HomeMy WebLinkAbout10/19/2010, C5 - TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK council M twa0�
10-19-10
j, ac En as Report ".°`
CITY OF SAN LUIS OBISPO
FROM: Mary Bradley, Interim Director of Finance & Information Technology
Rachel Messner, Administrative Analyst
SUBJECT: TELECOMMUNICATIONS FACILITY LEASE AT SANTA ROSA PARK
RECOMMENDATION
Adopt a Memorandum of Understanding (MOU) with AT&T for the lease of Santa Rosa Park as
a telecommunications facility.
DISCUSSION
Background
On December 11, 2001, the Council approved the concept of leasing Santa Rosa Park for
wireless telecommunication facilities and authorized staff to begin negotiations with service
providers. The proposed lease is consistent with all key concepts presented to the Council at that
time.
Requests for Proposals
As noted above, the Council authorized staff to begin negotiations for wireless
telecommunication facilities at this site on December 11, 2001. Because there was initial interest
in this site by several telecommunication providers, staff prepared and issued a Request for
Proposals (RFP) before initiating negotiations with a specific firm. This resulted in a lease
agreement with a wireless telecommunications provider in 2002 (with one subtenant). Two
structures to serve as equipment rooms were built according to the design criteria submitted by
the companiesasguided by the City's standards and architectural review process.
Because available space currently exists in one of the buildings, in May 2010, the City released
an RFP for a third provider to locate a telecommunications facility here. This RFP set forth the
process to be used in selecting an additional "Lessee" at Santa Rosa Park and the City's
minimum business terms. However, no proposals were received in response to the RFP.
Although AT&T did indicate interest in locating here, it believed the requested minimum annual
rent of$57,500 was far above the market rate.
Staff completed an analysis of current cell site lease market rates and chose to re-release the RFP
in August with only one change—the removal of the requested minimum annual rent. This
change resulted in the submission of one proposal—from AT&T—for rent of$26,000 per year.
The two providers currently on site at Santa Rosa Park each pay $24,300 annually so AT&T's
offer compares favorably with these other agreements. (AT&T currently maintains a wireless
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Council Agenda Report—Telecommunications Facility Lease at Santa Rosa Park
Page 2
telecommunications facility at the Laguna Lake Golf Course and pays $26,000 per year for this
site.)
AT&T proposes utilizing all existing infrastructure currently on site, installation of an HVAC
system in the equipment room and placement of six antennas on each existing light pole (for a
total of 12 antennas). These antennas will mirror the existing telecommunications provider
installations and will utilize the existing conduits to run coaxial cable to both light poles.
The City's review team in preparing the RFP and reviewing the proposal included Tyler Corey
and James David (Community Development), Miguel Guardado and Steve Schmidt (IT), and
Rachel Messner (Finance & IT). The proposal was also reviewed by the Assistant City Attorney
and the Parks and Recreation Department Acting Director.
MOU Overview
The proposed MOU with AT&T provides that if the company receives discretionary planning
approvals, the City will enter into a lease agreement with them for the use of Santa Rosa Park
that includes the following key"business"terms:
1. Annual Rent The starting rent will be $26,000, payable annually in advance: This will
increase each year by 3% or the increase in the consumer price index, which ever is greater.
2. Subtenants. Subtenants are allowed and are subject to the same terms and conditions as the
primary tenant (AT&T), including rent. However, given the limited space available, it is
unlikely that there will be subtenant options at this site.
3. Term. The initial term will be five years, which may be extended for three additional five-
year terms at AT&T's option. In essence, this is a 20-year agreement, unless AT&T decides
to end it sooner after the first five years.
As described below, by entering into an MOU with AT&T, the City separates its regulatory
versus proprietary role in this lease. The City does not provide any guarantees under the MOU
that AT&T will receive discretionary planning approvals for its project; however, if it receives
these approvals then the City agrees to enter into the facility lease provided as Exhibit 1 to the
MOU..This "two-step" process ensures that the City retains its full discretion in approving (or
not approving) this project in its regulatory role, while providing AT&T with needed assurances
on the"business terms"of the lease if it is successful in receiving these approvals.
Separating the City's Proprietary Versus Regulatory Role
In entering into the MOU, the City is acting in its "proprietary" role as a property owner. This is
separate and distinct from the City's regulatory role, which it would play regardless of where
wireless communications facilities were being proposed in the City. In the "regulatory role," the
City cannot guarantee discretionary planning approvals in a lease agreement. On the other hand,
AT&T cannot responsibly enter into the development review process without knowing the
"business"terms of the lease. To address this, staff recommends a"two-step"process:
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Council Agenda Report—Telecommunications Facility Lease at Santa Rosa Park
Page 3
1. Memorandum of Understanding. The MOU sets forth the basic "business" terms of the
lease agreement that the City will enter into after AT&T receives all of its regulatory
approvals.
2. Lease Agreement After AT&T has met all of the pre-conditions set forth in the MOU, the
City will enter into the lease agreement provided as Exhibit 1 of the MOU.
In short, this two-step process makes it clear that the City will not make any guarantees about the
outcome of the development review process. However, if AT&T is successful in this process, it
clearly sets forth the business terms for a subsequent lease agreement.
Next Steps
Upon approval of the MOU, AT&T will finalize plans for their project and submit them for the
City's regulatory review. Once the review process is complete, staff will return to the Council for
formal approval of the lease agreement.
CONCURRENCES
The Community Development, Finance & IT, and Parks & Recreation departments concur with
this recommendation. Additionally, the Parks and Recreation Commission approved the concept
of leasing Santa Rosa Park for wireless telecommunication facilities at its December 5, 2001
meeting.
FISCAL IMPACT
Assuming approval of the MOU and subsequent lease agreement, this will provide at least
$26,000 in additional revenue annually, increasing by at least 3% per year. With this assumption,
if the lease goes for its full 20-year term, this will mean $520,000 (in 2010 dollars) in additional
revenues to the General Fund.
ALTERNATIVES
1. Do Not Approve the MOU. This would result in less revenue to the City than is otherwise
possible, without any significant impacts on the community. It would also be inconsistent
with the Council's direction on December 11, 2001.
2. Amend the Provisions of the MOU. In this case, the Council would need to identify the
specific changes it wants. However, the proposed MOU and lease agreement are consistent
with the general terms and conditions conceptually approved by the Council on December
11, 2001. Additionally, staff believes the"economic"terms of the lease are very competitive.
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Council Agenda Report—Telecommunications Facility Lease at Santa Rosa Park
Page 4
ATTACHMENT
Memorandum of Understanding with AT&T for a telecommunications facility lease at Santa
Rosa Park
T:\Finance&MTelocommunication Lease Agreements\Santa Rosa Park,2010\201022\Council Agenda Repon_I0-19-10.doc
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I
J Attachment®
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding("MOU") is made on October 19,2010,by and between the
City of San Luis Obispo, a municipal corporation and Charter City (the "City") and AT&T
("Contractor").
RECITALS
WHEREAS, the Contractor desires to lease the City's communication room in building B at
Santa Rosa Park for a wireless communications facility; and
WHEREAS, the City is willing to lease said portion of building B to the Contractor upon the
terms and conditions set forth in Exhibit 1, provided that Contractor is able to obtain all
discretionary approvals required by the City in its municipal and regulatory capacity; and
WHEREAS,this MOU is non-binding in nature.
Now,therefore,the parties have prepared the following MOU:
1. PROJECT DESCRIPTION
The "project" consists of a wireless communications facility at Santa Rosa Park, utilizing the
City's communication room in Building B and existing antenna towers, as follows, and in
accordance with the conceptual site plan provided in Exhibit 2:
a. Retrofitting Building B to accommodate installation of two new wall mounted
HVAC units and new incoming associated radio equipment.
b. Completing a structural analysis of both existing 75' light standards to ensure they
can accommodate the new antenna arrays and coax.
C. Installing six antennas on both light standards,minoring the existing installations.
d. Installing coaxial cables from equipment area to antennas in existing and new
underground conduits to both light standards.
2. APPROVAL OF IMPROVEMENTS
In its capacity as the owner of Santa Rosa Park, and separate from its capacity as regulator,
the City shall have rights of specific approval and review of all designs and plans, initially at
the concept and schematic plan level, and subsequently at the final plans as set forth herein.
Upon execution of the MOU,the Public Works and Community Development Directors shall
review and approve the preliminary design. After approval of the preliminary design,
Contractor shall submit to the Public Works Director and Community Development Directors
the final plans for the project. Within 30 days of such submission, the City shall exercise its
final right of review and approval of such plans. These rights shall be supplemental to and
not concurrent with its rights of review and approval in connection with its regulatory
functions.
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Attachment.®
3. CONTINGENCIES TO LEASE SIGNING
In its capacity as landowner, the City is under no obligation to enter into any lease until the
development review process is concluded and all discretionary approvals are obtained and
such other requirements as may pertain to final entitlement and approval of this project are
fulfilled.
4. OTHER MUNICIPAL PROCESSING
a. The Parties understand and agree that those approvals required of the City acting in its
governmental or regulatory capacity are separate and distinct from those approvals
required by the City under this MOU. Notwithstanding anything to the contrary in this
MOU, nothing herein shall be interpreted to mean that the City is any way waiving,
limiting or weakening any regulatory or police power the City may have in any of its
governmental capacities. It is intended that the Contractor shall be obligated to fulfill
such requirements as may be imposed by the City or any other governmental agency or
authority having or exercising any jurisdiction over the project or over any construction
to be undertaken by Contractor in,on or about said project.
b. Refusal or failure by the City in its governmental or regulatory capacity to take a
legislative action, issue any permit, license or any other action or approval sought by the
Contractor for construction of improvements on, or development of, the project shall not
constitute a breach of this MOU.
5. NON-BINDING NATURE OF THE AGREEMENT
a. Without obligating either of the parties, this MOU summarizes what the Contractor and
the City perceive to be the major deal points with respect to the project. No binding
obligation is created by this MOU or can be created other than by execution of a
Communications Facilities Lease in the form attached hereto as Exhibit 1.
Notwithstanding the foregoing, the parties agree that if a Communications Facilities
Lease is entered into between the parties, it shall substantially include the terms of this
MOU.
b. This MOU is an outline for discussion purposes only, is not intended to be contractual or
binding for any purpose and is not an offer or representation by either party. It is
designed to reflect the ideas being formulated, to provide a framework to attempt to
resolve issues and concerns that have been raised, as well as for the resolution of issues
and concerns which may arise. In some instances, a tentative but not binding, agreement
on a matter is referred to, and in other instances, material agreements are yet to be
defined and specified. The fact that any particular component or issue is not addressed in
this MOU does not mean that it cannot be the subject of future discussions and
negotiations, and the fact that a component is addressed does not mean that it cannot be
rejected or modified by either party. The Contractor further acknowledges and agrees
that the officers and employees of the City,do not have authority to bind the City,and the
final form of any proposed lease to be negotiated may have to contain matters not
contemplated by this MOU. The parties acknowledge that neither party will be
contractually bound to any agreement nor to any element of the proposed development
until the final execution of a mutually acceptable lease approved and executed by
authorized representatives. Alternatively, either of the parties may determine that further
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Attachment
negations will not be fruitful and then terminate this MOU or allow this MOU to lapse
without further liability to the other.
6. ACCEPTANCE AND ACKNOWLEDGEMENT
ATTEST: CITY OF SAN LUIS OBISPO
By:
City Clerk Mayor
APPROVED AS TO FORM: CONTRACTOR
By:
ity Attorney
LIST OF EXHIBIT:
Exhibit 1: Form of Communications Facilities Lease
Exhibit 2: Conceptual Site Plan
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C Attachment
Exhibit 1
COMMUNICATIONS FACILITIES LEASE
This Lease is made and entered into on 2010, by and between the
CITY OF SAN LUIS OBISPO, a municipal corporation and charter city (hereinafter referred to as
"Lessor"),and a corporation(hereinafter referred to as"Lessee").
RECITALS
This Lease is made and entered into with respect to the following facts:
A. Lessor is the owner of property described in Exhibit A, located at 190 Santa Rosa Street, San
Luis Obispo,California,commonly known as"Santa Rosa Park."
B. Lessor is willing to lease certain Premises on this property as described in Section 1 to Lessee
upon the terms and conditions hereinafter set forth.
C. Lessee warrants that use of these Premises will not interfere with the Department of Parks
and Recreation's operations or the public's use of the park.
D. This Lease is conditioned upon Lessee obtaining all governmental permits and approvals
enabling Lessee to operate a wireless communications facility in the Premises, described in Exhibit B as
"the project"and as defined below.
D. Lessor and Lessee have heretofore entered into a Memorandum of Understanding dated
2010, concerning the lease of a City site located at Santa Rosa Park.
NOW THEREFORE,the parties hereto agree as follows:
I. Premises. Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from
Lessor approximately one hundred and ten (110) square feet of building space, know as the City's
communication room in building B, and all access and utility easements, including space on one of the
two antenna towers, described in Exhibit A attached hereto, and by this reference made a part hereof
(hereinafter referred to as the "Premises"). This Lease is subject to the terms, covenants and conditions
hereinafter set forth and Lessee covenants, as a material part of the consideration for this Lease, to keep
and perform each and every term,covenant and condition of said Lease.
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Attachment®
During the term of this Lease, Lessor also grants to Lessee an irrevocable, nonexclusive right of
ingress and egress, seven days a week, twenty-four(24) hours a day, and the right to install and maintain
underground utility wires and cables through existing conduits.
2. Improvements. Lessee shall be allowed to make minor improvements, such as the
addition of air conditioning or for the provision of emergency electrical service, as necessary to
successfully complete this project. Plans for improvements shall have the prior written approval of
Lessor in its municipal capacity (not its capacity as landlord). Lessee shall dedicate any permanent
improvements, such as the addition of a generator, HVAC system or changes to the electrical system, to
Lessor upon completion thereof.
3. Term. The term of this Lease shall be for five (5) years ("Initial Term") commencing
with the issuance of a City building permit to construct any improvements ("Commencement Date").
This Lease shall automatically be renewed, on the same terms and conditions, for three (3) additional
terms (each a"Renewal Term")of five(5)years each, unless Lessee notifies Lessor of its intention not to
renew, at least sixty (60)days Prior to the expiration of the Initial Term or any Renewal Term.
4. Rent. Rent shall be paid annually in advance as follows:
A. Lessee shall pay to Lessor as annual rent on or before the Commencement Date
of the Lease the sum of $26,000.00 ("Annual Rent") without deduction, setoff, notice or demand
provided.
B. Annually thereafter, Lessee shall pay to Lessor as Annual Rent for that lease year
without deduction, setoff, notice, or demand the prior year Annual Rent increased by changes in the U.S.
Consumer Price Index,All Urban Consumers(CPI-U)or 3%,whichever is greater.
C. If Lessee fails to pay the Annual Rent within fifteen (15) days after such rent is
due, Lessee shall pay a late fee of Two Thousand Dollars ($2,000). This late charge does not establish a
grace period. Lessor and Lessee agree that the charge is presumed to be the damages sustained by Lessor
for Lessee's late payment of rent and that it is impracticable or difficult to fix the actual damages.
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Anachment.
5. Use.
A. Lessee shall use the Premises for the sole purpose of maintaining, securing and
operating wireless communications facilities (including but not limited to cellular, PCS, paging, and
broad band). Any other use of the Premises or use of equipment not described in Exhibit `B," is not
authorized and shall constitute a breach of this Lease.
B. Lessee must obtain all discretionary permits and approvals required by Lessor in
its municipal capacity. Installation of a new wireless telecommunication facility at this location shall
require architectural review. The applicant shall submit application materials and fees as required by the
Community Development Department. The Premises shall not be modified prior to obtaining any
required City building permit. It shall be the responsibility of the owner/operator of a
telecommunications facility to provide the City with a notice of intent to modify site in any way. Lessor
shall reasonably cooperate (at no expense to Lessor) with Lessee in connection with Lessee's efforts to
obtain all such permits and approvals; provided, however, Lessor shall not be obligated to apply for any
permits or approvals with Lessee. Lessee shall maintain the Lessee's Facilities free from hazards or risk
to the public health, safety and welfare.
C. At all times throughout the term of this Lease, Lessee's use of the Premises shall
be in conformance with,and subject to all conditions of, any and all discretionary permits in effect.
D. Lessor agrees that Lessee's ability to use the Premises is dependent upon
Lessee's obtaining all necessary certificates, permits and/or other approvals which may be required from
Lessor in its municipal or regulatory capacity and from any federal, state or other local authority. Lessor
agrees to cooperate with Lessee as to Lessee's obtaining such certificates, permits or other approvals. In
the event Lessee is unable to obtain any necessary certificate, permit or other approval in order to operate
a wireless communication facility, Lessee may terminate this Lease as provided herein, upon thirty (30)
days prior written notice.
6. Interference.
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Attachment
A. Lessee warrants that its operations in or repair of Lessee's Premises will not
interfere with Lessor's fire, police, public works and other public safety or City department
communication broadcasts or frequencies. All operations by Lessee shall be in compliance with all
Federal Communications Commission requirements and all applicable laws.
B. If Lessor suspects or has reason to believe that Lessee's use of the Premises
creates radio or television interference for nearby residents or interference with Lessor's communication
systems, and if Lessee does not proceed diligently to eliminate or identify such interference within ten
(10) business days after notice from Lessor to do so, Lessor may immediately terminate this Lease by
giving notice to Lessee.
C. Lessee shall provide Lessor with a contact person who shall be available twenty-
four(24) hours a day to receive reports of any interference with Lessor's frequencies. Lessor may report
such interference to (Name, Title, Address, Phone, Pager Cellular Nos. etc.). In the event
that there is interference with Lessor's public safety frequencies, Lessee shall immediately cease the
operations creating the interference when directed to do so by the City's Fire Chief and/or Police Chief
until such time that the interference can be eliminated to the satisfaction of the City's Fire Chief and/or
Police Chief. Lessee's failure to immediately cease such operations shall be considered a material breach
of this Lease notwithstanding Paragraph 6.13. above.
7. Radio Frequency Emission Exposure.
A. No wireless telecommunication facility shall be sited or operated in such a manner
that it violates any condition of its Federal Communication Commission's (FCC) permit or license. To
that end no facility or combination of facilities shall produce at any time power densities in any inhabited
area that exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field
strength and power density for transmitters or any more restrictive legally enforceable and applicable
standard subsequently adopted or promulgated by the city, county, the state of California, or the federal
government. For purposes of radio frequency emissions, compliance with FCC exposure limitations shall
constitute a conclusive presumption that there is no hazard or risk to the public health, safety or welfare.
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B. Initial compliance with this requirement shall be demonstrated for any facility
within three hundred (300) feet of residential uses or sensitive receptors such as schools, churches,
hospitals, etc. and all broadcast radio and television facilities, regardless of adjacent land uses, through
submission, at the time of application for the necessary permit or entitlement, calculations specifying
MPE levels in the inhabited area where the levels produced are projected to be highest. If these
calculated levels exceed eighty percent (80%) of the MPE limits, the applicant shall hire a qualified
electrical engineer licensed by the State of California to measure exposure levels at the location after the
facility is in operation. A report of these measurements and the engineer's findings with respect to
compliance with MPE limits shall be submitted to the Community Development Director. Lessee's
Premises shall not commence normal operations until it complies with, or has been modified to comply
with this standard. Proof of compliance shall be a certification provided by the engineer who prepared the
original report. In order to assure the objectivity of the analysis, the City may require, at the applicant's
expense, independent verification of the results of the analysis.
C. Every wireless telecommunication facility within three hundred (300) feet of an
inhabited area and all broadcast radio and television facilities shall demonstrate continued compliance
with its FCC permit or license and MPE limits. Every five (5) years a report listing each transmitter and
antenna present at the facility and the effective radiated power radiated shall be submitted to the
Community Development Director. If either the equipment or effective radiated power has increased,
calculations specifying exposure levels in the inhabited areas where the levels are projected to be highest
shall be prepared. Calculations shall also be prepared every time the adopted MPE limits change. If
calculated levels in either of these cases exceed eighty (80%) of the MPE limits, the operator of the
facility shall hire a qualified electrical engineer licensed by the State of California to measure the actual
exposure levels produced. A report of these calculations, required measurements, if any, and the
engineer's findings with respect to compliance with the current MPE limits shall be submitted to the
Community Development Director within five (5) years of facility approval and every five (5) years
thereafter. In the case of a change in the limits, the required report shall be submitted within ninety (90)
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days of the date the change becomes effective.
D. Failure to supply the required reports or to remain in continued compliance with
any FCC license,permit or MPE limits shall be considered a material breach of this Lease.
8. Visual Mitigation. Lessee will use a variety of visual mitigation strategies for all of its
facilities, as determined necessary by the Community Development Director and as required through the
Architectural Review process, with the goal of achieving a 100% stealth installation. Facilities shall be
creatively designed to minimize the visual impact to the greatest extent possible by means of placement,
screening and camouflage. The applicant shall use the smallest and least visible antennas possible to
accomplish the coverage objectives. The project shall be designed to blend into its surroundings so that
the antenna(s) and equipment are not apparent to the casual observer. Ground mounted support
equipment shall be undergrounded or otherwise screened from view so as to be effectively unnoticeable.
All connections between the base of the antenna(s) and support equipment shall be undergrounded using
existing conduit. Electrical and telephone service to the support equipment shall be undergrounded using
existing conduit.
9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption
caused by noise to people working and living in the vicinity. At no time shall equipment noise from any
source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such equipment,
whichever is less. This requirement may be modified at the discretion of the Community Development
Director where typical ambient noise levels exceed 55 dB. Outdoor noise producing construction
activities shall take place only on weekdays between the hours of 8:00 am and 5:00 pm. Any facility
utilizing temporary backup generators shall be required to meet or exceed Air Pollution Control District
Standards. All generators shall be fitted with approved air pollution control devices. Projects that
propose to include backup generators shall require review and approval from the Air Pollution Control
District. Project plans shall indicate location, size, horsepower and type of fuel used for any proposed
generator. Generators shall only be operated during power outages and for testing and maintenance
purposes. Testing and maintenance shall only take place on weekdays between the hours of 10:00 am and
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noon.
10. Nondiscrimination. Subject to applicable laws, rules, and regulations, Lessee shall not
discriminate against any person or group on the basis of age, sex, sexual orientation, AIDS,AIDS related
condition,marital status,race, religion,creed,ancestry,national origin, disability,or handicap.
11. Subsurface Restrictions. The parties agree that this Lease covers only the surface of the
Premises and only so much of the subsurface as is reasonably necessary for Lessee's use of the Premises
as permitted in this Lease(including,without limitation,cables,conduits and pipes within the Premises to
connect Lessee's communications equipment from building B to an existing antenna tower).
12. Liens. Lessee shall keep the Premises free of mechanic's, material supplier's or other
liens for any work done, labor performed or materials furnished therein by or for Lessee, and Lessee shall
defend, indemnify and hold Lessor, its officials, employees and agents harmless from and against all
claims, liens, demands, causes of action, liability, loss, cost and expense (including reasonable attorney's
fees) of whatever kind for any such work done, labor performed or materials furnished.
13. No Utilities. Lessor shall not provide any utilities to the Premises. Lessee shall arrange
and pay for the installation and use of all utilities of whatsoever kind to the Premises.
14. Maintenance.
A. Lessee shall, at Lessee's sole cost and to the satisfaction of Lessor, maintain the
Premises and all improvements thereon in good condition, free from rodents, weeds, noxious plants, wild
growth and graffiti, in substantial repair, in a safe and sanitary condition, and in compliance with all
applicable laws and regulations and shall promptly repair any damage caused by Lessee. If Lessee fails to
maintain the Premises as required herein, Lessor may notify Lessee of said failure. If Lessee fails to
correct the situation within thirty (30) days after notice or such longer period as may be established by
Lessor, Lessor may make the necessary correction and the cost thereof, including but not limited to the
cost of administration, and labor, materials, equipment, shall be paid by Lessee within thirty (30) days
after receipt of a statement of said cost from Lessor. If said statement is not timely paid, Lessor may, at
its option, choose any remedy available herein or by law, including the termination of this Lease. Lessee
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AfteChMsnt
hereby waives to the extent permitted by law any right to make repairs at the expense of Lessor or to
vacate the Premises in lieu thereof as may be provided by law.
B. Lessor shall have no duty to maintain or repair the Premises or any of Lessee's
improvements, including the antenna towers on the Premises.
15. Taxes. Lessee acknowledges that this Lease may create a possessory interest subject to
property taxation and that Lessee may be liable for payment of taxes levied on such interest. Lessee shall
promptly pay, prior to delinquency, all taxes, assessments and other governmental fees that may be
lawfully levied against the Premises and any improvements or personal property located on the Premises
and on any possessory interest created by this Lease,and provide proof of payment to Lessor on demand.
16. Insurance. Concurrent with the execution of this Lease, Lessee shall procure and
maintain, at its cost, during the initial and any extended or Renewal Term of this Lease from an insurer
admitted in California or having a minimum rating of or equivalent to A: VII in Best's Insurance Guide:
A. Comprehensive General Liability insurance with a combined single limit of at
least Five Million Dollars ($5,000,000) for each occurrence. Lessor, its officials, employees and agents
shall be covered as additional insureds with respect to liability arising from activities performed by or on
behalf of Lessee. Said insurance shall be primary insurance with respect to Lessor and shall contain a
cross liability endorsement.
B. "All Risk" property insurance in an amount sufficient to cover the full
replacement value of Lessee's personal property, improvements and equipment on the Premises.
C. Upon the execution of this Lease, Lessee shall deliver to Lessor certificates of
insurance with original endorsements evidencing the coverage required by this Lease. The certificates
and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf.
Lessor reserves the right to require complete certified copies of all policies at any time.
D. Said insurance shall contain an endorsement requiring thirty (30) days prior
written notice from insurer to Lessor before cancellation or change of coverage.
E. Said insurance may provide for such deductibles or self-insured retention as may
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be acceptable to the City's Risk Manager or designee. In the event such insurance does provide for
deductibles or self-insured retention, Lessee agrees that it will fully protect Lessor its officials and
employees in the same manner as these interests would have been protected had a policy of commercial
insurance been in effect. With respect to damage to property, Lessor and Lessee hereby waive all rights
of subrogation, one against the other, but only to the extent that collectible commercial insurance is
available for said damage.
F. The procuring of insurance shall not be construed as a limitation on Lessor's
liability or as full performance on Lessee's part of the indemnification provision of this Lease. Lessee
understands and agrees that, notwithstanding any insurance, Lessee's obligation to defend and indemnify
Lessor, its officials and employees hereunder is for the full amount of any damage; loss cost or expense.
G. Any modification or waiver of these insurance requirements shall only be made
with the written approval of the Lessor's Risk Manager or designee.
17. Removal of Improvements. On the expiration or sooner termination of this Lease, Lessee
at Lessee's sole cost shall have the right to remove Lessee's equipment or temporary improvements
placed in or on the Premises by Lessee by giving notice of its intention to do so to Lessor and by
removing same within forty-five (45) days after expiration or sooner termination of this Lease. Lessor
may treat any such equipment or improvements as abandoned if Lessee fails to timely remove them and,
in such event, (a) Lessor shall be deemed owner of them without accounting to Lessee,or(b) Lessor may
cause their removal at Lessee's cost.
18. Relocation. Lessee agrees that nothing contained in this Lease shall create any right in
Lessee for any relocation payment or assistance pursuant to the provisions of Title 1, Division 7, Chapter
16 of the California Government Code from Lessor on account of the expiration or sooner termination of
this Lease.
19. Notice. Any notice required hereunder shall be in writing and personally delivered or
deposited in the U.S. Postal Service, registered or certified, return receipt,postage prepaid, to the address
of the respective parties set forth below:
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LESSOR:
LESSEE:
Director of Finance& Information Technology
City of San Luis Obispo
990 Palm Street
San Luis Obispo,CA 93401
Notice shall be deemed effective on the date shown on the return receipt or on the date personal delivery
is made, whichever fust occurs. If delivery is refused, the date of deposit of the copy in the mail shall be
deemed the date of notice. Change of address shall be given as provided herein for notices.
20. Hazardous Materials and Waste.
A. Lessee shall comply with all applicable laws regarding the use, storage and
disposal of hazardous materials on the Premises. Lessee shall comply with California Health and Safety
Code Section 25359.7 or its successor regarding notice to Lessor on discovery by Lessee of the presence
or suspected presence of any hazardous substance on the Premises.
B. Lessee shall not bring any hazardous materials onto the Premises except for those
contained in its back-up power batteries and common materials used in telecommunications operations,
e.g., cleaning solvents. Lessee shall treat all hazardous materials brought onto the Premises by it in
accordance with all federal,state and local laws and regulations.
C. Lessee shall specify any proposed generator usage and enter into a shared use
agreement with Verizon Wireless prior to signing lease agreement with the City.
D. Lessor represents that the Premises have not been used for the generation,
storage, treatment or disposal of hazardous materials, hazardous substances or hazardous wastes. In
addition, Lessor represents that no hazardous materials, hazardous substances, or hazardous wastes,
pollutants, asbestos, polychlorinated biphenyls (PCBs), petroleum or other fuels (including crude oil, or
any fraction or derivative thereof),or underground storage tanks are located on or near the Premises.
21. Indemni�. Lessee shall defend, protect, indemnify and hold harmless Lessor, its
officials, employees and agents from all claims, demands, damages, causes of action, losses, liability,
C5-17
�. AttaChment®..
costs or expenses, including reasonable attorney's fees, of any kind or nature whatsoever (except those
resulting from Lessor's sole negligence or willful misconduct) which Lessor, its officials, employees and
agents may incur for injury to or death of persons or damage to or loss of property occurring in, on or
about the Premises arising from the condition of the Premises (other than conditions existing prior to
Lessee's occupancy of the Premises), the alleged acts or omissions of Lessee, any parent, subsidiary,
affiliate or partnership in which any such entity participates, Lessee's officers, employees or agents, the
occupancy, use or misuse of the Premises by Lessee, any parent, subsidiary, affiliate or partnership in
which any such entity participates, Lessee's officers,employees or agents, or any breach of this Lease.
22. Assignment and Subletting. Lessee shall not assign or transfer this Lease or any interest
herein, (collectively referred to as "transfer") without the prior written consent of Lessor, which shall not
be unreasonably withheld or delayed. To obtain Lessor's consent to a proposed assignment or transfer,
Lessee shall meet the following requirements and Lessee's failure to meet any requirement shall allow
Lessor to withhold consent:
A. Lessee shall notify Lessor at least sixty (60) days prior to the date when Lessee
desires the transfer to take effect ("Transfer Date") which notice shall contain the name, address and
telephone number of the proposed transferee; the nature of the proposed transferee's business and details
of its business experience.
B. Lessor shall notify Lessee at least thirty days (30) days prior to the Transfer Date
whether Lessor approves or disapproves of the proposed transfer.
C. Any approved transferee shall assume and be deemed to have assumed this Lease
and shall be jointly and severally liable with Lessee for the payment of rent and performance of the terms,
covenants, and conditions of this Lease. No approved transfer shall be binding on Lessor until such
transferee shall deliver to Lessor a counterpart of the transfer agreement with contains a covenant of
assumption by transferee but the failure or refusal to execute or deliver such instrument shall not release
transferee from its liability as stated herein.
D. The consent of Lessor to any transfer shall not relieve Lessee of the obligation to
C5-18
obtain such consent to any further transfer. Further, neither this Lease nor any interest herein shall be
subject to transfer by attachment, execution,proceedings in insolvency or bankruptcy (either voluntary or
involuntary),or receivership. In the event of the transfer without the prior written consent of Lessor, such
transfer shall be voidable at Lessor's election and, if voided by Lessor, shall convey no interest. Any
transfer without Lessor's consent shall constitute a default of this Lease.
E. To obtain Lessor's consent to a sublease, Lessee shall meet the following
requirements and Lessee's failure to meet any requirement shall allow Lessor to withhold consent:
1) The Lessee must pay to Lessor the same amount of Annual Rent on the
sublease tenant's behalf as the Lessee ("Additional Annual Rent"). While the Lessee may require the
sublease tenant to pay this amount as part of their sublease agreement with the Lessee, payment of the
Additional Annual Rent is the sole responsibility of the Lessee, and is subject to the same terms,
conditions and remedies as the Annual Rent.
2) Lessee shall notify Lessor at least sixty (60) days prior to the date when
Lessee desires the sublease to take effect ("Sublease Date"), which notice shall contain the name, address
and telephone number of the proposed sublease tenant; the nature of the proposed sublease tenant's
business and details of its business experience. The first year of Additional Annual Rent shall be paid
prior to the Sublease date and will be prorated to the Lessee's Annual Rent payment due date; and shall
be due annually thereafter with the Annual Rent.
3) Lessor and Lessee agree (by way of example and without limitation)that
it shall be reasonable for Lessor to withhold its consent if any of the following exist or may exist- the
proposed transferee's use of the Premises conflicts with or is inconsistent with the use of the Premises
stated herein; the Lessee is in default under this Lease at the time the request for sublease is made and has
not cured such default, if the same can be cured,prior to ten (10)business days prior to the Sublease Date.
4) The sublease tenant is subject the same terms and conditions of this
Agreement as the Lessee.
5) Lessor shall notify Lessee at least fifteen (15) days prior to the sublease
C5-19
Affachment
date whether Lessor approves or disapproves of the proposed sublease.
23. No Permits. Lessee shall not grant any rights-of-way, easements, franchises or permits
in, on or across the Premises.
24. Encumbrances. Lessee shall take the Premises subject to any and all existing easements
and other encumbrances.
25. Reservations. Lessor reserves the right to grant franchises, easements, rights-of-way or
permits for pipeline purposes which will not interfere with Lessee's use of the Premises.
26. Default. The occurrence of any of the following acts shall constitute a default by Lessee:
A. Failure to pay Annual Rent or Additional Annual Rent when due where such
failure shall continue fora period of ten(10)days after Lessee's receipt of written notice from Lessor.
B. Failure to perform any of the terms, covenants or conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee's receipt of written notice from Lessor of said
failure. If the default cannot reasonably be cured in thirty (30) days after receipt of such notice, Lessee
shall not be in default if Lessee begins to cure within the thirty-day period and diligently proceeds to cure
to completion. Lessor's notice shall describe the default and shall demand that Lessor perform or quit the
Premises. No such notice shall be deemed a forfeiture or termination of the Lease unless Lessor so elects
in the notice.
C. Any attempted assignment,transfer or sublease except as permitted in Section 22
hereof.
D. Failure to maintain all necessary permits and business licenses required by the
City in its municipal or regulatory capacity or failure to pay any fees for permits or licenses to the City
when due;
E. Failure to report or pay to the City all applicable sales taxes, transient occupancy
taxes, business taxes, utility taxes or other excise taxes, when due. Subject to the terms of this Section, if
Lessee does not comply with each tern, covenant and condition of this Lease or if a default occurs, then
Lessor may terminate this Lease and Lessor may then enter the Premises and take possession thereof
CS-2r0
Attachment!
provided, however, that these remedies are not exclusive but cumulative to other remedies provided by
law in the event of Lessee's default, and the exercise by Lessor of one or more rights and remedies shall
not preclude the Lessor's exercise of additional or different remedies for the same or any other default by
Lessee.
F. Failure to perform any of the terms, covenants or conditions of this Lease if said
failure is not cured within thirty (30) days after Lessee notifies Lessor of said failure shall constitute a
default by Lessor of this Lease. If the default cannot reasonably be cured in thirty (30) days after receipt
of such notice,Lessor shall not be in default if Lessor begins to cure within the thirty (30) day period and
diligently proceeds to cure to completion.
27. Right of Entrv.
A. In the event of an emergency which poses an immediate threat of harm or
damage to persons or property, Lessor may enter the Premises and take such actions as are required to
protect persons or property from such immediate threat of harm or damage, provided that promptly after
such emergency entry into the Premises (and in no event later than twenty-four(24) hours) Lessor gives
telephonic and written notice to Lessee of Lessor's entry into the Premises. In addition to Lessor's rights
under the immediately preceding sentence, Lessor shall have the right, upon forty-eight (48) hours prior
telephonic notification to Lessee (which notification shall specify the date and time at which Lessor seeks
to enter the Premises), to enter the Premises to determine whether or not Lessee is complying with this
Lease and to serve, post or keep posted any notice. Except in the event of an emergency, Lessor agrees
that it shall not enter the Premises without a representative of Lessee being present, and Lessee agrees to
make its representative promptly and readily available to accompany Lessor on the date and at the time
given in Lessor's telephonic notice. If Lessee fails to make its representative available on the date and at
the time given in Lessor's telephonic notice or at a mutually agreeable time, then Lessor may enter the
Premises accompanied by a peace officer.
B. Lessee shall.install a lock box system on the Premises and give the City access to
the lock box in order to allow the City to inspect the Premises pursuant to Paragraph A above.
C5-21
}
Attachment,
28. Signs. Lessee shall not place, affix, maintain or permit any sign, advertisement, name,
insignia, logo, descriptive material or similar item (collectively "sign") on the Premises without the prior
written approval of Lessor. Any approved sign shall be maintained by Lessee in good condition at all
times. Lessor may remove any sign not approved by Lessor at Lessee's cost. The cost of removal shall
be additional rent.
29. Condemnation. If the whole of the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain, then this Lease shall terminate. If any part of the Premises
shall be taken under the power of eminent domain, then this Lease shall terminate as to the part taken, as
of the day possession (of that part) is required for any public purpose, and on or before that day Lessee
shall elect in writing either to terminate this Lease or to continue in possession of the remainder of the
Premises provided, however, that rent shall only be reduced in proportion to the amount of the Premises
taken if Lessee is unable to operate at the same level after the condemnation as before the condemnation.
All damages awarded for any taking shall belong to Lessor, whether such damages be awarded as
compensation for diminution in value to the leasehold or to the fee provided, however, that Lessor shall
not be entitled to any portion of the award made for loss of Lessee's business or relocation expenses.
30. Nuisance. Lessee shall not do or permit to be done in or on the Premises any act,
which may be an unreasonable nuisance, annoyance or inconvenience to Lessor, Lessor's tenants on or
occupants of adjoining property,or to the neighborhood.
31. Exculpation. Except as expressly provided herein, Lessor shall not be liable to Lessee
for any damages to Lessee or Lessee's property from any cause. To the extent permitted by law, Lessee
waives all claims against Lessor for damage or injury to persons or property arising or alleged to have
arisen from any cause whatsoever, except Lessor's sole negligence or willful misconduct or Lessor's
breach of its obligations hereunder.
32. Waiver of Rights. The failure or delay of either party to insist on strict enforcement
of any term, covenant, or condition herein shall not be deemed a waiver of any right or remedy that such
party may have and shall not be deemed a waiver of any subsequent or other breach of any term,
C5-22
Attachment__
covenant, or condition herein. The receipt and acceptance by Lessor of delinquent rent shall not
constitute a waiver of any other default but shall only constitute a waiver of timely payment for the
particular rent payment involved. Any waiver by either party of any default or breach shall be in writing.
Either party's consent to or approval of any act by the other party requiring a party's consent or approval
shall not be deemed to waive such party'sconsent or approval of any subsequent act of the other parry.
33. Partial Invalidity.. If any term, covenant or condition of this Lease is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall
remain in full force and effect.
34. Successors in Interest. This Lease shall be binding on and inure to the benefit of the
parties and their successors,heirs,personal representatives, approved transferees and assignees, and all of
the parties hereto shall be jointly and severally liable hereunder.
35. Right to Re-Enter. Lessor acknowledges that Lessee's use of the Premises includes
proprietary trade secrets. Lessor shall have no right whatsoever to enter the Premises except as provided
in Paragraph 27.A. above, without Lessee's written consent which Lessee shall not unreasonably
withhold. Lessee shall peaceably deliver possession of the Premises to Lessor on the effective date of
termination or expiration of this Lease. On giving notice of termination to Lessee, Lessor shall have the
right to re-enter and take possession of the Premises on the termination or expiration date without further
notice of any kind and without institution of summary or regular legal proceedings. Termination of the
Lease and re-entry of the Premises by Lessor shall in no way alter or diminish any obligation of Lessee
under the.Lease and shall not constitute an acceptance or surrender. Lessee waives any and all right of
redemption under any existing or future law, in the event of eviction from the Premises and in the event
Lessor re-enters and takes possession. Lessee agrees that should the manner and method used by Lessor
in re-entering or taking possession after breach by Lessee gives Lessee a cause of action for damages or in
forcible entry and detainer, the total amount of damages to which Lessee shall be entitled in any such
action shall be One Dollar ($1.00). Lessee agrees that this Section may be filed in any such action and
that when filed it shall be a stipulation by Lessee fixing the total damages to which Lessee is entitled in
C5-23
W1tilYWYchtltlOR7tlYW .
such action.
36. Holding Over. If Lessee holds over and remains in possession of the Premises after the
expiration of the Lease, such holding over shall be construed as a tenancy from month to month on the
same terms, covenants, and conditions herein, except that monthly rent shall be one-twelfth (1/12) of one
hundred twenty-five percent (125%) of the annual rent then in effect. Nothing in this Section shall be
construed as consent by Lessor to any holding over by Lessee.
37. Time. Time is of the essence in this Lease and every provision hereof.
38. Attorney's Fees. In any action or proceeding relating to this Lease, the prevailing party
shall be entitled to its costs, including reasonable attorney's fees and court costs.
39. Integration and Amendments. This Lease represents and constitutes the entire
understanding between the parties and supersedes all other agreements and communication between the
parties, oral or written, concerning the subject matter herein. This Lease shall not be modified except in
writing duly signed by the parties and referring to this Lease.
40. Recordation. Concurrently with the execution of this Lease, Lessor shall execute before
a notary and deliver to Lessee for recording a "Memorandum of Lease" substantially in the form of
Exhibit"C"attached hereto and by this reference incorporated herein (the "Memorandum"). Lessee may
record the Memorandum and shall pay any fees or taxes applicable to or arising from said recordation.
Upon expiration or sooner termination of this Lease, Lessee shall, at its sole cost, immediately record a
Quitclaim Deed with respect to its interest under this Lease.
41. Governing Law. This Lease shall be governed by and construed in accordance with the
laws of the State of California.
42. motions. The various headings and numbers herein and the grouping of the terms hereof
into separate sections, paragraphs and clauses are for convenience only and shall not be considered a part
hereof,and shall have no effect on the construction or interpretation of this Lease.
43. Abandoned Property. The vacating or abandonment of the Premises by Lessee shall
include but not be limited to the failure of Lessee to occupy the Premises fora continuous period of forty-
05-24
Attachment.
five (45) days or more while not paying rent. If Lessee abandons the Premises, title to any personal
property belonging to Lessee and left on the Premises forty-five (45) days after such abandonment shall
be deemed to have been transferred to Lessor. Lessor shall thereafter have the right to remove and to
dispose of said property without liability to lessee or to any person claiming under Lessee, and shall have
no duty to account therefor.
44. Compliance with the Law. Lessee shall comply with all laws, ordinances, rules and
regulations of all federal, state and local governmental authorities having jurisdiction over the Premises
and business thereon.
45. Quiet Enjoyment. Lessor covenants that, if Lessee performs the terms, covenants and
conditions of this Lease, Lessee shall peaceably and quietly hold and enjoy the Premises.
46. Lessor's Representation of Authority. Lessor represents that it has title to the Premises
and full authority to execute this Lease and to grant the easements and access to the Premises. Lessor
further represents that there are no undisclosed liens,judgments, impediments or exceptions of title on the
Premises that would affect this Lease.
47. Non-Interference Provision. Lessor will use its best efforts to provide Lessee with notice
of any applications received from any other communications companies wishing to utilize any part of
Santa Rosa Park. Further, Lessor will use its best efforts to not lease property in Santa Rosa Park to other
communication companies that might interfere with Lessee's use of the Premises. In the event any other
communication company does, in fact, interfere with Lessee's use of the Premises, the same shall not be
deemed a breach of this Lease and Lessee may terminate this Lease as provided in Paragraph 5.1).
IN WITNESS WHEREOF, the parties have executed this Lease with all of the formalities required by law
as of the date first above written.
C5-25
Attachmant...i..
LESSOR:
LESSEE:
CITY OF SAN LUIS OBISPO,a
Municipal Corporation
By:
By:
David F.Romero,Mayor
ATTEST:
By:
Elaina Cano,City Clerk
APPROVED AS TO FORM:
By:
Christine Dietrick,City Attorney
C5-26
Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY AND PREMISES
All that real property located in the State of California,County of San Luis Obispo, described as follows:
/Note: The lezal description will be prepared at a liter date prior to execution-of the.leme.7
C5-27
Anachment-- -
Exhibit B
DESCRIPTION OF THE PROJECT
[Note: Thedetailedproiect description will beprepared at a later date prior to execution of the lease.7
C5-28
Attachment. _
Exhibit C
MEMORANDUM OF LEASE
RECORDING REQUESTED BY:
WHEN RECORDED, RETURN TO:
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE ("Memorandum") dated as of 2010, is
between the CITY OF SAN LUIS OBISPO, a municipal corporation and charter city ("Lessor") and
RECITALS
WHEREAS, Lessor and Lessee have executed that certain Telecommunications Facility Lease at
Santa Rosa Park ("Lease") dated as of , 2010, covering certain premises (the
"Premises") situated on a portion of that certain real property located in the County of San Luis Obispo,
State. of California, and more particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference: and
WHEREAS, Lessor and Lessee desire to record notice of the Lease in the Official Records of San
Luis Obispo County, California:
NOW, THEREFORE, in consideration of the foregoing, Lessor and Lessee hereby declare as
follows:
1. Demise. Lessor has leased the Premises to Lessee (toeether with access riehts), and
Lessee has hired the Premises from Lessor, subject to the terns, covenants and conditions contained in
the Lease.
2. Expiration Date. The tern of the Lease ("Term") is scheduled to commence on or before
and shall expire five (5) years thereafter, subject to Lessee's option
to extend the Term pursuant to Section 3 of the Lease for three (3)additional terms of five(5)vears each.
3. Lease Controlline. This Memorandum is solely for the purpose of giving constructive
notice of the Lease. In the event of conflict between the terms of the Lease and this Memorandum, the
terms of the Lease shall control.
IN WITNESS WHEREOF. Lessor and Lessee have executed this Memorandum of Lease as of the
date and year first written above.
C5-29
Attach . entn
LESSOR
LESSEE
By:
By:
Name: Name:
Title: Title:
NOTARIZED SIGNATURES
STATEOFCALIFORNIA 1
ss.
COUNTY OF 1
On before me
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity res), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s)acted,executed the instrument.
WITNESS my hand and official seal.
(Signature of Notary Public)
STATE OF CALIFORNIA )
ss.
COUNTY OF 1
On before me
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their sienature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s)acted,executed the instrument.
WITNESS my hand and official seal.
(Signature of Notary Public)
C5-30
Section E
WIRELESS TELECOMMUNICATION DEVELOPMENT
STANDARDS
Table 9—Uses Allowed by Zone
TRANSPORTATION&
COMMUNICATIONS Permit Requirement by Zoning District
Specific use
Land Use AG C/OS R1 R2 R3 R4 PF 0 1 C-N C-C C-D C-R C=T C-S M BP Regulations
Antennas and
telecommunications facilities D D I D D I D D D D D D D 17.16.120
Key:
D=Director's approval required
17.16.120 Wireless telecommunication facilities.
A. Purpose
To establish standards for the development, siting and installation of wireless telecommunications
facilities; to protect and promote public health, safety, and welfare; and to preserve view corridors and
avoiding adverse visual and environmental impacts. These standards are not intended to be all-inclusive.
Projects may be subject to additional standards deemed appropriate through architectural review and use
permit processing to address site-specific conditions.
B. Definitions.
I. Wireless telecommunications facilities consist of commercial wireless communications systems,
including but not limited to: cellular,PCS,paging,broadband, data transfer,and any other type of
technology that fosters wireless communication through the use of portable electronic devices. A
facility includes all supporting structures and associated equipment.
2. Co-location is the practice of two or more wireless telecommunication service providers sharing
one support structure or building for the location of their antennas and equipment.
3. Stealthing means improvements or treatments added to a wireless telecommunications facility
which mask or blend the proposed facility into the existing structure or visual backdrop in such a
manner as to render it effectively unnoticeable to the casual observer.
C. Exempt facilities.
The following wireless telecommunication facilities are exempt from the requirements of this
section:
I. Government-owned communications facilities used primarily to protect public health,welfare,and
safety.
2. Facilities operated by providers of emergency medical services, including hospital, ambulance,
and medical air transportation services,for use in the provision of those services.
3. Satellite dish antennas for residential and commercial use, solely for the use of the occupants of
the site, subject to compliance with development standards set forth in Section 17.16.100 et al of
the zoning ordinance.
4. Any facility specifically exempted under federal or state law.
D. Planning Applications and approvals required.
1. Installation of a new wireless telecommunication or modification of an existing installation shall
require administrative use permit approval and architectural review.
C5-31
2. The co-location of a new wireless telecommunication with an existing approved installation shall
only require architectural review.
3. The applicant shall submit application materials and fees as required by the Community
Development Department.
E. Building permit required.
Wireless communications facilities shall not be constructed, installed or modified prior to
obtaining a City building permit.
F. Site development and performance standards.
1. Setbacks. All facility towers and accessory structures shall comply with the setback requirements
of the applicable zoning district.
2. Height. The height of any antenna or support equipment shall be determined as part of the use
permit on a case by case basis. All facilities shall be designed to the minimum necessary
functional height.
3. Site Access. Telecommunication facilities should use existing roads and parking whenever
possible. New and existing access roads and parking shall be improved and surfaced where
necessary to the satisfaction of the Community Development Director.
4. Aesthetics and Visibility. Facilities shall be creatively designed to minimize the visual impact to
the greatest extent possible by means of placement,screening and camouflage. The applicant shall
use the smallest and least visible antennas possible to accomplish the coverage objectives. Each
installation shall be designed to blend into its surroundings so that the antenna(s) and equipment
are not apparent to the casual observer.
a. Building mounted facilities shall appear as an integral part of the structure. Equipment and
antennas shall be compatible and in scale with existing architectural elements, building
materials and site characteristics. Wall mounted antennas shall be integrated architecturally
with the style and character of the structure. If possible, antennas and equipment shall be
located entirely within an existing or newly created architectural feature so as to be effectively
unnoticeable.
b. Ground mounted support equipment shall be undergrounded or otherwise screened from view
so as to be effectively unnoticeable.
c. All connections and conduits between the base of the antenna(s) and support equipment shall
be undergrounded. Connections and conduit above ground shall be fully enclosed to the
satisfaction of the Community Development Director. Electrical and telephone service to the
support equipment shall be undergrounded.
d. Ground mounted antennas, poles, structures, equipment, or other parts of a
telecommunications facility, which would extend above a ridgeline so as to silhouette against
the sky shall be discouraged. Where allowed, they shall be designed to be indistinguishable
from the natural surroundings.
5. Lighting. All telecommunication facilities, not otherwise required to have lighting pursuant to
Federal Aviation Administration rules, shall be unlit, except when authorized personnel are
actually present at night,and except for exempt facilities.
6. Historic Buildings. Any wireless facility located on or adjacent to a historic building or site shall
be designed to ensure consistency with the Secretary of Interior standards for remodeling and
rehabilitation.
7. Equipment Upgrades. It shall be the responsibility of the owner/operator of a
telecommunications facility to provide the City with a notice of intent to modify site equipment in
any way. At the time of modification, co-location, or upgrade of facilities, existing equipment
shall be replaced with equipment of equal or greater technical capacity and modified to reduce
aesthetic impacts by reducing the size of the facility or introducing camouflaging techniques to the
C5-32
satisfaction of the Community Development Director. Unused or obsolete equipment or towers
shall be removed from the site within 90 days after their use has ceased.
8. Number of facilities per site.The City shall retain the authority to limit the number of antennas
with related equipment and providers to be located at any site and adjacent sites in order to prevent
negative visual impacts associated with multiple facilities.
9. Noise. Each facility shall be operated in a manner that minimizes any possible disruption caused
by noise to people working and living in the vicinity. At no time shall equipment noise from any
source exceed an exterior noise level of 55 dB at the property line or within 20 feet of such
equipment, whichever is less. This requirement may be modified at the discretion of the
Community Development Director where typical ambient noise levels exceed 55 dB. Outdoor
noise producing construction activities shall take place only on weekdays between the hours of
8:00 am and 5:00 pm unless a different schedule is approved as part of the use permit.
10. Backup Generators. Any facility utilizing temporary backup generators shall be required to meet
or exceed Air Pollution Control District Standards. All generators shall be fitted with approved air
pollution control devices. Projects that propose to include backup generators shall require review
and approval from the Air Pollution Control district. Project plans shall indicate location, size,
horsepower, and type of fuel used for any proposed,generator. Generators shall only be operated
during power outages and for testing and maintenance purposes. Testing and maintenance shall
only take place on weekdays between the hours of 8:00 am and 5:00 pm.
11. Biological Impacts. Wireless telecommunication facility shall minimize potential impacts to
biological resources to the greatest extent possible.
12. Radio Interference. Interference with municipal radio communication is prohibited. Any
telecommunication facility that the City has reason to believe is interfering with municipal radio
communication shall cease operation immediately upon notice from the City, and shall be subject
to use permit review and possible revocation. Testing shall be done prior to any permanent
installation and frequencies shall be monitored at regular intervals after installation established by
the use permit,at the expense of the facility owner/operator.
13. Airport Operations. Wireless communications facilities shall not be sited in locations where
they will interfere with the operation of the San Luis Obispo Airport. Wireless towers and related
facilities within the Airport Planning Area shall be referred to the Airport Manager or the Airport
Land Use Commission for a determination of consistency with airport area standards.
14. Radio Frequencies and Electromagnetic Exposure.
a. Wireless telecommunications facilities operating alone or in conjunction with other
telecommunications facilities shall not produce radio frequency radiation in excess of the
standards for permissible human exposure as adopted by the Federal Communications
Commission(FCC).Applications for facilities shall include a radio frequency radiation(RFR)
report that measures the predicted levels of RF radiation emitted by the proposed facility. The
radio frequency radiation report shall compare proposed project levels to levels allowed by
the FCC and shall show output of the proposed facility in combination with other facilities
located or proposed in the vicinity.
b. The City may require one or more post-constriction RFR reports as a condition of project
approval, to verify that the actual levels of RFR emitted by the approved facilities, operating
alone or in combination with other approved facilities, substantially conform to the pre-
approval RFR report and do not exceed current standards for permissible human exposure to
RFR as adopted by the FCC.
15. Signs. Explanatory warning signs shall be posted at all access points to cellular
telecommunication facilities in compliance with the American National Standards Institute(ANSI)
C95.2 color,symbol,and content conventions.
16. Nuisance. Facility generators, mechanical equipment, construction,testing and maintenance shall
be operated or performed in such a manner that no nuisance results. At the discretion of the
Director,upon receipt of written complaints,the use permit allowing a telecommunications facility
C5-33
may be scheduled for public review.At the hearing,conditions of approval may be added,deleted,
or modified,or the use permit may be revoked.
17. Interference with Public Services and Facilities. Telecommunication facilities within public
parks shall not interfere with park operations or limit public use of park facilities. Installations in
conjunction with other public facilities shall be held to a similar standard.
18. City inspection. The City shall have the right to access facilities after 24 hours written or verbal
notice.
G. Abandonment.
It shall be the responsibility of the owner/operator of a telecommunications facility to provide the
City with a notice of intent to vacate the site a minimum of thirty(30)days prior to ceasing operation. Any
wireless telecommunication facility that is not operated for a continuous period of ninety(90)days shall be
removed within ninety(90)days of the date upon which the operation ceased.
H. Revocation of a Permit.
Wireless telecommunication service providers shall fully comply with all conditions related to any
permit or approval granted under this section. Failure to comply with any condition shall constitute
grounds for revocation. If a condition is not remedied within a reasonable period, the Community
Development Director may schedule a public hearing before the Hearing Officer to consider revocation of
the permit. (Ord. 1409—2001 Series)
C5-34
I I 1 ��}} p,p,'
U AttachmOn6 _
Section F
ARCHITECTURAL REVIEW STANDARDS AND CONDITIONS
Provided for background information only— these conditions
have been met and must continue to be met or the project must
undergo architectural review again.
Findings(from the letter to the original applicant,dated October 8,2002):
1. The project complies with the site development and performance standards of the City's
wireless telecommunication facilities ordinance:
2. The antennas can be considered camouflaged.
3. Although the project could have a significant effect on the environment,.there will not be
a significant effect in this case because revisions in the project have been made or
mitigation measures added and agreed to by the project proponent.
Conditions (from the letter to the original applicant,dated October 8,2002):
1. Option A, light pole with lights on top and exposed antennas below, shall be utilized.
2. The project shall be developed in substantial compliance with the plans approved by the
ARC. All ARC conditions shall be listed on a sheet in the building plans. Any changes
to lighting or parking lot designs shall be subject to the review and approval of the
Community Development Director.
3. All existing public utilities shall be showing in detail on these plans. All existing private
park facilities shall be detailed on these plans. Underground utilities, including but not
limited to, gas piping, phone lines, electrical service, irrigation controller circuits,remote
sending circuits, landscape irrigation, domestic waster services, sewer laterals, water
mains, and sewer mains shall be shown in detail to the approval of the Parks Maintenance
Supervisor.
4. All-weather access shall be maintained to all sanitary sewer manholes. No permanent
structures shall be constructed within three meters of the existing sewer main. If conduit
will be installed with directional drilling techniques, contractor shall be responsible for
video inspecting all sewer mains and laterals in the vicinity and immediately repair any
damaged pipes and manholes. All underground conduits shall maintain two meter
minimum horizontal separation from the sewer. Conduit crossing any sewer main shall
maintain 0.5 meter minimum separation.
5. An accessible path of travel shall be provided to the existing facilities that are now served
by the parking lot being removed. A new four foot wide path with an all-weather surface
such as concrete or asphalt shall be installed between the ball field facilities (restrooms,
baseball play field, bleachers), the skate park / skate rink, the existing path to Murray
Street, the new buildings and the remaining existing parking lot. Path shall comply with
C5-35
requirements for surface material, cross slope, slope in the direction of travel and any
other applicable sections for walkways(see UBC 1133B.7.)
6. Improvement plans shall include detailed lighting specifications for the new light poles.
These fixtures may need to be shielded to minimize spill and glare while at the same time
achieving the lighting needs of the ball field. A note shall be included on t he
improvements plans that "After installation, the new ball field lights may need to be
modified or shielded if the Community Development Director determines that they emit
excessive glare.
7. Trees shall be added between Santa Rosa Street and the main parking lot, adjacent to the
parking lot closest to the ball fields where possible, and behind the new antenna, light
pole closest to the skate park. Acceptable tree varieties shall be those from the City's
street tree list and shall exclude eucalyptus and pine varieties.
C5-36
Section G
PLANNING COMMISSION USE PERMIT
Provided for background information only- these are the
conditions set for Application No. U 11-02 allowing installation
of a wireless telecommunication facility at 190 Santa Rosa
Street, dated October 23, 2002. These conditions have been met
and must continue to be met or the project must obtain a revised
use permit.
Findings:
1. The project complies with the site development and performance standards of the City's
wireless telecommunication facilities ordinance.
2. The proposal could be established and maintained without jeopardy to persons or
property within or adjacent to the proposed site and without damage to the resources of
the site and its surroundings subject to the conditions of the Architectural Review
Commission in that the proposed antennas can be considered camouflaged, as the casual
observer would not usually suspect a ball field light to be a cell tower. In addition, the
telecommunications site will comply with FCC regulations regarding radio frequency
transmissions and potential light impacts to the neighborhood would not be in excess of
existing conditions.
3. Although the proposed project could have a significant effect on the environment, there
will not be a significant effect in this case because mitigation measures have been added
and agreed to by the project proponent.
Aesthetics
1. Screen outdoor mechanical equipment from on-site and off-site views to the satisfaction
of the Architectural Review Commission.
Monitoring Program: The Architectural Review Commission will ensure that any
outdoor and roof-mounted mechanical equipment will be screened from on-site and off-
site views. Building plans shall be in substantial compliance with plans approved by the
Architectural Review Commission.
2. The new ball field lights shall be directed downward as indicated in the project plans to
minimize light and glare into the adjacent neighborhood. Lighting of the skate park and
roller rink shall have maximum illumination levels of 30 foot-candles within those
respective activity areas. Park policy shall be that lights are off at 10:00 P.M.
Monitoring Program: The Architectural Review Commission will ensure compliance
through the Architectural Review process and Building plans shall be in substantial
compliance with plans approved by the Architectural Review Commission.
C5-37
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