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11-0517_TMOBILE_Agenda Report_D7 61'1712011 AGENDA REPORT D7 TO: Dave Adams, Interim City Manager FROM: Cindy Russell, Chief Financial Officer/City Treasurer SUBJECT, 'Consideration of Facilities Site Lease Agreement with T-Mobile West Corporation for Wireless Telecommunications Facility Located at 29932 Camino Capistrano and (APN 650-023-09) RECOMMENDATION.- By motion, approve the Wireless Communication Facilities Site Lease Agreement with T-Mobile West Incorporation at the 29932 Camino Capistrano (APN 650-023-09). SITUATION: Summary and Recommendation; On April 19, 2011, the City Council held a public hearing, and approved a Conditional Use Permit for the construction of a T-Mobile wireless telecommunications facility located at 29932 Camino Capistrano (see attached staff report form April 19, 2011). The property is situated between Camino Capistrano and Interstate-5. The facility is a 58'-3" faux water tank that screens twelve paddle style antennas and six pieces of ground mounted equipment beneath the structure that are enclosed by a 8%0" tall slump stone block wall. . The proposed design facility has the ability to collocate another carrier in the future, without any modification to the water tank. The proposed project has been conditioned to not permit the submittal of plans for building permits until such time that the lease agreement has been adopted. The initial term of this lease shall commence on the date T-Mobile obtains all permits necessary allowing T-Mobile the right to construct the facilities. The Lease Agreement has an initial term of five years with four - 5 year options. The annual lease payments are $26,400 increasing by 3% annually. Additionally, the City will receive 25% of any sublease. Staff recommends approving the Wireless Communications Facilities Site Lease Agreement with T-Mobile. Agenda Report Page 2 May 17, 2011 COMMISSION/130ARD REVIEW AND RECOMMENDATIONS: On April 13, 2010, the Planning Commission, after considering the proposed faux eucalyptus tree design, the poor health of the existing grove of eucalyptus trees, and the long term suitability of the site, denied the proposed Conditional Use Permit (CUP). The City Council considered an appeal of the Planning Commission's denial on July 6, 2010, and upheld the Commission's action to deny the proposed faux eucalyptus. The applicant had presented an alternative design consisting of a faux water tank, which the City Council favored and remanded to the Planning Commission for refinement of the design details and for final action on the proposed project. On August 10, 2010, the Planning Commission considered the revised design (faux water tank) and referred the project design to the Design Review Committee for review and recommendation. On October 7, 2010, the DRC considered the proposed project design and provided the following comments • All diseased eucalyptus trees need to be removed. • The proposed wood support "leg" design is acceptable. • All trees that have been topped and damaged need to be removed. • The proposed decomposed granite-surfaced access road is acceptable. ® The landscape plan should include minimum 16 gallon, Eucalyptus trees. • The tank diameter should be reduced. • The dimension of the wood support "legs" should be reduced. ® The tank height should be increased. • Provide proposed color finish for the tank. • Install Eucalyptus trees on the south side of the lot. • Install Coast live oaks (Quercus agrifolia) along the south side of the parcel. • The slump stone wall shall be Orco Block "Mission Slump" w/ grout color to match block. • Keep the existing site surface as natural as possible and only remove dead trees and other associated fill. The DRC provided their comments to staff and to the architect and requested that the project be redesigned accordingly based on the DRC comments and return back to the DRC along with a landscape plan. The DRC during the November 18, 2010, meeting provided informal comments to staff regarding clarification of the proposed cellular facility. Specifically the DRC asked for clarification of what identified trees are to be removed and the phasing of their removal. In addition the DRC asked for clarification of the color of the proposed slump stone. The DRC continued the project for further consideration to the December 2, 2010, meeting. Agenda Report Page 3 May 17, 2011 The DRC, during the December 2, 2010, meeting considered the application and provided the following comments: • Overall the .conceptual design is appropriate; however the pians are missing specific detail. • Additional trees are necessary along the northwest property line to replace the removed trees. • The arborist's report is somewhat minimal and additional information is necessary, specifically the replacement species of Eucalyptus needs to be identified • The support legs need to be squared and not round, as the use of "telephone poles" was not present in historical examples of water tanks. • Slump stone.block is an appropriate enclosure material, needs to be a dark earth tone and consistent with previous direction. • Gussets need to be used in the final design, as this connection was traditional for the type of water tank's support structure. The DRC forwarded the project with a recommendation of approval to the Planning Commission for consideration with the condition that the final landscape plan, colors, details is referred back to the DRC following Commission action. On December 14, 2010, the Planning Commission reviewed the proposed project. A motion to approve the proposed project failed by a 3-3 vote and was determined by the City Attorney to constitute an action, since the no determination was made by the action, the proposed project was referred to the City Council for final consideration. On April 19, 2011, the City Council conducted a public hearing and approved a Conditional Use Permit for the construction of a wireless telecommunications facility and asked staff to bring back lease agreement for approval. The approved design shall be in accordance with T-Mobile's drawings dated December 12, 2010, and with Sims Tree Health Specialists Arborists Report, dated November 10, 2010. FINANCJAL CONSIDERATIONS; There are no financial costs associated with the proposed project. The applicant would make all necessary improvements at their cost. Additionally, the City will receive a base rental payment under this lease of $2,200 per month that shall be automatically adjusted annually by an additional 3 percent. In the event of a sublease (co-location), the City shall receive twenty-five percent (25%) of the monthly rent actually received from the sublessee. Agenda Report Page 4 May 17, 2011 NOTIFICATION: Copies of this agenda item have been provided to T-Mobile West Incorporated and their representative, the. Planning Consortium. RECOMMENDATION: By motion, approve the Wireless Communication Facilities Site Lease Agreement with T-Mobile West Incorporation at the 29932 Camino Capistrano (APN 650-023-09). Respectfully Submitted, Prepared By, rr �, 17. Cindy Russ Ii Steve Montano Chief Financial OfficerlCity Treasurer Assistant Director of Financial Services Attachments: 1. Lease Agreement — Dated June 1, 2011 2. April 19, 2011, Staff Report to City Council — Conditional Use Permit (CUP) 09-013, T-Mobile Cell Site on City Property CITE' OF SAN JUAN CAPISTRANO WIRELESS COMMUNICATIONS FACILITIES SITE LEASE This Communications Site Facilities Lease (the "Lease") is made and entered. into this l st day of June, 2011 ("Effective Date"), by and between the CITY OF SAN JUAN CAPISTRANO, a California Municipal Corporation (herein"LESSOR"), and T-MOBILE WEST CORPORATION, a Delaware corporation (herein"LESSEE") (hereinafter collectively referred to as "Parties"). RECITALS WHEREAS, LESSOR is the fee title owner of property located at 29932 Camino Capistrano in the City of San Juan Capistrano, California (the "Property") described more particularly in Exhibit "A" attached hereto, which description is fully incorporated herein by this reference; and WHEREAS, LESSEE desires to lease space on the Property from said LESSOR on the terms and. conditions herein in order to install and operate a mobile radio telecommunications site as more fully described herein below and.Exhibit "A" (the"Facilities"). LEASE NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants, conditions, and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties to this Lease do hereby agree as follows: 1. LEASED PREMISES: 1.1 DEMISE: LESSOR leases to LESSEE a portion of the Property as more particularly depicted and/or described in Exhibit"A" (the "Premises"). 1..2 LESSEE ACCESS: LESSOR shall provide LESSEE, LESSEE's employees, agents, and subcontractors access to the Premises after LESSEE provides LESSOR with. twenty-four (24) hours advance telephonic notice. Provided, however, that in the event of an "emergency or special circumstance", which would leave the Facilities inoperable during non-business hours, LESSEE may access the Property to snake necessary repairs and shall provide notice to LESSOR as soon as reasonably practicable. For purposes of this Lease, the phrase "emergency or special circumstance" shall be interpreted to mean that the site is off-air whether caused by automobile accidents, equipment failure, or natural disasters, including, but not limited to flooding, wind, loss of power and earthquakes. 2. USE OF LEASED PREMISES: To the extent provided in this Lease, LESSEE may use the Premises to facilitate the provision of wireless communication services, including the transmission and the reception of communication signals of various frequencies. Subject to the terms and conditions of this Lease, LESSEE may install, construct, maintain, repair, replace and operate on the Premises the communications and other facilities depicted and/or described in general in Exhibit "A". To the extent reasonable, LESSOR shall cooperate with LESSEE in 1 ATTACHMENT 1 LAI 3168E Camino Tree applying for and obtaining all licenses, permits, and any and all other necessary approvals that may be required for LESSEE's use of the Premises. 3. LEASE TERM: 3.1 INITIAL TERM; The initial term of this Lease shall commence on the date I.,ESSEE obtains all permits necessary allowing LESSEE the right to construct the Facilities (the "Commencement Date") and shall continue for five (5) years from. that date (the "Initial Term") unless terminated earlier pursuant to Section 8 hereinbelow. 3.2 RENEWAL TERM: LESSOR grants LESSEE an option to renew this Lease for an additional twenty (20) years, renewable in :four (4) five (5) year increments (each, a "Renewal 'Term"). This Lease shall automatically renew for each Renewal Tenn unless LESSEE provides LESSOR notice of its intention not to renew not less than thirty (30) days.prior to the expiration of the then current Term. For the purpose of this Lease, the "then current Term" shall mean either the Initial Terre or the Renewal Term, whichever is in effect at the relevant time. The Initial Term and the Renewal Terms shall be collectively referred to herein as the "Term." 4. PAYMENT OF RENT: Within twenty (20) days of the Commencement Date, LESSEE agrees to pay to LESSOR, the first payment of Base Rental in the amount set forth in this section. Thereafter, Base Rental will be payable each month in advance by the fifth each month of the Initial Term of the Lease and all Renewal Terms, if any, payable to the City of San Juan:. Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, California 92675, Attn: Accounts Receivable, finance Department. In addition, LESSEE agrees to do and perform all other covenants and agreements contained in this Lease. 4.1 BASE RENTAL PAYMENT: The Base Rental Payment under this Lease shall be Two Thousand Two Hundred Dollars ($2,200.00) per month ("Base Rental"). if the Commencement Date is a date other than the first day of the month, the Base Rental for the first calendar month shall be paid on the Commencement Date and prorated on the basis of the number of actual days in such partial month. 4.2 ANNUAL RENT INCREASES: The Base Rental shall be automatically adjusted on each anniversary of the Commencement Date in an amount equal to three percent(3%)per year. 4.3 LATE CHARGE: LESSEE acknowledges that late payment by LESSEE to LESSOR of Base Rental will cause LESSOR to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges. Therefore, if any installment of Base Rental due from LESSEE is not received by LESSOR within fifteen. (15) days after written notice is received from LESSOR that the same is due and payable, LESSEE shall pay to LESSOR an additional sum of three percent (3%) per month of the overdue Base Rental as a late charge. The Parties agree that this late charge represents a fair and 2 LA13168E Camino Tree reasonable estimate of the costs that LESSOR will. incur by reason of such late payment by LESSEE. Acceptance of any late charge shall not prevent LESSOR from exercising any of the other rights and remedies available to LESSOR. 4.4 ADDITIONAL CONSIDERATION: As consideration to the LESSOR for entering into this Lease, in addition to the rental payments specified above, within sixty (60) days of the Commencement Date of this Lease, LESSEE shall pay to I.,ESSOR the one-time payment of two thousand five hundred dollars ($2,500.00), which shall be deemed the cost to LESSOR of the legal fees and administration required to consider, negotiate and enter into this Lease. Such payment shall not be refunded or reimbursed to LESSEE ,for any reason, regardless of whether LESSEE terminates the Leas_e pursuant to its provisions or proceeds with construction. of the Facilities. 5. PROPERTY TAXES: LESSEE recognizes and understands that this Lease may create a possessory interest subject to property taxation pursuant to Revenue and Taxation Code section 107.7 and that LESSEE may be subject to the payment of property taxes levied on such interest. LESSEE shall timely pay all property taxes and assessments directly attributable to LESSEE's possessory interest. LESSOR hereby grants to LESSEE the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of LESSOR and/or LESSEE, any personal. property or real property tax assessments that may affect LESSEE. If LESSOR receives notice of any personal property or real property tax assessment against the LESSOR, which may affect LESSEE and is directly attributable to LESSEE's installation, LESSOR shall provide timely notice of the assessment to LESSEE sufficient to allow LESSEE to consent to or challenge such assessment. LESSOR represents that it is tax exempt and therefore does not owe taxes on the Property. In no event shall LESSOR be liable for any taxes owed as a result of this Lease, except for any income taxes attributable to revenue received by LESSOR under this Lease. 6. LESSOR INSPECTION AND ENTRY; ACCESS FOR INSPECTIONS: 6.1 LESSOR and/or its authorized representatives shall have the right to enter the Premises upon.reasonable prior notice to LESSEE (which shall not be less than two (2) business days unless the LESSOR's Public Works Director determines that exigent circumstances warrant a shorter period of time, so long as such entrance does not interfere with LESSEE's use of the Premises): A. To determine whether the Premises are in good condition and whether LESSEE is complying with its obligations under this Lease. B. To do any necessary maintenance and to make any restoration to the Premises that LESSOR has the right or obligation to perform. C. To serve, post, or keep posted any notices required or allowed under the provisions of this Lease. D. To run electric or telephone conductors, pipes, conduits, or ductwork where necessary or desirable over, under, or through the Premises in a manner 3 LA13168E Camino Tree which will not unreasonably interfere with LESSEE's use of the Premises, and shall be approved by Lessee in writing. Such approval shall. not be unreasonably withheld or delayed. 6.2 LESSEE shall have the right to have an employee, contractor or representative present during any inspection by LESSOR. LESSOR shall not be liable in any manner for any inconvenience, disturbance, loss of business, or nuisance arising out of LESSOR's entry on the Premises as provided in this section, except for damage resulting from the acts or omissions of LESSOR or its authorized representatives. LESSEE shall not be entitled to an abatement or reduction of rent i E LESSOR exercises any rights reserved in this section. 7. CONSTRUCTION AND MAINTENANCE OF FACILITIES AND PREMISES: 7.1 LESSEE'S CONSTRUCTION: LESSEE shall have the right to install, construct, maintain, repair, replace, remove and operate the Facilities on the Premises that are depicted in Exhibit "B". The Parties intend that the antennas and appurtenances related thereto.which are a part of the Facilities shall be constructed on an artificial water tower and in such manner as to make the cabinetry blend into the surroundings, i.e., LESSEE shall screen the equipment. Prior to the commencement of its initial.construction, LESSEE shall submit to LESSOR plans and specifications (the "Plans") for the installation showing the size, height and appearance of the component parts of the installation. LESSOR shall have the right to approve the Plans in writing, in accordance with the requirements of all laws, ordinances, and regulations applicable thereto, including zoning requirements and building code requirements of the City of San Juan Capistrano and compliance with the Conditional Use Permit process prescribed by the San Juan Capistrano Municipal Code § 9-2.317, the County of Orange, and any municipal or other governmental agency having jurisdiction over the.Property and the Premises at the time the improvements are constructed. LESSOR's objections, if any, shall be clearly stated in writing and given in accordance with Section 17.9. Lessee shall have the right either to (i) resubmit the Plans in accordance with the same approval process as stated above, or (ii) terminate this Agreement, whereupon the parties shall have no further obligations or liabilities to each other. LESSEE may resubmit the Plans for approval by LESSOR as many additional.times as LESSEE desires. 7.2 CONSTRUCTION OF IMPROVEMENTS: All improvements to the Premises shall be made in a good and workmanlike manner, at LESSEE's expense, in accordance with the requirements of all laws, ordinances, and regulations applicable thereto, including zoning requirements and building code requirements of the City of San Tuan Capistrano, and any municipal or other governmental agency having jurisdiction over the Premises and Facilities at the time the improvements are constructed. LESSOR agrees to cooperate with LESSEE in connection with applying for any municipal permits for the construction of the aforementioned improvements. It is understood and agreed that such cooperation shall not be implied to include any expenditures of funds on the part of LESSOR or any implied promise or warranty that such permits, discretionary, or otherwise, will 4 LAI 3168E Cameo Tr" be issued to LESSEE. LESSEE shall provide reasonable notice to the LESSOR prior to entering the Premises for purposes of constructing the.Facilities, and shall coordinate the scheduling and logistics of same with the Public Works Director to avoid any interference with the LESSOR's operations, educational programs or recreational programs. Once commenced, any and all improvements made by LESSEE with respect to the installation of the Facilities shall. be diligently pursued to completion. 7.3 MECHANIC'S LIENS: LESSEE shall not allow or permit to be enforced against the Premises, or any part thereof, and shall defend, indemnify, and bold. LESSOR harmless from any mechanic's, material suppliers', contractors', tax, or subcontractors' liens arising from any claire, for damage, or growing out of the work of any construction, repair, restoration, replacement, or improvement made by or alleged to have been made by or on behalf of LESSEE. LESSEE shall pay or bond around all such liens, claims, or demands before any action is brought to enforce the same against the Premises. If LESSEE shall in good faith contest the validity of any such claim, lien, or demand, then LESSEE shall, at its expense, defend itself and LESSOR against same and shall pay and satisfy any settlement or adverse judgment that may be entered thereupon prior to the execution thereof. In the event of any such contest, LESSEE shall provide LESSOR with a security bond in a form and amount to allow the lien of record to be discharged as a matter of law. 7.4 CARE DURING CONSTRUCTION: LESSEE shall. exercise great care during construction. All applicable City standards and specifications shall be followed. 7.5 LESSEE MAINTENANCE OF FACILITIES AND PREMISES. LESSEE's maintenance of the Facilities and Premises shall include, but is not limited to: A. Maintenance of all landscaping installed.by LESSEE,if any; B. Repairs and/or replacements to LESSEE's Facilities caused by acts of third parties, including theft, graffiti, and intentional acts; C. Maintaining, in good, clean, safe, and sanitary condition and repair, all of LESSEE's personal property. All Facilities on the Premises must be maintained in a first-class condition without rust, paint, or surface deterioration. All maintenance must conform to the standards utilized and provided by LESSOR; and D. All work necessary to comply with Federal, State, County, municipal, and other governmental agencies and bodies having jurisdiction. 7.6 RELOCATION: In the event relocation is necessary due to public improvements, LESSEE will pay for relocation, provided that LESSOR provides a suitable alternate location for the Facilities at the Property. LESSEE shall relocate the Facilities within six (6) months of LESSOR's notice thereof. Notwithstanding the S LA];168E Camino'Gree foregoing, LESSOR shall not request relocation of the Facilities until after expiration of the first Renewal Term. 7.7 ABANDONMENT: If use of the Facilities is abandoned for at least six (b) months, LESSEE or its designee shall be responsible for removing the Facilities and returning the Premises to the condition as it existed immediately prior to the Commencement Date. 8. TERMINATION: 8.1 LESSOR'S RIGHT TO TERMINATE: A. LESSOR may pursue any remedies available to it under applicable law, including, but not limited to, the right to terminate this. Lease, upon the earliest of any of the following events: 1. LESSEE's failure to pay rent within fifteen (15) days following . LESSEE's continued nonpayment after delivery of written notice from LESSOR; 2. LESSEE's failure to comply with any term., covenant, or condition. of this Lease after LESSEE has been given written notice of the violation and has had thirty (3 0) days to cure same or, if such default is not curable within such thirty (30) day period, has not proceeded to commence such cure within such thirty (30) day period and diligently proceeds to completion; 3. Interference by the facilities with other pre-existing electrical or radio frequency equipment installed on or around the Property as of the Effective Date, which interference is not cured by LESSEE within thirty (30) days following written notice thereof; or 4. Interfere with. LESSOR's operations, or use of the Property by LESSOR or third parties, operating on the Property as of the Effective Date, after LESSEE has been given written notice of the violation.and has had thirty(30) days to cure same or, if such default is not curable within such thirty (30) day period, has not proceeded to commence such cure within such thirty (30) day period and diligently proceeds to completion... B. Additionally, upon a vote by LESSOR's City Council that the Premises are needed for other public purposes, LESSOR shall have the right, after the expiration of the second Renewal Term, to terminate this Lease without liability upon one (1) year's written notice of termination to LESSEE. 8.2 LESSEE'S RIGHT TO TERMINATE: LESSEE may terminate this Lease without further liability for any reason whatsoever upon ninety (90) days written notice to 6 LAI I I 09 Camino Tree LESSOR. Upon termination, all prepaid rent will be retained by LESSOR unless such termination is due to LESSOR's failure of proper ownership or authority, or such termination is a result of LESSOR's default hereunder. In the event LESSEE terminates the Lease prior to commencement of construction of the Facilities, all. LESSEE's obligations under this Lease shall terminate without further liability. 8.3 RETURN OF PREMISES UPON TERMINATION: Except as otherwise provided herein, LESSEE shall at its sole expense remove all of LESSEE's Facilities, within sixty (60) days following expiration or termination of this Lease. Upon the expiration or termination of this Lease, LESSEE shall surrender the Premises to LESSOR in a condition. at least as good as existed an the date immediately preceding the Commencement Date, less ordinary and reasonable wear and tear and casualty beyond LESSEE's control. The Parties intend that LESSEE shall: not remove or destroy any improvements to the Premises that, subsequent to surrender of the Premises by LESSEE, will benefit or be of use to LESSOR. Therefore, upon expiration or termination of this Lease, LESSOR may request that LESSEE not remove or destroy all or any portion of the LESSEE's Facilities, and, except for any electrical (other than lighting), mechanical, computer, radios, coax or similar equipment (including antennas), LESSEE shall not remove the portion of the LESSEE's Facilities that is the subject of LESSOR's written request. LESSEE shall thereafter execute any and all documents as are reasonably required to evidence that title to such improvements have been transferred to LESSOR, in their "as-is" condition. Thereafter, LESSOR shall be responsible for the maintenance, repair, removal and disposal of any such improvements retained by LESSOR. 9. INTERFERENCE: 9.1 LESSEE'S OBLIGATIONS: Prior to occupancy of the Premises and operation of the Facilities by LESSEE or its agents, assigns or LESSEE's employees, LESSEE agrees to: A. Submit to LESSOR, within forty-five (45) days prior to operation, proposed plans for antenna type and size, along with operating frequencies, and effective radiated power for LESSOR's review and approval. If LESSOR does not respond in writing to LESSEE within ten (10) days following LESSEE'S request for approval, such request will be deemed to have been approved by LESSOR. If LESSOR does not approve of the proposed plans, LESSEE may terminate this Lease immediately on written notice to LESSOR. B. Install or cause to be installed, all equipment according to generally accepted standard engineering practices and in a good and workmanlike manner. C. Use reasonable efforts to investigate the cause of and mitigate any interference caused by LESSEE on existing radio frequency equipment of LESSOR following receipt of written notification of interference from 7 LAI 3169.E Camino Tree LESSOR. 9.2 SUBSEQUENT PROPERTY LEASES: LESSOR agrees to include in all leases between LESSOR and future lessee's of the Property a covenant that the lessee shall not interfere with other electrical or radio frequency equipment previously installed on the Property and that if the lessee is not able to mitigate the interference, the lease shall provide for termination thereof. Likewise, LESSOR will not permit or allow the installation of any fixture equipment which(i) results in technical interference problems with LESSEE's then existing equipment or (ii) encroaches onto the Premises. 9.3 NON-INTERFERENCE: The communication equipment and the use thereof shall not interfere with the use of any other communication or similar equipment of any kind and nature owned or operated by LESSOR or other occupants of the Property existing as of the Commencement Date; provided, however that subsequent to the installation by LESSEE of the Facilities, LESSOR agrees not to install and to exercise commercially reasonable effort to not allow installation of new equipment on the Premises if such equipment causes interference with LESSEE's operations. All interference claims shall be settled in accordance with the then prevailing interference rules and regulations promulgated by the Federal Communications Commission.. 10.0 DESTRUCTION OF PREMISES: If either the Premises or the Property is destroyed or damaged as a result of a catastrophic event to the extent that, in LESSEE's reasonable discretion, LESSEE may no longer use the Premises for the intended purposes, LESSEE may elect to either: A. Terminate this Lease, effective upon the date of the damage or destruction, by delivering written notice within ninety (90) days of the date of the damage or destruction and a request to terminate; or B. Upon consent of LESSOR, which shall not be unreasonably withheld, conditioned or delayed, use a portion of the Premises specified by LESSOR for provision of communication services on a temporary basis until such time as the LESSEE's Facilities on the Premises are repaired or reconstructed so that LESSEE can resume the provision of Communication. Services from the Premises. If LESSEE elects to continue this Lease and in the event that LESSOR unreasonably delayed its consent for LESSEE to install the temporary facility in order for LESSEE to continue its operation, Rent shall abate for the period of non-use. Any such repair or reconstruction shall be completed in an expeditious manner. 11. UTILITIES AND PROVISION OF SERVICE: LESSEE shall determine the availability of and shall, at its sole cost and expense, cause to be installed in, on, and about the Premises all facilities necessary to supply thereto all electricity, telephone, and other similar services required to service the Premises. LESSOR shall allow LESSEE to have its own electrical metering equipment installed. LESSEE shall obtain all necessary approvals for the installation of the meter. An electrical plan shall be submitted to LESSOR for approval, which approval shall not be unreasonably withheld., conditioned or delayed prior to commencement of such work. LESSOR s LA.]3168E Caaniaao'Free agrees to cooperate with LESSEE in its efforts to obtain such utility service. During the initial Term and any and all Renewal Terms, LESSEE agrees to pay directly to the servicing utility when due all charges `for electricity, telephone and all other utility services of every kind and nature supplied to and used by LESSEE on the Premises. LESSOR shall be responsible for its electrical and other utility service and for the regular payment of electrical and other utility charges attributable to the Property other than the Premises. 12. INDEMNIFICATION AND INSURANCE: 12.1 INDEMNIFICATION: Neither LESSOR nor any other officer or employee of LESSOR shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of LESSEE or its officers or employees under this Lease. It is also understood and agreed that to the fullest extent permitted by law, LESSEE shall indemnify, defend (with counsel reasonably acceptable to LESSOR), protect and hold harmless LESSOR and its officers, agents and employees, ("LESSOR's Parties") from and. against any and all claims, demands, judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) to the extent caused by (i) any default in the performance of any obligation by LESSEE to be performed under the terms of this Lease, (ii) LESSEE's use of the Premises, or (iii) the conduct of LESSEE's business or any activity, worm or things done; permitted or allowed by LESSEE in or about the Premises, except to the extent caused by LESSOR's,' LESSOR's Parties' or LESSOR's contractors', LESSORs', guests', invitees', or licensees' negligence or willful misconduct. The obligations of LESSEE under this section shall survive the expiration or earlier termination of this Lease. 12.2 ASSUMPTION OF RISK: LESSEE, as a material. part of the consideration to LESSOR, hereby assumes all risk of damage to the Premises, including, without limitation, injury to persons in, upon or about the Premises during LESSEE's use of the Premises, arising from any use of the LESSEE's Facilities or other activities of LESSEE or LESSEE's agents, employees, guests, or invitees (collectively "LESSEE's Parties") on the Premises. LESSEE hereby waives all claims with respect thereof against LESSOR, except as otherwise stated in this Lease. LESSOR shall not be liable for any injury to LESSEE's Facilities, Premises, or injury to or death of any of LESSEE's Parties, or injury to LESSEE's Facilities, or injury to or death of any other person in or about the Premises from any cause except to the extent such is caused by the negligence or willful misconduct of the LESSOR, LESSOR's Parties, or LESSOR's agents, contractors, tenants, guests, invitees, or licensees. 12.3 INSURANCE: A. Casualty Insurance: During the term of this Lease, LESSEE shall, at its sole cost and expense, beep LESSEE's interest in the Premises and the Facilities, including any improvements thereon both in the course of construction and through the remainder of any term of this Lease, insured by responsible insurance companies, licensed to do business in. the State of 9 JAI 3168E Camino Tree California or self-insurer, against loss or damage by fire and other such casualties as are included in extended coverage. Such coverage shall include stipulated value, vandalism and malicious mischief endorsements, in such amounts so as to provide for the then actual replacement cost of all improvements on the Premises. B. LESSEE agrees, at its sole expense, and at all times during the term of this Lease, to maintain in full. force, or cause to be maintained in fill force, a policy or policies of commercial general liability insurance in an. amount of ONE MILLION DOLLARS (S1,000,000.00), including property damage, written by one or more responsible insurance companies licensed to do business in the State of California or a self-insurer. LESSEE shall ensure that LESSOR is named as an additional insured and such additional insured certificate shall be provided to LESSOR prior to the commencement of any work. Such policies shall insure against liability for injury to persons and/or property and death of any person or persons which may occur as a result of or in connection with LESSEE's negligence in, on or about the Premises. 1.3. DAMAGE OR DESTRUCTION OF IMPROVEMENTS TO PREMISES: LESSOR shall have no duty or obligation to rebuild the Facilities or the improvements thereon if such Facilities or improvements are substantially damaged during the Term, in whole or in part by any casualty. LESSOR will give LESSEE notice. of such casualty within thirty (30) days after the date of the casualty. In such event, LESSEE shall have the right to terminate this Lease upon delivery of written notice to LESSOR. 14. ASSIGNMENT AND SUBLEASING: 14.1 ASSIGNMENT: LESSEE shall not voluntarily assign or transfer its interest under this Lease or in the Premises without first obtaining the prior written consent of LESSOR, which consent shall be not unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, the transfer of the rights and obligations of LESSEE to a parent, subsidiary, or other affiliate of LESSEE, or to any successor in interest or entity acquiring fifty-one (51%) or more of LESSEE's membership interests or assets, shall be deemed a permitted assignment and LESSOR's consent shall not be required for such transfer. Any assignment without LESSOR's consent (when such consent is required) shall be voidable and, at LESSOR's election, shall constitute cause a default for exercise of LESSOR's remedies under applicable law, including termination of the Lease. No consent to any assignment shall constitute a further waiver of the provisions of this section. In the event of an assignment by LESSEE, LESSEE shall be released from liability hereunder by virtue of any assignment. As a condition. precedent to any such assignment which requires LESSOR's consent, LESSEE agrees to provide written notice to LESSOR of its intention to assign at least thirty (30) days before the proposed effective date of any such proposed assignment which notice shall include the identity of the proposed assignee, copies of the proposed assignment documentation and proof that the proposed assignee is financially capable of 10 LAI 3169F Camino Trey performing under this Lease. As a further condition precedent to any assignment, the assignee.must assume, in writing, all of LESSEE's obligations under this Lease. 14.4 Additionally, LESSEE may, upon notice to LESSOR, collaterally assign. or grant a security interest in this Lease and the Facilities, and may assign this Lease and the Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively „Secured Parties"). In such event, LESSOR shall execute such consent to leasehold financing as may reasonably be required by such Secured Parties. 14.3 SUBLEASING: LESSEE shall not sublease any portion of the Premises without first obtaining LESSOR's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. In the event of a sublease, Lessor shall receive from Lessee twenty-five percent (25%) of the monthly rent actually received by Lessee from the sublessee. However, LESSEE shall be permitted to sublease portions of the Premises to a wholly-owned subsidiary of LESSEE for no additional rent, provided LESSEE provides LESSOR with express written notice of such sublease. 14.4 COLLOCATION: LESSEE shall cooperate with future communications operators that would request collocation as long as there is no adverse impact on LESSEE from an operational, interference, maintenance, and repair standpoint. 15. RENEWALMOLDING OVER: Upon the expiration or termination of this Lease, LESSEE shall surrender the Premises to LESSOR. If LESSEE shall remain in possession of the Premises after the expiration or termination of the Lease, with the consent of LESSOR, either express or implied, such holding over shall be construed to create a month to month tenancy subject.to all the covenants, conditions, and obligations hereof, and LESSEE hereby agrees to pay LESSOR, as monthly rental, an amount equal to one hundred twenty-five percent (125%) of the most recent monthly rental price. Nothing above shall be construed to give LESSEE any rights to so hold over and to continue in possession of the Premises after the expiration of the Term. without the express consent of LESSOR. 16. ENVIRONMENTAL: LESSOR represents that it has no knowledge of any substance, chemical or waste on the Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. LESSOR shall not introduce any hazardous substances onto the Property in violation of any applicable law. LESSOR.shall be responsible for, and`shall promptly conduct any investigation and remediation as required by any applicable environmental laws, all spills or other releases of any hazardous substance not caused by LESSEE, that have occurred or which may occur on the Property. LESSEE and its agents, employees, or contractors subcontractors or other representatives shall not bring upon the Premises, or permit or authorize any other person or entity to bring upon the Property, including the Premises, any hazardous materials, hazardous substances, hazardous wastes, pollutants, asbestos,polychlorinated biphenyls (P(Bs), petroleum or other fuels (including crude oil. or any fraction or derivative thereof). Notwithstanding the foregoing, LESSEE may bring such fuels and lubricants onto the Premises as may be required for operation.of construction vehicles during construction and backup power for generators during, maintenance or repair of the LESSEE's Facilities. In addition, 11 LA 131 681,Canino'free LESSEE may also bring onto the Premises, any lead-acid batteries, cleaning solvents, and other chemicals necessary for Proper utilization and maintenance of the LESSEE's Facilities. In bringing any materials or substance onto, or using any materials and substances on, the Premises, LESSEE shall comply with all federal, State, and local government laws, regulations, and rules. LESSEE shall be solely responsible for any damages or costs incurred by LESSOR due to any environmental contamination to the extent caused by LESSEE...,'s use of any hazardous materials or substances that LESSEE, its .agents, employees, contractors, subcontractors or other representatives bring onto the Premises. Each party agrees to defend, indemnify and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and liability (collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and reasonable attorney fees that the indemnitee .may suffer or incur due to the existence or discovery of any hazardous substances on the Property or the migration of any hazardous substance to other properties or the release of any hazardous substance into the environment (collectively, "Actions"), that relate to or arise from the indemnitor's activities on the Property. 17, MISCELLANEOUS: 7.7.1 NO WAIVER: No covenant, term, or condition thereof shall be deemed waived, except by written consent of the Party against whom the waiver is claimed. Any waiver or the breach of any covenant,term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term, or condition. Acceptance by LESSOR of performance other than full performance by LESSEE after the time the performance shall have become due shall not constitute a waiver by LESSOR of the breach or default of any covenant, term, or condition unless otherwise expressly agreed to by LESSOR in writing. 17.2 ATTORNEY'S FEES AND COSTS: If either Party hereto shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by LESSOR for the recovery of rent or possession of the Premises, the prevailing Party shall be entitled to have and recover from the other Party the prevailing Party's reasonable fees and costs (including attorneys' fees), which shall be deemed to have accrued on the commencement.of such action and shall be paid whether or not such action is prosecuted to a judgment. 17.3 NO JOINT VENTURE: Neither LESSOR nor any of its employees shall have any control over the manner, mode or means by which LESSEE, its agents or employees, use the Premises or Facilities described herein, except as otherwise set forth herein. LESSOR shall have no voice in the selection, discharge, supervision or control of LESSEE's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. LESSEE shall. perforam all covenants herein as a tenant of LESSOR and shall remain at all times as to LESSOR a tenant with only such obligations as are consistent with that role. LESSEE shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of LESSOR. LESSOR shall not in any way or for any purpose become or be deemed to be a partner of LESSEE in its business or otherwise or a joint venture or a member of any joint enterprise with LESSEE. 12 LA73168F CaTuino Tree 17.4 INTERPRETATION: The Parties hereto agree that all provisions hereof are to be construed as both covenants and conditions as though the words imparting such covenants and conditions were used in each separate section hereof. The captions of the sections and subsections of this Lease are for convenience only and shall not be deemed to be relevant in resolving any questions of interpretation or construction. 17.5 INTEGRATION AND GOVERNING LAW: This Lease represents the entire understanding of LESSOR and LESSEE as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Lease. This Lease shall be governed by the laws of the State of California and construed as if drafted by both LESSOR and LESSEE. Any action, arbitration, mediation, hearing or other proceeding related to this Lease shall be conducted only in the County of Orange. 17.7 LEASE BINDING ON HEIRS AND ASSIGNS: Each of the terns, covenants, and conditions of this Lease shall extend to, be binding upon, and inure to the benefit of not only LESSOR and LESSEE, but each of their respective heirs, representatives, administrators and assigns. Whenever in this Lease reference is made to either LESSOR or LESSEE, the reference shall be deemed to include, whenever applicable, the heirs, legal representatives, and assigns of each of the Parties, the same as if in every case expressed. 17.8 CORPORATE AUTHORITY: Each party executing this Lease on behalf of a corporation represents and warrants that he or she is duly authorized.to execute and deliver this Lease on behalf of said corporation and that this Lease is binding upon said corporation in accordance with its terms. 17.9 NOTICES: Any written notices required pursuant to this Lease shall be made by certified or registered mail, return receipt requested, or reliable overnight courier and delivered to the following address: To LESSOR: City of San Juan Capistrano 32400 Paseo Adelanto San.Juan Capistrano, CA 92675 Attn. City Manager Copy to: Woodruff, Spradlin& Smart 555 Anton Blvd. Suite 1200 Costa Mesa,CA 92626 Attn: Omar Sandoval, City Attorney To LESSEE: T-Mobile USA, Inc. 12920 SE 38 Street Bellevue, WA 98006 Attn: PCS Lease Administrator/LAI.3168 13 LAI 3168E Camino Tree Attn: Legal Department/ LA13168 Copy to: `I'-Mobile West Corporation 2008 McGaw Avenue Irvine, C.A. 9261.4 Attn: Lease Administrator Manager/LA13168E Attn: Legal Department/LAI3168E 17.10 AMENDMENTS: This Lease may not be modified, altered, or amended except in writing signed by both LESSOR and LESSEE. The City Council assigns to the City Manager signature authority to execute future Lease amendments and extensions for periods not more than two ( ) years each and provided that the City Manager shall not have the authority to approve a decrease in the Base Rental. rate without the prior approval of the City Council. [SIGNATURE PAGE FOLLOWS] 14 1,A13168E Camino Tme TN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed by their duly authorized officers. LESSOR LESSEE CITY OF SAN JUAN CAPISTRANO, a T-MOBILE WESTCORPORATION, a California municipal corporation Delaware corporation By: Mayor By: Date: Name: TAX ID#: Title: ATTEST Date: Approved as to form:: City Clerk Approved as to form: _ Attorney City Attorney 15 LAJ 316SE Camino'17ca EXHIBIT A DESCRIPTION OF THE PROPERTY PARCEL 1: THOSE PORTIONS OF SECTIONS 25 AND 36,TOWNSHIP 7 SOUT14 RANGE 8 WEST, SAN BERNARDrNO BASE AND MERJDIAN,AND THAT PORTION OF LOT 6 OF TRACT NO, 112, AS SHOWN ON MAP RECORDED IN 1300K 11.PAGE 12 OF"MISCELLANFOUS MAPS, RECORDS OF ORANGE COUNTY,CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF SAID LOT 6 WITH A LINE PARALLEL WITH AND DISTANT 40.00 FEET NORTHEASTERLY,MEASURED AT RIGHT ANGLES, FROM 'rHv-CENTER LINE-OF THE CALIFORNIA STATE- HIGHWAY, AS DESCRIBED IN[ THE, DEED RECORDEDMARCH 22, 1916 IN BOOK-281,PAGE 245 OF DEEDS, RECORDS OF SAID COUNTY-,THENCE SOUTH 51 DEGREES I l'00"EAST, 131-99 FEET ALONG SAID PARALLEL LINE TO THE NORTHWESTERLY LINE OF THAT CERTAIN 20,00 FOOT-WIDE.STRIP OF LAND DESCRIBED IN A DEED TO THE STATE OF CALIFORNIA, RECORDED MARCH 30, 1934, IN BOOK 660 PAGE 483 OF OFFICIAL RECORDS-,THENCE NORTH 38 DEGREES 49' 00- EAST, 10.00 FEET TO THE MOST NORTHERLY CORNER OF SAID 20.00 FOOT WIDE STRIP OF LAND., THENCE SOUTH 51 DEGREES I I' 00' EAST 91 1.91 FEET TO THE MOST EASTERLY CORNER OF SAID 20.00 FOOT WIDE STRIP OF LAND:THENCE NORTH 38 DEGREES 49'00" EAST 14,76 FEET ALONG THF NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF SAID STRIP OF LAND; 7 HENCE NORTH 38 DEGREES 49' 01" WEST,291.39 FEET. TFIENCL NORTH 46 DEGREES 20' 54"WEST 368.64 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2870,00 FEET,A RADIAL LINE TO THE CENTER OF SAID CURVE;BEARS SOUTH 40 DEGREES 32'45" WEST-,THENCE NORTHEWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF I DEGREE.43'45". A DISTANCE OF 86-62 FEET: THENCE TANGENT TO SAID CURVE NORTH 51 DEGREES I 1` 00"WEST,680.35 FEET; THENCE SOUTH 38 DEGREES 491 00"WEST, 108.21 FEET TO THE BEGINNING OF A NON- TANGEENT CURVE CONCAVE NORTI-LEASTERLY HAVING A RADIUS OF 2560.00 FEET, A RADIAL LINE TO THE CENTER OF SAID CURVE BEARS NORTH 44 DEGREES 18° 37"EAST: THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF'5 DEGREES 29' 37,A DISTANCE OF 245.46 FEET TO THE POINT OF TANGENCY WITH THE FIRST FIERE[N MENTIONCD PARALLEL LINE-,THENCE SOUTH 51 DEGREES I I' 00"EAST, 131.89 FLET TO THE POINT OF BEGINNING. EXCEPTING THAT PORTION DEEDED TOTHE ORANGE COUNTY FLOOD CONTROL DISTRICT., DESCRIBED AS FOLLOWS: A STRIP OF LAND, 170 FEET WIDE, INT THOSE,PORTIONS OF SECTION'S 25 AND 36,TOWNSHIP 7 SOUTH, RANGE 8 WEST, SAN BERNARDINO MERIDIAN,ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THIS DISTRICT LAND OFFICE,AS DESCRIBED IN THE DEED TO CHARLES R. WILLIAMS, RECORDED JULY 12. 1961 IN BOOK 5792, PAGE 373 OF OFFICIAL RECORDS,FN THE OFFICE OF T14E COUNTY RE-CORDER OF SAID COUNTY, SAID STRIP LYING 85,00 FEET ON EACH SIDE OF A LINE HAVING A BEARING OF NORTH 5 DEGREES 17' 04" EAST AND PASSING THROUGH A POINT OF THF CENTER LINE OF THAT CERTAIN STRIP OF LAND. 60 rEET WIDE, DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED MARCH 22, 1916,IN 1300K 281,PAGE 245 OF DEEDS, CN THE OFFICE OF SAID COUNTY RECORDER, SAID File Number: 183299 Nlvc 3 of 7 EXHIBIT "Ayl BEING DISTANT ALONG SAID CENTER LrNE NORTH 51 DEGREES I POO' WEST,267,98 FEET FROM A LEAD AND TACK,MARKING THE NORTHERLY TERMINUS OF THA CERTAFNTCURVE CITED AS HAVING A RADIUS OF 900 FEET,A CENTRAL ANGLE OF 40 DEGREES 5=4' AND AN ARC LENGTH OF 571-07 FEET IN THE CENTER LINE OF THATCER-TA N, STRIP OF LAND,60 FEET WIDE, DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1925 IN BOOK 557, PAGE 305 OF SAID DEEDS. EXCEPT THAT PORT ION THEREOF INCLUDED WITHIN THAT CERTA IN. STRIP OF KABDM 100 FEET WfDE, DESCRIBED IN DEED TO THE ORANGE COUNTY FLOOD CONTROL DISTRICT., RECORDED AUGUST 27, 1937 IN BOOK 898 PAGE 576 OF SAID OFFICIAL RECORDS. PARCEL-2- A NON-EXCLUSIVE BASEMENT FOR PUBLIC UTILITY AND PIPE LINE PURPOSES fNCLtJDFJ\IG THE RIGHT TO REPLACE,REMOVE, REPAIR AND MAINTAIN SAID PIPE LINE OR LINES OVER, THROUGH, UNDER AND ALONG THAT PORTION OF LOT 6 OF TRACT NO.112. AS SHOWN ON A MAP RECORDED INT BOOK 11, PAGE 12 OF MISCELLANEOUS MAPS,RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF SAID LOT 6 WITH AND DISTANT 40-00 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES FROM THE CENTER LINE OF THE CALIFORNIA STATE HIGHWAY,AS DESCRIBED IN A DEED RECORDED MARCH 22, 1916 IN BOOK 281,PAGE 245 OF DEEDS;THENCE NOr:FH 51 DEGREES 11' 00" WEST 131,99 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 2560.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5 DEGREES 29'37 A DISTANCE OF 245.46 FEET, SAID POINT BEING THE TRUE POINT OF BEGINNING;THENCE NORTH 38 DEGREES 49' 00" CAST 108.21 FEET;THENCE NORTH 51 DEGREES I F 00"WEST 5.00 17 -EET; THENCE SOUTH 38 DEGREES X19' 00"WEST 107.73 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING; A RAD:JL_TS OF 2560 FEET.A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 44 DEGREES 25-22"WEST: THENCE, SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0 DEGREES 06' 45'A DISTANCE 0F5.03 FEET TO THE TRUE POINT OF BEGINNING. (End of Legal Description) File Number: 183299 Nge 4 of 7 ® 11. Iz I TO PIANS PREPARED BY: obi e - GPIINFMM DESIGN GAGGPx LMC SITE NUMBER: LA'13168E CITY: SAN JUAN CAPISTRAN® COG#°i 93°'x, C)RSULFING GROUP: SITE NAME: CAMINO TREE COUNTY. ORANGE TF[F �LANN SITE TYPE: RAWLAN® JURISDICTION: CITY OF SAN JUAN CAPISTRANO coNAS0P KfNG EscRlprrow a•n PROJECT SUMMARY: - SMIEE7INOEX: - YICINITY MAP' """ """"" S:TE AnnEFSS. ! `" .. _ 2 ;09/1.1/19', :POS 705 � SA snr9i-?.n�lM �- ^r 925]5 5h1EE7 NUMRF.F:�FSfp.IRTION: j i1l/i3/10 PiANNING UpC _ ! LOkMENfS P3�iPE9''''9wNFa- a-1 Trn.E SkEET i i a iti/19/191 °oG�ZA'S aac 7 5 t2/48/1of `:00xZf15 { JPC C-3 -OPOGRAPH�SJ,Yr`EY G°EllfLfNL i .OECCRAPH.c$u k: f.f Im .�_�€ _�__.... 7>.1C3 i E,Se_ A-: 5"[E?IAN 05 uc!-SW A-2 ENLARC SRE PLAN -; CC I�IIN CA 926 4 J,D�= A-4 ARCHHECT'JRAL ELEYA1lCN5 M aN JOEEEIIT ._- 5:, N A. CRGah 7n may( .J•te::\ L-, LANG2CAPE FYANi1NG PLAN.DETNLS A - 3 ICE A NEN B O TALI S L p R SiLOC�W'r4 fA \ R W/- 3 J - @� SITE INFaR;wAnow or sa 51CAIV[IIVQ TREE SYe h. -hal .'. .N.�,.{ VG - PROJECT AREA \\ \ LA 3168E znca :c e; c. r ro � 29822EAAAHO� 1C.E) j I \ i 80.N.i14A/d GPISGI5TRAW,H0.Ntl-CA s2aT5 2GNa;G- GENERAL OPEv SPACE(GqS) _ �014L LS45C AR q'. §'16 5O s: - r:;CS�;!i6 CONSULTING TEAM: APPROVALS: s c'f - 2116,FOLLG'+„1Nc—IT$HTT[p a NU AND ACCEPT S : i bR AZIhJ H C_n ti,: gat { inn r & N OE COAX Nes Coax 3Wti3= CDAx -N3 N SPC/ZO.'\'1NG/Pr'RMTEitf,: ARC'S f'P,iR4 ,yyC1YcLR3NC- GOCUV I AM AVRiJRIZE THE CVWfIA I.TC PRGCEEn Wirif T4i - YPE PUNNING COu$0Rnl,M COG-CONNELL DESIGN GROUP,L.L.C. ^CN6'IRilt110ry pE5CKt9F0 HEREIN ALi CON5TRvC1pH CBcu MEN"$ARE - a 7/6- U 1 $uR.JECT'C REVIEW g F LOM BULDINO CEPARTMEhn AND AN, A �� .C: aM a $27 N MAtN ST 456.5 MACARTHUR COURT S:E 480 „NLIOE$AND MCO,nCArpNS"El M+v W105E. ~B ORANGE,CA 92Be5 rvUsp2�acP, 92660 - PHONE:(714)SS9-05,6 CCNIA11'Los CONNg2j VijINT NAME A I;ATF FAX:(]14)569-C32] PHONE (9A8}306-4690 LkNDLORD - - AiA rDEVELOP. 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Dave Adams, Interim City Manager FROM: Grant Taylor, Development Services Director SUBJECT: Conditional Use Permit (CUP) 09-013, T-Mobile Cell Site on City Property; a Request to Develop and Maintain a Wireless Telecommunications Facility Located at 29932 Camino Capistrano and more Specifically Referred to as (APN 650-023-09). (T-Mobile) RECOMMENDATION: Open the public hearing, receive testimony, close the public hearing and by motion approve the attached resolution thereby approving the proposed wireless telecommunications facility. Or Open the public hearings receive testimony, close the public hearing and by motion continue the item until the license agreement has been approved by the City Council. SITUATION: This is a new request for review and approval of a revised Conditional Use Permit application. On April 13, 2010, the Planning Commission denied a proposed faux eucalyptus tree. The applicant appealed the action to the City Council and presented a revised design. On July 6, 2010, the City Council upheld the Planning Commission's denial of the proposed faux eucalyptus design and remanded the revised design back to the Planning Commission for refinement of design details and action on the proposed project. The applicant's redesigned wireless facility is 58'-3" faux water tank that screens twelve paddle style antennas acrd six pieces of ground mounted equipment beneath the structure that are enclosed by an 81-0" tall wrought iron fence. The proposed design facility has the ability to collocate another carrier in the future, without any modification to the water tank. The applicant and the City have fully negotiated the terrors of the lease agreement and have been agreed to in principal. This agreement has been sent to the corporate offices of T-Mobile for final consideration and adoption. This agreement would be brought back to the City Council for approval. The proposed project has been conditioned to not ATTACHMENT 2 Agenda Report Page 2 April 19, 2011 permit the submittal of plans for building permits until such time that the lease agreement has been adopted. Summary and Recommendation: The proposed design is reflective of the design direction provided by staff and the DRC and appropriately screens the proposed cellular site. Further the proposed and existing trees will further reduce the potential visual impact of the facility. At the direction of the DRC, the item will be conditioned to be returned back to the DRC for final design refinement of the construction plans. The DRC had concerns with the lack of details in the design, however understood the reticence of the applicant to produce construction documents without first obtaining approval of the Conditional Use Permit. Staff finds that this design appropriately satisfies the necessary findings for a Conditional Use Permit and is appropriately conditioned to provide for necessary checks that the design is appropriate. Therefore staff would recommend approval. Stat'Analysis: The applicant initially proposed a faux water tank that consisted of a panel wood design that was directly adjacent to the freeway and due to the proposed location would have diminished the viability of.the existing Christmas tree farm, as it would have been located in the middle of their sales area. Also, the placement of the structure further north along Camino Capistrano would have placed the structure in line of sight of the Swanner House, creating a potentially false sense of history. To be consistent with previous DRC direction for a faux water tank on a different site, staff recommended that the proposed design be modified to a design which was more rustic in appearance and was consistent with a more authentic design. Furthermore staff recommended that the site be located further south on the property, thereby reducing the view and land use impacts on the existing Christmas tree farm and 5wanner House. The applicant relocated the structure further south and redesigned the structure consistent with staff's direction. Further modifications to the design based upon the direction from the DRC further refined this design. The applicant increased the height of the water tank from16'-O" to 18'-3" while maintaining the overall height of 58'-Y. The equipment enclosure has been modified from the original wrought iron design. The modified design now consists of a "Mission slump by Orco Block" with grout color to match and incorporates climbing vines. The applicant has specified on the plans the steel support legs are to be painted with faux wood appearance color to be various shades of brown to represent faux wood grain and will be "squared" and not round, The DRC had a general concern with the lack of details provided in the pians. Due to this concern the DRC required that the project be referred back for final review of the construction documents, landscape plans, and colors and materials to be used. The applicant has provided an arborist report on the poor'health of the trees in the existing eucalyptus grove (see Attachment 2, Arborist Report). The report establishes Agenda Report Page 3 April 19, 2011 the site has an existing 107 trees. Of the 107 existing trees, 33 are recommended to be removed, with the balance of the 74 trees to be treated. Based upon this report the applicant has provided additional plantings of"silver dollar" eucalyptus, as this variety is less susceptible to infestation and disease. The landscape plan provides for an effective compliment to the existing and proposed treated trees. This overall approach will effectively reduce the potential visual impacts.Site photos have been provided to depict the current state of site conditions and landscaping (see Attachment 3, Site Photos). The City's Historic Preservation Manager has reviewed the project and determined that the proposed location and design would be appropriate, and did not create a false sense of history. While the proposed structure does not directly connect to an existing structure it does not appear out of place and appropriately connects to the surrounding environment, because of the rural and agrarian design of the proposed faux water tank. The proposed design is reflective of the design direction provided by staff and the DRC and appropriately screens the proposed cellular site. The proposed and existing trees will further reduce the potential visual impact of the facility. At the direction of the DRC., the item will be conditioned to be returned back to the DRC for final design refinement of the construction plans. The DRC had concerns with the lack of details in the design, however understood the reticence of the applicant to produce construction documents without first obtaining approval of the Conditional Use Permit. Staff finds that this design appropriately satisfies the necessary findings for a Conditional Use Permit and is appropriately conditioned to provide for necessary checks that the design is appropriate. 1"indinqs. Conditional Use Permits: Section 9-2.317 of the Title 9, Land Use Code establishes the following findings required for approval of a Conditional Use Permit: Are the proposed use and design consistent with the ma s and olicies of the General Plan? The proposed project is consistent with the General Plan policies and objectives, in particular the Community Design Element because that element implements the City's design objectives through the adopted Architectural Design Guidelines. The proposed location of the antennas would be consistent with the City's Architectural Design Guidelines, and more specifically: Section 2(a) which states that, "facilities should not be discernible from public rigfrt-of-ways or open space areas;" and, Section 2(c) which states that, "cellular and wireless facilities should be screened by structures and or landscaping;" and, Section 3(a) which states that the, "wireless communication antennas should be integrated within the overall building and/or landscape design" Agenda Report Page 4 April 19, 2011 Due to the location of the facility within proximity to the northern entry to the community and northwest opens space areas great consideration is necessary in the proposed design. The proposed design appropriately draws on the western agrarian aesthetic that is complimentary to the rural character of the northwest open space area. The proposed design effectively mitigates any potential visual impacts and does not create a false sense of history due to the proposed location and high quality design. In addition the conditions requiring final construction plans to be reviewed will further mitigate the potential visual impacts. Because the proposed wireless facility locates all antenna related equipment in a wholly enclosed structure and the proposed structure is further screened by additional landscaping, the proposed project is found to be consistent with the General Plan. Are the proposed use and design.consistent with the purpose, intent and standard's of the Land Use Code and any applicable specific plan or comprehensive development plan, except as otherwise approved? The proposed project is located within the Community Park (CP) zone: district which specifically allows cellular antennas, subject to approval of a Conditional Use Permit. The purpose of the CUP is to provide the City with the legal authority to impose conditions to mitigate the adverse aesthetic effects of cellular antenna. The proposed design meets all setback requirements, is located over 300'-0' from the nearest residential district and the design integrated into the building. The proposed structure adequately screens all proposed antenna related equipment in a wholly enclosed ancillary structure designed as a faux water tank. Because the proposed facility satisfies all development standards and has been designed to fully screen and mitigate any potential visual impacts associated with the proposed wireless telecommunications facility, the proposed project is found to be consistent with the Title 9 of the Municipal Code. Is the site for the proposed use adequate in size and shape to accommodate all ares open saces setbacks. walls and fences, parking and loading areas, fire and building code considerations trash and recycling enclosures and other features pertaining to the application? The proposed site is adequate in size and shape to accommodate the proposed project and is consistent with this finding. Due to the limited onsite access, exclusively for the maintenance access to the structure no significant areas are dedicated to parking and loading areas. The proposed use dues not generate trash and therefore would not be required to provide trash and recycling enclosures. The proposed project meets all setbacks for the Community Park (CP) zoning designation. Therefore because the proposed project site meets all setback requirements, does not create or propose significant site access or refuse and accommodates building and fire code considerations the project site is found to be of adequate size to accommodate the proposed project. Are the proposed use and the on- oin o enation of the use compatible with abutting ra erties and the permitted uses thereof, and will not generate excessive light, noise vibration odors visual blight, traffic or other disturbances nuisances or hazards? The proposed use does not generate excessive noise, light, vibration or odors. To .mitigate potential visual blight, the proposed project has been designed to be screened by a faux Agenda Report Page = April 19, 2411 water tank of a western agrarian design. This design direction is consistent with the adjacent properties. Further the prVd8ed use does not generate a significant amount of traffic; the vehicular traffic gene'at6d is for the purposes of maintenance of the proposed facility. Therefore due to the limited impacts generated by the proposed use and the design of the screening structures the proposed use is compatible with abutting properties. Does the site for the proposed use have ade uate access and arkin to support the use? The proposed use does not create significant vehicular trips and at most would generate an ADT of 0.20 (1 trip per 5 days) which would not create significant demands for parking. Occasionally support personnel need to visit the site for repairs or maintenance, otherwise the site is unmanned. Due to the limited visitation to the site the proposed project is consistent with this finding. COMMISSIONIBOARD REVIEW AND RECOMMENDATIONS: DATiIONS: On April 13, 2010, the Planning Commission, after considering the proposed faux eucalyptus tree design, the poor health of the existing grove of eucalyptus trees, and the long term suitability of the site, denied the proposed Conditional Use Permit (CUP). The City Council considered an appeal of the Planning Commission's denial on July 6, 2010 and upheld the Commission's action to deny the proposed faux eucalyptus. The applicant had presented an alternative design consisting of a faux water tank, which the City Council favored and remanded to the Planning Commission for refinement of the design details and for final action on the proposed project. On August 10, 2010, the Planning Commission considered the revised design (faux water tank) and referred the project design to the Design Review Committee for review and recommendation. On October 7, 2010, the DRC considered the proposed project design and provided the following comments: 0 All diseased eucalyptus trees need to be removed. ® The proposed wood support "leg„ design is acceptable. 0 All trees that have been topped and damaged need to be removed. 0 The proposed decomposed granite-surfaced access road is acceptable. The landscape plan should include minimum 15 gallon, Eucalyptus trees. e The tank diameter should be reduced. 0 The dimension of the woad support "legs" should be reduced. ® The tank height should be increased. M Provide proposed color finish for the tank. . 0 Install Eucalyptus trees on-the south side of the lot. Install Coast live oafs (Quercus agrifolia) along the south side of the parcel. r The slump stone wall shall be Orco Block "Mission Slump„ wI grout color to match block. Agenda Report Page 6 April 10, 2011 Keep the existing site Surface as natural as passible and only remove dead trees and other associated fill, The DRC provided their comments to staff and to the architect and requested that the project be redesigned accordingly based on the DRC comments and return back to the DRC along with a landscape plan. The DRC during the November 18, 2010 meeting provided informal comments to staff regarding clarification of the proposed cellular facility. Specifically the DRC asked for clarification of what identified trees are to be removed and the phasing of their removal. In addition the DRC asked for clarification of the color of the proposed slump stone.. The DRC continued the project for further consideration to the December 2, 2010 meeting. The DRC during the December 2, 2010 meeting considered the application and provided the following comments: Overall the conceptual design is appropriate; however the plans are missing specific detail_ Additional trees are necessary along the northwest property lino to replace the removed trees. The arborist's report is somewhat minimal and additional information is necessary, specifically the replacement species of Eucalyptus needs to be identified The support legs need to be squared and not round, as the use of "telephone poles" was not present in historical examples of water tanks. Slump stone block is an appropriate enclosure material, needs to be a dark earth tone and consistent with previous direction. Gussets need to be used in the final design, as this connection was traditional for the type of water tank's support structure. The DRC forwarded the project with a recommendation of approval to the Planning Commission for consideration with the condition that the final landscape plan, colors, details is referred back to the DRC following Commission action. On December 14, 2010 the Planning Commission reviewed the proposed project. A motion to approve the proposed project failed by a 3-3 vote and was determined by the City Attorney to constitute an action, since the no determination was made by the action, the proposed project was referred to the City Council for final consideration. FINANCIAL CONSIDERATIONS: There are no financial costs associated with the proposed project. The applicant would make all necessary improvements at their cost. Additionally the City would receive lease revenues during the duration of the lease. The full terms of the proposed lease agreement will be presented to the City Council at a future date. Agenda Report Page 7 April 19, 2011 NOTIFICATION: Pursuant to Title 9, Land Use Code, Section 9-2,302(f), Notification Procedures, a public hearing notice has been mailed to all property owners (as.listed on the Orange County Real Property Tax Assessment rolls) within one-thousand (1000) feet of the project, has been published in the Capistrano Valley.News at least ten (10) days prior to the hearing, and has been posted at three public locations (see Attachment 3, Public Hearing Notice). Copies of this agenda item have been provided to the applicant and their representative, RECOMMENDATION: Open the public hearing receive testimony, close the public hearing and by motion approved the attached resolution thereby approving the proposed wireless telecommunications facility, Or Open the public hearing receive testimony, close the public hearing and by motion and continue the item until the license agreement has been approved by the City Council. Respectfully submitted, Prep ed by: Grant Taylor, (4Jstin stip Director of Development Services Icenior Management Analyst Attachments: 1. Draft Resolution of Approval 2, Arborist Report 3. Public Hearing Notification 4, Site Photos Enclosures: 1. 11 X17 Plans RESOLUTION NO, 11-04-19-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN. JUAN CAPISTRANO, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT(CUP) FOR THE ESTABLISHMENT OF A WIRELESS TELECOM- MUNICATIONS FACILITY LOCATED AT 29932 CAMINO CAPISTRANO AND MORE SPECIFICALLY REFERRED TO AS (APN 650-023-09). WHEREAS,The City of San Juan Capistrano is the owner of real property described as Assessor's Parcel Number 650-023-09 located at 29932 Camino Capistrano and has authorized T-Mobile to process plans for a proposed wireless telecommunications facility is 58'-3"faux water tank that houses twelve paddle style antennas and six pieces of ground mounted equipment beneath the structure that are enclosed by an 8'-0" tall slump stone wall; and, .WHEREAS, the proposed project has been processed pursuant to Section 9-2,301, Development Review of the Land Use Code and reviewed for compliance with the City's General Plan and the City's adopted Architectural Design Guidelines; and, WHEREAS, the Environmental Administrator has reviewed the project pursuant to Section 15303 of the California Environmental Quality Act (CEQA) and issued a Class 3 Categorical Exemption; and, WHEREAS, On April 19, 2011 the City Council of the City of San Juan Capistrano conducted a duly noticed public hearing pursuant to Section 9-2.313 of the Municipal Code to consider public testimony on the proposed project-, and, NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby make the following findings: 1. The proposed project is consistent with the General Plan policies and objectives, in particular the Community Design Element because that element implements the City's design objectives through the adopted Architectural Design Guidelines and the proposed location of the antennas would be consistent with the City's Architectural Design Guidelines, and more specifically: Section 2(a)which states that, "facilities should not be discernible from public right- of-ways or open space areas" because the project has been designed to substantially screen antenna and equipment from public views-, and, Section 2(c)which states that, "cellular and wireless facilities should be screened by structures and or landscaping-" because the proposed project will screen improvements with structures and iandscaping; and, Due to the location of the facility within proximity to the northern entry to community and northwest opens space areas great consideration is necessary in the proposed design. The proposed design appropriately draws on the western agrarian aesthetic that is complimentary to the rural character of the northwest open space area. The proposed design effectively mitigates any potential visual impacts and does not create a false sense of history due to the proposed location and high quality design. In addition the conditions requiring final construction plans to be reviewed will further mitigate the potential visual impacts. Because the proposed wireless facility locates all antenna related equipment in a wholly enclosed structure and the proposed structure is further screened by additional landscaping, the proposed project is found to be consistent with the General Plan; and, 2. The proposed project is located within the Community Parr (CIS) zone district. The "CP" zone district specifically allows cellular antennas, subject to approval of a Conditional Use Permit. The purpose of the CUP is to provide the City with the legal authority to impose conditions to mitigate the adverse aesthetic effects of cellular antenna. The proposed design meets all setback requirements, is located over 300'- 0" from the nearest residential district and the design integrated into the building. The proposed structure adequately screens all proposed antenna related equipment in a wholly enclosed ancillary structure designed as a faux water tank. Because the proposed facility satisfies all development standards and has been designed to fully screen and mitigate any potential visual impacts associated with the proposed wireless telecommunications facility, the proposed project is found to be consistent with the Title 9 of the Municipal Code; and, 3. The proposed site is adequate in size and shape to accommodate the proposed project and is consistent with this finding. Due to the limited onsite access, exclusively for the maintenance access to the structure no significant areas are dedicated to parking and loading areas.The proposed use does not generate trash and therefore would not be required to provide trash and recycling enclosures. The proposed project meets all setbacks for the Community Park (CP) zoning designation. Therefore because the proposed project site meets all setback requirements, does not create or propose significant site access or refuse and accommodates building and fire code considerations the project site is found to be of adequate size to accommodate the proposed project; and, 4, The proposed use does not generate excessive noise, light, vibration or odors. To mitigate potential visual blight, the proposed project has been designed to be screened by a faux water tank of a western agrarian design. This design direction is consistent with the adjacent properties. Further the proposed use does not generate a significant amount of traffic; the vehicular traffic generated is for the purposes of . maintenance of the proposed facility. Therefore due to the limited impacts generated by the proposed use and the design of the screening structures the proposed use is compatible with abutting properties; and, 5. The proposed use does not create significant vehicular trips and at most would 2 generate an 0,20 average daily trip (ADT) or 1 trip,every 5 days- Consequently, the projectwould not create significant parking demand. Occasional support personnel need to.visit the site for repairs or maintenance, otherwise the site is unmanned. Due to the limited visitation to the site, the proposed project is consistent with this finding. , NOW,THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of San Juan Capistrano does hereby confirm issuance of a categorical exemption and approves the project subject to conditions of approval set forth in Exhibit A, attached hereto and incorporated herein. EFFECTIVE DATE & FINAL APPROVAL: This project approval shall become effective upon adoption of this resolution. This project approval shall be valid for a period of I year from the date of approval of this resolution, and shall expire on Apr'il 18, 2012 unless a time extension request or building permit application related to this discretionary approval is submitted to the City prior to that date. PASSED, APPROVED AND ADOPTED this 19th day of.April, 21011 SAM ALLEVATO, MAYOR ATTEST: MARIA MORRIS, CITY CLERK Exhibit A RES61LUTICN #: 11-04-19-XX CONDITIONS OF APPROVAL Project : Conditional Use Permit(CUP) 09-013 Project lame: T-Mobile Facility on City owned Property APPROVAL DATE; April 19; 2011 EFFECTIVE DATE: April 13„ 2011 EXPIRATION DATE; April 19, 2013 These conditions of approval apply to Conditional Use Permit # 09-013 for the establishment of a wireless telecommunications facility that is 58'-3" faux water tank that houses twelve paddle style antennas and six pieces of ground mounted equipment beneath the structure that are enclosed by an 8'-0" tall slump stone wall and is located at 29932 Camino Capistrano and more specifically referred to as (APN 650-023--09). Any proposed change of use or expansion of the area or modifications to the site plan or structures shall be submitted to the City Community Development Department along with the required application and fee, for review. For the purpose of these conditions, the term "applicant" shall also mean the developer, the owner or any successor(s) in interest to the terms of this approval. [general Conditions: 1. Conditional Use Permit # 09-0.16 a request for the establishment of a wireless telecommunications facility that is 58'-3" faux. water tank that houses twelve paddle style antennas and six pieces of ground mounted equipment beneath the structure that are enclosed by an 8'-0" tall wrought iron fence and is located at 29932 Camino Capistrano and more specifically referred to as (APIA 650-023- 09). This approval is granted based on the application materials submitted by Robert Howell, representative for T-Mobile including a site plan and elevations. These plans and the proposed use of the site are approved as submitted and conditioned herein, and shall not be further altered unless reviewed and approved by the affected city departments. Minor modifications to this approval which are determined by the Community Director to be in substantial conformance with the approved site plan, and which do not intensify or change the use or require any deviations from adopted standards, may be approved by the Development Services Director upon submittal of an application and the required fee. If not appealed, this approval shall become effective on the first business clay following the fifteenth (15) day after the date of the Planning Commission's approval and shall expire August 10, 2011 (12) months after the effective date of the approval unless the use or occupancy which is the subject of this action has taken place and all conditions of approval have been met, or a time extension has been granted by the City. Any application for an extension of time shall be submitted to the Community Department, along with the required EXHIBIT City Council Res. 11-04-19-xx Conditions of Approval CUP 99-13 T-Mobile page 2 of.4 fee, at least ninety (99) days prior to the expiration date of this approva), except as otherwise approved by the Development Services Director. 2. Approval of this application does not relieve the applicant from complying with other applicable Federal, State, County or City regulations or requirements_ 3. All plans, specifications, studies, reports, calculations, maps, notes, legal documents, and designs shall be prepared, signed, and stamped (when required) only by those individuals legally authorized to do so. 4. The applicant shall defend, indemnify, and hold harmless the City of San Juan Capistrano and its officers, employees, and agents from and against any claim, action, or proceeding against the City of San Juan Capistrano, its officers, employees, or agents to attack, set aside, void, or annul any approval or condition of approval of the City of San Juan Capistrano concerning this project, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Planner. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. .5. The applicant shall be responsible for informing all subcontractors, consultants, engineers, or other business entities providing services related to the project of their responsibilities to comply with these conditions of approval and all pertinent requirements in the San Juan Capistrano Municipal Code, including the requirement that a business license be obtained by all entities doing business in the City. 6. In the event that exhibits and written conditions are inconsistent, the written conditions shall prevail. If there are any disparities between these conditions and the plans or final revised plans that are approved for any subsequent phase, the conditions and/or plans as stipulated in the later approval shall prevail. 7. The use shall meet the standards and shall be developed within the limits established by the Municipal Code as related to emissions of noise, odor, dust, vibration, wastes, fumes, or any public nuisances arising or occurring incidental to the establishment or operation. 8. The applicant shall pay all fees at the time fees are determined payable and comply with all requirements of the applicable federal, state, and local agencies. The duty of inquiry as to such requirements shall be upon the applicant. 9. All applicable approvals and clearance from other departments and agencies shall be on file with the Building and Safety Department prior to issuance of any City Council Res. 9?-04-79-xx Conditions of Approval CUP 09-13. T Mobile Dacie 3 of 4 permits, final inspections, utility releases and/or release of securities, as specified in these conditions. (B&S) 10. In the event that future technology renders the approved antenna obsolete due to performance or aesthetic considerations, the antenna may be replaced at the expense of the applicant, subject to review by the Planning Commission. 11. All antennas shall be fully screened from both exterior and interior perspectives. 12. T-Mobile or their successor shall be required to maintain the facility in a manner which maintains the authentic design. The following conditions shall he completed prier to or in conjunction with the issuance of building permits: U Applicable Codes. Prior to issuance of building permits, plans for this project shall be submitted to the Building and Safety Department for review and approval, and shall comply with the latest City-adopted edition of the applicable building codes. (B&S) 14. Building Construction Plans. Prior to issuance of building permits, the applicant shall submit final construction plans, building elevations and floor plans to for final review and approval by the Design Review Committee. Such plans shall be fully dimensioned and in substantial conformance with these plans approved by the Planning Commission, Design Review Committee, and/or Development Services Director (as applicable). (PLN) 15. Landscape Plans. Prior to the issuance of building permits the applicant shall submit a final landscape plan, including irrigation plans for review and approval by the Design Review Committee. 16, OC1=A Review of Hazardous Materials Service Code 2,50). Prior to the issuance of a building permit, the applicant shall submit to the Fire Chief a plan for review and approval of the battery system. The plans shall be in accordance with the California Fire Article 54. Please contact the CCI=A at (714) 573-6133 for a copy of the Guidelines and Informational Bulletins. (CCFA) The following conditions and requirements shall he met during construction, from the beginning of the first ground-disturbing activity until the use has been released for occupancy. 17. Taste Disposal and Sanitation. At all times during construction, the applicant shall maintain adequate sanitary disposal facilities and solid waste disposal containers on site. The accumulation of refuse and debris constituting a public nuisance is not permitted. (ENG) City Council Res, 11-04-99-xx Conditions of Approval CUP 09-73 T-Mobile Dage 4 of 4 '18. Construction hours. Construction hours shall be limited to 7:04 a.m. to 0:00 p.m., Monday through Friday and between 8:34 a.m. and 4:80 p.m. on Saturday, Construction activity shall not be permitted on Sundays or any Federal holiday.(PLN) The following conditions shall beret prior to acceptance of improvements and release of bonds and/or surety, final utility clearances, or granting permission to use or occupy the project site, as specified below. 19, Consistent with Approved Plans and Elevations. The project shall be constructed in accordance with all the approved plans and conditions of approval, including but not limited to site plans, grading plans, wall plans, land scapelirrigation plans, lighting plans, and elevations. If all improvements cannot be installed prior to occupancy, the City may approve a deferred Improvement Agreement to defer the completion of the improvements provided that a band, cash deposit, or other surety in a form and substance approved by the City Attorney, is submitted to the City in lieu of installation of the improvements, that application and required fees are submitted, and that the incomplete improvements will not create an unsafe condition on the site. The term of the deferral shall be as determined by the City Planner, (PLN) Responsible Agencies. B&S = Building and Safety ENG = Engineering Department PLN = Planning Department PW = Public Works Department OCFA= Orange County Fire Authority Date of Approval: April 19; 2011 Effective Date: April 19„ 2011 By: ©ate: Applicant Name Title Sims Tree Oeafth Speciafists, Ince 6111 App aCoosrxAvenue, Tedfey, CA 92509, (9.51)68.5-6662 Far,(9.51) 685-2267 The Planning Consoodur.n 62.7 N Main Street ?range. C.A 92868-1103 Attn. W. Dean Brown., President November 10, 2410 Re: `F-Mobile Project in the City of San .Tuan Capistrano 5 Freeway and Camino Capistrano Sari Juan Capistrano, C.A. 92675 Assignment- Meet with a.representative of The Planning Consortium at a proposed.T- Mobile Project site off of the 5 Freeway in. San. Juan. Capistrano. Inspect the Eucalyptus trees for disease and/or infestation., count and mark trees that are recommended for preservation with yellow paint and count and nark trees recommended for removal with red paint. Provide recommendations for care of those trees that might be preserved. Sins visited the site November. 1, 2010, Findin s: Sins inspected a total of one hundred and seven (107)Eucalyptus trees at .the proposed T-Mobile site location for disease and/or infestations. The Eucalyptus trees are severely infested with Lerp Psyllids (sucking insects) and Tortoise Beetles (insects that commonly build up in trees already infested with other species of beetles or boring insects). Sims noted some dead borers - though dead, it shows presence, a �C,Co ywrite.Sims gree Health specialists,111e. Recommendations: Of the one hundred and seven Eucalyptus trees, Sims marked thirty-three Eucalyj)tus trees with red paint as recon-unended for tree removal. Sims marked seventy-four(74) .Eucalyptus trees with yellow paint as recommended for preservation. These trees should be sprayed now. Depending on improvement displayed, they should be treated again in spring to help provide continued protection. Sims can provide this service if desired. Disclaimer: Arborists are tree specialists who use their education, knowledge, training and experience to examine trees, recommend measures to enhance the beauty and health of trees, and attempt to reduce the risk of living near trees. Clients may choose to accept or disregard the recommendations of the Arborists, or seek additional advice. Arborists cannot detect every condition that could possibly lead to the structural failure of a tree. Trees are living organisms that can fail in ways we do not filly understand. Conditions are often hidden within trees and/or below ground. Arborists cannot guarantee that a tree will be healthy or safe under all circumstances, or for a specified period of time. Likewise, remedial treatments, like any medicine cannot be guaranteed. Treatment, pruning, and removal of trees may involve considerations beyond the scope, of the arborist's services (such as property boundaries, property. ownership, site lines, disputes between. Neighbors, landlord-tenant matters, etc.). Arborists cannot take such issues into account unless complete and accurate information has been provided to them. The person hiring the arborist accepts responsibility for authorizing the recommended treatment or remedial measures once it has been explained., and acknowledges that successful results cannot be guaranteed. 2 Mpywrite sites Tree Health Specialists,Inc. Trees can be managed., but they cannot be controlled. To live near a tree is to accept some degree of risk. The only way to eliminate all risks from trees is to eliminate all trees. Closing: This Arborist report was performed entirely at ground level. No climbing was performed and a bucket lift was not employed. No root crown excavations and no increment boring were performed. Thank you for the opportunity to be of service. Choosing Sims as your"Free Health Care provider supports the Sims "Tree Learning Center". Sims is dedicated to preservation, education, unproved health and safety of trees. Sincerely, Michael Maxson ISA Certifed Arborist AVE-8012A EncL Brochure B�fsiraess�arci 3 Xopywrito Sims Tree Health Specialists,Inc. NOTICE OF PUBLIC HEARING � r CITY OF SAN JUAN CAPISTRANO NOTICE IS HEREBY GIVEN, that.on the 19th day of April, 2011, at 6:00 P,M, in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council will hold a public hearing on the following: Considerations of Grading Placa Modification (GPM) 10-004 Hajeck Residence A request for the construction of a series terraced verdura retaining walls along the front and side yards with a maximum exposed height of 8'-0" located at located at 28412 Avenida La 1 Mancha, located approximately 782 feet south. of Paseo. Isabella, located adjacent to the intersection of Avenida La Mancha and Via Mambrino and more specifically referred to as Assessor Parcel Number 664-101-31 This project has been reviewed in accordance with the California Environmental Quality Act (CEQA). The City's Environmental Administrator has determined that the project is categorically exempt per Section 15304, Class 4 (Minor Alterations to Land) of the CEQA Guidelines and is exempt from further environmental review. E Those desiring to be heard in favor of, or opposition to, this item will be given,an opportunity to do so during such hearing. Mitten information pertaining to this item must be submitted to the City Clerk by 5:00 p.m., on Monday, April 18, 2011 at 32400 Paseo Adelanto, Sara Juan Capistrano, CA 92675. Individuals desiring to submit late written information at the meeting must orally request such action. For further information please cont dt I�0 Kirk, Senior Management Analyst at (943) 443w 6381, by e-mail at j irk c@sanjuancapistr rg; or by fax at (949) 6615451 MAR14 M Cls, Cl CLERK EE E 33i 1 i h4tt � F ' frs 1 i 7ss3�a{z r j/lsr . 8 §9( ,�,((,',' }j`i ;_ 3,a d S i r �: ,{€� '�' ?�' t� dada 1'✓!fry'ti' rc3 t r/f fI<Ff��t�3�>t�,'�xif sf,✓ i_f � ��: � ,• V �r� WE xzri - ui W l jf y' E�S Y F t i G lft } uE { < �S F ht t3� k f� �� ✓�>a��f fi zls � 3�° 1'. t: y t l r > }5t e �r s F: F I t€.3f xrC � � "<4 /��,j - � R r� tr�E�a`�z�zs xz- �'�� ✓at a v //Ji`IEj7f fIr �fI #r f 5 `i:` R f x.Y rFcf 04 ow 5r 21 _ f w' �4� F �` I ; { {°r .;'�:• r1z'p'd -. �i F€.'1,Isi c73 ra t) .S_j st r rS } :w {Z?i1'r.� `sa skddc� hs s% V,F r I't5a ;z;srysrf < .fr �Razr Fk � n ,q F �T low I MR 1 tt�)).�I�r{F-',<t}}4.s5 r I{ t t 4F�r u�.�s�' �''te{� `{: ' �'�� {€�?,�'h� ��t n. ��a - ��[:• s� r��{ ,��l# ,zs•s fLt i-: �� fl{r _ � � s l F � ,i� {.., r z�<�2} 3f£. € { Mag.-.f �s ss{€tF-'t ab�3- - s r„`''.� � '� € x ✓k ° f� z<.<�/ fir` `r £ ✓ �`'�. .t 5 'i? .'.`R. � � _ �� w- a r s��rppi�� L1 I f�"`tii �y�:� c r�,��ss�- t � r+�'si`a� 4�i ,�'., "r%3- J=jh`L'�b 4€f f i%1f rr�f <{�r?�"k.r, �.,, �%`" € .,�• 't"�x r � (`� :r'`. 1r t7 s r#rai} 3 ; �e:� i! �. -£ '.. �,�� f t <v�'iF 3� ➢ .. 4•-' �;:. hA. ixc �j�° ytfS/lw� `f�,f�€ ✓ G 'fir'.,su €, ,.3' z;a'`r�a Wr'�, t Up L t }�€fix Er3'z�€1z 4s v£r.'F��.. � . _ � }E•<....• -,. ��,, <-.. ��tNG€F�: re h4n6 7 '''{ �«- 4�- : � vq£. ., ' � Y^ t1�f fij 4`tn�/,1€3 ! 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