) days prior written notice, together with documentation satisfactory to CITY's
City Manager establishing that such assignee, has assumed responsibility for all of
LICENSEE's obligations under this License. Consent to any other assignment, transfer
or subletting shall be at CITY's sole discretion and CITY is not required hereunder to
consent to any such proposed assignment, transfer or subletting of the License Area.
20. Attorney's Fees.
In the event that any action or proceeding is brought by either party to enforce
any term or provision of this License, the prevailing party shall recover its reasonable
attorneys' fees and costs incurred with respect thereto.
21. Fixtures.
All trade fixtures and /or temporary facilities including LICENSEE's antennas and
telecommunications equipment installed or on the License Area by LICENSEE may be
removed by LICENSEE at any time during the term of this License so long as the same
may be removed without permanent damage to the License Area. LICENSEE shall
repair all damage which may result therefrom to the reasonable satisfaction of CITY.
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22. Indemnification.
LICENSEE agrees to defend, indemnify and hold CITY and its elected officials,
officers, agents and employees free and harmless from all claims, demands, losses,
liabilities, fines, penalties, administrative and judicial proceedings, including costs of
defense, for damage to persons or property by reason of LICENSEE's negligence or
LICENSEE's acts or omissions or those of LICENSEE's employees, agents, or
contractors in connection with LICENSEE's telecommunications facilities or use and
occupancy of the License Area.
23. Insurance.
A. Fire and Extended Coverage. Throughout the term hereof, at
LICENSEE's sole cost and expense, LICENSEE shall keep or cause to be kept insured,
all improvements located on the License Area against loss or damage by fire and such
other risks as are now or hereafter included in an extended coverage endorsement in
common use for such structures, including vandalism and malicious mischief. The
amount of insurance shall be the then replacement cost, excluding costs of replacing
excavations and foundations but without deduction for depreciation (herein called "full
insurable value "). CITY shall not carry any insurance, the effect of which would be to
reduce the protection or payment to LICENSEE under any insurance that this License
obligates LICENSEE to carry. If any dispute as to whether the amount of insurance
complies with the above cannot be resolved by agreement, CITY may, not more than
once every three (3) months, request the carrier of the insurance then in force to
determine the full insurable value as defined in this provision, and the resulting
determination shall be conclusive between parties for the purposes of this paragraph.
LICENSEE shall include the holder of any mortgage on the License Area as a loss
payee to the extent of that mortgage interest.
B. Commercial General Liability Insurance. Throughout the term hereof, at
LICENSEE's sole cost and expense, LICENSEE shall keep or cause to be kept in full
force and effect, for the mutual benefit of LICENSEE, and CITY as an additional
insured, commercial general liability insurance against claims and liability for personal
injury, death, or property damage arising from the use, occupancy, disuse, or condition
of the License Area, improvements, or adjoining areas or ways, providing protection of
at least Two Million Dollars ($2,000,000.00) per occurrence for bodily injury or death,
and at least Five Hundred Thousand Dollars ($500,000.00) for property damage. Any
policies containing an annual general aggregate shall be subject to CITY's prior
approval.
C. Policy Form, Contents and Insurer. All insurance required by express
provision of this License shall be carried only in responsible insurance companies
licensed to do business in the State of California with a current A.M. Best rating of no
less than A -IX. All such policies shall contain language to the effect that: (1) the
policies are primary and non - contributing with any insurance that may be carried by
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CITY; (2) they cannot be canceled or materially altered except after thirty (30) days'
notice by the insurer to CITY; (3) the CITY OF NEWPORT BEACH and each of CITY's
elected officials, officers and employees are additional insureds; (4) any failure by
LICENSEE to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect the required coverage; and (5) the required
insurance applies separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability. LICENSEE shall
furnish CITY with copies of all certificates and endorsements evidencing the insurance.
LICENSEE may effect for its own account any insurance not required under this
License.
D. Failure to Maintain Insurance; Proof of Compliance. LICENSEE shall
deliver to CITY, in the manner required for notices, copies of endorsements to all
insurance policies required by this License, within the following time limits: (1) For
insurance required at the commencement of this License, within ten (10) days after
execution of this License and prior to LICENSEE's occupancy of the License Area; (2)
For insurance becoming required at a later date, at least ten (10) days before that
requirement takes effect, or as soon thereafter as the requirement, if new, takes effect;
(3) For any renewal or replacement of a policy already in existence, prior to expiration
or other termination of the existing policy.
If LICENSEE fails or refuses to procure or maintain insurance as required by this
License, or fails or refuses to furnish CITY with required proof that the insurance has
been procured and is in full force and paid for, CITY shall have the right, at CITY's
election and on five (5) days notice, to procure and maintain such insurance. The
premiums paid by CITY shall be treated as added fee due from LICENSEE with interest
at the rate of eighteen percent (18 %) per year or the maximum allowable legal rate in
effect in the State of California on the date when the premium is paid, whichever is
higher, to be paid on the first day of the month following the date on which the premium
was paid. CITY shall give LICENSEE prompt notice and provide LICENSEE with a
certificate of insurance and agent's invoice evidencing payment of such premiums,
stating the amounts paid and the names of the insurer or insurers, and interest shall run
from the Effective Date of coverage.
24. Authority of Parties.
Each individual executing this License on behalf of each party represents and
warrants that he or she is fully authorized to execute and deliver this License on behalf
of such party and that this License is binding upon such party in accordance with its
terms.
14
25. Waiver.
0
The waiver by CITY of any term, covenant or condition herein contained shall not
be deemed to be a waiver of such term, covenant or condition on any subsequent
breach of the same or any other term, covenant or condition herein contained. The
subsequent acceptance of fee hereunder by CITY shall not be deemed to be a waiver
of any preceding breach by LICENSEE of any term, covenant or condition of this
License, other than the failure of the LICENSEE to pay the particular fee so accepted,
regardless of CITY's knowledge of such preceding breach at the time of acceptance of
such fee.
26. Time.
Time is of the essence of this License and each and all of its provisions in which
performance is a factor.
27. Late Charges.
LICENSEE hereby acknowledges that late payment by LICENSEE to CITY of fee
or other sums due hereunder will cause CITY to incur costs not contemplated by this
License, the exact amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges. Accordingly, if any
installment of fee or of a sum due from LICENSEE shall not be received by CITY or
CITY's designee with ten (10) days after the first of each month that said amount is past
due, then LICENSEE shall pay to CITY a late charge equal to ten percent (10 %) of
such overdue amount. The parties hereby agree that such late charges represent a fair
and reasonable estimate of the cost that CITY will incur by reason of the late payment
by LICENSEE. Acceptance of such late charges by CITY shall in no event constitute
waiver of LICENSEE's default with respect to such overdue amount, nor prevent CITY
from exercising any of the other rights and remedies granted hereunder.
28. Inability to Perform.
This License and the obligations of LICENSEE hereunder shall not be affected
or impaired because CITY is unable to fulfill any of the obligations hereunder or is
delayed in doing so, if such inability or delay is caused by reason of strike, war, civil
insurrection, acts of God, or any other cause beyond the reasonable control of CITY.
29. Sale of License Area by CITY.
In the event of any sale or conveyance of Bonita Creek Park, the property on
which the License Area is situated, CITY shall be and hereby is entirely freed and
relieved of all liability under any and all of the covenants and obligations contained in or
derived from this License arising out of any act, occurrence or omission occurring after
the consummation of such sale or conveyance. The purchaser at such sale or any
15
subsequent sale of Bonita Creek Park, or other subsequent owner of Bonita Creek
Park, shall be deemed, without any further agreements between the parties or their
successors in interest or between the parties and any such purchaser, to have
assumed and agreed to carry out each and all of the covenants and obligations of CITY
under this License.
30. Signs.
LICENSEE shall not place any sign upon the License Area without CITY's prior
written consent and approval thereof.
31. Successors.
Subject to the provisions of this License with respect to assignment and
subletting, each and all of the covenants and conditions of this License shall be binding
on and shall inure to the benefit of the successors of the respective parties.
32. Notices.
Except where otherwise required herein, any notice required or permitted under
the terms of this License shall be deemed served when personally served on
LICENSEE or CITY or when the same has been placed in the United States mail, First
Class mail, postage prepaid, and addressed as follows:
LICENSEE:
Los Angeles Cellular Telephone Company
Attention: Real Estate Department
P. O. Box 6028
Cerritos, California 90702 -6028
with copy to:
Los Angeles Cellular Telephone Company
Attention: Erich E. Everbach
17785 Center Court Drive North
Cerritos, California 90703 -8575
CITY:
City of Newport Beach
Attention: City Manager
3300 Newport Boulevard
Newport Beach, California 92663
16
0 0
33. Execution by CITY Not a Waiver.
LICENSEE understands and agrees that CITY, by entering into and executing
this License, shall not have waived any right, duty, privilege, obligation or authority
vested in the City of Newport Beach to approve, disapprove or conditionally approve
any application which LICENSEE may be required to make under any laws, rules,
ordinances or regulations now or hereafter in effect which said City may be empowered
to apply, including, but not limited to any use permit or approval, whether similar in
nature or not.
34. Entire License.
This License contains the entire agreement between the parties. No promise,
representation, warranty, or covenant not included in this License has been or is relied
on by either party. Each party has relied on its own examination of this License, the
counsel of its own advisors, and the warranties, representations, and covenants in the
License itself. The failure or refusal of either party to inspect the License Area or
improvements, to read the License or other documents or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim
that might have been based on such reading, inspection or advice.
35. Controlling Law.
This License will be interpreted and enforced according to the laws of the State
of California and according to its fair meaning, and not in favor of or against either
party.
36. Severability.
The invalidity or unenforceability of any part of this License will not affect the
remainder of this License.
37. Additional Licenses.
Each party will promptly sign or cause to be signed and delivered to the other
party, all instruments or documents, and take all actions, as may reasonably be
requested by the other party to carry out the intent or purpose of this License.
38. Headings.
All paragraph headings are for convenience only and do not affect the
interpretation of this License.
17
0
39. Exhibits.
Ll
The following exhibits to this License are made a part of this License as if they
were included in the main body of this License:
Exhibit A: Description and Plot Plan of the License Area and LICENSEE's
telecommunications facilities.
WHEREFORE, the parties hereto have entered into the License as of the date
set forth below opposite the name of each signatory hereto.
Dated:
"LICENSEE"
LOS AN LES CELLULAR TELEPHONE
COMP Y, a Califo is ge eral partnership
By
Laren iddon
Chief Financial Officer
"CITY"
CITY OF NEWPORT BEACH, a municipal
corporation
Dated: a 9 By:
vin phy
City an ger
Dated
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By:
LaVonne Harkless
City Clerk
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