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HomeMy WebLinkAboutStaff Report 243-05fire station. On April 4, 2004, Council requested that staff bring back to Council, with the next telecommunications licensing request, an update on the incorporation of telecommunications facilities placement guidelines into the Zoning Code. DISCUSSION The Metro-PCS wireless facilities proposed to be placed on the site consist ofthree antenna mounted on the existing PG&E tower and ground equipment, consisting of enclosed equipment pads and cabinets, covering an area of approximately 140 square feet to be placed 20 feet from under the tower. The land is owned by the City and PG&E has an easement for its power lines on the City's property. Metro-PCS has obtained a license from PG&E for the antenna on the tower, and the attached license is for the ground equipment on the City's land. The equipment cabinet is fully self- serviced, containing an independent air conditioning unit, heating unit, electrical supply, telephone hook up and back up power supply. In accordance with the intent of Telecommunications Policy #4 to reduce adverse impacts of telecommunications infrastructure, use of this site by Metro-PCS has the advantage of using an existing tower, which eliminates the need for an additional tower in the area. License The terms of the license are summarized in Attachment B. Major terms include a 5-year term with the option to renew for two additional terms of five years each; annual rent of $14,400 to be adjusted annually in proportion to the CPI; and conditions of use to accommodate both the needs of the licensee and other occupants/users of the property. License conditions require that the use comply with applicable laws and regulations regarding electromagnetic emissions and to meet all other applicable federal, state and local laws and regulations regarding environmental and occupational safety. An engineering firm has been retained on behalf of Metro PCS to evaluate the proposed facility for compliance with appropriate guidelines limiting human exposure to radio frequency (RF) electromagnetic fields. Results of the study conclude the facility will comply with the prevailing standards for limiting public exposure to RF energy and that the highest calculated level in publicly accessible areas is much less than the prevailing standards allow for exposures of unlimited duration. Specifically, given "worst-case" assumptions, for a person anywhere at ground, the maximum ambient RF exposure level due to the proposed Metro-PCS facility by itself is 0.24 percent of the applicable public exposure limit. The maximum calculated cumulative level at ground for the simultaneous operation of both Metro-PCS and the existing AT&T Wireless facility is 2.1 percent of the public exposure limit; the maximum calculated cumulative level at the second floor elevation of any nearby building is 4.4 percent ofthe public exposure limit. The Zoning Ordinance Update (ZOU) is currently reviewing the existing zoning code in an effort to make modifications that will more specifically address wireless telecommunications projects. The ZOU will be addressing: (1) the parameters for allowing this use to be permitted or conditional; (2) definitions; (3) related development standards (e.g. height, setbacks, etc); and (4) the use of Design Enhancement Exceptions to allow minor zoning exceptions to provide for better project location design. The ZOU anticipates completing this analysis and preparing a draft ordinance by the end of the calendar year 2005. CMR: 243:05 Page 2 of3 ATTACHMENT A TELECOMlVIUNXCATIONS POLICY STATElVIENTS 1. G.eneral-It is the policy of the City of Palo AJto to facilitate the competitive delivery of conventional and advanced telecommunications services throughout Palo,Alto in an environmentallv sound manner. while ensuring cost recoverv and enhancement of ~ J '-J " J. revenues derived from the use of the City's assets. Si~ing and installation of New Telecomm1l.lnicatuons FacHities -The city is the owner of the public right-of-way over which it has control and the regulatorj body for the development of facilities within its jurisdictional boundaries. It is the policy of the City . to regulate the location and manner o~ construction, manage the safe, orderly and efficient use of Palo Alto's public right-of-way, and to facilitate timely installation of telecommunications infrastructure in environmentally sound manner. Use QfUtHities lrnfrastrm:tulJre -The City allows the use of Utilities infrastructure a11d Utilities-owned or-leased facilities to promote the deliver] of telecommunications services provided that any telecommunications use does not impinge upon the City's ability to provide safe and reliable electric, gas, water, wastewater, and storm drainage services and does not interfere with the City's planned use of the facility or property. 4. Use of City Facilities and Property -The City owns and leases property and facilities, in addition to Utilities facilities, that could be used to support the deployment of affordable telecommunications services while limiting the potential adverse impacts associated with the development of the necessar] infrastructure. It is the policy of the City to encourage qualified outside parties to use designated City-owned or -leased property and facilities for siting of telecommunications infrastructure that is compatible, with the primar] use of the property , and in a manner that is consistent with City real estate policy, zoning, legal, environmental, and other requirements as necessar]. I. Approved by the Palo Alto City Council on November 17, 1997 ATTACHMENTB Summary of Terms of the License Licensor: City of Palo Alto Licensee: MetroPCS California/Florida, Inc., a Delaware corporation, d/b/a MetroPCS Premises: 140 square feet ofland located 20 feet beneath an existing PG&E tower on the south side of Colorado Avenue near the intersection of Simkins Court. Purpose: The purpose of the license is to provide for the installation, maintenance and operation, at Licensee expense, of a communications site (Cell Site). Term: Five years with the option to extend for three additional terms of five years, but with the right to terminate at any time with one year's notice. ConsiderationlRent: $14,400/year, adjusted annually in proportion to the Consumer Price Index. Allowable Use: 1. Use to comply with applicable laws and regulations regarding electromagnetic emissions and shall meet all other applicable federal, state, and local laws and regulations regarding environmental and occupational safety. 2. Licensee shall not permit any unreasonable odors, smoke, dust gas, substances, or noise or vibration so emanate from the facility nor take any action which would disturb, obstruct or endanger any other occupants or use of the site or interfere with their use. 3. Operation of site shall not cause interference to city or other users of the site, including any irrigation system installed by city. Prior to construction on the site, Licensee shall coordinate placement of its facilities so as to not conflict with city's irrigation systems. License shall repair any damage to city's property caused by construction of facilities. 4. Operations to be conducted in compliance with FCC requirements and all law and regulations regarding environmental and occupational safety requirements. City Telecommunication Policy: License agrees it will abide by all lawful terms and conditions of the Telecommunications Policy adopted by City to the extent it relates to Licensee's communications facility on the Premises. LICENSEE's equipment shelter to the cellular telephone antennas to be placed on the Tower. CITY grants to LICENSEE the right to a portion of the PROPERTY, for the sole purpose of constructing and installing cabling and associated hardware including utility runs incidental to the communications facilities described earlier in this Clause I, together with the right to ingress and egress hereon. The LICENSED areas are referred to collectively as the PREMISES. The PREMISES are described and shown in ItExhibit Bit. Exhibit B is attached to and, by this reference, made a part of this LICENSE. CITY hereby consents to LICENSEE's use of the TOWER for placement of LICENSEE's antennas and related equipment on the TOWER pursuant to PG&E LICENSE. II. PURPOSE The purpose of this License is to provide for the installation, maintenance, and operation, at LICENSEE expense, of a communications site (a Cell Site as defined in Clause III, A). III. ALLOWABLE SERVICES AND USES In furtherance of the purposes stated above, the following services and uses shall be permitted: A. Throughout the term of this License LICENSEE shall use the PREMISES for the purpose of installing, removing, replacing, maintaining, modifying and operating, at its expense, one of LICENSEE's communications sites (a "Cell Site") for furnishing telephone, radio and telecommunications services to the public. A Cell Site is a site at which radio, telephone and communications equipment and antennas are installed and used to send and receive :radio signals to and from cellular telephones and other radio devices and to connect those signals to radio, telephone or other communications facilities either directly, by means of cables or indirectly, by means oftransmitting and receiving facilities (including microwave antennas) located at the Cell Site. LICENSEE's use shall be subject to th.e following conditions: 1. LICENSEE's operations on the PREMISES shall comply at all times with all applicable federal laws and regulations regarding electromagnetic emissions. LICENSEE shall conduct all necessary tests after its Cell Site facilities are constructed on the PREMISES to ensure that its facilities are in compliance with those laws and regulations. The tests shall be conducted by a licensed professional engineer, and the results shall be provided to CITY. 2. In constructing and operating its Cell Site facilities, LICENSEE shall comply with and include the following items in its plans and operating procedures for its facilities: 990630 lsj C8142982.l 2 XIII. AS BUILT PLANS Upon completion of any major LICENSEE-constructed improvements, LICENSEE shall provide the Real Property Manager with a complete set ofreproducible "as built plans" reflecting actual construction within or upon the PREMISES. XIV. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS If the PREMISES are, in whole orin part, damaged or destroyed then: (1) if wholly damaged or destroyed so that the PREMISES are rendered permanently unusable for reconstruction of a Cell Site facility, this License shall then terminate and LICENSEE shall be liable for the rent only up to the time of such destruction and any rent prepaid by LICENSEE shall be returned to LICENSEE; but (2) if only partially destroyed and still usable for construction of a Cell Site Facility, LICENSEE shall, within a reasonable time, not to exceed thirty (30) days from the date of the damage or destruction, notify CITY in writing of its intent either (i) to terminate the License, in which case a proportional amount of any rent prepaid by LICENSEE (prorated from the date notice is received by CITy) shall be returned to LICENSEE, or (ii) to continue operating under the License, in which case, LICENSEE shall, within a reasonable time, repair the PREMISES and the Cell Site facility, with a reasonable reduction of rent from the date notice is received by CITY until the date the PREMISES and the facility are usable. XV. UTILITIES LICENSEE shall be responsible for and shall pay, prior to delinquency, all charges for utilities supplied to the PREMISES. XVI. INSURANCE LICENSEE, at its sole expense, shall maintain insurance acceptable to CITY in full force and effect tmoughout the term of this License. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1) Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2) Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto).· 3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 990630 lsj C8142982.1 8 2. "All rights of subrogation are hereby waived against the CITY OF PALO ALTO and the members of the City Council and elective or appointive officers or employees, when acting within the scope of their employment or appointment." 3. "The CITY, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the LICENSEE; products and completed operations of the LICENSEE; premises owned, occupied or used by the LICENSEE; or automobiles owned, Licensed, hired or borrowed by the LICENSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents or volunteers." 4. "For any claims related to this License, the LICENSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents or volunteers shall be excess of the LICENSEE's insurance and shall not contribute with it." 5. "Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the CITY, its officers, officials, employees, agents or volunteers. " 6. "The LICENSEE's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. " C. Acceptability ofInsurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A-VII D. Evidence of IChanges· LICENSEE agrees to deposit with the Real Property Manager, on or before the effective date of this License, certificates of insurance necessary to satisfy CITY that the insurance provisions of this License have been complied with, and to keep such insura,nce in effect and the certificates therefore on deposit with CITY during the ~ntire term of this License. Should LICENSEE not provide evidence of such required coverage at least three (3) days prior to the expiration of any existing insurance coverage, CITY may purchase such insurance, on behalf of and at the expense of LICENSEE to provide six months of coverage. CITY shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the Risk Manager, the insurance provisions in this License do 990630 lsi C8142982.l 10 Canal site. from PG&E, and which is notremedied or corrected within thirty (30) days of receipt of written notice of default from CITY; 3. At any time upon one year's prior written notice to LICENSEE. 4. If LICENSEE files a petition under any chapter of the U.S. Bankruptcy Code, (or any similar petition under any insolvency law of any jurisdiction), or has filed against it any such petition which is not dismissed within sixty (60) days of the date filed, or is LICENSEE proposes any dissolution, liquidation or composition, with creditors, makes an assignment for the benefit of its creditors, or if a receiver, trustee, custodian or similar agent is appointed with respect to or takes possession of any material portion of the property or business of LICENSEE. Upon the occurrence of any of the events described in paragraphs 1 and 2 of this Clause, CITY may: 1. At CITY'S sole option, cure any such default by performance of any act, including payment of money, and the cost thereof, plus reasonable administrative cost, shall become immediately due and payable by LICENSEE to CITY; 2. Seek an action or suit in equity to enjoin any acts or things which may be unlawful or in violation of the rights of CITY; 3. Seek a mandamus or other suit, action or proceeding at law or in equity to enforce its rights against LICENSEE and any of its officers, agents, and employees and its assigns, and to compel it to perform and carry out its duties and obligations under the law and its covenants and agreements with CITY as provided her~in; or 4. Pursue any other remedy available by law or specifically provided in other clauses of his License. . However, in the event of a default which cannot reasonably be cured within thirty (30) days, LICENSEE shall have a reasonable period oftime (as determined by the City Manager) to cure the default. Each and all of the remedies given to CITY hereunder or by any law now or hereafter enacted, are cumulative and the exercise of one right or remedy shall not impair the right to CITY to exercise any or all other remedies. In case any suit, action or proceeding to enforce any right or exercise any remedy shall be brought or taken and then discontinued or abandoned, then, and in every such case, CITY and LICENSEE shall be restored to its and their former position and rights and remedies as if no such suit, action or proceedings had been brought or taken. In addition to a violation or breach of any other provision of this License, LICENSEE shall 990630 lsi C8142982.1 12 facility on the PREMISES shall thereafter be deemed compliant with all of the terms and conditions of the Telecommunications Policy, unless later actions of LICENSEE cause its communications facility to become non-compliant. 2. LICENSEE shall have six (6) months after its receipt of the compliance notice to bring its facility into compliance under the Telecommunications Policy. If . LICENSEE fails or refuses to bring it facility into compliance within such six month period, CITY may terminate the LICENSE on thirty (30) days written notice to LICENSSEE, whereupon, LICENSEE shall remove its communications facility as required underthe LICENSE and the parties shall have no further obligations under the LICENSE, except for those obligations which expressly survive the termination of the LICENSE. B. Condemnation Proceedings. LICENSEE agrees that, if LICENSEE's facility must be relocated or modified to comply with the Telecommunications Policy or if the LICENSE is terminated due to LICENSEE's failure or refusal to comply with the Telecommunications Policy, as set forth above, LICENSEE shall not initiate condemnation proceedings against the CITY for the purpose of acquiring a license interest, lease interest or other right to use the PREMISES previously permitted for use by LICENSEE under the LICENSE. XX. NOTICES All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder give by either party to the other, shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by United States Certified mail, postage, prepaid, (3) sent by express delivery service, or (4) in the case: of a facsimile, if sent to the telephone number(s) set forth below during normal business hours or the receiving party and followed within 48 hours by delivery of hard copy of the material sent by facsimile, in accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery service and service by facsimile transmission. Delivery of notices properly addressed shall be deemed complete when the notice is physically delivered to the Real Property Manager or the City Clerk. All notices pursuant to this License shall be addressed as set forth below or as either party may subsequently designate by written notice. TO: CITY Real Property Manager City of Palo Alto P.O. Box 10250 250 Hamilton Avenue Palo Alto, CA 94303 990630 Isj C8142982.1 TO: LICENSEE Metro PCS CalifomiaIFlorida, Inc. 8144 Walnut Hill Lane, Suite 800 Dallas, TX 75231 Attn: Property Manager Telephone: (214) 265-2550 14 Act or similar provisions of federal law or executive order in the conduct of its activities under this License by the State of California Fair Employment Practices Commission or the equivalent federal agency or officer, it shall thereby be found in default under this License, and such default shall constitute a material breach of this License. CITY shall then have the power to cancel or suspend this License in whole or part. 11. INSPECTION CITY'S employees and agents shall have the right at all reasonable times to inspect the PREMISES to determine if the provisions of this License are being complied with. 12. HOLD HARMLESS LICENSEE hereby agrees to indemnify, hold harmless and defend CITY, its officers, agents and employees against any and all claims, liability, demands, damages and costs (including reasonable attorneys' fees arising out of LICENSEE's occupancy of the PREMISES or LICENSEE's operation or maintenance of the facilities placed thereon pursuant to this License, excepting claims arising from the sole negligence of CITY. 13. TAXES AND ASSESSMENTS This License may create a possessory interest which is subject to the payment of taxes levied on such interest. It is understood and agreed that all taxes and assessments (including but not limited to the possessory interest tax) wbich become due and payable upon the PREMISES or upon fixtures, equipment, or other property installed or constructed thereon, shall be the full responsibility of LICENSEE and LICENSEE shall pay the taxes and assessments prior to delinquency. 14. SUCCESSORS IN INTEREST Unless otherwise provided in this License, the terms, covenants, and conditions contained herein shaH apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable hereunder. 15. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (FORCE MAJEURE) If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, restrictive governmental laws or regulations, or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 16. PARTIAL INVALIDITY 990630 lsi C8142982.l 20 21. CONDITION OF PREMISES UPON TERMINATION Upon termination of this License, except as otherwise agreed to herein, LICENSEE shall redeliver possession of the PREMISES to CITY in substantially the same condition that existed immediately prior to LICENSEE'S occupancy, reasonable wear and tear, flood, earthquake, war, and any act of war excepted. 22. DISPOSITION OF ABANDONED PERSONAL PROPERTY If LICENSEE abandons the PREMISES or is dispossessed thereof by process of law or otherwise, title to any personal property belonging to LICENSEE and left on the PREMISES forty-five (45) days after such abandonment or dispossession shall be deemed to have been transferred to CITY. CITY shall have the right to remove and to dispose of such property without liability therefor to LICENSEE or to any person claiming under LICENSEE, and shall have no need to account therefor. 23. RELINQUISMENT OF LICENSEE'S INTEREST UPON TERMINATION Upon termination of this License for any reason, including but not limited to termination because of default by LICENSEE, LICENSEE shall, at CITY'S request execute, acknowledge and deliver to CITY within five (5) days after receipt of written demand thereof, a written document, signed by an official recognized under Section 313 of the California Corporations Code, certifying LICENSEE's relinquishment of the PREMISES. Should LICENSEE fail or refuse to deliver the required certification to CITY, CITY may prepare and record a notice reciting the failure of LICENSEE to execute, acknowledge and deliver such certification and the notice shall be conclusive evidence of the termination of this License, and of all right of LICENSEE or those claiming under LICENSEE in and to the PREMISES. ' 24. CITY'S RIGHT TO RE-ENTER LICENSEE agrees to yield and peaceably deliver possession of the PREMISES to CITY on the date of termination of this License, whatsoever the reason for such termination. Upon giving written notice of termination to LICENSEE, CITY shall have the right to re-enter and take possession of the PREMISES on the date such termination becomes effective without further notice of any kind and without institution of regular legal proceedings. Termination of the License and re-entry of the PREMISES by CITY shall in no way alter or diminish any obligation of LICENSEE under the License terms and shall not constitute an acceptance or surrender. LICENSEE waives any and all rights of redemption under any existing or future law or statute in the event of eviction from or dispossession of the PREMISES for any reason or in the event CITY re- enters and lawfully re-takes possession of the PREMISES. 990630 lsj C8l42982.l 22 I:; '.