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2010-03-23 - AGENDA REPORTS - LICENSE AGMT CELLULAR EQUIP (2)
Agenda Item: CITY OF SANTA CLARITA AGENDA REPORT CONSENT CALENDAR City Manager Approval: Item to be presented by: 5 - DATE: March 23, 2010 SUBJECT: APPROVAL OF THE LICENSE AGREEMENT REGARDING THE INSTALLATION OF CELLULAR COMMUNICATIONS EQUIPMENT,ON SOUTHERN CALIFORNIA EDISON UTILITY EASEMENT LOCATED ON CITY OWNED PROPERTY DEPARTMENT: Parks, Recreation, and Community Services RECOMMENDED ACTION 1. City Council approve the License Agreements with Southern California Edison and Royal Street Communications. 2. Increase estimated revenues for Fiscal Year 2009-10 by $4,000 in the General Fund, account 100-4012.004 (Franchise Agreements- Other); and appropriate $4,000 one time to expenditure account 14502-5161-002. 3. - Approve. an ongoing revenue adjustment in the amount of $12,000 to General Fund account 100-4012.004 (Franchise Agreements - Other). 4. Approve ongoing base budget, adjustment in the amount of $12,000 in expenditure account 14502-5161.002. 5. Authorize the City Manager, or designee, to execute all documents, subject to City Attorney approval. BACKGROUND The City of Santa Clarita owns several parcels along the Southfork of the Santa Clara River. The property includes an improved trail and an open space area which is encumbered with an easement for overhead transmission lines owned by Southern California Edison (SCE). SCE APPROVED -� approached the City with a proposal to utilize, their existing tower structures for cellular communication devices by third parties, referred to as "carriers." This License Agreement is with the carrier Royal Street Communications. Under the terms of the proposed License Agreements, both the City and SCE will receive $1,000 per month in revenue for use of the site and a one-time administrative fee of $2,000. The License Agreement term is for five years, with three renewal options of five years each. In addition to the equipment that will be attached to the existing tower structures, two small concrete block buildings will be constructed within SCE's right-of-way area to house the required communication facility. Installation these types of cellular communication devices is expected to enhance wireless communication throughout the area. This project was presented to the Planning Commission on March 16, 2010, Master Case No. 09-160, Conditional Use Permit 09-016 with Final Conditions of Approval issued by the City's Community Development Department, Planning Division. As part of that entitlement process, the applicant provided staff with analysis regarding noise for the equipment cabinets that are proposed to be located beneath the tower. The equipment that is proposed for this project would generate a minimal amount of noise. At a distance of approximately 82 feet from the unit, the noise generated by the equipment would be less than 40 decibels. At the nearest residential property line, 90 feet west of the proposed equipment, the noise generated by the project would not exceed the limits identified in Section 11.44.040 of the Santa Clarita Municipal Code of 55 decibels, nor would it exceed the current average ambient noise at the site, which is 50.9 decibels during day -time hours and 48.2 decibels at night. In addition, the equipment located beneath the tower would be surrounded by an eight -foot tall block wall which would reduce the sound of the equipment, minimizing the ability to hear it from nearby residences. ALTERNATIVE ACTIONS Other action as determine by the City Council. FISCAL IMPACT Increase in estimated revenues and expenditures for the current fiscal year is $4,000, and $12,000 in annual revenues and expenditures going forward. ATTACHMENTS License Agreement Site Plan and Elevations LICENSE AGREEMENT BETWEEN THE CITY OF SANTA CLARITA, SOUTHERN CALIFORNIA EDISON COMPANY AND ROYAL STREET COMMUNICATIONS CALIFORNIA LLC Contract No. _ THIS LICENSE AGREEMENT ("Agreement") is made and executed this day of 20_, between CITY OF SANTA CLARITA, a municipal corporation and general law city, and successor -in -interest to Newhall Land and Farming Company, a California limited partnership ("City"), SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation, ("SCE"), and ROYAL STREET COMMUNICATIONS CALIFORNIA LLC, a Delaware limited liability company ("Carrier"). 1. RECITALS. This License Agreement is made with reference to the following facts and objectives: A. City (as successor -in -interest pursuant to that certain approved "River Village Development", adopted by the Santa Clarita City Council per Resolutions 05-56 and 05-57 under Master Case 02-175), is the owner of that certain property located in the County of Los Angeles, State of California, identified as Assessor's Parcel Number 2860-014-064, as more particularly described in Exhibit "A" attached hereto (the "Property"). B. SCE is the owner of an easement and right.of way for electrical transmission and communication purposes, which encumbers all, or a part of the Property pursuant to that certain "Agreement" dated January 28, 1966, by and between SCE as "Grantee" therein and The Newhall Land and Farming Company, a California corporation as "Grantor" therein, and recorded on January 28, 1966, in Book M-2110, Page 675, as Instrument No. 4279 of the Official Records in the Office of the County Recorder of Los Angeles County, State of California, a copy of which is attached hereto as Exhibit "B" ("Easement"). Nothing in this Agreement shall limit, modify, or degrade SCE's rights under the Easement. C. SCE has constructed, among other facilities, electric transmission towers and/or poles within the Easement (the "Electric Facilities"). D. Carrier is a provider. of communication services which require the transmission and reception of radio communication signals on various frequencies. E. In furtherance of the provision of communication services, Carrier desires to install the communication equipment (".Carrier's Equipment") on the Electric Facilities as generally depicted and more specifically described in Exhibit "C", which is attached hereto. F. SCE and Carrier have entered into that certain Master Agreement dated January 20, 2006, as amended and that certain Standard Agreement No. 160 (the "Standard Agreement") (the Master Agreement and the Standard Agreement are sometimes hereinafter collectively referred to as the "Master Agreement"), the terms of which govern Carrier's installation of Carrier's Equipment. Except as otherwise provided in Section 17.E below of this Agreement, in the event of any conflict between the terms or conditions of the Master Agreement Site #: LA2092C Page I of 17 Site Name. SCE Pardee - Sylmar 41 & #2 M3 -Tl and this Agreement, the Master Agreement shall govern only as to the rights and obligations of SCE and Carrier and, shall not affect the rights and obligations of City under this Agreement. G. City is willing (i) to permit Carrier to install, operate and maintain Carrier's Equipment (as shown in Exhibit C), and (ii) to permit SCE to allow Carrier to install, operate and maintain Carrier's Equipment, subject to the additional terms and conditions set forth within Exhibit "D", "Master Case No. 09-160, Conditional Use Permit , Final Conditions of Approval" as issued by the City of Santa Clarita's Community Development Department, Planning Division. NOW THEREFORE, in consideration of the above referenced facts, the covenants of the Parties contained in this Agreement and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 2. LICENSE; DESCRIPTION OF PROPERTY. City hereby issues a license to SCE and Carrier for the purposes enumerated in Recital G above, together with the right to access the SCE Easement from a public right of way at the designated locations and install utilities necessary to operate Carrier's Equipment, all as generally depicted on Exhibit "C" attached hereto and made a part hereof (collectively, the "Site") to use, on the terms and conditions of this Agreement, portions of real property identified in Exhibit "A" ("Property"), which is attached hereto and incorporated by reference. 3. TERM. The initial term of this Agreement ("Term's shall be five (5) years commencing on the earlier of the following two (2) dates (the "Commencement Date': (i) the first day of the month following written notice to City by Carrier of Carrier's intent to commence construction of Carrier's Equipment on the Site; or (ii) the date, which is twelve (12) months after the Execution Date. SCE shall have the right to extend the Term of this Agreement for three (3) additional five (5) year terms (each, a "Renewal Term', on the same terms and conditions contained herein. This Agreement shall automatically „be. extended for each successive Renewal Term unless SCE notifies City in writing of SCE's intention not to extend this Agreement at least sixty (60) days prior to the expiration of the Term or the then current Renewal Term. This Agreement shall not be revocable and may not be terminated except as otherwise expressly provided herein. 4. CONDITIONS PRECEDENT. The effectiveness of this Agreement and each party's rights and obligations hereunder are subject to and expressly conditioned upon approval of the Santa Clarita Planning Commission and Santa Clarita City Council in addition to Carrier having and maintaining throughout the "Term" and each "Renewal Term" (as such terms are defined in Section 3 above), of this Agreement: (i) a license, from the Federal Communications Commission ("FCC"); and (ii) any and all necessary certificates, permits, approvals, licenses, reviews or inspections (collectively, the "Development Approvals"), required by or from any local, state or federal agency, municipality, department, commission, bureau or instrumentality of any of the foregoing having jurisdiction over the Property (each, a "Government Agency"), in connection with the construction and operation of Carrier's Equipment on the Site. City shall cooperate with Carrier as reasonably necessary to assist Carrier in obtaining such Development Approvals. Site #: LA2092C Page 2 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl �-q 5. LICENSE FEE. A. Payment. City and Carrier agree that, within thirty (30) days of the Commencement Date, and on the first of every month thereafter during the Term and each Renewal Term (each, a "Payment Date"), Carrier shall pay City a monthly license fee in the amount of One Thousand and 00/100 Dollars ($1,000.00) (the "License Fee"), adjusted in accordance with Section 5.0 below. B. License Review / Administrative Fee: 'Fee of $2,000.00 to be payable to City by Carrier within thirty (30) days of the full execution of this Agreement ("Execution Date"), and at any other time that Carrier requests to expand the permitted use under this Agreement. C. CPI Adjustment — City and Carrier agree that the License Fee shall be adjusted annually on the first anniversary of the Commencement Date, and on every anniversary of the Commencement Date thereafter, by applying the CPI Formula set forth below. The "Basic Index" shall be the Index (as defined in Section 5, paragraph D) published for the month the License commences. D. CPI Formula. The Index means the Consumer Price Index for all Urban Consumers for the Los Angeles -Riverside -Orange County, CA area, all items published by the United States Department of Labor, Bureau of Labor Statistics (1982-84=100). The "CPI Formula" means the initial License Fee multiplied by a fraction, the numerator being the Index published for the month immediately preceding the month the adjustment is to be effective, and the denominator being the Index published for the month the License commenced. If the Index is changed so that the Index differs from that used as of the Commencement Date of the License Agreement, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, bureau of Labor Statistics. If the Index is discontinued or revised during the Term of this License, such other governmental Index or computation with which it is replaced shall be used in order to obtain substantially the same results as would be obtained if the Index had not been discontinued or revised. E. Illustration of Formula. The formula for determining the new license fee shall be as follows: (New Index / Base Index) * License Fee = New Monthly License Fee. F. In no event shall the monthly rent be adjusted by the CPT formula to result in a lower monthly License Fee than was payable during the previous year of the License Agreement. 6. IMPROVEMENTS. A. During the Term or any Renewal Term, Carrier and SCE shall have the right, at no cost to City, to construct, maintain and operate on the Site Carrier's Equipment as described or substantially similar to that Equipment described in Exhibit "C." Carrier shall be responsible for maintaining the exterior of Carrier's Equipment in good and safe condition in compliance with all Governmental Requirements. After initial installation, Carrier shall not materially alter or change the outward appearance of Carrier's Equipment when viewed from the ground without the prior approval of City. City may prohibit such exterior changes if the changes would materially degrade the appearance of Carrier's Equipment or the surrounding landscaping. Site #: LA2092C Page 3 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl Except for aesthetic considerations, approval shall not be unreasonably withheld, conditioned or delayed. B. All of Carrier's construction and installation work shall be accomplished in a good and workmanlike manner, and shall be performed at Carrier's sole cost and expense. Carrier shall have the right to install utilities at Carrier's expense and to improve the present utilities on or near the Property (including, but not limited to the installation of an emergency back-up power) subject to City's approval of the location, which approval shall not be unreasonably withheld, conditioned or delayed. Title to Carrier's Equipment shall be held by SCE and/or Carrier. Carrier shall have the right to place utilities on the Property in order to service the Site and Carrier's Equipment. Carrier will keep the property free from any liens arising out of any work performed, material furnished, or obligations incurred by Carrier. C. Within sixty (60) days following the cancellation, expiration or earlier termination of this Agreement, SCE and/or Carrier shall remove, at no cost to City, all of Carrier's Equipment placed on the Site and the Electric Facilities and demolish and remove all foundations to three (3) feet below grade level, fill all excavations, return the surface to grade, and leave the Site in a neat and safe condition, free from any debris or hazards (reasonable wear and tear and damages due to causes beyond the control or without the fault or neglect of SCE and/or Carrier excepted). D. Installation of Equipment. Prior to submitting application for land use approval (including any required submission of fees) Carrier shall first obtain City's prior written approval of Carrier's plans for Carrier's Equipment ("Plans"). City shall give such approval or provide Carrier with City's requests for changes within twenty (20) days of City's receipt of the Plans. If City does not respond to Carrier's request for approval within twenty (20) days, Carrier's intended use shall be deemed approved. City shall not be entitled to receive any additional consideration in exchange for giving its approval. Upon City's expressed or deemed approval of the Plans, Carrier shall be entitled to process its application with City for land use permit or Conditional Use Permit ("CUP") and, if successful, for subsequent construction of Carrier's Equipment on the Site, as contemplated by Carrier, in accordance with the Plans and as approved by separate CUP process. In no event shall City's written or deemed approval of Carrier's equipment installation plans be construed as approval of Carrier's CUP. E. Within thirty (30) days after completion of construction, Carrier shall provide the City "as built" drawings of Carrier's Equipment and any other improvements installed on the Property, which show the actual location of all equipment and improvements. F. Carrier shall fully and promptly pay for all utilities furnished to the Site for its use throughout the Term and any Renewal Term, and all other costs and expenses incurred by Carrier in connection with Carrier's use, operation and maintenance of the Site. G. If Carrier's Equipment is vandalized or marked with graffiti or other inscription, Carrier, at its sole expense, shall repair the damaged property within forty-eight (48) hours after receipt of written request by City to ,do so. City has no responsibility for the protection of Carrier's property from acts of vandalism by third parties. If Carrier does not respond and clear Site #: LA2092C Page 4 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl Or vandalism or graffiti within forty-eight (48) hours on more than ten (10) incidents within a calendar year, City will require a performance bond from Carrier. H. Title to Carrier's Equipment placed on the Property by Carrier shall be held by Carrier. All of Carrier's Equipment shall remain the property of Carrier and are not fixtures. Carrier has the right to remove all Carrier's Equipment at its sole expense on or before the expiration or termination of this License Agreement. City and SCE acknowledge that Carrier may enter into financing arrangements including promissory notes and financial and security agreements for the financing of Carrier's Equipment (the "Collateral") with a third party financing entity and may in the future enter into additional financing arrangements with other financing entities. In connection therewith, City and SCE (i) consent to the installation of the Collateral to the extent that the Collateral is part of the approved Carrier's Equipment; (ii) disclaims any interest in the Collateral, as fixtures or otherwise, whether arising at law or otherwise, including, but not limited to any statutory landlord's lien; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any License Fee due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 7. ACCESS. A. Carrier shall have the right, but not the obligation, to enter the Site prior to the Commencement Date, for the purpose of making engineering surveys, inspections and' tests, to determine the suitability of the Site for Carrier's Equipment. During any such pre -construction evaluation and any subsequent entry onto the Property during the Term or any Renewal Term of this Agreement, Carrier shall: (i) have insurance as set forth in Section 27 below; (ii) notify City of any proposed construction work; and (iii) coordinate the scheduling of same with SCE. If Carrier detennines that the Site is unsuitable for Carrier's contemplated use, then Carrier will notify City and this Agreement shall terminate in accordance with Section 17.13 below. B. City shall provide to SCE and Carrier, and their employees, agents and subcontractors reasonable access to the Site between the hours of 7:00 am and 7:00 pm, seven (7) days a week, at no additional charge. Carrier may access the Site at any time in emergency circumstances. City represents and warrants it has full rights of ingress and egress to the Site, and hereby grants such rights to SCE and Carrier to the extent required to construct, maintain, remove, repair, replace, install and operate Carrier's Equipment. 8. INTERFERENCE. A. Carrier shall operate Carrier's Equipment in a manner that will not cause signal interference to communication equipment operated by City and other previously authorized users of the Site, as such equipment is configured as of the Execution Date. Any communication system operations, operating in the same manner as of the time of installation of Carrier's Equipment, shall not be deemed interference to Carrier. In the event such signal interference should occur, all costs to remedy the interference shall be borne by Carrier. All operations by Carrier shall be in compliance with all federal, state and local non-interference regulations including, but not limited to, those of the FCC. Site #: LA2092C Site Name: SCE Pardee - Sylmar #1 & #2 M3 -T] Page 5 of 17 1-1 B. Carrier shall provide initial proof of compliance with original transmission tolerance and interference analysis by a certification through an independent radio frequency engineer. C. Except as otherwise set forth in Section 8.A above, subsequent to the Execution Date of this Agreement, City shall not permit the use of the Site in a manner that interferes with the communications operations of Carrier as described in Section 10 below. Typical residential uses shall not be considered interfering uses under this Section 8, provided, that such uses are in compliance with all applicable laws and are consistent with the ordinary and intended purpose of the device or appliance. D. The parties acknowledge that any continuing interference to Carrier's communication system operations will cause injury to Carrier and SCE, and therefore, Carrier and SCE shall each have the right to bring action to enjoin such interference and/or terminate the Agreement immediately upon notice to City. 9. TAXES. This Agreement may create a taxable property interest in the Site. City shall not be responsible for any personal property taxes, possessory interest taxes and assessments attributable to Carrier's Equipment, levied by any legal authority as a result of this Agreement. 10. USE OF PROPERTY. ' Subject to the limitations listed below, Carrier may use the Property for the provision of communication services, including the transmission and reception of radio communication signals on various frequencies and the construction, maintenance and operation of communication facilities and activities related thereto. City does not warrant or guarantee the suitability of the Site for Carrier's intended use. Carrier agrees to obtain City's written approval prior to commencing any new use of the Site. 11. UTILITIES. Carrier is responsible directly to the serving entities for all utilities required for its use of the Property. "Utilities" means electricity, gas, telephone services, trash, water and cable television, as well as any related installation, repair or other similar costs. 12. TRASH AND GARBAGE. Carrier will provide and pay all costs for the complete and proper disposal and timely removal of all refuse resulting from Carrier's operations. Carrier and SCE will provide and use appropriate covered receptacles for all refuse at the Property. Piling boxes, cartons, barrels or other similar items in view of a public area will not be permitted. Carrier and SCE are responsible for the proper disposal of its refuse in such a manner as not to contaminate or restrict sewer lines. 13. Intentionally deleted. 14. POSSESSORY INTEREST TAXES. Carrier is informed by City pursuant to Revenue and Taxation Code § 107.6 that its property interest in the Property may be subject to property taxation if created and that Carrier may be subject to the payment of property taxes levied on its leasehold interest. Carrier may not deduct such amount from payments to City. 15. QUIET ENJOYMENT, City agrees that Carrier, upon making payments to be paid by Carrier under the terms of this Agreement and upon observing and keeping the agreements and Site #: LA2092C Page 6 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -T] each of the covenants of this Agreement will lawfully and quietly hold, occupy, and enjoy the Site during the term of this Agreement. 16. CITY'S LIMITED WARRANTY. City warrants that it is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to execute this Agreement and perform its terms and conditions and has the legal right, power and authority to grant all of the rights granted herein. 17. TERMINATION. This Agreement may be terminated without further liability on thirty (30) days prior written notice, as follows: A. By any party upon a default of any covenant, condition or term herein by any other party, which default is not cured within thirty (30) days of receipt of written notice of default. No default will be deemed to exist if the party claimed to be in default has commenced to cure such default within such period and provided that such efforts are brought to completion with reasonable diligence; or B. By SCE or Carrier after the Execution Date for any reason or for no reason, provided the terminating party delivers written notice of early termination to City no later than sixty (60) days prior to termination; or C. By City, upon thirty (30) days written notice to Carrier, should the signal from Carrier's Equipment materially interfere, as objectively determined by a qualified independent engineer, with City's normal and customary operation and maintenance of its facilities in place and as operating on the Commencement Date, provided, however, City has first given Carrier written notice of such interference and Carrier is unable to correct or cease such interference within thirty (30) days after receipt of written notice of such interference; or D. Upon the Property being condemned. E. Notwithstanding anything to the contrary in the Master Agreement or Standard Agreement, Carrier and SCE agree that the Standard Agreement shall automatically terminate upon termination of this Agreement. 18. CONDITION OF PROPERTY UPON TERMINATION. Upon termination of this Agreement for any reason, Carrier will vacate the Site and deliver it to City in good order and condition, damage by the elements, earthquake, and ordinary wear and tear and other casualty not caused by Carrier excepted. 19. SALE OR TRANSFER BY CITY. Should City, at any time during the term of this Agreement, sell, lease, transfer, or otherwise convey all or any part of the Property to any transferee other than Carrier, then such transfer will be under and subject to this Agreement and all of Carrier's rights hereunder. 20. CONDEMNATION. If all or part of the Property is acquired by eminent domain or purchase in lieu thereof, Carrier acknowledges that it will have no claim to any compensation awarded for the taking of the Property, except that Carrier shall be entitled to pursue its own Site #: LA2092C Page 7 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -TI separate award and may recover for loss of or damage to Carrier's improvements, relocation expenses and business interruption. 21. NO PUBLIC PROJECT. All rights given to Carrier pursuant to this Agreement are for Carrier's use of the public property identified herein. Any trespass, use, or other utilization of private property by Carrier is done at its own risk; Carrier is not an agent of City and this Agreement is not intended, nor should it be construed, to constitute a public project. 22. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the parties' control, no party will be or be deemed to be in default or otherwise liable for any delay of its performance under this Agreement. 23. NO FIXTURES. Carrier's Equipment, existing as of the Commencement Date, as well as any facilities subsequently constructed during the Term or any Renewal Term of this Agreement, "will not constitute fixtures attached to the Property. Any such facilities may be removed by Carrier prior to or upon termination of this Agreement. . 24. ASSIGNMENT AND SUBLETTING. SCE and Carrier shall not assign, sublet or otherwise transfer all or any part of their interest in this Agreement, the Site or Carrier's Equipment without the prior written consent of City, which shall not be unreasonably withheld, conditioned or delayed; provided, however, SCE and Carrier may assign their interest in this Agreement or in the Site without the prior consent of City to SCE and Carrier's parent companies, any subsidiary or affiliate of the parent company or to any successor -in -interest or entity acquiring fifty-one percent (51%) or more of SCE or Carrier's stock or assets. Any assignment by SCE or Carrier is subject to any such assignee or transferee agreeing in writing to assume and perform all of the terms and conditions of this Agreement on SCE's or Carrier's part (as applicable), to be performed in which event all of SCE's or Carrier's, as the case may be, obligations and future liabilities hereunder shall be discharged. 25. HOLDOVER. If Carrier holds possession of the Property after the Term or any Renewal Term, Carrier will become a tenant from month-to-month at the fair market rental rate per month. Such tenancy will be subject to all of the terms and conditions of this Agreement. 26. INDEMNIFICATION. A. Carrier indemnifies and holds City harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for City's active negligence. Should City be named in any suit, or should any claim be against it, by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, pursuant to this Agreement, Carrier will defend City (at City's request and with counsel satisfactory to City) and will indemnify it for any judgment rendered against it or any sums paid out in settlement or otherwise. B. For purposes of this section "City" includes City's officers, officials, employees, agents, representatives, and volunteers. Site #: LA2092C Page 8 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl -ID C. Carrier expressly agrees that this hold harmless and indemnification provision is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any portion is held invalid, it is agreed that the balance will, notwithstanding, continue in full legal force and effect. D. It is expressly understood and agreed that the foregoing provisions will 'survive termination of this Agreement. E. The requirements as to the types and limits of insurance coverage to be maintained by Carrier as required by Section 27 below, and any approval of such insurance by City, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by Carrier pursuant to this Agreement, including but not limited to the provisions concerning indemnification. 27. INSURANCE. Carrier must procure and maintain insurance of the type, for the period, with the coverages and limits, and in accordance with the terms, conditions, and requirements that follow: A. Carrier will provide Commercial General Liability, Broad Form General Liability, and Business Automobile Liability insurance that meet or exceed the requirement of ISO Forms GL0002, GL0404 and CA0001, Code 1, respectively, in the most current State of California approved forms, in connection with Carrier's performance in the amount of not less than $1,000,000 combined single limit per occurrence for bodily injury, personal injury, and property damage for each policy coverage. B. Commercial General Liability, Broad Form General Liability and Business Automobile Liability policies required in this Agreement will be endorsed to name City, its officials, volunteers, and employees as "additional insureds" under said insurance coverage, to state that such insurance will be deemed "primary" as to Carrier's negligence such that any other insurance that may be carried by City will be excess thereto, and to state that the policy(ies) will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City. C. Carrier will furnish to City a certificate of insurance, duly authenticated, evidencing maintenance of the insurance required under this Agreement. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A -:VII." 28. SAFETY AND ENVIRONMENTAL PROTECTION. Carrier and Carrier's employees, representatives, affiliates, invitees, agents, consultants, contractors and subcontractors (collectively, "Carrier's Related Parties', shall operate and maintain Carrier's Equipment so as to avoid injury or damage to any person or property due to the acts or omissions of Carrier and Carrier's Related Parties. In carrying out its work, Carrier and Carrier's Related Parties shall at all times, exercise all necessary precautions for the safety and environmental protection of Site, and be in compliance with all federal, state and local statutory and regulatory requirements including those of the State of California, Division of Industrial Relations (Cal/OSHA), Cal/EPA, US/EPA and the U.S. Department of Transportation. Site #: LA2092C Page 9 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl Carrier and Carrier's Related Parties shall not use the Site to generate, manufacture, refine, transport, treat, store, handle, recycle, release or dispose of any "Hazardous Materials", other than as reasonably necessary for the Parties' activities under this Agreement. For purposes of this Agreement, the term "Hazardous Materials" means any hazardous substance, material or waste, including but not limited to those listed in 49 CFR 172.101 (U.S. Department of Transportation), the Cal/EPA Chemical Lists of lists or petroleum products and their derivatives. However, this shall not apply to the use of petroleum products and related substances incidental to operation of motorized equipment and vehicles whose operation on the Site is contemplated by this Agreement. Carrier shall immediately notify City in writing upon becoming aware of any release of Hazardous Materials, violation of any environmental law or actions brought by third parties against the Carrier alleging environmental damage. Carrier shall post a sign consistent with applicable laws or regulations for wireless communication facilities, permanently affixed to Carrier's Equipment, which identifies the responsible party to notify in case of emergency or maintenance. To the best of City's knowledge, neither City nor, to City's knowledge, any third party, used, generated, stored, treated or disposed of any Hazardous Materials (as such term is defined in this Section 28), on the Property. 29. COMPLIANCE WITH LAW. Carrier will, at its sole cost and expense, comply with all of the requirements of all federal, state, and local authorities now in force, or which may hereafter be in force, pertaining to the Carrier's Equipment and will faithfully observe in the use of the Site all applicable laws. The judgment of any court of competent jurisdiction that Carrier has violated any such ordinance or statute in the use of the Property will be conclusive of that fact as between City and Carrier. 30. WAIVER OF BREACH. Any express or implied waiver of a breach of any term of this Agreement will not constitute a waiver of any further breach of the same or other term of this Agreement. 31. INSOLVENCY; RECEIVER. Either the appointment of a receiver to take possession of all or substantially all of the assets of Carrier, or a general assignment by Carrier for the benefit of creditors, or any action taken or offered by Carrier under any insolvency or bankruptcy action, will constitute a breach of this Agreement by Carrier, and in such event this Agreement will automatically cease and terminate. 32. NOTICES. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party will be in writing and will be deemed served when personally delivered to the party to whom they are directed, or in lieu of the personal service, upon deposit in the United States mail, certified or registered mail, return receipt requested, postage prepaid, or sent via a nationally recognized courier, addressed to: Site #: LA2092C Page 10 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -TI 1ir Crtv: City of Santa Clarita 23920Valencia Blvd., Suite 300 Valencia, CA 91355 Attn: Parks & Recreation, Barbara Blankenship Ph# (661) 286-4046 Fax # (661) 284-1431 With Copy To: Carl Newton Burke, Williams, and Sorensen LLP 444 South Flower, Suite 2400 Los Angeles, CA 90071 213-236-0600 SCE: Southern California Edison Co. Edison Carrier Solutions Dept. 4900 Rivergrade Road Bldg. B-1 Irwindale, CA 91706. Ph# (626) 543-8133 Carrier: Royal Street Communications California, LLC 2913 El Camino Real # 561 Tustin, CA 92782 Attn: Property Manager Telephone: (714) 730-3100 Facsimile: (714) 730-3201 With a copy to: Royal Street Communications 2435 N. Central Expressway Suite 1200 Richardson, Texas 75080 Attn: John R. Lister Either party may change its address for the purpose of this Section by giving written notice of the change to the other parties. 33. ACCEPTANCE OF FACSIMILE SIGNATURES. The parties agree that agreements ancillary to this Agreement and related documents to be entered into in connection with this Agreement will be considered signed when the signature .of a party is delivered by facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. 34. GOVERNING LAW. This Agreement has been made in and will be construed in accordance with the laws of the State of California and exclusive venue for any action involving this Agreement will be in Los Angeles County. 35. PARTIAL INVALIDITY. Should any provision of this Agreement beheld by a court of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this Agreement will remain in effect, unimpaired by the holding. 36. INTEGRATION. This instrument and its attachments constitute the sole agreement between the parties hereto respecting the Property, the use of the Property, the specified term, and correctly sets forth the obligations of the parties hereto. Any agreement or representations respecting the Property or its licensing by City to Carrier and SCE not expressly set forth in this instrument are void. There are four (4) attachment(s) to this Agreement. 37. CONSTRUCTION. The language of each part of this Agreement will be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against any party. 38. COMPLIANCE. Carrier shall give all notices required by law and comply with all laws, ordinances, rules, and regulations pertaining to the conduct of its activities on the Site. Carrier shall be liable for all violations of the law arising in connection with its activities under this Agreement. Site #: LA2092C Page 1 I of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl 39. EXHIBITS. All Exhibits attached hereto are material parts of this Agreement. 40. AUTHORITY/MODIFICATION. The parties represent and warrant that all necessary action has been taken by the parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written amendment. City's City Manager, or designee, may execute any such amendment on behalf of City. 41. COUNTERPARTS. This Agreement may be executed in any number or counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date. 42. ATTORNEYS' FEES. In the event legal action by any party is brought to enforce any term of this Agreement or to recover damages for any breach thereof, or to determine any rights of the Parties under this Agreement, the prevailing party in such action(s) may recover reasonable attorneys' fees, to be fixed by the court. 43. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective Parties. 44. In any case where the approval or consent of a party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent [SIGNATURES ON NEXT PAGE] Site #: LA2092C Page 12 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl dq IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year first hereinabove written. CITY: CITY OF SANTA CLARITA, a municipal corporation and general law city By: Kenneth R. Pulskamp, City Manager j A Date: ATTEST: By: City Clerk Date: APPROVED AS TO FORM: By: Carl K. Newton, City Attorney Date: SCE: SOUTHERN CALIFORNIA EDISON CO., a California corporation By: Emmanuel P. Hyppolite, Supervisor Edison Carrier Solutions & Distribution, Corporate Real Estate Department Date: CARRIER: ROYAL STREET COMMUNICATIONS CALIFORNIA LLC, a Delaware limited liability company By: Susan Delmer, Asst. LA Network Development Manager Date: Site #: LA2092C Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl Page 13 of 17 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY APN: 2860-014-064 All that certain real property located in the County of Los Angeles, State of California, being more particularly described as follows: Lot 163 of Tract 33888, in the City of Santa Clarita, as per map recorded in Book 899, Pages 43 through 56, inclusive, of Maps, in the Office of the County Recorder of said Los Angeles County, California. Site #: LA2092C Page 14 of 17 Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl EXHIBIT "B" GRANT OF EASEMENT The Easement is attached hereto. [Balance of Page Intentionally Left Blank] Site #: LA2092C Site Name: SCE Pardee - Sylmar #1 & 42 M3 -Tl Page 15 of] 7 EXHIBIT "C" THE SITE See the attached drawings dated 10/07/09, Sheets A-1, A-2, and A-3, identified with Site Information: LA2092C, SCE Pardee -Sylmar #1 & #2 M3 -T1. [Balance of Page Intentionally Left Blank] Site #: LA2092C Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl Page 16 of 17 i (� EXHIBIT "D" CONDITIONS OF APPROVAL See the attached "Master Case No. , Conditional Use Permit , Final Conditions of Approval" as issued by the City of Santa Clarita's Community Development Department, Planning Division. [Balance of Page Intentionally Left Blank] Site #: LA2092C Site Name: SCE Pardee - Sylmar #1 & #2 M3 -Tl Page 17 of] 7 AiH. yC os �Yoc 3 0 Z �s2 O r MZ z n a3 ga LUIL v �� �\ �O to LU J L g 5 ~ Z� U7 a� Z $ aY Q �s��g�gt_t IL 8 3 gg3 � OM W 2 Y i Mill r 2 Mx LU G � O �Y�y� � �a e � D k 1 is - Ng LL O S Q o u�o US 0 W u 33 F c a4r ¢ �a ¢ env r § V ;W U et o W 0 h o c o' g=$ �� ? ? a� a a TL aED, M III No 444 CL W Cl) LLI O W 3�A S?�33R'S €SRR WAn� O C !Wl g�".. �� 0F8 3WS#�- wga y DIM i €€fib w '�€3�6 r?�fis la8�� = 4a as O a ' _ F.. w� 0 F F Q K.. Z pk Z k. 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