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Crown Castle NG West (formerly NextG Networks of California) A2009-74Au gust 16, 201 9 Che ryl Balz, City Clerk City of Chino Hills 14000 City Center Drive Chino Hills, CA 91709 RE: Communications License Agreement Renewals Contract IDs: 677835, 677836, 677837, 677838, 677839, 677841, 677842 Node s: A09-71, A09-76 System: 915113 Dear Ms. Balz: Pursuant to Section 3(b) of the above listed Agreement between Crown Castle NG West LLC, formerly NextG Networks of California, Inc., and the City of Chino Hills, dated September 8, 2009 and extended through September 13, 2019, please accept this letter as notification that Crown Castle NG West LLC (now Crown Castle Fiber LLC) is exercising its option to extend the term of these Agreements for an additional 5-year term from September 14, 2019, through September 13, 2024. Pl ease note that all invoices must be sent to: DA S Administration Crown Castle 2000 Corporate Drive Canonsburg, PA 15317 Al l other contract correspondence must be sent to: Co ntract Management – Small Cell Networks 2000 Corporate Drive Canonsburg, PA 15317 Thank you for your time and your prompt handling of Crown Castle permit applications. Si ncerely, /s/ Robert Jystad Government Relations Manager T: (310) 871-8189 rj:HTM C: Lynnae Sisemore, Assistant City Clerk Heather Fletcher, Contract Coordinator A09-72, A09-73, A09-74, A09-75, A09-78 am:CROWN CASTLE June 12, 2014 City of Chino Hills 14000 City Center Drive Chino Hills, CA 91709 ATTN: City Clerk RECEIVED 2014 JUH 16 PM 5: 39 0 C T Y CLERK �r ` JCHINO HILLS Crown Castle 2000 Corporate Drive Canonsburg, PA 15317 Sent Via FedEx Overnight RE: Communications License Agreement Renewals Contract ID: 677841, 677838, 677839, 677837, 677836, 677842, 677835 City Clerk: Pursant to Section 3(b) of the above listed Agreements between Crown Castle NG West LLC, formerly NextG Networks of California, Inc., and the City of Chino Hills, dated September 8, 2009, please accept this letter as notification that Crown Castle NG West LLC is exercising its option to extend the term of this Agreement for an additional five year term from September 14, 2014, through September 13,2019. Please note that all invoices must be sent to: DAS Administration Crown Castle 2000 Corporate Drive Canonsburg, PA 15317 The Foundation for a Wireless World. CrownCastle.com AC , l IQ AN-14 A0q-3 AO 13 AtOq- AUK- l� All other contract correspondence must be sent to: Contract Management — Small Cell Networks 2000 Corporate Drive Canonsburg, PA 15317 If you have any questions, please don't hesitate to contact me. ENB Enclosures Cc: Carver Chiu Sincerely, Erin N. Bywaters (724) 416-9206 Contract Coordinator Contract Management- SCN The Foundation for a Wireless World. CrownCastle.com Crown Castle 2000 Corporate Drive Canonsburg, PA 15317 June 14, 2013 City of Chino Hills 14000 City Center Drive Chino Hills, CA 91709 Attn: City Clerk RE: Change of Address Dear Sir or Madam: Toll -Free: 866-482-8890 www.crowncastle.com This correspondence is being provided to you as written notification of the recent office move and new office address for Crown Castle NG West Inc.. Please update your records to the following addresses for Notices pursuant to the Communications License Agmt CC21-A09-74 between City of Chino Hills and Crown Castle NG West Inc.: Crown Castle NG West Inc. c/o Crown Castle 2000 Corporate Drive Canonsburg, PA 15317-8564 Attn: E. Blake Hawk, General Counsel, Legal Department with a copy to: Crown Castle NG West Inc. 695 River Oaks Parkway San Jose, CA 95134 Attn: SCN Contracts Administration Thank you for your cooperation and if you have any questions, please contact the Landowners Help Desk at 866- 482-8890, or send an email to DAS.Contracts@crowncastle.com. Sincerely, Matt Sturgill Director Asset Management Crown Castle ADDENDUM TO CONSENT TO CHANGE IN CONTROL This Addendum to Consent to Change in Control ("Addendum") is dated effective March Z.6 , 2012 and amends that certain Consent to Change in Control of NextG Networks of California, Inc. dated February 7, 2012 ("Consent"), under which the City of Chino Hills, California, a California municipal corporation ("City"), granted consent to a change in control of NextG Networks of California, Inc., a Delaware corporation ("NextG"), under the terms of a Communications License Agreement dated January 22, 2008 ("Original Agreement"), by and between NextG and the City. A. The Consent applied only to the Original Agreement, but NextG and the City have also entered into Communications License Agreements ("Additional Agreements") for other telecommunications facilities on substantially identical terms and conditions. B. NextG has requested and the City has agreed to provide its consent with respect to the Additional Agreements on the same terms as the Consent. It is hereby agreed: 1. Transfer of License Provisions. The City hereby acknowledges that the "Transfer of License" provisions in the Additional Agreements listed in Section 2 below are identical to those in the Original Agreement, and that by its authorized signature below, the City agrees NextG has fully complied with such provisions. 2. Grant of Consent. The City hereby extends the consent to a change in control of NextG granted under the Consent to the following Agreements under the applicable terms of each Agreement: a) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-71); b) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-72); c) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-73); d) Communications License Agreement dated September 8, 2009 (City Agmt. No A09-74); e) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-75); f) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-76); g) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-77); 3044 005 ib281701 h) Communications License Agreement dated September 8, 2009 i) Communications License Agreement dated September 8, 2009 j) Communications License Agreement dated September 8, 2009 (City Agmt. No. A09-81) 3. Consent Terms. The amendments to the Consent set forth in this Addendum are expressly limited to extending the Consent and all of its terms to the Additional Agreements listed in Section 2 above. Except as expressly set forth in this Addendum, all of the terms of the Consent shall remain in full force and effect. (City Agmt. No. A09-78); (City Agmt. No. A09-79); In witness whereof, the parties have executed this Addendum effective as of the date first shown above. NEXTG NETWORKS OF CALIFORNIA, INC. By Robert L. Delsman Senior Vice President Government Relations & Regulatory Affairs CITY OF CHINO HILLS Michael S. Fleager Printed Name City Manager Title Date: March 26, 2012 3044 005 ib281701 CITY OF CHINO HILLS INCORPORATED 1991 City of Chino Hills March 27, 2012 Salter Joyce Ziker, PLLC Attention: Barry Ziker 1601 Fifth Avenue, Suite 2040 Seattle, Washington 98101 Dear Mr. Ziker: RE: Consent to Change in Control of NextG Networks Regarding Communications License Agreements (City agreement numbers A09- 71 through A09-79 and A09-81), the City of Chino Hills consents to the change in control transaction between NextG's parent company (NextG Networks, Inc.) and Crown Castle International Corporation ("CCI"). Enclosed is the executed consent to change in control document, signed by the City Manager Michael S. Fleager. If you have any questions on this matter, you may contact me at (909) 364-2624. Very truly yours, CITY OF CHIINO HILLS `1)(0./. 9 10�`. 114. 144.., C1 )1 MARY M. McDUFFEE, CMC CITY CLERK Enclosure MMM:sk City Council: Art Bennett Ed M. Graham W.C. "Bill" Kruger Gwenn E. Norton -Perry Peter J. Rogers 14000 City Center Drive, Chino Hills, CA 91709 • (909) 364-2600 • FAX (909) 364-2695 • www.chinohills.org Z P JOYCE ZIKER PARKINSON March 13, 2012 VIA FEDEX City of Chino Hills Attn: Susie Keen 14000 City Center Drive Chino Hills CA 91709 212Mf14 PM 1:21 1 f Y CLERK i ic7 HILLS Re: Consent to Change in Control of NextG Networks Dear City Clerk: Barry G. Ziker Direct Dial: 206.957.5952 Email: bziker@jzplaw.com 3° t `1112 J NextG Networks of California, Inc. ("NextG") and the City of Chino Hills ("City") are parties to a Communications License Agreement dated January 22, 2008 ("Agreement"). The City and NextG recently signed a Consent to Change in Control dated February 7, 2012 ("Consent"), under which the City granted its consent, as provided under the terms of the Agreement, to a change in control of NextG. A copy of the Consent is enclosed for your reference. NextG now respectfully requests that the City agree to amend the terms of the Consent to include additional Communications License Agreements previously entered into between the City and NextG. We enclose duplicate originals of an Addendum to Consent to Change in Control signed by NextG, which is designed simply to extend the City's consent to all of the existing Communications License Agreements. Please return one fully executed original to us at your early convenience. We appreciate your prompt and favorable response. Please do not hesitate to contact me if you have any questions. Sincerely, JOYCE ZIKER PARKINSON, PLLC cc w/enc: NextG Networks of California, Inc. Crown Castle Solutions Corp. BGZ:BT Enclosures JOYCE ZIKER PARKINSON, PLLC • 1601 Fifth Avenue, Suite 2040, Seattle, WA 98101 . P: 206.957.5960 . F: 206.957.5961 . www.jzplaw.com 3044 005 ic130101 License Agreement 1st Page Revision.doc COMMUNICATIONS LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is entered into between NextG Networks of California Inc.("Licensee"), and the City of Chino Hills, a municipal corporation ("Licensor") this day of r, 9Zo99FJ , 2009. WHEREAS, a. Licensor is the fee title owner of certain traffic signal poles located in the Public Right of Way at various intersections in the City of Chino Hills, California, and shown in Attachment B hereto ("Municipal Facility"); b. Licensee desires to license from Licensor, on a non-exclusive basis, the right to use the Municipal Facility, and Licensor acknowledges that Licensee has obtained permits to use the Municipal Facility for the purposes described herein and has applied for any permits required to access the Public Rights of Way for access to the Municipal Facility and utilities and that such Right of Way (encroachment) permits shall be issued upon City approval of this Agreement; c. Licensee builds, owns, and leases protocol and frequency agnostic fiber optic distributed antenna networks, that can carry cellular, PCS, WiFi, or any combination of wireless frequencies and standards, to provide its telephone service resulting in improved wireless coverage and capacity for telecommunications carriers; and d. Licensee' s networks can serve a variety of wireless service providers thereby promoting collocation with aesthetic pleasing designs to balance the needs of communities and consumers with the needs of wireless service providers by using a patented fiber-optic architecture, low -impact, low -emission equipment; and e. Licensee does not own or manage Federal Communications Commission regulated and licensed frequencies but owns, maintains, operates and controls, in accordance with regulations promulgated by the Federal Communications Commission and the California Public Utilities Commission, Communications Equipment (as defined below) serving Licensee's established wireless carrier customers; c. Licensee desires to use the Municipal Facility for the installation, maintenance and operation of Licensee's communications equipment, including antenna and appurtenant radio to light signal conversion equipment, primary, back-up and temporary power units, interconnection equipment, fuse box, cabling, wiring, lines, and conduits as more particularly described throughout this Agreement (collectively, "Communications Equipment"). Licensee's initial plans respecting installation of Communications Equipment and construction on the Municipal Facility is depicted in Attachment B and fully incorporated herein by this reference; and d. Licensor is willing to make the Municipal Facility available to Licensee, subject to the covenants and conditions hereinafter set forth, on a non-exclusive basis, in order to facilitate the efficient and orderly deployment of communications facilities in the City of Chino Hills. AGREEMENT NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties as set forth herein, and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Grant. During the term of this Agreement, subject to the terms, conditions and covenants set forth herein, Licensor hereby grants to Licensee, on a nonexclusive basis, a license to use the Municipal Facility for the purposes permitted in Section 2. 8/24/09 1:50 PM 1 NextG Networks License Agreement - Final (2).doc 2. se. (a) Licensee shall use the Municipal Facility only for providing communications services. Such use includes Licensee's right to install, construct, operate, maintain, repair, replace and secure Communications Equipment in accordance with the terms and conditions of this Agreement. (b) The precise location of the Communications Equipment, and any construction on the Municipal Facility, shall be subject in accordance with Licensor/City's Planning Approval set forth in Attachment C and fully incorporated herein by this reference. (c) Licensee shall at all times, at Licensee's sole cost and expense, install, operate, maintain, repair, and remove the Communications Equipment in accordance with all applicable federal, state and local laws, codes, ordinances, rules and regulations (collectively, "Laws"), and shall obtain all necessary governmental licenses, permits and approvals (collectively, "Approvals") required to install, operate, maintain, repair, and remove the Communications Equipment. (d) Nothing in this Agreement is intended to create an interest or estate of any kind or extent in the property or premises. Licensee further acknowledges and agrees that this Agreement does not create a landlord -tenant relationship and Licensee is not entitled to avail itself of any rights afforded to tenants under the laws of the State of California. 3. Tenn. (a) The initial term of the license granted hereunder ("Term") shall commence on the Commencement Date and continue for a period of five (5) years thereafter. For purposes of this Agreement, the "Commencement Date" shall be the earlier of (i) date on which Licensee's Communication Equipment is installed on the Municipal Facility or (ii) 90 days after execution of this Agreement. Licensee shall give written notice to Licensor upon commencement of installation or construction relating to the Communications Equipment. This License shall not be revoked or terminated except as expressly provided herein. (b) Licensee shall have the option to extend the Term, on the same terms and conditions as set forth in this Agreement, for up to five (5) successive terms of five (5) years each ("Renewal Terms"), provided that Licensee shall notify Licensor in writing of Licensee's intention to extend this Agreement at least 90 days prior to expiration of the Term or the then -existing Renewal Term, as the case may be. Notwithstanding the foregoing, Licensee shall not have the right to extend the Term hereof, and any notice by Licensee of its intention to extend this Agreement shall be of no effect, at any time when Licensee is in default under this Agreement. 4. Fees and Costs. (a) On or before the Commencement Date, and on or before thirty (30) days prior to each anniversary of the Commencement Date during the Term and each Renewal Tenn, Licensee shall pay to Licensor an annual license fee in an amount of One Thousand Dollars ($1,000.00). The license fee shall be adjusted in accordance with paragraph (b) immediately below (the annual license fee, as adjusted herein, is referred to as the "License Fee"). (b) The License Fee shall automatically increase each and every year of this Agreement, during the Tenn and during each Renewal Term, upon the anniversary of the Commencement Date. The amount of increase shall be the greater of: (1) three percent (3%) of the License Fee in effect immediately preceding the increase, or (2) the annual increase in the Consumer Price Index (Alt Items, Base 1982-84 = 100) based upon the most recent report by the U.S. Bureau of Labor Statistics for all urban consumers in the Los Angeles -Riverside -Orange County area. Notwithstanding the foregoing, the License Fee upon which the annual increase is calculated may be adjusted prior to and effective upon each Renewal Term in accordance with Section 5 below. 8/24/09 1:50 PM 2 Initial r.7) . NextG Networks License Agreement - Final (2).doc (c) Except as otherwise provided in Section 9 below, the parties hereto agree that the License Fee is fully earned on the date that it becomes due. Any refund or offset of any portion of the License Fee shall occur only as required under Section 9 below. 5. Installation. Relocations. (a) Licensor hereby acknowledges receipt and approval of final plans respecting installation of Communications Equipment and related construction in the Public Right of Way, which were prepared at Licensee's sole cost and expense and submitted to the Licensor's Planning and Public Works depatt,nents for its written approval prior to the installation or construction of Communications Equipment on the Municipal Facility. The Final Plans describe the specific location of all Communications Equipment and construction in the Public Right of Way, including any and all utilities, such as power, to the Communications Equipment. (b) In the event that Licensee desires to relocate the Communications Equipment, or any part thereof, to a different Municipal Facility, separate written approval from Licensor respecting such relocation shall be required. Any such relocation shall be at Licensee's sole cost and expense. (c) Licensee shall, at its sole expense, protect, support, temporarily disconnect, relocate, modify or remove all or any portion of its Communication Equipment at the time and in the manner required by the City for any govemmental purpose. Except in an emergency, the City shall give written notice pursuant to Section 20 describing where the work is to be performed at least thirty (30) days prior to the date the work is to be performed. Should the public health, safety or welfare require that the City undertake immediate maintenance, repair or other action, Licensee shall take the measures required under this section within seventy-two (72) hours of receiving notice from the City. If Licensee does not protect, temporarily disconnect, relocate, or remove Licensee's Facilities within the time period specified above, City may remove the equipment, facilities, and property and charge Licensee for the cost of removal and storage. Alternatively, upon Licensee's request, City may approve the abandonment of Communications Equipment in place. Upon approval, Licensee shall execute, acknowledge and deliver any necessary documents to transfer ownership of its Communications Equipment to City. Licensee shall at City's direction relocate its Communications Equipment at Licensee's sole cost and expense, whenever City determines that the relocation is needed for any of the following purposes: (a) if required for the construction, completion, repair, relocation, or maintenance of a City project or (b) if the Communications Equipment interferes with or adversely affects the proper operation of the Municipal Facility. In any such case, City shall use its best efforts to afford Licensee a reasonably equivalent alternate Municipal Facility or permit Licensee to install a support pole in the Public Right of Way for its Communications Equipment. If Licensee shall fail to relocate its Communications Equipment as requested by the City within a reasonable time under the circumstances in accordance with the foregoing provision, City shall be entitled to relocate the Communications Equipment at Licensee's sole cost and expense, without further notice to Licensee. The City shall make reasonable attempts to promptly inform Licensee of the displacement or removal of the Municipal Facility identified in Attachment B. (d) Licensee shall, at Licensee's sole cost and expense, perform all work necessary to prepare, add, maintain and alter the Municipal Facility for Communications Equipment in accordance with the approved plans. All construction and installation work shall be performed in a good and workmanlike manner by licensed and bonded contractors, and in accordance with applicable Laws. All such contractors shall maintain insurance in such amounts, against such risks and in such forms as Licensor shall reasonably require, including naming Licensor as an additional insured as set forth in Section I2 herein. Licensee shall be required to separately obtain all necessary Approvals respecting such work by the appropriate governmental entities. 8/24/09 I:SO PM 3 Initials: NextG Networks License Agreement - Final (2).doc (e) Licensee acknowledges that neither Licensor nor any agent of Licensor has made any representation or warranty with respect to the condition of the Municipal Facility with respect to its suitability for the conduct of Licensee's operations. The commencement of any construction or installation shall conclusively establish that the Municipal Facility is acceptable to Licensee and is in a satisfactory condition. 6. Operation. Colocation. Reeulations. (a) Licensee shall comply with all applicable laws relating to the installation and operation of the Communications Equipment. Licensee shall upon request at its sole cost and expense produce evidence of such compliance. (b) In addition to any tests that may be required by the FCC, Licensee shall, in the event Licensee increases the operating output of the Communications Equipment greater than twenty percent (20%) over the initial operating levels or the levels at the time of the last test, perform reasonable tests at its sole cost and expense to demonstrate that all applicable FCC regulations governing the emission of electro-magnetic frequency radiation from the Communications Equipment are complied with. Licensee shall upon reasonable request perform more frequent testing (or specific additional testing if appropriate) at its sole cost and expense if there is evidence or reasonable concern respecting compliance with such standards. Licensee shall provide Licensor with copies of all such tests. (c) The Communications Equipment and Licensee's use thereof shall not disturb or interfere with (i) any communications equipment, computer equipment or similar equipment of any kind and nature owned or operated by Licensor at the Municipal Facility, or (ii) any communications equipment or use at the Municipal Facility which is authorized by Licensor in accordance with this Agreement.. In the event that the Communications Equipment as installed and configured results in material interference with Licensor, then Licensee shall immediately terminate such interference. (d) Licensor shall, with respect to any license or other agreement entered into by Licensor with an Other Carrier after execution of this Agreement that authorizes the installation of communications transmitting equipment on the Municipal Facility, include a provision that prohibits such Other Carrier from interfering in any way with the communications operations and placement of Communications Equipment as it is then configured. (e) In the event that any Other Carrier fails to abide by any non-interference provision set forth in an agreement with Licensor pertaining to the Municipal Facility, and if Licensee demonstrates that such failure results in material interference with the operation of Communications Equipment, Licensor will endeavor to promptly terminate such interference to the extent that Licensor has authority to do so. Licensor shall have the right, but not the obligation, to file a lawsuit on Licensee's behalf in order to terminate such interference. (h) Following the Commencement Date and throughout the Term or applicable Renewal Tenn of this Agreement, Licensor shall provide access to Licensee, Licensee's employees, agents, contractors and subcontractors to the Municipal Facility and public rights of way at all times, twenty-four (24) hours per day, seven (7) days per week, subject to the provisions of any encroachment permit and Attachment C. Licensor hereby grants to Licensee such rights of ingress and egress over the pubic Rights of Way and other applicable easements held by Licensor for the purpose of access from the nearest public right-of-way to the Municipal Facility as may be necessary and consistent with the use of the Municipal Facility authorized by this License Agreement. 7. Taxes. Utilities and Maintenance. (a) Licensee shall be solely liable for any and all taxes that result, directly or indirectly, from the installation, maintenance or operation of the Communications Equipment. Notice is hereby given to Licensee pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any �¢J� 8/24/09 1:50 PM 4 initial[/ NextGNetworks License Agreement - Final (2).doc public property pursuant to the authorization herein set forth may create a possessory interest which may be subject to property taxes Ievied on such interest. Licensee shall pay and discharge prior to delinquency any and all possessory interest taxes or other taxes levied against Licensee's right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this Agreement. In the event that any increase in Licensor's real property taxes results from Licensee's installation, maintenance or operation of Communications Equipment (including any improvements to the Municipal Facility authorized under this Agreement), then Licensee shall reimburse Licensor the full amount of such increase within thirty (30) days following receipt of a written invoice of the amount owed. Licensor shall provide reasonable evidence of any such tax increase upon request. (b) Licensee shall have the right to draw compatible electricity for the operation of Communications Equipment from the non -metered power source associated with the Municipal Facility where the City does not allow a meter so long as (i) Licensee's Communications Equipment is installed to all applicable codes and standards, (ii) does not interfere in the operation of the host Municipal Facility, and/or (iii) does not damage the host Municipal Facility. City makes no guarantees or representations as to the suitability or compatibility of any source or supply of electrical current necessary to operate Licensee's Communications Equipment. (c) Licensee shall be solely responsible for all costs and expenses associated with obtaining and maintaining a suitable and compatible electrical supply sufficient to power and operate Licensee's Communications Equipment. Licensee shall also be solely responsible for all costs, expenses and payments of any and all electrical utility charges by the applicable utility company based upon the its usage of electricity and applicable tariffs. City shall under no circumstances be responsible for reimbursing, contributing, or paying any costs to any utility company or Licensee for the costs and expenses associated with any modification of or any use of electricity under this Agreement. Licensee's Communications Equipment shall not draw compatible electricity from Municipal Facility until such time as Licensee has secured all required electrical approvals and the electricity charging/payment agreement with the electrical utility company is in place. 8. Default. Termination. Remedies. (a) In the event of Licensee's breach of any monetary obligation required herein, Licensor may demand in writing that the breach be cured within ten (10) business days of the receipt of notice by the Licensee. The failure to cure such a monetary breach within the stated period shall constitute a material default of this Agreement, and Licensor may elect to terminate this Agreement immediately by providing Licensee written notice of termination. (b) In the event of a breach of any material covenant or term hereof other than a monetary obligation, the non -breaching party may demand in writing that the breach be cured within thirty (30) days of the receipt of notice by the breaching party. The breaching party shall cure the breach within said thirty (30) days unless the ewe cannot be reasonably effected within that period of time, in which case the breaching party shall submit a written letter within said thirty (30) days stating an intent to cure said beach. After receipt of said letter of intent by the non -breaching party, the breaching party shall have such additional time as may be necessary to effect a complete cure so long as the breaching party commences the cure and diligently and continuously thereafter pursues the cure to completion. (c) This Agreement may be terminated by Licensee on thirty (30) days' prior written notice to Licensor upon occurrence of any one or more of the following events, in which case the unused portion of the Annual License Fee shall be refunded in accordance with Section 9(g) below. (i) prior to the Commencement Date, for any reason or for no reason at all; (ii) upon a material breach by Licensor, which is not cured in accordance with Section 9(b) above; 8/24/09 1:50 PM 5 Initials: NextG Networks License Agreement - Final (2).doc (iii) after the Commencement Date, in the event that communications transmitting equipment installed on the Municipal Facility by any Other Carrier materially interferes with the communications operations or placement of the Communications Equipment, and Licensee is unable to correct such interference through reasonably feasible means; (iv) at any time upon receipt of written notice that a governmental or non- governmental license, permit, consent, approval, easement or restriction waiver that is necessary to enable Licensee to install and operate Communications Equipment cannot be obtained or renewed within a required time period through no fault of Licensee; (v) the Municipal Facility is damaged or destroyed so as, in Licensee's reasonable judgment, to materially hinder Licensee's existing use of the Municipal Facility; or, (vi) Licensor withholds consent to a transfer of the License pursuant to Section 17 wherein the transfer involves the sale of all Communications Equipment on the Municipal Facility. (d) This Agreement may be terminated by Licensee on thirty (30) days' prior written notice to Licensor, subject to the payment by Licensee of a termination fee in an amount equal to one -quarter (1/4) of the annual License Fee, upon occurrence of any one or more of the following events, in which case said termination fee shall be deducted from any unused portion of the annual License Fee and the remainder of the License Fee shall be refunded to Licensee in accordance with Section 9(g) below. (i) a material change in circumstances that, for economic, environmental or technological reasons, directly causes the Municipal Facility to no longer be appropriate or suitable for Licensee's operations (including without limitation any ruling or directive of the FCC or other governmental or regulatory agency), regardless of fault; or (ii) a communications facility or other structure is erected or installed in the immediate vicinity of the Municipal Facility and materially interferes with communications operations of Communications Equipment, and Licensee is unable to correct such interference through reasonably feasible means. (e) In addition to the express provisions of Section 9(a) above, a material breach of this Agreement shall include, but not be limited to, the occurrence of any one or more of the following events provided that the failure of Licensor to enforce any breach of this Agreement shall not constitute a waiver of its future right to enforce said breach: (i) the failure by Licensee for any reason to obtain and maintain any necessary government license, permit or approval, or failure to satisfy any condition of such license, permit or approval; (ii) the failure by Licensee for any reason to install, construct, operate or maintain the Communications Equipment in accordance with applicable Laws; (iii) the installation, removal or reconfiguration of any Communications Equipment by Licensee without Licensor's prior written approval; (iv) any assignment or attempted assignment of Licensee's rights or obligations hereunder except as provided in Section 17 below. 8/24/09 1:50 PM 6 Initials III 51-1, Next° Networks License Agreement - Final (2).doc (v) the vacation or abandonment of the Communications Equipment or the Municipal Facility by Licensee (abandonment shall include without limitation the failure to maintain operation of the Communications Equipment for a period of ninety (90) days or longer); or (vi) the making by Licensee of any general assignment for the benefit of creditors, or the filing by or against Licensee of a petition to have Licensee adjudged bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Licensee, the same is dismissed within thirty (30) days), or the appointment of a trustee or receiver to take possession of substantially all of Licensee's assets located at the Municipal Facility or of Licensee's interest in this Agreement (where possession is not restored within thirty (30) days); or the attachment, execution or other judicial seizure of substantially all of Licensee's assets located at the Municipal Facility or of Licensee's interest in this Agreement (where such seizure is not discharged within thirty (30) days). (1) Except as provided otherwise in this Agreement, in the event of a default by either party hereto, the non -defaulting party shall have in addition to its right of termination, the right to any other remedies available at law or in equity. (g) In the event that Licensee elects to terminate this Agreement pursuant to Sections 9(b), 9(c) or 9(d), Licensee shall remove the Communications Equipment and restore the Municipal Facility to its condition existing on the Commencement Date (ordinary wear and tear excepted) within thirty (30) days of Licensor's receipt of the notice of termination. In said event, Licensor shall return to Licensee any unused portion of the annual License Fee from the date of effective termination or the date upon which the Municipal Facility are fully restored, whichever occurs later, less any termination fee if applicable. (h) In the event that Licensor elects to terminate this Agreement pursuant to Sections 9(a) or 9(b), Licensee shall forfeit any unused portion of the annual License Fee. Upon such termination, Licensee shall remove the Communications Equipment and restore the Municipal Facility to its condition existing on the Commencement Date (ordinary wear and tear excepted) within thirty (30) days of Licensee's receipt of the notice of termination. If Licensee fails to restore the Municipal Facility within said thirty (30) days, Licensor may recover from Licensee all costs reasonably necessary to remove the Communications Equipment and restore the Municipal Facility in accordance with Sections 11 and 15 below. (i) The provisions of this Agreement which by their sense and context are intended to survive termination (including but not limited to the provisions of Sections 9, 11, 12, 13, and 16) shall survive termination. 9. Condemnation and Destruction of Municinal Facility. If the Municipal Facility is destroyed or damaged so as in Licensee's judgment to hinder its effective use of the Municipal Facility, Licensor shall use reasonable efforts to make available to Licensee within five (5) days a temporary site which in Licensee's reasonable discretion is equally suitable for Licensee's use and subject to reasonable conditions regarding time, place and manner of use, appearance, and installation in the rights of way. Licensee may construct, operate, and maintain substitute Communications Equipment thereon until the Communications Equipment is fully restored and operational on the Municipal Facility or for a period of eighteen (18) months, whichever is sooner. 10. Removal of Communications Eouipment. The Communications Equipment and any articles of equipment placed on the Municipal Facility by Licensee at its sole expense shall be and remain the personal property of Licensee and may be removed by Licensee at any time during the Term or 824/09 1:50 PM 7 Initials NextG Networks License Agreement - Final (2).doc Renewal Term; provided that Licensee is not in default hereunder, and; provided further that Licensee shall repair any damage caused by such removal and shall restore the Municipal Facility to its condition existing upon the execution of this Agreement less ordinary wear and tear prior to expiration or earlier termination of this Agreement. If Licensee fails to remove all of its effects from the Municipal Facility upon termination of this Agreement for any cause whatsoever, Licensor may, at its option, immediately remove the same in any manner that Licensor shall choose and discard, sell or store said effects without liability of any kind for loss thereof, and repair and restore the Municipal Facility . Any Communications Equipment Lawfully removed by Licensor pursuant to this Section shall become the sole property of Licensor. Licensee agrees to pay Licensor upon demand any and all expenses incurred in connection therewith, including court costs, attorneys' fees, costs of removal, storage costs for the length of time they shall be in Licensor's possession, costs of repairing the Municipal Facility and costs of sale. 11. Insurance. Without limiting Licensee's obligation or liability under Section 13, during the Term and any Renewal Term, and thereafter until the removals required under Section 11 are complete, Licensee shall maintain, at its own expense, commercial general liability insurance (including contractual liability), naming Licensor as an additional insured, providing coverage limits of not less than $1,000,000 per occurrence and $1,000,000 annual aggregate, insuring against any covered liability of Licensee and its employees and agents arising out of and in connection with the installation, maintenance, operation and presence of the Communications Equipment on the Municipal Facility. Commercial general liability shall be issued with companies reasonably satisfactory to Licensor or having an A.M. Best Company rating ofAX or better, on forms, with deductible amounts, if any, reasonably satisfactory to Licensor. Licensee shall provide to Licensor proof of insurance prior to the Commencement Date and at any time upon request. 12. Indemnification. (a) Licensee shall indemnify, defend, protect and hold harmless Licensor and its officials, agents and employees from and against any and all claim, cause of action, demand, injury, damage, liability, loss, cost or expense, including but not limited to reasonable attorneys' fees (collectively, "Claim") that arises out of or is in any way related to Licensee's use or occupancy of the Municipal Facility, including without limitation the installation, construction, maintenance, operation or removal of the Communications Equipment; provided, however, that this indemnity shall not apply to the extent that any Claim solely results from the gross negligence or willful misconduct of Licensor, its public officials, agents and/or employees. 13. Limitation of Liability. (a) Licensor shall not be liable to Licensee, its affiliates, or any of its or their directors, officers, partners, shareholders, agents, employees or contractors for damage to the Communications Equipment or any other property belonging to Licensee from any cause, except for any damage caused by the gross negligence or willful misconduct of Licensor, its employees, or agents. (b) Licensee waives all claims against Licensor and its employees for damage to persons or Communications Equipment or property arising for any reason other than a claim based on the gross negligence or willful misconduct of Licensor or its agents or employees. (c) Licensor, its officials, agents, and employees shall have no liability for any interruption of utility service, except to the extent caused by the gross negligence or willful misconduct of Licensor or its agents or employees. (d) Licensee acknowledges that under no circumstance, including but not limited to condemnation or breach of this Agreement, shall Licensor be liable to Licensee for any incidental or consequential damages, including but not limited to any loss of income, business or profits, arising out of Licensee's use of the Municipal Facility or Licensor's performance or non-performance under this Agreement, even if Licensor has been advised of the possibility of such damages. 824/09 1:50 PM 8 Initials: Ott Next° Networks License Agreement - Final (2).doc (e) Licensor shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or permitted to be done by any third party, including without limitation any and all damages, losses, or liability arising from (i) the issuance or approval by the City of a permit to any third party, or (ii) any interruption of services provided by Licensee at the Municipal Facility due to any third party failure to abide by FCC regulations or regulations and agreements regarding interference, or any other applicable Laws or agreement with Licensor,. (0 Licensee acknowledges and agrees that the Other Carriers shall not be deemed Licensor's agent or employee for any purpose. 14. Performance Bond. Prior to the Commencement Date, Licensee shall deposit with Licensor a performance bond in the amount of Ten Thousand Dollars ($10,000) or provide such other security instrument as may be approved by the City Manager in writing. This performance bond or other security shall be used to secure the faithful performance by Licensee of all of the work, construction, installation, payments, removals, terms, covenants and conditions required by Licensee hereunder within the time periods set forth herein. Any perfonnance bond shall be in a form approved by the City Attorney. 15. Hazardous Substances. (a) Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Licensee set forth in Section 13, Licensee agrees to indemnify, defend with counsel reasonably acceptable to Licensor, protect, and hold harmless the Licensor, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the Licensor, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the Municipal Facility provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Municipal Facility. This Section 16 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify Licensor for any claim pursuant to the Hazardous Substance Laws or the common law. (b) Licensor agrees that Licensor will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the Municipal Facility in violation of any law or regulation. Licensor and Licensee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section 16. This Section 16 shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Licensee shall surrender and vacate the Municipal Facility and deliver possession thereof to Licensor on or before the termination date free of any Hazardous Substances released into the environment at, on or under the Municipal Facility which are directly attributable to Licensee. 16 Transfer of License. (a) All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. This Agreement and the rights and obligations of Licensee hereunder shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, by Licensee without the express written consent of the Licensor, which consent shall not be unreasonably withheld, delayed or conditioned. Any attempted transfer in violation of this Section 17 shall be void. Except as provided below, the transfer of the rights and obligations of Licensee to any successor in interest or entity acquiring fifty-one percent (51%) or more of Licensee's stock or assets, shall be deemed an assignment requiring Licensor's c�ngen 8/24/09 L50 PM 9 lnitials:l( ,. NextG Networks License Agreement - Final (2).doe hereunder. Licensee shall provide Licensor at least thirty (30) days advanced written notice of any proposed transfer. (b) If Licensee desires at any time to effect a transfer not described in 17(c) below, it shall first deliver to Licensor (1) a written request for approval, (2) the name, address and most recent financial statements of the proposed transferee and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of Licensee under the Agreement arising from and after the effective date of assignment. (c) Notwithstanding paragraph 17(a) above, Licensee may, without Licensor's prior approval and in Licensee's sole discretion, from time to time, do any of the following: (1) grant to any person or entity a security interest in some or all of Licensee's Communications Equipment and/or other property used in connection with the Municipal Facility; and (2) assign financial and/or operating interest in Licensee: (i) to any entity which has, directly, or indirectly, a thirty percent (30%) or greater interest in Licensee (a "Parent") or in which Licensee or a Parent has a thirty percent (30%) or greater interest (an "Affiliate"); (ii) to any entity with which Licensee and/or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of Licensee or any Affiliate; or (iv) to the holder or transferee of the Federal Communications Commission ("FCC") license under which the Communications Equipment is operated, upon FCC approval of any such transfer. Any such assignment shall not be effective until the assignee signs and delivers to Licensor a document in which the assignee responsibility for all of Licensee's obligations under the Agreement arising from and after the effective date of assignment. 17. Title. Licensor warrants and represents to Licensee that (i) Licensor has full authority to enter into this Agreement and to grant the licenses provided herein; (ii) Licensor has fee title to the Municipal Facility, and, to Licensor's knowledge, there are no undisclosed liens, judgments or impeachments on ownership of the Municipal Facility that affect this Agreement. 18. Licensor's Non -Interference. Licensor agrees that it will not, without Licensee's prior written consent, cause or knowingly permit any interference with Licensee's use of the Municipal Facility as authorized in Section 2 hereof. Notwithstanding anything in this Section 19, however, Licensor's liability is limited as set forth in Section 14 of this Agreement. Moreover, nothing in this Agreement restricts, modifies, or affects in any way the Licensor's rights to enforce its Code, including its Wireless Communications Facilities Ordinance, revoke or suspend any permits or approvals given to the Licensee, or hold any hearings in connection therewith, and such enforcement shall not be deemed an interference with Licensee's use of the Municipal Facility. 19. Miscellaneous. (a) If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement shall not be affected thereby and shall continue to be valid and enforceable to the fullest extent permitted by law. (b) The waiver by either party of any breach or violation of any provision of this Agreement shall not be deemed a waiver or continuing waiver by that party of any subsequent breach or violation of the same or any other provision of this Agreement. (c) Any notice or demand required herein shall be given personally, by certified mail, postage prepaid, return receipt requested, or by reliable overnight courier to the address of the respective parties set forth in paragraph (h) of this Section. Any notice served by certified mail or by reliable 8/24/09 1:50 PM 10 Initial NextG Networks License Agreement - Final (2).doc overnight courier shall be deemed delivered on the date of receipt as shown on the certification of receipt or on the date receipt is refused as shown on the records or manifest of the U.S. Postal Service or such courier. Licensor or Licensee may from time to time designate any other address for this purpose by written notice to the other party given in the foregoing manner. (d) In the event of any dispute or legal proceeding between the parties arising out of or relating to this Agreement or its breach, the substantially prevailing party shall be entitled to recover from the non -prevailing party all fees, costs and expenses, including but not limited to attorneys' and expert witness fees, incurred in connection with such dispute or legal proceeding, any counterclaims or cross - complaints, any action to confirm, correct or vacate an arbitration award, any appeals and any proceeding to establish and recover such costs and expenses, in such amount as the court or arbitrator determines reasonable. Without. limiting the foregoing, any party entering a voluntary dismissal of any legal proceeding without the consent of the opposing party in such proceeding shall be deemed the non - prevailing party. (e) This Agreement shall be governed, construed and interpreted under the laws of the State of California. This Agreement shall be construed as a whole and in accordance with its fair meaning. This Agreement shall not be interpreted or construed against the party preparing it. (f) This Agreement including all attachments and riders constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements, written or oral, concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement shall be effective only if in writing and executed by both parties. (g) Licensee shall reimburse all itemized costs of Licensor, including attorneys' fees and costs, incurred in the preparation and review of this Agreement, Attachments thereto, and any related approval or document necessary to the execution of this Agreement, not to exceed Two Thousand Five Hundred Dollars ($2,500.00). Such costs must be paid to Licensor prior to the Commencement Date. (h) Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (ii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To Licensor: To Licensee: City of Chino Hills 14000 City Center Drive Chino Hills, CA 91709 ATTN: City Clerk Tel: (909) 364-2600 Fax: (909) 364-2695 NextG Networks Inc. 2216 O'Toole Ave San Jose, CA 95131 ATTN: Contracts Administrator Te1:408 954 1580 Fax: 408 383 5397 (i) All statements provided in the Recital or Preamble to this Agreement are hereby incorporated as a material part of this Agreement. 824109 1:50 PM 11 Initials NextG Networks License Agreement - Final (2).doc (j) The person or persons executing this Agreement on behalf of Licensee warrants and represents that he/she has the authority to execute this Agreement on behalf of the Licensee and has the authority to bind Licensee to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement as of 5A01-r 5 .2009. LICENSEE: NextG Networks of California Inc A Delaware corporation By: Naar: RobertbeL, Delsman Tit SAP Govt. Rels. & Reed. Affairs LICENSOR: THE CITY OF CHINO HILLS, A municipal corporation By: Name: Peter J. Road? Title: Mayor \J ATTE/% / may//J Mary M. uffee, City Clerk �APPROV By: 1 1a Mark b. Hensley, City Attorney , 5/24/09 1:56 PM 12 Initials. NextG Networks License Agreement - Final (2).doc ATTACHMENT A PHOTOGRAPH OF THE MUNICIPAL FACILITY 824/09 1:50 PM A -I Initial (/ NextG Networks 4/8/09 MPC1027CA-CC21 Row Adjacent to 5645 Sagebrush St. City of Chino Hills, CA NextGNetworks License Agreement - Final (2).doc ATTACHMENT B DEPICTION OF THE MUNICIPAL FACILITY Attach Engineering Drawings 8/24/09 1:50 PM n-I Initial TM FOOTAGE TOTALS IDSPXALT TRENCH 1 OAS PUNCH, _THRU 1 A' I0tNW 17 1 I BORE 0 T (TOTAL I arY AIR SWF TOTAL I 71 SO. FT.; OIRTWENCH DETAR ,mlc+l 0c0at ,.T.0 DI ALERT liI, uwwawu e 110ICTr .303 rnTWII DEFInTE �oo CALLATLCM7 CCI NOR' SCALE 1•A �— VAR 510_ -R .kI fa ] II ♦ odcuoa 1s coxoDR- I;1f�11li IENgl ls' Ltsn_ L.IL-115I1=I ykTA 4 14O6. Vµ� VARIES—. ISTNC TRAFFICSIGNAL OPCCED NODEl0C0TON STA 00.40 BORE0R STA 00 ♦44 PROPOSED CONNECITON HANI/HOLE STA 09.44 RBA SX110 SWF g DIMTRENCN(SEEOETWAI EXISTING CATCH BASIN STA OD .N &' BORE (SEE PErAIL'A') DOREPR STA.08"W EXISTING EOIBON HANDHOLE STA FA+BT AAR4'X4'SWP NOTE SCE TO CHANGE OUT EXISTNG HANDHOLE WITH A LARGER HANDHOLE . �v� owuumrmwTOBro:rs • \\ I1rrt:: ae ,: TRAOFISIGNAL (OEHINO POLE) ---- .w5 EXISTWG TRAFFIC SIGNAL 30' LOCKING NORTHWEST m0Ae114.0 ,m movcan ry cpa0Tl'R Armors : NextG Networks, Inc. slm.we, ENCIIMEPPEDmPC{ ?MOW a00 SUR.,x(IFFILEW44 „<. SITE PLAN awur:O uric I wmmar. m m WIC ISTA710.1 cAorAona 0001101 :M NO. laPClm>usul WW1. term oatsemuol0_ eHrLIT NextG Networks License Agreement - Final (2).doc 824/09 1:50 PM ATTACHMENT C PLANNING APPROVAL (ATTACHED) G! Initial CITY OF CHINO HILTS INCORPORATED 1191 July 24, 2009 ,ear City of Chino Hills Todd Threw Coastal Communications 3355 Mission Avenue, Suite 234 Oceanside, California 92058 Subject: Conditional Use Permit 09CUP04 — NextG Networks at Butterfield Ranch Road and Sagebrush Street Dear Mr. Threw: On July 21, 2009, the Planning Commission of the City of Chino Hills approved the above referenced project, subject to the Conditions of Approval. There is a public appeal period of 10 working days from the date of the Planning Commission's final action. The appeal period will expire on August 5, 2009, After the appeal period has ended and a Communications License Agreement has been approved by the City Council, an encroachment permit may be issued by the Engineering Department for the installation of the wireless facility. Attached are the approved plans, Conditions of Approval, staff report, and resolution. Please be aware that any significant changes to the approved plans and/or use may require additional review by the Planning Commission. If you have any questions regarding this letter, please contact me via email at rackstetter@chinohilis.org or call me at (909) 364-2749. Sincerely, Ryan Gackstetter Associate Planner att: As noted City Council: Art Bennett Bd Ill Graham W.C. `Bill" Kruger Glvenn B. Norton -Perry Peter". Rogers 14000 City Center Drive, Chino Hills, CA 91709 • (909) 364-2600 • FAX (909) 564.2695 • www.chinohills.org enrorns O,m$$ July 14, 2009 TO: FROM: SUBJECT: PLANNING COMMISSION AGENDA STAFF REPORT Meeting Date: July 21, 20D9 Public Hearing: Discussion item: Consent Item: C Agenda Item No.: 7d CHAIRMAN AND PLANNING COMMISSIONERS CHRISTINE KELLY, COMMUNITY DEVELOPMENT DIRECTOR CONDITIONAL USE PERMIT 09CUP04 TO ALLOW THE INSTALLATION OF A NEXTG NETWORKS WIRELESS FACILITY ON A CITY -OWNED TRAFFIC SIGNAL AT BUTTERFIELD RANCH ROAD AND SAGEBRUSH STREET EXECUTIVE SUMMARY The applicant, NextG Networks Inc. of California, is requesting approval of Conditional Use Permit 09CUP04 to allow the installation of a wireless facility on a City -owned traffic signal (Exhibit "A"). The existing traffic signal that the applicant proposes to attach equipment to is located on the southeast corner of Butterfield Ranch Road and Sagebrush Street. The installation of the wireless facility will include the attachment of a small omnidirectional antenna to the top and a small equipment enclosure to the side of the traffic signal standard. RECOMMENDATION Staff recommends that the Planning Commission adopt the attached resolution approving Conditional Use Permit 09CUP04 based on the findings of facts as listed in the attached Resolution, and subject to the Conditions of Approval. PROJECT: CASE NO.: Conditional Use Permit 09CUP04 APPLICANT: NextG Networks Inc. of California 2125 Wright Avenue, Suite # C9 La Verne, California 91750 LOCATION: Located on the southeast corner of Butterfield Ranch Road and Sagebrush Street across from Chino Valley independent Fire District Station 62 Meeting Date: July 14, 2009 Page: 2 SUBJECT: CONDITIONAL USE PERMIT 09CUP04 TO ALLOW THE INSTALLATION OF A NEXTG NEWTORKS WIRELESS FACILITY ON A CITY -OWNED TRAFFIC SIGNAL AT BUTTERFIELD RANCH ROAD AND SAGEBRUSH STREET SITE DESCRIPTION Parcel Size: Existing Land Use: LOCATION Site North South East West NIA Public right-of-way GENERAL PLAN LAND USE Low Density Residential Low Density Residential Low Density Residential Low Density Residential Low Density Residential BACKGROUND Genera[ Plan: Low Density Residential Zoning: PD 50-167 (Residential) Overlay District: None Sewer Service: City of Chino Hills Water Service: City of Chino Hills ZONING PD 50-167 (Residential) PD 50-167 (Residential) PD 50-167 (Residential) PD 50-167 (Residential) PD 50-167 (Residential) EXISTING USE Public right-of-way Single-Fami[y Homes Single -Family Homes Single --Family Homes C.V.I.F.D. Station 62 On April 13, 2009, the applicant, NextG Networks Inc. of California, submitted seven (7) entitlement applications for the installation of wireless facilities in various locations in the City (see Exhibit "B' ). An additional six (6) entitlement applications were submitted on May 18, 2009, to expand their network coverage area. The applicant is proposing to develop these sites as part of a distributed antenna system that utilizes smaller facilities to provide wireless coverage to smaller service areas, which can be difficult to serve with the more traditional wireless facilities. The coverage provided by these sites will be utilized by cellular telephone carriers, such as Verizon Wireless or AT&T. The type of facilities that are being proposed are smaller, Tess powerful, and have a lower potential for visual impact than other types of wireless facilities (see Exhibit "C"). Meeting Date: July 14, 2009 Page: 3 SUBJECT: CONDITIONAL USE PERMIT 09CUP04 TO ALLOW THE INSTALLATION OF A NEXTG NEWTORKS WIRELESS FACILITY ON A CITY -OWNED TRAFFIC SIGNAL AT BUTrERFIELD RANCH ROAD AND SAGEBRUSH STREET Vicinity Map PROPOSAL Proposed Wireless Facility -tsk on City -owned Tragic Signal The applicant, NextG Networks Inc. of California, is requesting that the Planning Commission approve Conditional Use Permit 09CUPQ4 to allow the installation of a wireless facility on a City -owned traffic signal on the southeast corner of Butterfield Ranch Road and Sagebrush Street (see Exhibit "A"). The proposed project includes the attachment of an approximately twenty -six-inch (26") tall and two-inch (2") diameter antenna to the top of the traffic signal and streetlight standard. In addition to the antenna, the facility includes the attachment of signal processing equipment (approximately thirty-three inches (33") in height and six inches (6") in width and depth) to the side of the signal standard at approximately eighteen feet (18') above the ground Meeting Date: July 14, 2009 Page: 4 SUBJECT: CONDITIONAL USE PERMIT 09CUP04 TO ALLOW THE INSTALLATION OF A NEXTG NEWTORKS WIRELESS FACILITY ON A CITY -OWNED TRAFFIC SIGNAL AT BUTTERFIELD RANCH ROAD AND SAGEBRUSH STREET level. Approximately sixty-two feet (62') of trenching will be required to install power conduit along the east side of Butterfield Ranch Road. According to City GIS, the proposed facility will be located approximately fifty-five feet (55') from the nearest residence. ANALYSIS General Plan and Zoning Consistency The project site is identified as Low Density Residential on the General Plan Land Use Map and is zoned PD 50-167 (Residential). Chapter 16.44 of the Development Code designates a utility mounted wireless facility as a "minor facility", which requires the approval of a Conditional Use Permit by the Planning Commission when located within a residential zoning district or a residential portion of a planned development. If the conditional use permit is approved, then the use would be consistent with the Development Code, a tool used to implement the General Plan. Therefore, the approval of Conditional Use Permit 09CUP04, subject to the attached Conditions of Approval would be consistent with the General Plan. Development Standards The top of the existing traffic signal and streetlight standard is approximately thirty feet (30') above the ground level_ With the attachment of the approximately twenty -six-inch (26") antenna to the top of the standard, the total height of the facility will be approximately thirty-two feet and two inches (32'-2") above ground level. Planned Development PD 50-167 specifies a maximum building height of thirty-five feet (35'). Therefore, the proposed project complies with the maximum building height of the surrounding zoning districts. FISCAL IMPACT Per Condition of Approval No. 16, the applicant is required to enter into a license agreement with the City of Chino Hills prior to the installation and operation of the wireless facility on a City -owned traffic signal. An existing License Agreement between the City and NextG Networks for a similar facility stipulates that NextG Networks pay the City an annual license fee of one thousand dollars ($1,000) plus the greater of a three percent (3%) annual increase or the annual increase in the Consumer Price Index for all consumers in the Los Angeles -Riverside -Orange County area. PUBLIC COMMENTS A notice of the public hearing regarding this project was mailed to property owners within a 300-foot radius of the project site on July 8, 2009, and was also published in the Chino Hills Champion on July 11, 2009. Staff has not received any comments as of the writing of this staff report. Meeting Date: July 14, 2009 Page: 5 SUBJECT: CONDITIONAL USE PERMIT D9CUP04 TO ALLOW THE INSTALLATION OF A NEXTG NEWTORKS WIRELESS FACILITY ON A CITY -OWNED TRAFFIC SIGNAL AT BUTTERFIELD RANCH ROAD AND SAGEBRUSH STREET ENVIRONMENTAL ASSESSMENT: Staff has determined that the proposed project is categorically exempt from .the California Environmental Quality Act pursuant to Section 15303 New Construction or Conversion of Small Structures of the California Environmental Quality Act Guidelines. The Conditional Use Permit is to allow the attachment of a minor wireless facility for cellular telephone service to an existing traffic signal and streetlight standard. Therefore, staff has determined with certainty that the project does not have the potential to cause a negative impact on the environment. Respectfully submitted, Christine Kelly Community Development Dire Prepared by: R n Gackstetter Associate Planner Attachments: Resolution Conditions Exhibit "A" Exhibit "B" Exhibit "C" Affidavit of Recommended by: Henr9 Noh Principa anner of Approval — Project Plans -- Proposed NextG Networks Sites — Photo Simulation of Proposed Facility & Photos of Existing Facilities Mailing (Public Hearing Notice & Mailing Labels) RESOLUTION NO, PC 2009 — A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CHINO HILLS, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT 09CUP04 FOR A NEXTG NETWORKS INC. OF CALIFORNIA WIRELESS TELECOMMUNICATION FACILITY LOCATED ON THE SOUTHEAST CORNER OF BUI I ERFIELD RANCH ROAD AND SAGEBRUSH STREET THE PLANNING COMMISSION OF THE CITY OF CHINO HILLS DOES HEREBY RESOLVE AS FOLLOWS: of fact: SECTION 1. The Planning Commission does hereby make the following findings A. The applicant, NextG Networks Inc. of California, located at 2125 Wright Avenue, Suite # C9, La Verne, California 91750, requested approval of Conditional Use Permit 09CUP04 to allow the construction and operation of a telecommunication facility attached to an existing traffic signal and streetlight standard located on the southeast corner of Butterfield Ranch Road and Sagebrush Street, B. The project site is located on the southeast corner of Butterfield Ranch Road and Sagebrush Street within the public right-of-way. C. The project site is zoned Planned Development PD 50-167 (Residential) and has a General Plan designation of Low Density Residential. D. The project is exempt from CEQA under Sections 15303 New Construction or Conversion of Small Structures of the California Environmental Quality Act because the proposed project consists of the installation of a minor facility serving the extension of a utility, which will have a negligible impact on the environment. E. The Planning Commission of the City of Chino Hilts held a duly noticed public hearing on July 21, 2009, to review and consider the staff report prepared for the project, receive public testimony, and review all correspondence received on the project. SECTION 2. The Planning Commission hereby makes the following findings on Conditional Use Permit 09CUP04, a request to allow the construction and operation of a telecommunication facility attached to an existing traffic signal and streetlight standard located on the southeast corner of Butterfield Ranch Road and Sagebrush Street, 1 OF 4 A. FINDING: The proposed use is consistent with the General Plan. FACT: The project site is identified as Low Density Residential on the General Plan Land Use Map and is zoned PD 50-167 (Residential). Chapter 16.44 of the Development Code designates a utility mounted wireless facility as a "minor facility", which requires the approval of a Conditional Use Permit by the Planning Commission when located within a residential zoning district or a residential portion of a planned development. Therefore, the approval of Conditional Use Permit 09CUP04, subject to the attached Conditions of Approval is consistent with the General Plan in that it is consistent with the Development Code, which is a tool used to implement the General Plan, B. FINDING: The nature, condition, and development of adjacent uses, buildings, and structures have been considered, and that the uses will not adversely affect or be materially detrimental to these adjacent uses, building, or structures. FACT: The proposed NextG Networks wireless equipment will be attached to an existing traffic signal and streetlight standard in the public right-of-way and will not adversely affect or be materially detrimental to the adjacent uses, buildings, or structures. The proposed wireless facility is designed to be compatible with the existing traffic signal and streetlight standard, therefore causing minimal visual impact. C. FINDING: The site for the proposed conditional use is of adequate size and shape to accommodate the use and buildings proposed. FACT: The project site is located within the public right-of-way and all equipment will be attached to the existing traffic signal and streetlight standard. The project site has adequate size and shape to accommodate the use and equipment proposed. D. FINDING: The proposed use complies with applicable development standards of the zoning district. FACT: The proposed use, with approval of a Conditional Use Permit and conditions as imposed, complies with all applicable development standards in that the project has a simple design and the building height is consistent with the requirements of the Planned Development (PD) 50-167 zoning district. The approval of the Conditional Use Permit to allow the installation of a minor facility complies with the requirements of the Development Code and zoning district. 2OF4 E. FINDING: The proposed use observes the spirit and intent of the Development Code. FACT: The proposed use and its associated components, with approval of Conditional Use Permit 09CUP04, observes the spirit and intent of the Development Code in that the facility is designed to be consistent with and attached to an existing traffic signal and streetlight standard, which reduces the visual impact to the surrounding neighborhood. The proposed project is considered a Minor Facility, for which a Conditional Use Permit is required to allow the project to be located within a residential portion of a Planned Development (PD) zoning district. SECTION 3. Based on the findings and conclusions set forth above, the Planning Commission hereby approves Conditional Use Permit 09CUP04 subject to the Conditions of Approval dated July 21, 2009, and the Project Plans labeled as Exhibit "A". SECTION 4. The Planning Commission Secretary shall certify to the adoption of this resolution. ADOPTED AND APPROVED this 21st day of July 2009. ATTEST: KAREN PULVERS, PLANNING COMMISSION SECRETARY APPROVED AS TO FORM: BRADLEY E. WOHLENBERG ASSISTANT CITY ATTORNEY ADAM ELIASON, CHAIRMAN 30F4 CITY OF CHINO HILLS Conditions of Approval Conditional Use Permit 09CUP04 NextG Networks Inc. of California Wireless Communications Facility at Butterfield Ranch Road and Sagebrush Street ONGOING / INFORMATIONAL: Planning Division 1. This Conditional Use Permit (CUP) shall become null and void if all conditions of approval have not been complied with and the Permit is not used within three (3) years of the date of approval. The Planning Commission may grant one extension of time for a period not to exceed one (1) year, provided an application requesting the extension is filed with the Planning Division no less than 30 days prior to the expiration of the Permit. "Used" as referred to in this Condition means the commencement of substantial construction activity or any activity authorized by the approval. If an extension of time is not granted, the CUP shall expire and a new application shall be required. 2. In addition to the City's right to revoke or revise this Conditional Use Permit for violation of any of the conditions herein, pursuant to Section 16.68.080 and 16.44.110 of the Chino Hills Development Code, the City, its Planning Commission and its City Council retain and reserve the rights and jurisdiction to review and modify all Conditional Use Permits approved by the City, including the conditions of approval, based on changed circumstances. Changed circumstances include, but are not limited to, the following in relation to the approved facility as described and diagrammed in the related Site Plan: increased height or size of the facility; additional impairment of the viewshed from surrounding properties; change in the type of antenna or support structure; change of color and materials; substantial change in location on the site; and an effective increase in signal output above or near Maximum Permissible Exposure (MPE) limits imposed by the Revised Radio Frequency Emission Guidelines by the Federal Communications Commission. 3. The applicant or its successors in interest shall indemnify, protect, defend (with legal counsel reasonably acceptable to the City), and hold harmless, the City, and any agency or instrumentality thereof, and its elected and appointed officials, officers, employees, and agents from and against any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs, and expenses of whatever nature, including reasonable attorney's fees and disbursements (collectively "Claims") arising out of or in any way relating to this project, any discretionary approvals granted by the City related to the development of the project, or the environmental review conducted under California Environmental Quality Act, Public Resources Code Section 21000 et City of Chino Hills 1 July 21, 2009 NextG Networks Inc. of California Conditional Use Permit 09CUP04 Conditions of Approval seq., for the project. If the City Attorney is required to enforce any conditions of approval, the applicant shall pay for all costs, including attorneys fees. 4. The project shall be in substantial conformance with the site plan and design plan (Exhibit "A") and conditions set forth herein. No modification to the site plan, design plan or the Conditions of Approval for the Conditional use Permit shall be permitted without the approval of the Community Development Director or his/her designee. 5. All communication facilities to be installed as part of the NextG Networks Inc. of California wireless facility shall not bear any signs or advertising devices other than certification, warning, or other required seal or required signage. 6. Any amounts of flammable or combustible liquids or any hazardous materials stored or used on the site must be reviewed and approved by the Chino Valley Fire District. The antenna and all associated equipment attached to the traffic signal pole shall be maintained to match the pole in color. Existing trees within the project area shall not be removed. Any landscaping or trees that are removed shall be replaced in kind. All existing surrounding irrigation shall be protected and/or repaired if damaged during construction. 10. No wireless communications facility or accessory equipment as part of NextG Networks shall interfere with any transmission signal or form of communication, including but not limited to cable televisions and City or emergency wireless communications. 11. All Trust Deposit Accounts shall show no deficits. All deficits shall be paid in full prior to the issuance of encroachment permits. Engineering Department 12. All conduit installed within the paved street between curbs shall be installed by open cut trench method only. No horizontal directional drilling will be allowed. Trench shall be backfilled and compacted per city standards and shall be "T" cut and capped with 0.15 feet thick asphalt concrete to a minimum width of five (5) feet when parallel to the curb line and ten (10) feet when perpendicular to the curb line. 13. No work shall begin within the public right-of-way until an encroachment permit has been issued by the Engineering Department and all necessary public works inspection fees have been paid. City of Chino Hills 2 July 21, 2009 NextG Networks Inc. of California Conditional Use Permit 09CUP04 Conditions of Approval 14. An improvement bond or cash deposit in the amount of 100% of the estimated value of work to be performed within the public right-of-way shall be required prior to the issuance of any permit. Chino Valley Independent Fire District 15. Equipment shall not interfere with Chino Valley Fire District or San Bernardino County Sheriff 800 Mhz radio systems. Any incident of interference from any facility or equipment shall be investigated, and non-compliance will subject any permits to revocation. PRIOR TO THE ISSUANCE OF ENCROACHMENT PERMITS 16. A Communications License Agreement between NextG Networks Inc. of California and the City of Chino Hills for the use of City -owned facilities shall be approved by the City Council prior to the issuance of any encroachment permits. END OF SEQUENTIAL CONDITIONS Project Manager: Ryan Gackstetter City of Chino Hills 3 July 21, 2009