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Home My WebLink About18 - PA2003-255 - Telecommunications Facility Permit 2003-003 - Cingular WirelessCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 18 May 11, 2004 TO: Mayor and Members of the Newport Beach City Council FROM: Robin L. Clauson, Assistant City Attorney Dave Kiff, Assistant City Manager SUBJECT: SUPPLEMENTAL REPORT: LICENSE AGREEMENT FOR CINGULAR WIRELESS APPLICATION In conjunction with the application for a Telecommunications Permit to place antennas on a fifty foot (50') high 24" diameter flagpole located next to the Superior Municipal Parking Lot, staff has prepared the attached License Agreement ( "Agreement "). The Agreement grants Cingular Wireless ( "Cingular ") the right to place the flagpole antenna and support facilities on City owned property under the following terms and conditions: 1. Payment of an annual license fee of $24,552.00 ($2,046.00 per month). 2. An initial five (5) year term renewable for three (3) additional 5 year terms, (Renewal Terms) for a total up to twenty (20) years. 3. The license fee will be increased 4% per year with an adjustment to market rate established by a rent/ fee survey prior to each of the Renewal Terms. 4. Protection from frequency interference for the City's own wireless communications networks: Police and Fire 800 MHz and water and sewer controls. 5. Cingular to provide a bond or other acceptable security to secure performance under the agreement. Submitted by: C_ Dave iff Assistant City Manager Robin Clauson Assistant City Attorney Attachments: License Agreement with Cingular TELECOMMUNICATIONS LICENSE AGREEMENT This LICENSE AGREEMENT ( "Agreement ") is entered into between CINGULAR WIRELESS ( "Cingular'), at 3345 Michelson Drive, Suite # 200, Irvine, CA 92660, and the City of Newport Beach, a municipal corporation and charter city ( "City ") this 11th day of May, 2004. Company and City are each a "Party" and together the "Parties" to this Agreement. RECITALS A. City is the fee title owner of that certain real property known as the Superior Municipal Parking Lot in the City of Newport Beach, California, APN 424 041 13, and described more particularly in Exhibit "A" hereto, which description is fully incorporated herein by this reference ( "Real Property "); B. Company desires to license from City, on a non - exclusive basis, the right to use that certain portion of the Real Property, and those certain related easements through the Real Property for physical access and utilities, as depicted in Exhibit "B" hereto which is fully incorporated herein by this reference ( "License Area ") and; C. City is willing to make the License Area available to Company, subject to the covenants and conditions set forth in this Agreement, on a non - exclusive basis, in order to facilitate the efficient and orderly deployment of communications facilities in the City of Newport Beach. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. License: City grants a non - exclusive license ( "License ") to Company for the term of this Agreement, to use that portion of the Real Property within the area as depicted in Exhibit "B" attached hereto (the "License Area "), for the Uses specified in this Agreement. City further grants to Company a non - exclusive license for ingress and egress to the License Area across the Real Property seven (7) days a week, twenty -four (24) hours a day, and for construction, installation and maintenance of facilities and underground utility wires, cables, conduits as necessary to operate the Telecommunications Facilities, as specified on Exhibit "B "• All installation and maintenance activities shall be at Company's sole cost and expense pursuant to plans approved in advance in writing by the City. The license granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Company covenants, as a material part of the consideration for this license, to keep and perform each and every term, covenant and condition of this Agreement. 1 2. Uses: Company shall use the License Area for the sole purpose of constructing, maintaining, securing and operating 3 concealed wireless telecommunications panel antennas within a 50 foot, 24" diameter flag pole and support equipment cabinets to house four (4) base trans - receiver units ground mounted within a retainer block wall enclosure to transmit and receive radio communication signals on various frequencies (between 1850 and 1990 MHZ), all in compliance with the approved site plans and related drawings dated 04/19/04 on file with the City Planning Department, and the conditions of approval contained in the Telecommunications Permit issued by the Planning Department in accordance with Chapter 15.70 of the Newport Beach Municipal Code, ( "Telecom Permit" No. TP 2003 -03), (collectively, the "Telecommunications Facilities or Facilities "). The Telecommunications Facilities and operating frequencies may not be expanded or modified except upon written approval of an amended Telecom Permit and as may be required by this Agreement. Construction and operation of the Telecommunications Facilities shall be at Company's sole expense. Company shall keep the License Area free from hazards or risk to the public health, safety or welfare. Except as provided under this Agreement, Company shall not make or permit to be made any alterations, additions or improvements to the License Area, or paint, install lighting or decorations, or install any signs, window or door lettering or advertising media of any type or any other visual displays, on or about the License Area without the prior written consent of City. Notwithstanding the foregoing, Company shall have the right to place warning signs on or about the Facilities or License Area in the manner required by Federal, State or local law. 3. Telecommunications Permit And Government Approvals: Company shall comply with all conditions of approval of the Telecom Permit and Chapter 15.70 of the Newport Beach Municipal Code and Encroachment Permit issued by the Public Works Department. Company shall obtain all other governmental licenses, permits and approvals required by Federal, State or local governmental agencies, enabling Company to construct, operate, repair and remove the Telecommunications Facilities in the License Area. 4. Term: The initial Term of the license granted hereunder ( "Term ") shall commence on the Commencement Date and continue for a period of five (5) years. For purposes of this Agreement, the "Commencement Date" shall be the first to occur of (i) the first day of the month following the date City issues a building permit to allow Company to construct the Facilities on the License Area, or (ii) six (6) months after the date of this Agreement, whichever comes first. After the Commencement Date, this License shall not be revoked or terminated except as expressly provided in this Agreement. This Agreement shall automatically be extended, on the same terms and `a conditions as set forth in this Agreement, for up to three (3) successive terms of five (5) years each ( "Renewal Terms ") unless at least thirty (30) days prior to the expiration of the Term or any Renewal Term, Company notifies City in writing of Company's intention not to extend this Agreement and by the end of the then current Term or Renewal Term the Company also complies with the surrender conditions of Section 17 below. Notwithstanding the above, this Agreement shall not be automatically extended if Company has defaulted in the performance of any term or condition of the Agreement and has failed to cure such default after notice as provided in this Agreement. 5. Fees and Costs: a. Company shall pay to City an annual license fee in an amount of $24,552.00, in advance, adjusted in accordance with paragraph (b) immediately below ( "License Fee "). The License Fee shall be paid, payable to the City of Newport Beach, within fifteen (15) days following the Commencement Date. Thereafter, the License Fee shall be due on the yearly anniversary of the Commencement Date ( "Anniversary Date ") for each year during the Term and each Renewal Term. b. Beginning in year two of the Term of this Agreement, the License Fee shall automatically increase each and every year during the Term and any Renewal Term, upon the Anniversary Date, with the exception of any Anniversary Date on which the fee is being increased under Section 6, below, to "Market Rate" (as defined below). The amount of increase shall be four percent (4 %) of the License Fee in effect immediately preceding the increase. Notwithstanding the foregoing, the License Fee upon which the annual increase is calculated may be adjusted prior to and effective upon each Renewal Term in accordance with Section 6 below. C. A ten percent (10 %) penalty shall be added to the License Fee if not received by City within 30 days following the due date. In addition all unpaid fees shall accrue interest at the rate of 1'/z percent per month or any portion of a month until paid in full. 6. Adiustment of License Fee Upon Renewal: a. Sixty (60) days prior to the start of each Renewal Term, City and Company shall meet to confer regarding the Market Rate of the License Area. The Market Rate shall be established by City through rent surveys or appraisals of rents or license fees paid for similar facilities in similar California locations. The Parties recognize that the annual increase in the License Fee as required by Section 5(b) may cause the License Fee to be greater than, less than, or equal to the Market Rate. If the Market Rate is greater than the License Fee as adjusted by the annual increase in 5(b) above, then the License Fee for the Renewal Term shall be adjusted to the higher Market Rate for the next Renewal Term. If lower or equal to the Market Rate, the License Fee for the Renewal Term shall be the License Fee, including the annual adjustment required under Section 5(b) above. 3 7. Adjust of License Fee Upon Modification of Uses: The License Fee set out in this paragraph is based upon the Facilities and License Area permitted by the Telecom Permit. Changes in the Facilities or License Area, may increase the value of this License Agreement. To the degree that a change in the Facilities requires amendment or modification to the Telecom Permit, City and Company understand and mutually agree that a corresponding increase in the Market Rate of the Telecommunications Facilities may be reflected in an adjustment to the License Fee. Such an adjustment may be defined at the time at which Company seeks City's approval for modifications in the Telecommunications Facilities described in Paragraph 2, and shall be mutually agreed to by the Parties as a condition of the City's approval of such expanded service by the Company. 8. Interference with City Telecommunications: a. Company agrees that its operation of the Telecommunications Facilities shall at all times comply with all Federal Communications Commission ( "FCC ") requirements and shall not cause any direct or indirect interference with the operation of City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist( "City's facilities "). b. In the event of any interference with City Police and Fire Department public safety communications, Company shall work with the affected Department to correct the interference within two (2) hours of City's written or telephonic notice to Company. In the event of interference with City's own wireless communications system or external radio signals and communications other than Police or Fire Department, Company shall work with City to correct the interference within twenty -four hours of City's written or telephone notice. If Company is unable to correct interference to City's satisfaction, Company shall cease its operation of the Telecommunications Facilities at the end of such time period until the cause of the interference is corrected to City's satisfaction. If Company fails to correct any interference, City may, in addition to and without compromising any other available remedy cut off power to the facility in the manner set forth in Section 9 below. C. Prior to making any changes to the, frequency or operating conditions approved by the Telecom Permit, Company shall submit plans for the proposed changes to City for its review and approval. Company agrees to fund any studies required to ensure that any contemplated changes will be compatible with the City's facilities. No Company change shall occur prior to the City's approval. 9. Emergency: H a. Company understands that the Telecommunications Facilities may be located on a public building or structure or within public property and emergency situations may develop from time -to -time that require power to the Telecommunications Facilities to be immediately shut off and thereby interfere or temporarily terminate the Company's use of its Facilities on the License Area. Notwithstanding Paragraph 8 of this Agreement, Company agrees that if such a situation occurs, and there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's facilities affecting operation of sewer or water service and that of Company, City shall have the right to immediately shut off power to the Telecommunications Facilities and any equipment of Company's located on the Real Property for the duration of the emergency. Company agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Telecommunications Facilities or other communication facilities by the shut off of power. b. Company agrees to install a clearly marked & accessible master power "cut -off' switch on their equipment for the purpose of assisting City in such an emergency. C. Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Telecommunications Facilities pursuant to Paragraph 9a is not intended to constitute a termination of this Agreement by either party and such event is a risk accepted by the Company. Company and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. The License Fee, prorated to a 365 -day year, shall be abated for any day, or part thereof, in which power to the Telecommunications Facilities is shut off pursuant to Paragraphs 8 or 9 of this Agreement. d. City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this Section. 10. Acceptance Of Condition Of Company Area: Company shall accept use of the License Area in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the Company Area, including its suitability for the use intended by Company. To the best of City's knowledge, the License Area has not been used for generation, storage, treatment or disposal or hazardous substance as defined in Section 25. The Company has conducted its own appropriate due diligence investigation of the License Area prior to its execution of this Agreement. 11. No Interest in Propert y: 5 Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the Real Property, or any public right -of -way, other than a real property license to use and access the Licensed Area, revocable and for a term as set forth in this Agreement. 12. Reservation of Rights: Company understands, acknowledges and agrees that any and all authorizations granted to Company under this Agreement are non - exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 13. Utilities: Company shall not do, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the utility, heating, air conditioning or ventilation systems located on the Real Property, except as may be specifically permitted by the Telecom Permit. In addition to the License Fee, Company shall be responsible for the cost of any and all water, electrical, gas or other utility services necessary for the operation of the Telecommunications Facilities, and if required by City, shall have such utilities installed underground and /or connected if already installed, and maintained at Company's sole cost and expense (along with all ongoing use charges). Subject to City's approval. Company shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. 14. Inspection: City shall be entitled to enter the License Area at any time to inspect the Telecommunications Facilities for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 15. City Retention Rights: Company's right to use the License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the Real Property and the License Area for any purpose that does not interfere with Company's use of the License Area as provided herein. 16. Company's Retention of Title: Title to the Telecommunications Facilities and any equipment placed on the R License Area by Company shall be held by Company or its equipment lessors, successors, or assigns. The Telecommunications Facilities shall not be considered fixtures. Company has the right to remove any or all of the Telecommunications Facilities at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) days after an early termination of this License. 17. Surrender: Upon expiration or termination of this Agreement, Company at its sole cost and expense, shall within sixty (60) days of written notice from City, remove the Telecommunications Facilities and, restore the License Area to its original condition or to a condition satisfactory to and approved by City, and vacate the License Area. Should Company fail to restore the License Area to a condition satisfactory to City, City may perform such work or have such work performed by others and Company shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Company shall continue to pay the License Fee until the License Area is so restored as required by this Agreement. 18. Assignment: a. All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. This Agreement and the rights and obligations of Company shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred "), in whole or in part, without the express written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned and may be withheld if assignee is of lesse financial status than Company when this Agreement was executed. Any attempted transfer in violation of this Section shall be void. Except as provided below, the transfer of the rights and obligations of Company to any successor in interest or entity acquiring fifty -one percent (51 %) or more of Company's stock or assets, shall be deemed an assignment requiring consent. Company shall provide City at least thirty (30) days advanced written notice of any proposed transfer. b. If Company desires at any time to effect a transfer, it shall first deliver to City (1) a written request for approval, (2) the name, address and most recent financial statements of the proposed transferee and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Agreement arising from and after the effective date of assignment. C. Notwithstanding paragraph 18(a) above, Company may, without prior approval from time -to -time, do any of the following: 7 1. Grant to any person or entity a security interest in some or all of Company's Telecommunications Facilities which lien shall be subordinate and junior to this License; and 2. Assign financial and /or operating interest in Company: (i) to any entity which has, directly, or indirectly, a thirty percent (30 %) or greater interest in Company (a "Parent ") or in which Company or a Parent has a thirty percent (30 %) or greater interest (an "Affiliate "); (ii) to any entity with which Company and /or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of Company or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Telecommunications Facilities is operated, upon FCC approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until Licenses cures any defaults under this Agreement and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of Company's post, current and future obligations under the Agreement. d. No assignment by the Company shall release Company from continuing liability under the Agreement with the exception of a buyout of the Company by another entity which formally assumes all post, current and future obligations of the Company under this Agreement. 19. Taxes: Company shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Telecommunications Facilities authored herein, City hereby gives notice to Company, pursuant to Revenue and Tax Code Section 107.6 that this Agreement may create a possessory, interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Company. 20. Termination: a. This Agreement may be terminated by either party (1) for cause, for failure to comply with any covenant, condition or term hereof by the other party, including payment of the License Fee which failure is not cured within thirty (30) calendar days of receipt of written notice of default. If such breach, other than payment of the License Fee, is not capable of cure within such thirty (30) calendar -day period, then no breach or default shall be deemed to have occurred by reason of such failure so long as the defaulting party promptly commences and diligently prosecutes such cure to completion within a reasonable time period; or (2) Company fails to construct and commence operation of the Telecommunications Facilities authorized by this Agreement within one year of the date of this Agreement or ceases to operate the Telecommunication Facilities for a 8 continuous period of six (6) months. b. City may also terminate this Agreement, without cause, upon one hundred and eighty two (182) calendar days advance written notice to the other party that the License Area is necessary for a public purpose. City agrees to cooperate with Company to identify alternate locations to relocate the Telecommunication Facilities. C. Company may also terminate this Agreement without further liability (a) upon the delivery of written notice of termination to City prior to the Commencement Date, (i) if Company is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Company from installing, removing, replacing, maintaining or operating the Telecommunications Facilities or using the License Area in the manner described in Paragraph 2 of this Agreement; or (ii) if Company determines that the License Area is not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference. d. Any termination is subjection to the Company complying with the surrender obligations of Section 17, above. Additionally, following any termination of this Agreement, City shall reimburse Company for any advanced payments of the License Fee, prorated to a 365 -day year. 21. Construction: a. Company, agrees to take all prudent action to protect the Telecommunications Facilities from any damage or injury caused by any work performed by or on behalf of Company regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of its Telecommunications Facilities or the failure, deterioration or collapse of such Telecommunications Facilities. b. Company shall, at its sole cost and expense, continually maintain in a first - class manner, and repair any damage to the License Area, Real Property and any other property or structures owned by City to the extent such damage is caused by Company or any of its agents, representatives, employees, contractors, subcontractors, or invitees. Company shall immediately notify the City Manager and the appropriate public safety agency (e.g. police and fire department) of any damage or injury caused by work authorized pursuant to this Agreement. C. Without limitation of any other remedy available hereunder or at law or in equity, if Company fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Company shall reimburse City of all costs and expenses incurred in such repair or refinishing. 0 d. Company, prior to the issuance of a building permit for the Facilities, shall submit to the City and, throughout the Term and each Renewal Term, maintain in effect, a bond, letter of credit or other security, in the principal amount of Dollars ($ ) ( "Security ") to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form acceptable to the City, and shall remain in effect throughout the term of this Agreement. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and cost of removal of the Facilities upon expiration or termination of this Agreement should Company fail to do so as required by this Agreement, including attorneys' fees and costs, reasonably necessary to enforce the terms of this Agreement. The Security shall in no way limit the liability or obligations of Company or its insurers under this Agreement. If the funds represented by the Security become exhausted, Company shall immediately provide the City with a new security in the amount necessary to provide full required Security. 22. Maintenance: Company shall take good care of the License Area and keep the License Area neat, clean and free from graffiti, dirt and rubbish at all times. 23. Multiple Companies: The Parties recognize that this Agreement contemplates installation and use by multiple entities or companies, other than City, seeking to place telecommunications facilities in or about the License Area or Real Property. Company shall use its best efforts to coordinate its activities with those other such entities to reduce the costs of all such parties and to avoid interference with each such party's realizations of benefits of this and similar Agreements. If City deems reasonably necessary, City shall coordinate any such cooperative efforts. City will not enter into a subsequent agreement with another entity to place telecommunications facilities within the License Area or in proximity to the License Area if Company has shown to City's satisfaction, after compliance with this section, that additional telecommunications facilities are technically incompatible with the operation of the Telecommunications Facilities under this Agreement. 24. Indemnification: Company shall indemnify, release, defend and hold harmless City, its officers, agents, employees against any and all claim, demand, suit, judgment, loss, liability or expense of any kind, including attorneys' fees and administrative costs, arising out of or resulting in any way, in whole or in part, from the Telecommunications Facilities or any acts or omissions, intentional or negligent, of Company or Company's officers, agents or employees in the performance of their duties and obligations under this Agreement, except to the extent such 10 claims are caused by the active negligence, or willful misconduct of City, its officers, agents and employees. a. During the term of this Agreement, Company shall maintain, at no expense to City, the following insurance policies with a minimum financial rating of Best A -VII or better; 1. A comprehensive general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage; 2. An automobile liability (owned, non - owned, and hired vehicles) insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence; b. The insurance coverage, shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by City and shall not call upon City insurance or coverage for any contribution. 2. The insurance policies shall be endorsed for contractual liability and personal injury; 3. The insurance policies shall be specifically endorsed to include City, its officers, agents, employees, and volunteers, as additionally named insureds under the policies; 4. Company shall provide to City's Risk Manager, (a) original Certificates of Insurance evidencing the insurance coverage required herein, and (b) original specific endorsements naming City, its officers, agents, employees, and volunteers, as additional named insureds under the policies; 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to City's Risk Manager; 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years; 7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement; 8. The insurance shall be approved as to form and sufficiency by the City's Risk Manager and the City Attorney. 11 C. If it employs any person, Company shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both Company and City against all liability for injuries to Company's officers and employees. d. Any deductibles or self- insured retentions in Company's insurance policies must be declared to and approved by the City's Risk Manager and the City Attorney. At City's option, the deductibles or self- insured retentions with respect to City shall be reduced or eliminated to City's satisfaction, or Company shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. e. The limits of coverage provided in Section 24(a) above may be increased to reflect Council adopted coverage as determined necessary by the City's Risk Manager consistent with industry standards. 25. Hazardous Substances: a. From the date of execution of this Agreement throughout the Term and any Renewal Term, Company shall not use, store, manufacture or maintain on the Real Property or License Area any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of Telecommunications Facilities approved by this Agreement (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Company shall handle, store and dispose of all Hazardous Substances it brings onto the Real Property or License Area in accordance with applicable Laws. b. For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ( "CERLCA "); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ( "RCRA "); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter - Cologne Water 12 Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended, (the above -cited statutes are here collectively referred to as "the Hazardous Substances Laws ") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. C. Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Company set forth in Section 24, Company agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the Real Property or the License Area provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Real Property or the License Area. This Section 25 is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. d. City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the Real Property or the License Area in violation of any law or regulation. City and Company each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and /or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section 25. This Section 25 shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Company shall surrender and vacate the Real Property and License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Company. 13 26. Compliance with Laws: Company, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all applicable zoning ordinances, building codes and environmental laws. Company shall not occupy or use the License Area or permit any portion of the License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 27. Not Agent of City: Neither anything in this Agreement nor any acts of Company shall authorize Company or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 28. No Third Party- Beneficiaries: City and Company do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 29. Notices: All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: To City: City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 and with respect to insurance issues: City Risk Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 To Company: Cingular Wireless 3345 Michelson Drive Suite # 200 Irvine, CA, 92660 14 30. Entire Agreement Amendments: a. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. b. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the Company and the City. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. d. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the Company and City. e. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. f. Any obligation of the parties relating to monies owed, as well as those provisions relating to limitations on liability and actions, shall survive termination or expiration of this Agreement. 31. Waivers: The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of my preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 32. Costs And Attorneys' Fees: The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) expert witnesses, copy charges and attorneys' fees expended in connection with such action including any appeal. 15 33. City Business License: Company shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 34. Applicable Law: The laws of the State of California shall govern this Agreement. 35. Time is of the Essence: Time is of the essence for this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate on the date and year first written herein. CITY OF NEWPORT BEACH, CINGULAR WIRELESS A Municipal Corporation A Corporation Homer Bludau, City Manager Name & Title APPROVED AS TO FORM: Robin L. Clauson, Assistant City Attorney F: \users \cat \sha red \cp\Ag \TelecomLicens \Ci ngular050704.doc 16 EXHIBIT "A" LEGAL DESCRIPTION TO BE PROVIDED EXHIBIT "B" m m 0 m ?'1, Ctl 9 > r WIRELESS X cingula �l 3345 MICHEI-SON DRIVE. SUITE 100 IRVINE, CALIFORNIA 92660 3z - m i�1\ f*1 D i .s 9 % � r / sRg ZQ r TIE j e ` f yf jI E \ lZI ' C mow[ D Z�� . p yJRA BA X singular WIRELESS 3346 AIICNEL50N DRIVE, SUITE 100 m I�~li g{ iwaiP'y i - S in •. `'' "{ 3° p 9 IRVINE, CALIFORNIA 92660 yyI q 9+F �a i� C IA 0 !A D z Z ?ioi is o➢=^°�€ CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. is May 11, 2004 TO: Honorable Mayor and Members of the City Council FROM: Janet Johnson Brown, Assistant Planner (949) 644 -3236, ibrown(a)city.newport- beach.ca.us SUBJECT: Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) Telecommunications License Agreement LOCATION: 4600 West Coast Highway APPLICANT NAME: Cingular Wireless ISSUE Should the City Council approve Telecommunications Facility Permit No. 2003 -003 and a Telecommunications License Agreement for the purpose of allowing a wireless telecommunications facility to be located on city -owned property? The proposal requires special review by City Council because the facility antennas are proposed to exceed the maximum height limit by 15 feet. RECOMMENDATION Staff recommends that City Council: 1) Approve Telecom Permit No. 2003 -255 subject to the Findings and Conditions of Approval attached to the staff report; and 2) Authorize the City Manager to execute the Telecommunications License Agreement. INTRODUCTION In October, 2002, the City Council adopted Ordinance No. 2002 -24 pertaining to Wireless Telecommunication Facilities. The ordinance established regulations relative to the height, location, size and design of proposed telecom facilities and the review process for facilities on both private and city -owned property. A copy of the ordinance is attached for your information. 4600 West Coast Highway May 11, 2004 Page 2 The City Council adopted Council Policy L -23 "The Siting of Wireless Telecommunications Equipment on City -Owned Land" on September, 24, 2002, for the purpose of describing the manner in which specific city -owned or city trust properties may be used as locations for wireless telecommunication devices that transmit voice or data. A copy of Council Policy L -23 is attached for your information. The applicant proposes to install a wireless telecommunication facility on city -owned property. The facility is designed as a 50 -foot flagpole with panel antennas concealed within the flagpole with the support equipment cabinets ground- mounted in a security enclosure. This application is the first submitted for a telecom facility on city -owned property since the adoption of the ordinance, and it is the first application which requires special review by City Council. Special review by City Council is necessary when a telecom facility proposal includes one of the following: a) telecom antennas up to 15 feet above the maximum height limit, b) facilities that are a new false tree, a new "slim jim" monopole, a new standard monopole with attached antenna elements or a new lattice tower, or c) any application which the Planning Director determines requires special review to serve the public interest. The ordinance describes the review process of telecom applications for facilities on city property in Section 15.70.070 C and special review by Council in Section 15.70.070 F. Specifically, if the Planning Director determines that the facility conforms to the technology, height, location and design standards of the ordinance, he or she shall approve the application with or without conditions of approval. Once approved, the application shall be forwarded to the City Manager, who shall prepare and execute a License Agreement based upon a term and rental amount adopted under City Council policy. When special review by City Council is required, as is the case with this application due to the requested height of the facility, the City Manager shall then forward the License Agreement and final telecom permit to City Council for final approval. The City Council may approve, approve subject to modifications, or deny the License Agreement and telecom permit. Should the City Council not approve the License Agreement for any reason, both the agreement and permit are invalid. Telecommunications Facility Permit Activity Currently, two other applications for telecom facilities on city -owned or city -held property have been submitted and are being reviewed by staff. One application submitted on behalf of Sprint PCS proposes the installation of a facility within a light standard located on the Back Bay Bridge near the southeast corner of Bay Shore Drive and West Coast Highway. While located in the CalTrans' right -of -way, the light standard is city -owned and is therefore subject to the telecom permit process. This application is currently under review by the Planning Director and action on it is anticipated by May 7, 2004. 4600 West Coast Highway May 11, 2004 Page 3 The second application, also submitted on behalf of Sprint PCS, proposes to co- locate at the same location for which this application is being reviewed with a second flagpole. The applicant was notified on April 23, 2004, that the application is incomplete and staff is awaiting submittal of the information requested. There have been four applications submitted for facilities on private property, three of which have been approved, and the fourth is currently being reviewed for completeness by staff. The first two sites were for the installation of new and replacement panel antennas and new equipment cabinets at existing facilities located at 260 Newport Center Drive and 3991 MacArthur Blvd. The third site provided for the co- location of a new, second telecom facility at 3140 East Coast Highway. The fourth application is for a new facility proposed to be located at 3748 East Coast Highway. Representatives on behalf of the various wireless communications carriers are in contact with staff on a regular basis. Sites that are currently being discussed for consideration for installation of telecom facilities include Oasis Senior Center, Grant Howald Park, Mariner's Park, Eastbluff Park & The Eastbluff Boys and Girls Club, Bonita Creek Park, Buffalo Hills Park, and the municipal parking lot located in the Balboa Village at the corner of Palm Street and Balboa Blvd. The applicant in this case desires to install a wireless telecommunication facility on city - owned property located at the corner of Superior Avenue and West Coast Highway. The proposed facility would exceed the maximum height limit of 35 feet for flagpoles in the 24/28 Height Limitation Zone by 15 feet as provided for in Chapter 15.70 of the Newport Beach Municipal Code. The proposed facility is designed as a 50 -foot flagpole with 3 panel antennas concealed within the flagpole. The subject property is located at the southeasterly corner of Superior Avenue and West Coast Highway, and is developed with a municipal parking lot referred to as the "Superior Lot." Surrounding land uses include the Hoag Hospital lower campus facilities immediately adjacent to the south, a retail commercial center directly across the street on the southeast corner of Balboa Blvd. and West Coast Highway and the Newport Crest and Villa Balboa residential developments to the north. Analysis In reviewing the application, staff evaluated the height, location, size and design of the proposed facility and its relationship to the surrounding environment. The site consists of approximately 1.7 acres. The perimeter of the municipal parking lot is landscaped with grass areas and other low growing vegetation, and shade trees are planted within the lot. The flagpole is proposed to be located along the entry driveway into the municipal lot and the support equipment will be screened in a security enclosure structure adjacent to the flagpole 4600 West Coast Highway May 11, 2004 Page 4 The flagpole is proposed to be 50 -feet in height and 24- inches in diameter. Three panel antennas will be concealed within the flagpole. The support equipment cabinets to house the 4 base transreceiver units will be hidden within a retaining block wall enclosure built into a sloping area, and will be screened with plantings to match the existing landscaping. The proposed facility as designed is compatible with the use of the site since flagpole monuments are commonly found near public parking lots and other municipal facilities, and the support equipment is screened to blend in with the existing topography and environment. The only concerns staff has are the width of the pole and maintenance of the facility and flag. Traditional flagpoles are much less massive, but the width of the pole cannot be changed and still accommodate the equipment required by the applicant. Staff has included conditions of approval related to proper lighting, maintenance of the flagpole and equipment enclosure, and replacement of the flag. Special Review by Council The site is located within the 24/28 Foot Height Limitation Zone. Section 20.65.070 of the Zoning Code (Exceptions to Height Limits) permits flagpoles in this height limitation district to be 35 feet maximum in height. Section 15.70.070 F (Special Review by Council) provides that the City Council may approve antennas up to 15 feet above the maximum height limitations under the special review provision. Applications subject to special review may be approved by the City Council if it makes the following findings: a. The approval is necessary to allow the facility to function as intended and identified alternatives to the proposal are not feasible. The applicant states there are currently deficiencies in their coverage network within this portion of the City, and found this site to be at the center of the search ring. Prior to designing the proposed facility at this site, the applicant investigated alternative locations within close proximity to the intersection of Superior Avenue and West Coast Highway. Hoag Hospital was not interested in entering into an agreement for a telecom facility with the applicant. The retail commercial development across the street was determined not conducive for a roof - mounted facility because of the low single -story construction and the lower elevation of the site. Installation of a freestanding facility on the site was also rejected because it would displace required parking spaces. The residential condominium developments to the north are fully developed and adequate space does not exist that would accommodate a telecom facility. The applicant investigated installation of facilities on existing light standards in the right -of -way along Superior Avenue, but found that a 35- foot high facility would not provide adequate coverage and there was no room to accommodate the necessary equipment cabinets. The applicant also investigated lowering the height of the facility to 35 feet at this site, or the feasibility of installing multiple facilities at 35 feet in height in the general vicinity. Based on the Radio Frequency maps prepared by the applicant, a 35 -foot high facility at 4600 West Coast Highway May 11, 2004 Page 5 the subject property would not provide adequate coverage in the area northwest, north and northeast of the subject property towards Aries Court in the Newport Crest condominium development and Halyard Lane located to the northwest just beyond Newport Crest. Installing multiple facilities at 35 feet in height near the intersection of Superior Avenue and West Coast Highway and farther up Superior Avenue near the Villa Balboa condominiums could cause overlap in coverage and lead to interference with each other as well as other existing sites in the area. Copies of the Radio Frequency maps are included with this report as Exhibit No. 6, which depict existing coverage without the proposed facility, coverage with a 35 -foot high facility on the subject property, and coverage with a 50 -foot high facility on the subject property. Due to the topography in this area and based on its investigation of alternative sites and lower height facilities, the applicant found that the facility must be designed at 50 feet in height at or near this intersection in order to meet its coverage objectives. A copy of the applicant's proposal is attached which identifies alternative sites and discusses issues which eliminated the feasibility of alternative sites and lower height facilities. b. The approved facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, or to public health or safety. The applicant has designed the wireless telecommunications facility to be a freestanding 50 -foot high flagpole with 3 panel antennas concealed within the flagpole. While the diameter of the flagpole cannot be less than 24 inches and still accommodate the necessary coax cables, it is not considerably larger than the existing light standards located along Superior Avenue, which are approximately 15 inches at the base and taper to approximately 12 inches. The flagpole is not substantially different in design from the light standards and views in the area will not be significantly impacted by the placement of the flagpole on the subject property. The support equipment (four base transreceiver units) cabinets will be ground mounted within a retaining wall enclosure and will not be visible from the street level. The applicant has prepared photographic visual simulations from three different vantage points which depict existing and proposed conditions at the site. These visual simulations are attached as Exhibit No. 7 for your review. The design of the facility will not affect the aesthetics and use of the subject property as it will be unmanned and require maintenance only once every four to six weeks. The proposed facility will not generate noise, odor, smoke or other adverse impacts. Further, the proposed facility will comply with the applicable rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC) thus ensuring public health and safety. Based on the information provided by the applicant indicating the height of the facility is necessary to facilitate the proper functioning of the equipment, staff believes Council can make the above two findings pursuant to Section 15.70.070 F (3) and approve the facility antennas to exceed the 35 -foot height limitation for flagpoles to a maximum height of 50 feet above existing grade. 4600 West Coast Highway May 11, 2004 Page 6 Co- Location Requirements In order to limit the adverse visual effects of a proliferation of telecom sites in the City, the Telecom Ordinance includes a provision that new telecom facilities proposed within 1,000 feet of an existing facility shall be required to co- locate on the same site as the existing facility, unless it is determined that such co- location is not feasible. In approving this telecom facility, the City Council may impose a condition of approval allowing the future co- location of telecom facilities by other carriers on this site. This requirement has been included as Condition No. 15 in the Conditions of Approval. Emergency Communications Review Recognizing the potential for interference with emergency communication devices, the ordinance sets forth requirements in Sections 15.70.070 C 2 and 15.70.070 D 2 for Emergency Communications Review by the Police Department. When a telecom permit is submitted to the Planning Department, the Plans, Map and Emission Standards and Non - Interference Data (parts 1, 3, and 5 of the Submission Requirements) are sent to the Police Department to review the plan's potential conflict with emergency communications. The Police Department coordinates with the Orange County Sheriff - Coroner Department, ( "OCSD /Communications "), which oversees the countywide 800 MHz CCCS Public Safety Network. OCSD /Communications has made it well known that wireless telecommunications sites have the potential for interfering with our public safety radio transmission and reception capability. Since December of 1999 they have confirmed and documented numerous cases of interference. This issue is not unique to Orange County. It is a national issue that has been brought to the attention of the FCC and has yet to be resolved. Communications engineers have observed wireless communications interference out to a maximum radial distance of 1300 feet. With the cooperation of the wireless carrier, this distance has sometimes been reduced to less than 100 feet after mitigation measures have been applied. A typical wireless communications facility may only interfere with one or two channels of the respective multiple - channel trunking system. This adds a roulette nature to the interference symptoms. There are numerous wireless communications facilities in Orange County, including an estimated 150 sites each for Nextel, Verizon, and AT &T that operate in the 800 MHz band. The number of non -800 MHz cell sites is currently unknown. Not all of them are causing interference. The fundamental causes of wireless interference are the close proximity of cellular frequencies to Public Safety frequencies and the proliferation of suburban cellular facilities with short towers. The County continues to work with the wireless carriers in an attempt to mitigate problems on not only a case -by -case basis, but on a countywide basis as well. OCSD 4600 West Coast Highway May 11, 2004 Page 7 Communications has provided a list of conditions that the Police Department currently recommends for all development of new and /or the modification of existing wireless facilities. Staff has included these recommendations as Condition Nos. 16, 17, 18, 19, 20, 21 and 22 in order to mitigate potential conflicts with emergency communications. Public Notification A notification describing the proposal and the date and time of the City Council review was mailed to property owners of record within 300 feet of the proposed location of the telecom facility a minimum of 10 days in advance of the Council review date. TELECOMMUNICATIONS LICENSE AGREEMENT Working with Cingular and other wireless telecom firms, the City Attorney's office is developing a Telecommunications License Agreement (TLA) that will authorize Cingular to use this location under certain conditions. The Agreement will describe the site rent, rent increases, the term (up to four 5 -year terms), bonding and insurance, co- location requirements, restrictions on transfers, and other obligations of Cingular and the City. The agreement will be distributed in the supplemental agenda packet on May 7 with a staff report describing its provisions. ENCROACHMENT PERMIT The Cingular Wireless telecom facility site will also require an encroachment permit (N2004 -0145) issued by the Public Works Department to allow construction of the facility on public property. This will be issued only if the City Council approves the telecom permit and license agreement. Alternatives 1. The City Council can modify the design by lowering the height of the facility or by relocating the facility to a different location on the site which Council deems more appropriate. 2. The City Council can deny the subject permit and /or the license agreement, in which case both the agreement and permit shall not be executed. Prepared by: Submitted by: k "17191 bi WE Patricia L. Temple Planning Director FAUSERS \PLN \Shared \PA's \PAS - 2003 \PA2003 - 255 \TP2003 -003 CC Rpt.doc 4600 West Coast Highway May 11, 2004 Page 8 Exhibits: 1. Vicinity Map 2. Findings & Conditions of Approval 3. Ordinance No. 2002 -24 4. Council Policy L -23 5. Applicant's Proposal and Project Justification 6. Radio Frequency Propagation Maps 7. Photo Simulations 8. Site Plan and Elevations 9. Public Correspondence 1927 4ul 4515 4209 4505 4316 4812 4801 4305 49M 4605 4700 EXHIBIT NO. VICINITY MAP SUPERIOR AVE co, 'S IV 5 7 7 5 A Sunset TELECOM PERMIT No. TP2003-003 (PA2003-255) SITE ADDRESS: 4600 WEST COAST HIGHWAY 4533 Y t. 4525 — ........ 1p. .. Sol 0 4537 4719 4501 446) 4715 4547 4401 4709 70 43 ,701 %.( 4535 4%5 4421 4441 At, ... 4 44614407 146 ..... . „ 554115„ 274117,4094405 4403 44Z! 4433 446' 4459 133 + 4 4451 142 4431 47W 74 i3a �, 4601 1131 133 ------- 4510 ------- 4411 170 45W TELECOM PERMIT No. TP2003-003 (PA2003-255) SITE ADDRESS: 4600 WEST COAST HIGHWAY EXHIBIT NO. 2 Findings and Conditions of Approval FINDINGS AND CONDITIONS OF APPROVAL Telecommunications Facility Permit No. TP2003 -003 Findings: 1. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures). 2. The telecommunications facility as proposed meets the intent of Chapter 15.70 of the Newport Beach Municipal Code, while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic ocean and coastal views, and otherwise mitigating the impacts of such facilities for the following reasons: • The proposed telecom facility will comply with the applicable rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). • The proposed telecom facility is located within a municipal parking lot where adequate space exists for development of the facility and no loss of public parking will occur. Any future facilities proposed to be located within 1,000 feet of this facility shall be required to co- locate on the same site to limit the adverse visual effects of proliferation of facilities in the City. • Impacts on public views will not be affected by the installation of the proposed facility due to the slim design. 3. The proposed 50 -foot flagpole to accommodate the telecommunications facility will exceed the 35 -foot height limitation for flagpoles allowed by the Zoning Code as provided for in Section 15.70.070 F of the Wireless Telecommunications Facilities Ordinance, and meets the intent of this section for the following reasons: • The applicant investigated alternative sites and designs and found the facility must be located at or near the proposed location and be 50 -feet in height due to the topography in this area of the City in order to meet its coverage objectives and not cause radio frequency interference with other existing facilities in the vicinity. • The design of the 50 -foot flagpole will not result in conditions which are materially detrimental to the nearby property owners, residents, and businesses or to the public heath and safety with implementation of the attached Conditions of Approval. I;L- Telecommunications Facility Permit No. 2003 -003 Findings and Conditions of Approval Page 2 4. The telecommunications facility as proposed conforms to the technology, location and design standards for the following reasons: • The telecom facility approved under this permit utilizes the most efficient and diminutive available technology in order to minimize the number of facilities and reduce the visual impact. • The antennas for the telecom facility approved by this permit will be concealed with the flagpole. • The support equipment for the telecom facility will be placed within a retaining block wall enclosure and will be screened from public view in a manner consistent with the surrounding environment. Conditions: 1. The development shall be in substantial conformance with the approved site plan and elevations, except as noted in the following conditions. 2. Anything not specifically approved by this Telecom Permit is not permitted and must be addressed in a separate and subsequent Telecom Permit review. 3. The facility shall consist of 3 panel antennas mounted within the flagpole. The support equipment shall consist of 4 base transreceiver units mounted within a block wall enclosure. The total area of the telecom facility shall be approximately 265 square feet (or 8 feet by 33 feet in area), as depicted on the approved plans. 4. All work conducted by the applicant on the subject property for the construction of the telecom facility approved by this Telecom Permit No. TP 2003 -003 shall be approved under an encroachment permit/agreement, and construction and maintenance easements issued by the Public Works Department. 5. The flagpole shall not exceed 50 feet in height measured from existing grade. The pole rope should be installed inside the flagpole in order to prevent undesired items from being towed up the pole, unless otherwise approved by the Planning Director. 6. The applicant shall install and provide continuous maintenance of a United States flag. The size of the flag shall be in proportion to the flagpole, and shall be a minimum dimension of 12 feet by 18 feet, unless otherwise approved by the Planning Director. Should the flag become faded, tattered or vandalized, it shall be replaced at the expense of the applicant. IS Telecommunications Facility Permit No. 2003 -003 Findings and Conditions of Approval Page 3 The flag shall be night lighted and the applicant shall be responsible for light bulb replacement as necessary. The lights at the base of the flagpole shall be directed up to the flag, and shall be at the lowest intensity necessary for the purpose of illuminating the flag. Such lighting shall be shielded so that direct rays do not shine on nearby properties. Prior to the final of building permits, the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm compliance with this condition. 8. The support equipment shall be located within a fully enclosed block wall structure. Anti -skate devices shall be installed along the top of the block walls and vault. No portion of the support equipment or block wall enclosure shall project into any adjacent parking stall or vehicle maneuvering area. 9. The block wall enclosure structure shall be screened by plantings to match the existing surrounding landscaping. 10. The applicant shall install a dedicated electric cabinet, meter and other necessary components to service the telecom facility. 11. The applicant shall assume all costs associated with any alterations to the existing improvements on the subject property for development of the telecom facility. 12. The applicant shall be responsible for the repair and /or replacement of any curb and gutters, and parking lot striping that may be damaged through the course of construction, as directed by the Public Works Department. 13. Any irrigation systems and landscaping damaged during the course of construction shall be restored as directed by the General Services Department. 14. The applicant shall be responsible for continuous maintenance and repair of the flagpole and equipment cabinets and shall be responsible for graffiti removal or repair due to vandalism. 15. Any future facilities proposed by other carriers to be located within 1,000 feet from the subject property shall be approved to co- locate at the same site by the property owner or authorized agent, unless it is determined by the Planning Director that such co- location is not feasible. This condition does not relieve such a future co- locator from obtaining a telecom permit. 14 Telecommunications Facility Permit No. 2003 -003 Findings and Conditions of Approval Page 4 16. Prior to the issuance of any permits to install the facility, the applicant shall meet in good faith to coordinate the use of frequencies and equipment with the, Communications Division of the Orange County Sheriff - Coroner Department to minimize, to the greatest extent possible, any interference with the public Safety 800 MHz Countywide Coordinated Communications System (CCCS). Similar consideration shall be given to any other existing or proposed wireless communications facility that may be located on the subject property. The applicant recognizes that the frequencies used by the cellular facility located at 4600 West Coast Highway are extremely close to the frequencies used by the City of Newport Beach for public safety. This proximity will require extraordinary "comprehensive advanced planning and frequency coordination" engineering measures to prevent interference, especially in the choice of frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide' published by the Association of Public -safety Communications Officials - International, Inc. (APCO), and as endorsed by the Federal Communications Commission (FCC). 17. The applicant shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 18. The facility shall transmit at a frequency range of between 1850 MHz and 1990 MHz. Any change or alteration to the frequency range shall require the prior review and approval of the Planning Director. 19. Prior to activation its facility, the applicant shall submit to a post - installation test to confirm that "advanced planning and frequency coordination" of the facility was successful in not interfering with the City's Public Safety radio equipment. This test will be conducted by the Communications Division of the Orange County Sheriff - Coroner Department or a Division - approved contractor at the expense of the applicant. This post - installation testing process shall be repeated for every proposed frequency addition and /or change to confirm the intent of the "frequency planning" process has been met. 20. The applicant shall provide the City with a telephone number that shall be monitored 24 hours per day to which interference problems may be reported. 15 Telecommunications Facility Permit No. 2003 -003 Findings and Conditions of Approval Page 5 21. The applicant shall provide a "single point of contact" in its Engineering and Maintenance Departments to insure continuity on all interference issues. The name, telephone number, fax number and e-mail address of that person shall be provided to the Newport Beach Police Department's Support Services Commander upon activation of the facility. 22. Should interference with the City's Public Safety radio equipment occur, use of the facility shall be suspended until the radio frequency is corrected and verification of the compliance is reported. 23. The applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of the applicant to comply. 24. The telecom facility approved by the permit shall comply with any existing easements, covenants, conditions or restrictions on the underlying real property upon which the facility is located. 25. The applicant shall coordinate its activities with and minimize the construction impacts on any users who have a prior agreement with the City to use this site. Further, the construction and maintenance activities required by the development shall not interfere with the access paths used by other vehicles entering and exiting the site. 26. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 27. No advertising signage or identifying logos shall be displayed on the telecom facility except for small identification, address, warning and similar information plates. Such information plates shall be identified in the plans submitted for issuance of building permits. 28. The telecom facility shall comply with regulations and requirements of the Uniform Building Code, Uniform Fire Code, Uniform Mechanical Code and National Electrical Code, including any local amendments adopted by the City of Newport Beach. Prior to the issuance of any building, mechanical or electrical permits, drawings and structural design plans shall be submitted to the City for review by the applicable departments. All lb Telecommunications Facility Permit No. 2003 -003 Findings and Conditions of Approval Page 6 required permits shall be obtained prior to commencement of the construction. 29. Within 30 days after installation of the telecom facility, a radio frequency (RF) compliance and radiation report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the facility is operating at the approved frequency and complies with FCC standards for radiation. If the report shows that the facility does not so comply, the use of the facility be suspended until the facility is modified to comply and a new report has been submitted confirming such compliance. 30. The operator of the telecom facility shall maintain the facility in a manner consistent with the original approval of the facility. 31. The City reserves the right and jurisdiction to review and modify any telecom permit approved pursuant to Chapter 15.70 of the Newport Beach Municipal Code, including the conditions of approval, based on changed circumstances or failure to comply with conditions of approval. The operator shall notify the Planning Department of any proposal to change the height or size of the facility; increase the size, shape or number of antennas; change the facility's color or materials or location on the site; or increase the signal output above the maximum permissible exposure (MPE) limits imposed by the radio frequency emissions guidelines of the FCC. Any changed circumstance shall require the operator to apply for a modification of the original telecom permit and obtain the modified telecom permit prior to implementing any change. 32. This telecom permit may be modified or revoked by the City Council should they determine that the facility or operator has violated any law regulating the telecom facility or has failed to comply with the requirements of Chapter 15.70 of the NBMC, or this telecom permit. 33. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Director by certified mail no less than 30 days prior to such action. The operator or property owner shall have 90 days from the date of abandonment or discontinuance to reactivate use of the facility, transfer the rights to use the facility to another operator, or remove the telecom facility and restore the site. 1.1 EXHIBIT NO. 3 Ordinance No. 2002 -24 il ORDINANCE NO. 2002 -24 AN ORDINANCE OF THE.CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER 15.70 TO THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO WIRELESS TELECOMMUNICATION FACILITIES The City Council of the City of Newport Beach finds that: A. The regulations and design standards set out in this chapter are necessary to protect public health, safety, welfare, and aesthetic interests, and that the enforcement thereof will not result in the imposition of excessive costs on operators and users of wireless telecom services. The City Council finds, further, that these regulations and design standards neither materially limit a person's ability to receive wireless telecommunication services nor create unfair competition among wireless telecom service providers. B. Section 704 of the 1996 Telecommunications Act (47 U.S.C. §332(c)) preempts local regulation of the placement, construction, and modification of wireless telecom facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the applicable FCC regulation s. NOW THEREFORE, the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows: SECTION 1: Chapter 15.70 is hereby added to the Newport Beach Municipal Code read as follows: Chapter 15.70 WIRELESS TELECOMMUNICATION FACILITIES Sections: 15.70.010 Purpose and Intent 15.70.020 General Provisions 15.70.030 Definitions 15.70.040 Available Technology 15.70.050 Height and Location 15.70.060 Design Standards 15.70.070 Permit Review Procedures ap 15.70.080 Radiation Report 15.70.090 Right to Review or Revoke Permit 15.70.100 Removal of Telecom Facilities 15.70.110 Violation a Misdemeanor 15.70.010 Purpose and Intent A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication ( "telecom ") facilities on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of antennas in non - residential areas. 2. Strongly encourage co- location at new and existing antenna sites. 3. Encourage telecom facilities to be located in areas where adverse impacts on the community and on public views are minimized. B. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecom services. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecom services. 15.70.020 General Provisions A. Applicability. These regulations are applicable to telecom facilities providing voice and /or data transmission such as, but not limited to, cell phone and radio relay stations. B. Exempt Facilities. Amateur radio and receiving satellite dish antennas regulated by Chapter 20.61 are exempt from the provisions of this Chapter. C. Permit Required. A permit shall be required for all telecom facilities regulated by this Chapter in accordance with Section 15.70.070. D. Other Regulations. All telecom facilities within the City shall comply with the provisions of this Chapter and the following requirements: 1. Conditions in any permit or license issued by a local, state, or federal agency which has jurisdiction over the telecom facility. 2 �,1 2. Rules, regulations, and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). 3. Easements, covenants, conditions, or restrictions on the underlying real property. 4. The Uniform Building Code, Uniform Fire Code, Uniform Mechanical Code, and National Electrical Code, as amended by state or local law or regulation. 5. The provisions of Title 13 to the extent the telecom facilities are proposed to be located on or within the public right of way. E. Regulations not in Conflict or Preempted. All telecom facilities within the City shall comply with the following requirements unless in conflict with or preempted by the provisions of this Chapter: 1. Design guidelines or standards in any applicable specific plan within the Newport Beach Zoning Code (Title 20). 2. Requirements established by any other provision of the Municipal Code or by any other ordinance or regulation of the City, other than those listed in Paragraph D of this Section. F. Setbacks. Setbacks shall be measured from the part of the telecom facility closest to the applicable lot line or structure. G. Maintenance. The telecom operator shall maintain the telecom facility in a manner consistent with the original approval of the facility. H. Non - Conformities. A proposed telecom facility shall not create any new or increased non - conformities as defined in the Zoning Code, such as, but not limited to, a reduction in and /or elimination of, parking, landscaping, or loading zones. 15.70.030 Definitions For the purposes of this Chapter, certain terms shall have meanings as follows: A. Antenna means a device used to transmit and /or receive radio or electromagnetic waves between earth- and /or satellite -based systems, such as reflecting discs, panels, microwave dishes, whip antennas, antennas, arrays, or other similar devices. B. Antenna Array shall mean antennas having active elements extending in more than one direction, and directional antennas mounted upon and rotated through a 3 P, vertical mast or tower interconnecting the beam and antenna support, all of which elements are deemed to be part of the antenna. C. City means the City of Newport Beach. D. City Council or Council means the City Council of the City of Newport Beach. E. City Property means all real property and improvements owned, operated or controlled by City, other than public right of way, within the City's jurisdiction. City Property includes, but is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, streetlights and traffic lights. F. Co- location means an arrangement whereby multiple telecom facilities owned or operated by different telecom operators share the same structure or site. G. Department Director or Reviewing Department Director means either the Planning Director or the Public Works Director, as applicable. H. FCC means the Federal Communications Commission. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal, and technological factors. J. Lattice Tower means an open framework structure used to support antennas, typically with three or four support legs. K. Monopole means a single free - standing pole used to act as or support a telecom antenna or antenna arrays. L. Operatoror Telecom Operator means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a telecom facility or facilities within the City. M. Planning Director means the Planning Director of the City or his or her designee. N. Public Right of Way or ( "PROW ") means any public way, or rights -of -way, now laid out or dedicated, and the space on, above or below it, and all extensions thereof and additions thereto, owned, operated and /or controlled by the City or subject to an easement owned by City. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. O. Public Works Director means the Public Works Director of the City or his or her designee. 4 a5 P. Residential Lot means a lot containing, or zoned for, one or more dwelling units in the R -1, R -1.5, R -2, or in the residential portions of the PC or SP Districts. Q. Reviewing Authority means the person or body authorized under the provisions of this Chapter to review and act upon a telecom application, i.e. either a specified staff department director or the City Council. R. Stealth or Stealth Facility means a telecom facility in which the antenna, and sometimes the support equipment, are hidden from view in a false tree, Monument, cupola, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature. Concealing structures which are obviously not such a natural or architectural feature to the average observer do not qualify within this definition. S. Support Equipment means the physical, electrical and /or electronic equipment included within a telecom facility used to house, power, and /or process signals from or to the facility's antenna or antennas. T. Telecommunication (s) Facility, Telecom Facility, Wireless Telecommunications Facility, or simply Facility means an installation that sends and /or receives wireless radio frequency signals or electromagnetic waves, including but not limited to directional, omnidirectional and parabolic antennas, structures or towers to support receiving and /or transmitting devices, supporting equipment and structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios /telephones and their associated transmitting antennas. U. Title 20 or Zoning Code means Title 20 of the Newport Beach Municipal Code. V. Utility Tower shall mean an open framework structure or steel pole used to support electric transmission facilities. W. Zoning District or District means an area of the City designated on the official Districting Maps and subject to a uniform set of permitted land uses and development standards. 15.70.040 Available Technology All telecom facilities approved under this Chapter shall utilize the most efficient and diminutive available technology in order to minimize the number of facilities and reduce their visual impact. 5 �A 15.70.050 Height and Location A. Height. 1. Maximum Height. No antenna or other telecom equipment or screening structure shall extend higher than the following maximum height limits: a. 35 feet for antennas on streetlights, traffic control standards, utility distribution poles, or other similar structures within the public right - of -way. Antennas may be placed on existing utility poles that exceed 35 feet, where the purpose of the existing utility pole is to carry electricity, provided that the top of the antenna does not exceed the top of the pole. b. For all other telecom facilities, the maximum height of antennas shall be the upper maximum building height allowed in the zoning district as specified in the Zoning Code (for example, no higher than 35 feet in the "26/35 Foot Height Limitation Zone "). 2. Over - Height Antennas. The City Council may approve antennas up to 15 feet above the preceding maximum building height limitations under the special review provisions of Section 15.70.070 of this Chapter. 3. "Stealth" Telecommunication Installations within Structures. Stealth facilities may be installed within structures that are permitted to exceed the above stated height limits, either by right under Title 20 or which have received a Use Permit. B. Location. 1. Location Categories and Location Priorities. Locations for telecom facilities shall be selected according to the following priority order: a. Wall, roof, or existing co- location structure or site; b. Existing pole, light standard, or utility tower; C. Commercial sign or architectural feature; d. New or existing "stealth" structure other than a false tree; e. New false tree; f. New "Slim Jim" monopole (i.e. with no antenna elements other than the pole itself); g. New standard monopole with attached antenna elements; h. New lattice tower. 2. Special Requirements. Proposals for telecom facilities at location categories "e" through "h" in Section 15.070.050B(1) shall require special review by the City Council under the provisions of Section 15.70.070 of 6 �5 this Chapter. In such cases, the applicant shall be required to show to the satisfaction of the Council that: a. Higher priority locations are either not available or are not feasible; b. Establishment of a facility on a new standard monopole or lattice tower is necessary to provide service; and C. Lack of such a facility would result in a denial of service. 3. Other Locations Requiring Special Approval. Telecom facilities are prohibited in the following locations unless given special approval by the City Council under the provisions of Section 15.70.070: a. On common area lots or other non - residential lots within residential districts. b. Within any required setback established in the Zoning Code. C. On multifamily structures on lots zoned MFR. 4. Prohibited Locations. Telecom facilities are prohibited in the following locations: a. On residential lots. b. In the Open Space- Passive (OSP) zoning district, unless facilities are co- located on an existing utility tower within a utility easement area. C. Co- Location Requirements. 1. Co- Location Required. To limit the adverse visual effects of a proliferation of telecom sites in the City, a new telecom facility proposed within 1000 feet of an existing facility shall be required to co- locate on the same site as the existing facility unless the reviewing authority determines, based on evidence submitted by the applicant, that such co- location is not feasible. 2. Co- Location Limitations. No more than three telecom facilities may co- locate at a single site unless the reviewing authority finds that: a. The net visual effect of locating an additional facility at a co- location site will be less than establishing a new location; or b. Based on evidence submitted by the applicant, there is no available feasible aitemate location for a proposed new facility. 3. Condition Requiring Future Co- Location. In approving a telecom facility, the reviewing authority may impose a condition of approval allowing future co- location of telecom facilities by other carriers at the same site. 7 a� 15.70.060 Design Standards A. General Criteria. In addition to the other design standards of this Section, the following criteria shall be considered by the reviewing authority in connection with its processing of any telecom permit. 1. Blending. The extent to which the proposed facility blends into the surrounding environment or is architecturally integrated into structure. 2. Screening. The extent to which the proposed facility is concealed, screened or camouflaged by existing or proposed new topography, vegetation, buildings, or other structures. 3. Size. The total size of the proposed facility, particularly in relation to surrounding and supporting structures. B. Free - Standing Antennas. Antennas and any poles or other structures erected to support antennas shall be visually compatible with surrounding buildings and vegetation. The reviewing authority may require that the antenna be colored to blend into the sky or other background. C. Roof - Mounted Antennas. Roof - mounted antennas, except whip antennas, shall be blended or screened from public view in a manner consistent with the building's architectural style, color and materials including, if determined necessary by the reviewing authority, screening to avoid adverse impacts to views from land or buildings at higher elevations. D. Wall- Mounted Antennas. Wall- mounted antennas shall be painted to match the color of the wall on which they are mounted. Cables and mounting brackets shall be hidden. Shrouds may be required by the reviewing authority to screen wall - mounted antennas. E. Support Equipment. 1. Buildinq- Mounted Installations. For building- mounted installations, support equipment for the facility shall be placed within the building. If the reviewing authority determines that such building placement is not feasible, the equipment shall be roof - mounted in an enclosure or shall otherwise be screened from public view in a manner approved by the reviewing authority. Roof - mounted equipment shall comply with the height limits applicable to the building per the Zoning Code. All screening used in connection with a building- mounted facility shall be compatible with the architecture, color, texture and materials of the building to which it is mounted. 8 �1 2. Ground - Mounted Installations. For ground- mounted installations, support equipment shall be screened in a security enclosure approved by the reviewing authority. Such screening enclosures may utilize graffiti - resistant and climb- resistant vinyl -clad chain link with a "closed- mesh" design (i.e. one -inch gaps) or may consist of an alternate enclosure design approved by the reviewing authority. In general, the screening enclosure shall be made of non - reflective material and painted or camouflaged to blend with surrounding materials and colors. Buffer landscaping may also be required if the reviewing authority determines that additional screening is necessary due to the location of the site and that irrigation water is available. 3. Installations in Public Right -of -Way. Telecom Facilities and or support equipment proposed to be located in the public right -of -way shall comply with the provisions of Title 13. In addition, ground- mounted equipment in the public right -of -way shall comply with all requirements of the Americans with Disabilities Act (ADA). F. Night Lighting. Telecom facilities shall not be lighted except for security lighting at the lowest intensity necessary for that purpose. Such lighting shall be shielded so that direct rays do not shine on nearby properties. The reviewing authority shall consult with the Police Department regarding proposed security lighting for telecom facilities on a case -by -case basis. G. Signs and Advertising. No advertising signage or identifying logos shall be displayed on any telecom facility except for small identification, address, warning, and similar information plates. Such information plates shall be identified in the telecom application and shall be subject to approval by the reviewing authority. 15.70.070 Permit Review Procedures A. Reviewing Authority. All applicants for telecom facilities not within the public right - of -way shall apply for a permit from the Planning Department as follows: 1. Private or City -Owned Property. Facilities on private property or on City - owned property shall be reviewed by the Planning Director as a "Telecom Permit". 2. Referral to City Council. The Planning Director may refer any application to the City Council for special review under the procedures set out in Paragraph F of this Section. B. Submission Requirements. Applications for telecom facilities shall be accompanied by the following documentation in a form and containing information acceptable to the reviewing authority: 9 a� Plans. Site Plans and Elevations drawn to scale. 2. Justification. A brief narrative, accompanied by written documentation where appropriate, which explains the purpose of the facility and validates the applicant's efforts to comply with the design, location, and co- location standards of this Chapter. 3. Maps. A map or maps showing the geographic area to be served by the facility. In order to facilitate planning and gauge the need for future telecom facilities, the reviewing department director may also require the operator to submit a comprehensive plan of the operator's existing and future facilities that are or may be placed within the city limits of Newport Beach.. 4. Visual Simulations. Visual simulations showing "before" and "after" views of the proposed facility, unless the reviewing department director determines that such simulations are not necessary for the application in question. Consideration shall be given to views from both public areas and private residences. - 5. Emission Standards and Non - Interference Data. Documentation showing the specific frequency range that the facility will use upon and throughout activation, certification that the facility will continuously comply with FCC emissions standards, and that use of the telecom facility will not interfere with other communication, radio, or television transmission or reception. 6. Property Ownership. Evidence of ownership of the real property on which the proposed telecom facility will be located, or if the applicant does not own the real property, the name and mailing address of the real property owner(s), and evidence of authorization from the real property owner to place the facility on the property. 7. Wind Load Calculations. For proposed antenna installations on new monopoles, utility poles, or other structures subject to wind loads, the applicant shall submit wind load calculations prepared or approved by an engineer registered in California. The wind load calculations shall show, to the satisfaction of the reviewing authority, that the resulting installation will be safe and secure under wind load conditions. The calculations shall take into account other existing attachments to the supporting structure and potential future antennas co- located on the structure by other operators. 8. Mailing List. If public notice is required by the reviewing authority, a list of property owners within 300 feet of the proposed telecom facility taken from the latest assessor rolls. 10 q a 9. Supporting Materials. Additional supporting materials as deemed necessary by the reviewing department director to complete review of the proposal. Supporting materials may include, but are not limited to, color and material sample boards, proposed informational signage, and landscaping plans. 10. Fee. Applications shall be accompanied by a fee established by resolution of the City Council to defray all estimated costs and expenses incidental to review and processing of the application, including any expense incurred by the Police Department or for any outside technical or legal services to review the application. This fee shall be in addition to other fees required by the Municipal Code. C. Review Process for Proposals on City Propert y. Review of telecom applications for facilities on City property shall be as follows: 1. Eiling. Applications shall be submitted to the Planning Director for facilities on City property shall undergo initial staff review for compliance with the provisions of this Chapter and Title 13. Within 30 days of filing, the reviewing department director shall notify the applicant in writing whether the application is complete. If an application is determined to be not complete, the notification shall identify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete. 2. Emergency Communications Review. At the same time as the Applicant submits an application to the Planning Director, the Applicant shall submit the Plans, Map, and Emission Standards and Non - Interference Data (parts 1, 3, and 5 of the Submission Requirements) to the Newport Beach Police Department. The Police Department or its designee shall review the plan's potential conflict with emergency communications. The review may include a pre - installation test of the facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that its facilities will interfere with emergency communications devices, the applicant shall be given the opportunity to modify the proposal, to avoid interference. If the proposal is not modified, the reviewing department director shall deny the proposal. 3. Director's Action. Within 30 days of the determination that the application is complete, the Planning Director shall take action on the application based on the following criteria: a. If the director determines that the facility conforms to the technology height, location and design standards of Sections 15.70.040, 15.70.050 and 15.70.060 of this Chapter, he or she shall approve the application with or without conditions of approval. 11 17 b. If the director determines that the facility does not conform to one or more standards, he or she shall inform the applicant of the discrepancy and give the applicant the option of amending the application to eliminate the discrepancy. If the discrepancy is not eliminated, the director shall deny the application. C. If the director determines that conformity to standards are in doubt, he or she shall refer the application to the City Council for Special Review under the procedures set out in Paragraph F of this Section. 4. Applicant Notification. After action on the application, the director shall cause the applicant to be notified in writing within five business days of the decision. The applicant may appeal decisions by the director in accordance with Paragraph E of this Section. 5. City Manager Action. When a permit for a telecom facility on City -owned property or facilities is approved, the Planning Director shall forward the permit to the City Manager, who shall prepare and execute an Agreement based upon a term and rental amount adopted under City Council policy. 6. City Council Action. Where applicable (including proposals to site facilities in Location Categories in Section 15.70.050[B][1][e -h]), the City Manager shall forward the agreement and final telecom permit to the City Council for final approval. The City Council may approve, approve subject to modifications, or deny the agreement and telecom permit. The City Council retains the right to refuse approval of an agreement at any time and for any reason. Should the City Council deny the agreement,•the agreement and permit shall not be executed. 7. Notification to Applicant. The City Clerk shall notify the applicant in writing within five business days of the City Council's decision. D. Review Process for Private Property. Review of telecom applications for facilities on private property shall be as follows: 1. Filin . Submission of application to the Planning Director and initial staff review. Within 30 days of filing, the Director shall cause the applicant to be notified in writing whether the application is complete. If an application is determined to be not complete, the notification shall identify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete. 2. Emergency Communications Review. At the same time as the Applicant submits an application to the Planning Director, the Applicant shall submit 12 1 3 the Plans, Map, and Emission Standards and Non - Interference Data (parts 1, 3, and 5 of the Submission Requirements) to the Newport Beach Police Department. The Police Department or its designee shall review the plan's potential conflict with emergency communications. The review may include a pre - installation test of the facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that its facilities will interfere with emergency communications devices, the applicant shall work with the Police Department to modify the installation or location of facility to avoid interference to the maximum extent practicable. 3. Director's Action. Within 30 days after the determination that the application is complete, the Planning Director shall approve, approve subject to conditions, or deny the telecom permit under the same procedures and criteria as set out in Paragraph C of this Section. The Director shall then cause the applicant to be notified in writing within five business days of the decision. The applicant may appeal decisions by the Director in accordance with Paragraph E of this Section. E. Appeals to CRY Council. Within 14 days of the date of written notification of action by the reviewing department director, the applicant may appeal any denial of the application or any conditions of approval to the City Council. The City Council shall hear all appeals within 60 days of filing of the appeal. The City Council's action on appeals shall be final. If the final action is denial, the City Council shall adopt a Resolution setting forth the reasons for denial. F. Special Review by Council. Because of their potential for greater- than -usual visual or other impacts on nearby property owners, residents, and businesses, applications for the telecom facilities identified below shall require special review by the City Council. 1. Applicability. Proposals requiring special review include the following: a. Telecom antennas up to 15 feet above the upper maximum height limit as provided in 15.70.050(A). b. Telecom facilities at locations identified as requiring special review in Section 15.70.050(B). C. Any telecom application which the department director determines requires special review in order to serve the public interest. 2. Special Review Procedures. Applications subject to special review shall be reviewed under the following procedures: 13 n� a. Notification describing the proposal and the date and time of City Council review shall be mailed at least 10 days in advance of the City Council review date to property owners of record within 300 feet of the proposed location of the telecom facility. However, such notification shall not constitute a public hearing notice and non - receipt of such notification shall in no way nullify any approval or denial of a telecom facility. b. No formal public hearing shall be required in conjunction with review of a proposed telecom facility. However, the City Council may hear and consider comments from the public during its review of the application. 3. Council Action. The City Council shall take action on the telecom permit within 60 days after the determination that the application is complete. Applications subject to special review may be approved by the City Council if it makes the following findings: a. The approval is necessary to allow the facility to function as intended and identified alternatives to the proposal are not feasible. b. The approved facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. The City Council may approve, approve subject to conditions, or deny the telecom permit. 4. Notification to Applicant. The City Clerk shall notify the applicant in writing within five business days of the City Council's decision. 15.70.080 Radio Frequency Compliance and Radiation Report Within 30 days after installation of a telecom facility, a radio frequency (RF) compliance and radiation report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the facility is operating at the approved frequency and complies with FCC standards for radiation. If the report shows that the facility does not so comply, the reviewing director shall require that use of the facility be suspended until a new report has been submitted confirming such compliance. 15.70.090 Right to Review or Revoke Permit A. Changed Circumstance. Any telecom permit approved pursuant to this Chapter shall be granted by the City with the reservation of the right and jurisdiction to review and modify the permit (including the conditions of approval) based on changed circumstances. Changed circumstances include, but are not limited to, 14 �3 the following in relation to the telecom facility and its specifications in the approved application and /or conditions of approval: 1. An increase in the height or size of any part of the facility; 2. Additional impairment of the views from surrounding properties; 3. Increase in size or change in the shape of the antenna or supporting structure; 4. A change in the facility's color or materials; 5. A substantial change in location on the site; 6. An effective increase in signal output above the maximum permissible exposure (MPE) limits imposed by the radio frequency emissions guidelines of the FCC. The operator shall notify the Reviewing Department Director of any proposal to cause one or more of the changed circumstances shown in 1 -6 above. Any changed circumstance shall require the operator to apply for a modification of the original telecom permit. Before implementing any changed circumstance, the operator must obtain a modified telecom permit and any related building or other permits required by the City. B. Additional Right to Revoke or Modify Permit. The reservation of right to review any telecom permit granted by the City is in addition to, and not in lieu of, the right of the City to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit. After due notice to the telecom operator, the City Council may revoke any telecom permit upon finding that the facility or the operator has violated any law regulating the telecom facility or has failed to comply with the requirements of this Chapter, the telecom permit, any applicable agreement, or any condition of approval. Upon such revocation, the City Council may require removal of the facility. 15.70.100 Removal of Telecom Facilities A. Discontinued Use. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Director by certified mail no less than 30 days prior to such action. The operator or owner of the affected real property shall have 90 days from the date of abandonment or discontinuance, or a reasonable time as may be approved by the Planning Director, within which to complete one of the following actions: 1. Reactivate use of the telecom facility; 2. Transfer the rights to use the telecom facility to another operator and the operator immediately commences use; 3. Remove the telecom facility and restore the site. 15 3� B. Abandonment. Any telecom facility that is not operated for a continuous period of 180 days or whose operator did not remove the telecom facility in accordance with Subsection A shall be deemed abandoned. Upon a finding of abandonment, the City shall provide notice to the telecom carrier last known to use such facility and, if applicable, the owner of the affected real property, providing thirty days from the date of the notice within which to complete one of the following actions: 1. Reactivate use of the telecom facility; 2. Transfer the rights to use the telecom facility to another operator; 3. Remove the telecom facility and restore the site. C. Removal by City. 1. The City may remove an abandoned facility, repair any and all damage to the premises caused by such removal, and otherwise restore the premises as is appropriate to be in compliance with applicable codes at any time -after 30 days following the notice of abandonment. 2. If the City removes the telecom facility, the City may, but shall not be required to, store the removed facility or any part thereof. The owner of the premises upon which the abandoned facility was located and all prior operators of the facility shall be jointly liable for the entire cost of such removal, repair, restoration and storage, and shall remit payment to the City promptly after demand therefore is made. In addition, the City Council, at its option, may utilize any financial security required in conjunction with granting the telecom permit as reimbursement for such costs. Also, in lieu of storing the removed facility, the City may convert it to the City's use, sell it, or dispose of it in any manner deemed by the City to be appropriate. D. City Lien on Property. Until the cost of removal, repair, restoration and storage is paid in full, a lien shall be placed on the abandoned personal property and any real property on which the facility was located for the full amount of the cost of removal, repair, restoration and storage. The City Clerk shall cause the lien to be recorded with the Orange County Recorder. 15.70.110 Exemption for City Systems Systems installed or operated at the direction of the City or its contractor shall be exempt from this Chapter. 16 SECTION 2: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, sub- sections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 241' day of September, 2002, and adopted on the 8'h day of October, 2002, by the following vote, to -wit: AYES, COUNCILMEMBERS Heffernan, .O'Neil, Bromberg, Adams, Proctor, Mayor Ridgewav NOES,COUNCILMEMBERS lone ABSENT, COUNCILMEMBERS Glover MAYOR i J. ATTEST: � I.�l V �P/ � • I y�ii�N�C,C!Y� CITY CLERK 17 `5I STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2002 -24 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day of October 2002, and that the same was so passed and adopted by the following vote, to wit: Ayes: Heffernan, O'Neil, Bromberg, Adams, Proctor, Mayor Ridgeway Noes: None Absent: Glover Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 9th day of October 2002. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2002 -24 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: October 12, 2002. 2002. In witness whereof, I have hereunto subscribed my name this day of City Clerk City of Newport Beach, California Jl L -23 THE SITING OF WIRELESS TELECOMMUNICATIONS EQUIPMENT ON CITY -OWNED LAND PURPOSE To describe the manner in which specific city -owned or city Trust properties may be used as locations for wireless telecommunications devices that transmit voice or data. POLICY It is the policy of the City to effectively balance the needs of its residents, visitors, and businesses to use and have access to state -of- the -art wireless telecommunication systems (such as wireless Internet, voice, and other data communications) with the needs of residents to safely and effectively enjoy their property. This Policy shall be used when considering applications to install wireless communications devices on City - owned or City -held property by any wireless telecommunications provider or siting company. A. PERMIT REQUIRED 1. All telecom facilities proposed to be located on City -owned or City-held trust property must first apply for and receive a permit under the provisions of Chapter 15.70. 2. All proposals affecting City -owned or City -held trust property shall be processed via this Policy through the Planning Department. Successful projects shall receive a "Telecom Permit." B. AGREEMENT REQUIRED All telecom facilities located on City -owned property or City -held Trust property must have an agreement approved as to form by the City Attorney and approved as to substance (including, but not limited to, compensation, term, insurance requirements, bonding requirements, and hold harmless provisions) by the City Manager. C. CITY SITES ELIGIBLE OR INELIGIBLE FOR FACILITY PLACEMENT 1. Sites Eligible for Use. The City Council has determined that the following City locations are acceptable for placement of wireless devices: 1 �b Fil L -23 a. Fire Stations b. Newport Beach City Hall C. Parks d. Police Headquarters e. Lifeguard Headquarters f. Piers g. The OASIS Senior Center h. Medians and parkways along public streets i. The Central Library and Branch Libraries j. The Utilities and General Services Corporate Yards k. Big Canyon Reservoir and surrounding grounds 1. Qualifying City -held easements M. Streetlights (following certification and acceptance by the Utilities Department of an effective test of the facility's impacts to the light standard under various environmental conditions) n. Traffic Signal poles (following certification and acceptance by the Public Works Department of an effective test of the facility's impacts to the traffic signal pole under various environmental conditions) 2. Sites Ineligible for Use. The City Council has determined that the following City locations are unacceptable for placement of wireless devices in accordance with the entirety of this Policy: a. Open space areas owned by the City where placement of facilities in these areas would aesthetically impair the pristine nature of the area. COMPENSATION AND TERM . The City Manager shall follow these rules when developing any Agreement for the placement of any wireless device on City property: 1. Compensation shall be equal to fair market value, taking into account rent charged by owners of public or private properties within Newport Beach or neighboring cities for a similar type of facility and location. Such compensation shall be determined via a Rent Survey conducted by the City Manager's Office. 2 M L -23 2. The Agreement shall provide for a specific term to be determined by the City Manager. Where the term exceeds five (5) years, at the fifth year and every five years thereafter, rent shall be adjusted to fair market value using the Rent Survey ( "Market -Based Adjustment "). 3. The Agreement shall provide for the following rent adjustments: a. Rent shall be adjusted annually by the Consumer Price Index for All Urban Consumers, Anaheim - Riverside -Los Angeles or a similar index; and b. At the end of five (5) years of the Agreement term and every five years thereafter, the Market -Based Adjustment described above. 4. The Agreement shall require the applicant to post a bond, letter of credit, or other financial security/ securities ( "Financial Security ") in an amount that equals or exceeds the anticipated cost of removing the facility or facilities and repairing any damage to City property at the completion of the Agreement term or in the event that the applicant ceases use of or abandons the facility or otherwise does not remove the facility. The Financial Security shall name the City as eligible for receipt of the Financial Security's proceeds in the event that the applicant ceases use of or abandons the facility. E. EFFECTIVE DATE AND COUNCIL NON - CONSENT 1. The City Manager shall notify (via memorandum or similar correspondence) the City Council as to a pending Agreement for telecommunications facilities on public land. The Agreement shall take effect forty -five (45) days after the City Manager's notification of the City Council unless called up by a City Council member within 30 days of the City Manager's notification of City Council of a pending Agreement per this section. 2. A City Council member reserves the right to, at any time and for any purpose, not consent to the City Manager's issuance of an Agreement under this Policy. The City Council may do so by notifying the City Manager of the Council member's intent to bring the Agreement before City Council. The Council member must express this intent in writing or at a formal Council meeting not more than 30 days after the City Manager has notified the City Council of a pending Agreement. Should the City 3 �p L -23 Council not consent to the issuance of an Agreement, the Agreement shall not become effective. F. PROPOSALS FOR EQUIPMENT IN THE CITY RIGHT -OF -WAY This policy shall not apply to Encroachment Permits (Telecom) for the use of right -of -way. Title 13 of. the Newport Beach Municipal Code shall govern consideration of Encroachment Permits (Telecom). G. CITY COMMUNICATIONS SYSTEMS EXEMPT This policy shall not apply to any communications system used by City personnel for communications deemed necessary for city operations. Adopted -- September 24, 2002 2 15 EXHIBIT NO Applicant's Proposal and Project Justification a5 EZ01 CINGULAR WIRELESS PROPOSAL FOR A WIRELESS TELECOMMUNICATIONS FACILITY SC -084 -05 Superior Avenue & PCH Park and Ride City of Newport Beach AP N: 424 - 041 -13 4' Representative: SBA Network Services, Inc. — Gil Gonzalez, Zoning Consultant PCS: 714 - 797 -5760 Email: ggonzalez @sbasite.com 150 Paularino Avenue, Ste. A -166 Costa Mesa, CA 92626 Office: (714) 557 -6052 Fax: (714) 557 -6249 a� M19)) Proposal for a Cingular Wireless Telecommunications Facility SC- 084 -05: Superior Ave. & PCH Park and Ride APN: 424 - 041 -13 Project Description Cingular Wireless (CW) is proposing to develop a wireless telecommunications at the Park and Ride lot located at the corner of Superior Avenue and PCH. CW's facility will be designed as a 50' flagpole with three (3) panel antennas concealed within the flagpole. Four (4) Base Transreceiver Units (BTS) will be located south of the proposed flagpole within a retaining wall. The BTS units will not be seen from street level. This facility has been designed so that it will not affect the aesthetics, functionally and /or use of the existing property and will be compatible with the surrounding environment. Alternative locationsldesigns Prior to designing a facility at the subject location CW investigated alternate locations within close proximity to the intersection of Superior Ave. and PCH:!'The proposed wireless facility had to be designed at or near this intersection in order to meet the target objectives. The facility also serves to off -toad capacity of neighboring sites. Locating CW's wireless facility further from the intersection would result in significant problems with insufficient signal strength. The selection of prospective sites are not determined only by technical aspects, rather the culmination of several factors such as; interested property owners, business terms, 24 -hour access, required technical specifications, applicable zones, design, aesthetics, and the ability to construct the proposed facility. Several factors present special circumstances at the subject site. The following properties were identified as potential candidates that addressed the minimal criteria and were rejected due to the issues stated below: Commerical Center, southeast corner of PCH /Superior the limited heights of the one - storied buildings at the commercial property would not be conducive for a roof - mounted facility, The property has been fully developed and installing a freestanding facility would require sacrificing parking stalls for CW's facility. Condos north of Park and Ride the properties consists of residential units that have been fully developed. There's no adequate space for CW's facility. A facility at the property would not be compatible with the existing uses. �1 EM* Hoaa Hospital. North side of PCH a roof - mounted facility was consider for the property. Hoag Hospital was not interested in CW's proposal. Park and Ride, northeast corner of PCHISuperior- A 50 ft. monopalm and monopine was considered at the subject property. It was determined that a flagpole would be a compatible with the property and the surrounding parcels. Colocation Potential The Radio Frequency Engineers at Cingular Wireless have surveyed the area and have determined it was necessary to locate their wireless telecommunications facility within close proximity to the intersection of PCH and Superior Avenue. There are no existing wireless telecommunications facilities found within the search ring that presented suitable co- location opportunities. Zoning Consistency 8 Justification The location, size, design, and operating characteristics of the proposed telecommunications facility will create no impact on circulation systems, generate no noise, odor or 9Ihoke. Furthermore, the facility will not create any adverse impacts that are detrimental or incompatible with other permitted uses in the vicinity. The proposed facility will be screened from all views. The equipment associated with the facility operates virtually noise -free, does not emit fumes, smoke, dust, or odors. The proposed facility will be in operation 24 hours per day, 7 days a week and will only require routine maintenance only every 4 to 6 weeks. The proposed telecommunications facility will not result in conditions or circumstances contrary to the public health, safety, and the general welfare. The facility will operate in full compliance with the regulations and licensing requirements of the FCC, FAA, and CPUC as governed by the Telecommunications Act of 1996. Unlike other land uses, which can be spatially determined through the General Plan the location of wireless telecommunication facilities is based on technical requirements which include service area, geographical elevations, alignment with surrounding sites and customer demand components. Placement within the urban geography is dependent on these requirements. Consequently, wireless telecommunication facilities have been located adjacent to and within all major land use categories including residential, commercial, industrial, open space, etc. proving to be compatible in all locations. Wireless telecommunication networks enhance the general welfare of communities by providing a resilient communications system in the event of emergencies (earthquakes, fires, traffic accidents, etc.) whereas landline communications systems are often disrupted during and after a major incident. In addition, wireless telecommunication networks add an additional layer of communications infrastructure with little to no construction disruption to the community. Network Design The proposed communications facility will transmit at a frequency range of between 1850 MHz and 1990 MHz. A typical PCS facility operates at 200 watts. Depending on the unique characteristics of the site, the actual power requirements may vary. When operational, the radio signals from the site will consist of non - ionizing waves generated at less than 1 uWlcm2, which is significantly lower than the maximum allowable public exposure of 1,000 microwatts as set by the American National Standards Institute (ANSI) and Institute of Electrical and Electronic Engineers (IEEE). The distance between antenna sites will normally range from '/2 mile to 9 miles, depending on the population density, consumer usage, existing vertical elements, and the geographical terrain. In order to have a clear line -of -site; antennas must be mounted high enough to overcome challenges posed by local topography and development. Telephone calls can originate or be received from a wireless facility because antennas, share a fixed number of frequencies across the network grid. As the caller is traveling through the network the call is continuously being handed —off between wireless facilities to provide an uninterrupted telephone conversation. The following are some of the basic types of cell sites: Coverage sites serve to expand coverage in large areas or in areas with difficult terrain and to enhance coverage for portable systems. Coverage sites allow users to make and maintain calls as they travel between cells. Capacity sites serve to increase the capacity when surrounding sites have reached their practical channel limits. As the years pass, the number or subscribers increases exponentially creating a strain on the existing network. In order to alleviate this strain, capacity sites are implemented into the systems network to accommodate the increase in customer demand. J -�O = ))))) I April 26, 2004 Janet Johnson Brown Assistant Planner Newport Beach Planning Department 3300 Newport Beach Boulevard Newport Beach, CA. 92658 RE: Cingular Wireless Telecommunications Facility, TP2003 -003 (PA2003 -255) 4600 West Coast Hwy. Ms. Brown: Thank you for your comments from our meeting held on April 15, 2004 regarding the Cingular Wireless (CW) project referenced above. Please note the following responses to the items you requested: The approval is necessary to allow the facility to function as intended and identified alternatives to the proposal are not feasible. CW's search ring is located at the intersection of Pacific Coast Highway and Superior Avenue. There is currently a deficiency in CW's network within this portion of Newport Beach. It's necessary to install the facility at the subject location and at the proposed 50 ft. height to achieve the coverage objective. The 50 ft. height is necessary to overcome the obstructions of the area, which hinders signal propagation. A height lower than 50 ft. at the subject property will result in inadequate coverage within the area, and typically would require two or more facilities in the area to compensate for the loss in coverage. Initially, CW had investigated installing their facility closer to Superior Avenue at the entrance of the Park and Ride. As directed by the Newport Beach Planning Department, CW relocated their facility to its current location. The monument area on the property adjacent to Pacific Coast Highway (PCH) was also looked at as a possible location for CW's facility. It was difficult to find adequate space for the ground mounted equipment cabinets to conceal from the surrounding properties. The current proposal incorporates the facility into the landscape area away from the Superior Avenue and PCH. CW also investigated install their facility on the existing 35 ft, light standards on the sidewalk along Superior Avenue. As demonstrated with the enclosed Radio Frequency (RF) maps, CW's facility at 35 ft. will not achieve the coverage objective. CW's RF engineer rejected the facility at 35 ft. 2. The approval of the facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, or to the public health or safety. Wireless telecommunication facilities have been located adjacent to and within all major land use categories including residential, commercial, industrial, open space, etc. proving to be compatible in all locations. The proposed facility will not detrimental to the character of development, as it will be un- staffed, having no impact on circulation systems. The proposed facility will only require maintenance once every 4 to 6 weeks. Furthermore, it will generate no noise, odor, smoke or any other adverse impacts to adjacent land uses. In addition, the proposed wireless telecommunications facility will operate in full compliance with all local, /b 150 Pauladno Avenue m Suite A -166 m (osta Mesa, (A 92616 -3318 m Phone: 114-557-6051 m Fax: 114-557-6149 m www.sbasitmom ') M))))) state and federal regulations including the Telecommunications Act of 1996. The antennas will be fully concealed within the flagpole. The facility has been designed to be compatible with surrounding uses. 3. The proposed 50 J height is necessary to achieve the coverage objectives. Can additional facilities at the 35 ft. height limit achieve the same objectives as a single 50 ft. facility? It's necessary to install CW's facility at the subject property, as it is located at the center of the search ring area. The 50 ft. height is necessary to overcome the obstructions of the area, and ultimately achieving the coverage objectives. The enclosed Radio Frequency (RF) map shows the target objective for the facility at 50'. The RF map with the site at 35' shows deficiencies in coverage in the area northwest, north, and northeast of the subject property towards Aries Court and Halyard Lane. Typically, installing CW's facility for a search ring lower than its target height requires the installation of two or more facilities in the area. CW's search rings and their candidates are strategically chosen to take into account distance and height to ensure that there is no overlap in coverage and signal interference with the neighboring facilities. Additional facilities, at a lower height, may cause interference with each other and sites CM- 057 -01, CM- 050 -01, and CM- 295 -01, as shown in the coverage maps. One facility at the subject property and the 50' height for this proposal have been chosen to provide the target objective and to ensure that no interference is caused with the existing CW sites in the surrounding area. 4. Will the existing 35 ft, light standards along Superior Avenue achieve CW's coverage objectives? The enclosed RF coverage map simulating coverage at 35' shows that a facility at that height on the subject property would not provide the objectives needed for this search ring. The light standards adjacent to the Villa Balboa condominiums are at a higher elevation than the Park and Ride. However, a facility in this location may cause interference with CM- 295 -01 and CM- 050 -01. The coverage may overlap and cause interference when two wireless sites are too close to each other. In addition, there's no space in this area to accommodate for the equipment cabinets. I hope the information above allows you to consider CW's project to proceed with the next step in the development process. I will be happy to provide additional materials if required. Feel free to contact me at 714- 797 -5760 or via email at ggpnzalez a,)sbasite.com. Than AGonzalez Zoning Consultant SBA Network Services, Inc. 150 hul5fha Wnut m Suite W66 0 Costa Mesa, (k 92626 -1118 m Phone: 114 -551 -6052 m Fax: 114 -551 -6149 ® www.shasitt.(om h 1 EXHIBIT NO. 6 Radio Frequency Propagation Maps �3 0 0 0 • U7 O 4 O O U N 0 r .3 N �N C1 _ N_ �X W M O � � O @ @ A 3 � o z , ELsh L N Lu O O W LLI v V N N N LL M � O LU N F Q O < EL C 0 L V L Li! 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WK < .� lass -4L4L4 n'«�n w�a WddYn .7 sNl13�N11S ONYI C,4 _U O S"'a z vi 441 -Y +IS 'r^�r`Y rwN^y tKl • a a r 1 o o a 9 r a 11 Y O = a °u F�aWp n 6 o S R k OUI SBOINBj` �JOM3B,.J �6 Vii (�6ii� I W � %6 � o a SS31381M nc ai �...; .,, �� g 6 <> W 3„ o " en:s wnn •v+sq uWm m O .. co aL�n�ui� X QQQQ b'9S .-r" _� °s o- =U :r�Q3u`� 3 u o 'xg 'sgW Y`j7 tl N Or W V) r= te i �§4�y W� O W O U L a a a a a , • V O VI O 6 Z ~~ N � Y z � N�QStlO� \ , a Rr tR7 jig re LD 3li E C ¢ L ={ s ~ 'JjYS¢55 N ire SS Q la 0 4 K O jjij O O o z 4 ° O O i I l d i I \ L� r o \ p 0 ' ap o \ / 2•. / I , i Z / C7 D / St 7 / 4 VT�4v ✓f / e a e s ,/ sfi €� /g � gyp ` � +A • /,� 4 R, / R r. • r�:� � �i l LAJ ho lliiyyJJ V Q � A K v, / O o_ / f tl J API •4 ,. � / . �F.J� ��, s /�ry _ € M ��Ir• � I K _- I 1 � Z 1 (7 kk U U a49a'N 6m 1551 h �a � `\ / PamWeee�er:s5��'u<�e�a��i d •4r� EXHIBIT NO. 9 Public Correspondence Brown, Janet From: Frank Jenes [frankjenes @adelphia.net] Sent: Monday, April 05, 2004 5:01 PM To: Janet Brown - NB Planner Cc: Steven Rosansky - City Council, District 2; Carolyn Bennett- Ouellet; Phil Bias; Carleen Hallstead; Jennifer Eaton at Home; Maria Bercovitz; Michael Sachs; Peter Sliney Subject: Cingular Wireless Telecommunications Facility Permit No. 2003=003 (PA2003 -255) Hello Janet, I am on the Board of Directors of the Villa Balboa Community Association, the condos up the hill from the Park - and -Ride lot on Superior Avenue near West Coast Highway. The Cingular Wireless Company has proposed to place a cellular tower (referred to on their plans as a flagpole) on the southerly slope of the Park - and -Ride lot property. I talked to Gil Gonzalez of Cingular, 714- 797 -5760, regarding the base ground elevation for the cellular tower. He referred me to their survey firm of Burk Hayes & Assoc., 714- 557 -1567, Project Reference No. SCO- 84 -05. I talked to Michael of that firm and he said the base ground elevation is proposed to be elevation 36 above Mean Sea Level. The proposed cellular tower 50' in height and 24" in diameter would be placed on a structural foundation 7'-4" above ground. The base elevation of this foundation appears on their plans to be about elevation 27 (the elevation of the Park -and -Ride lot near the proposed tower). The top of the cellular tower and its associated enormous national or city flag proposed would be at elevation 84 above Mean Sea Level. The elevation of the bike path along Sunset View Park ranges from about elevation 45 at the easterly end near the hospital to exactly elevation 71.8 above Mean Sea Level near Superior Avenue. On the seaward side of the Sunset View Park walkway there is no structure, tree, cellular tower or any other thing higher than elevation 72 as far as I can determine by viewing from the top of the walkway (other than the gateway into the park and Hoag's temporary construction fence). The Hoag Hospital developments on lower campus have been restricted to elevations a couple of feet lower than the bluff that existed along the lower campus area so as to not restrict views from the walkway along what is now the Sunset View Park. The edge of that bluff near Superior Avenue extends up to elevation 74 above Mean Sea Level near Superior Avenue. Height restrictions limit development by Hoag Hospital in that area to less than elevation 72. The proposed top of the cellular tower and the flag extend 12 feet above that restriction and would appear as an eyesore to all viewing the city, Catalina Island, Pacific Ocean and the sunset from the Sunset View Park walkway. It would appear to be something sticking up out of nowhere. Please enter this as a request from Villa Balboa Community Association and from me personally to limit the height of the top of any cellular tower pole near Superior Avenue to no greater than elevation 72 above Mean Sea Level. The further easterly it may be proposed should be lower as is the height limitation requirement for Hoag Hospital improvements. The elevation of the walkway along Sunset View Park should be utilized as a guide for any such improvements. Thank you for your and the City Council consideration, Frank Jenes 200 Paris Lane, No. 113 Newport Beach, CA 92663 949 - 548 -6180 rib Page 1 of 1 Brown, Janet From: RosslVAsso @aol.com Sent: Sunday, April 11, 2004 6:27 PM To: lbrown @city. newport- beach.ca. us Subject: Telecom. Facility Permit No. 2003 -003 My name is Ross Ribaudo,I reside at 260 Cagney Lane No. 320 I have lived in Villa Balboa for 21 years. I have two questions regarding this permit. I ... Will the tower have any direct affect on the public views from Sunset View Park,and will the exemption inspire our neighbor Hoag Hospital to appeal their current height limitations 2 ... Saftey .... Is it safe to build a tower which will no doubt be construted in metal ,on a known field of methane gas ,close to a power generating plant that will use natural as its fuel? Could the tower act as a lightning rod? I am going to attend the meeting tuesday evening, hopefully these questions will be answered at that time. 04/12/2004 11 Brown, Janet To: Frank Jenes Subject: RE: Change in meeting date - Cingular Wireless Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) - - - -- Original Message---- - From: Frank lens ( mailto:frankienes @adelohia.netI Sent: Monday, April 12, 2004 4:06 PM To: Carolyn Bennett-Ouellet; Phil Bias; Carleen Hallstead; Jennifer Eaton at Home; Maria Bercovitz; Michael Sachs;. Peter Sliney Cc: Janet Brown - NB Planner; Steven Rosansky - City Council, District 2; Bob Francis; Donald Richroath; RossIVAsso @aol.com Subject: Change in meeting date - Cingular wireless Telecommunications Facility Permit No. 2003 -003 (PA2003-255) FYI - The subject of the proposed cellular tower by the Cingular Wireless Company will not be discussed on the City Council meeting tomorrow night (13 April 2004). Janet Brown indicated today that it will be removed from the agenda tonight and the public hearing on this will be held two weeks later on 27 April 2004. She said that any email to her on this subject would be part of the packet to the City Council on this hearing subject and would qualify for any future court action, if needed. She showed me two graphical representations (insert into photos) showing what Cingular suggests their cellular tower (they call it a "flagpole ") would look like. I showed her that the car in the.photo was about 5' or 6' high and if multiplied 10 times would be much higher than the pole /tower showed by Cingular. I'll send you some graphics later. She said she will try to have Cingular depict the visual appearance of the pole /tower from the Sunset View Park walkway as Hoag Hospital had to do with their proposed improvement plan. I asked her what the City regulations were relative to such construction. She said the height limit for this zone would be 24 feet, however there is an exception for flag poles for which 35 foot limit is allowed. (So I wonder why they call it a flag pole ?) Cingular is not only proposing to define it as a flagpole, by putting a flag on top, but want to have the height limit increased to 50 feet, plus the 7 foot height of the base for a total of 57 feet. Janet indicated that Cingular advised her that such a "flag pole" is installed at the Jamboree and MacArthur in the City of Irvine. I went to that location and took some photos. It is 18 inches in diameter and looks quite out of place. The cell tower proposed by Cingular is 24 inches, 33% greater in diameter. I'll try to develop some graphics from the photos of that tower /pole also. Frank Jenes 200 Paris Lane, No. 113 Newport Beach, CA 92663 949 - 548-6180 q�- 018 5-11-" Mm 0. M: 0) 0 J b m 0 E IO [L LLI N r co 0 0. CO U) U) 2 E N 0) 0. Ap 0 0 w LLI cla X 0 0. M 2 0 CL U) 0 Z 0 CL LU < z CL LU < LU z OIA LU 0 0 a. LU CL w c Z jo- LLI 0 0 CL I�N CL LL NY "RECEIV D AFTER AG tY0 Harkless, LaVonne PRINTED:" - `� I From: Brown, Janet Sent: Monday, May 10, 2004 7:56 AM To: Harkless, LaVonne Subject: FW: The Cingular tower Re: Telecom Permit D7o. 2003 -003 on tomorrow's agenda. - - - -- Original N.essage ----- From: Lars Hansen [mai- to:hansen- c @pacbell.net] Sent: Friday, May 07, 2004 6:;'7 FM To: jjohnson @city.newport- beach.ca.us Cc: delandmike@earthlink.net Subject: The Cingular tower Chris Wrote: T'r.ank you for the time you spent with me on the subject. I must admit it is a very c_ever idea to disgaise a relay tower as a flag pole, it does however beg the question: "Is this an appropriate use of old Glory ?" Best regards, Chris 1 Messa <_e Fisher, Cathy From: Brown, Janet Sent: Friday, May 07, 2004 11:08 AM To: Fisher, Cathy Pa��e I of? "RECEIV D AFTER AGENDA PRINTED:" - i \�G`i Subject: FW: Cingular Wireless Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) - - - -- Original Message---- - From: Brown, Janet Sent: Friday, May 07, 2004 11:07 AM To: Harkless, LaVonne Subject: FW: Cingular Wireless Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) Here is public correspondence regarding telecom permit I received after completion of staff report on Wednesday. - - - -- Original Message---- - From: Frank Jenes [ mailto:frankjenes @adelphia.net] Sent: Wednesday, May 05, 2004 4:10 PM To: Janet Brown - NB Planner Cc: Steven Rosansky - City Council, District 2; Carolyn Bennett - Ouellet; Phil Bias; Carleen Hallstead; Jennifer Eaton at Home; Maria Bercovitz; Michael Sachs; Peter 51iney; Donald Richroath; Bob Francis; RossIVAsso @aol.com Subject: RE: Cingular Wireless Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) Janet, I understand the City Council Meeting has been changed to 11 May 2004. Is that still the latest or has it been changed again? I have attached two photos with inserts to depict what the Cingular cell tower "flagpole" would look like from the Sunset View Park walkway in a couple of locations. These are photos I took several years ago when Hoag was excavating away their lower campus site. Please note Catalina Island in the background. The flag and large pole would sure be a strange and inappropriate addition to the panorama. I have also attached a 1990 aerial photo of this area and inserted a red line to indicate the general direction of the flag from the walkway. Frank Jenes - - - -- Original Message---- - From: Frank Jenes [ mailto:frankjenes @adelphia.net] Sent: Monday, April 05, 2004 5:01 PM To: Janet Brown - NB Planner Cc: Steven Rosansky - City Council, District 2; Carolyn Bennett - Ouellet; Phil Bias; Carleen Hallstead; Jennifer Eaton at Home; Maria Bercovitz; Michael Sachs; Peter 51iney Subject: Cingular Wireless Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) Hello Janet, I am on the Board of Directors of the Villa Balboa Community Association, the condos up the hill from the Park - and -Ride lot on Superior Avenue near West Coast Highway. The Cingular Wireless Company has proposed to place a cellular tower (referred to on their plans as a flagpole) on the southerly slope of the Park - and -Ride lot 05/07/2004 Message Page 2 of 2 property. I talked to Gil Gonzalez of Cingular, 714- 797 -5760, regarding the base ground elevation for the cellular tower. He referred me to their survey firm of Burk Hayes & Assoc., 714 -557 -1567, Project Reference No. SCO- 84-05. 1 talked to Michael of that firm and he said the base ground elevation is proposed to be elevation 36 above Mean Sea Level. The proposed cellular tower 50' in height and 24" in diameter would be placed on a structural foundation 7' -4" above ground. The base elevation of this foundation appears on their plans to be about elevation 27 (the elevation of the Park- and -Ride lot near the proposed tower). The top of the cellular tower and its associated enormous national or city flag proposed would be at elevation 84 above Mean Sea Level. The elevation of the bike path along Sunset View Park ranges from about elevation 45 at the easterly end near the hospital to exactly elevation 71.8 above Mean Sea Level near Superior Avenue. On the seaward side of the Sunset View Park walkway there is no structure, tree, cellular tower or any other thing higher than elevation 72 as far as I can determine by viewing from the top of the walkway (other than the gateway into the park and Hoag's temporary construction fence). The Hoag Hospital developments on lower campus have been restricted to elevations a couple of feet lower than the bluff that existed along the lower campus area so as to not restrict views from the walkway along what is now the Sunset View Park. The edge of that bluff near Superior Avenue extends up to elevation 74 above Mean Sea Level near Superior Avenue. Height restrictions limit development by Hoag Hospital in that area to less than elevation 72. The proposed top of the cellular tower and the flag extend 12 feet above that restriction and would appear as an eyesore to all viewing the city, Catalina Island, Pacific Ocean and the sunset from the Sunset View Park walkway. It would appear to be something sticking up out of nowhere. Please enter this as a request from Villa Balboa Community Association and from me personally to limit the height of the top of any cellular tower pole near Superior Avenue to no greater than elevation 72 above Mean Sea Level. The further easterly it may be proposed should be lower as is the height limitation requirement for Hoag Hospital improvements. The elevation of the walkway along Sunset View Park should be utilized as a guide for any such improvements. Thank you for your and the City Council consideration, Frank Jenes 200 Paris Lane, No. 113 Newport Beach, CA 92663 949 -548 -6180 05/07/2004 -'.y• YR r rr �. h � • � f, �.fY t v t% N � • i 1 .� • I Y^V:i +++!!! ♦ • ti 111 y I WK 1 J Oil 4 • t ut . a 40 I ZN AlLO • ; y� . � ♦ 1� r`t L. t �I • e Newport Bench City Council - 11 May 2004 Cingular Wireless Proposed Cellular Tower ( "Flagpole " ?) Comments by Frank Jenes, Villa Balboa Board of Directors 1. Taking Advantage of City Rules 1. Inappropriate Precedence 2. Inappropriate Site for Such a Tall Structure 3. Sample Height Posts Needed 4. Taking Advantage of City Rules a. Zoning calls for 26' height limit b. Flag pole exception allows 35' height limit C. Cell tower isn't a flagpole, but let's put a flag on it and call it a flagpole (will that fool anyone ?) d. Since we have gone that far lets have a 50' tower (and also why not add a 7' -4" base ?) (Ground el. 27' + 7' + 50' = 84') e. Zone A (closest to Superior Ave.) top of bluff elev. = 72 and buildinq height limit = elev. 67 5. Inappropriate Precedence a. If this is allowed, what about the master plan conditions agreed to for Hoag Hospital? Might this prompt a change? b. Use height limits agreed to with Hoag (Max = elev. 67) 6. Inappropriate Site for Such a Tall Structure a. Planned Community Development Plan for Hoag Hospital preserves and enhances public views from the Sunset View Park pedestrian /bicycle trail b. Tall Cell Tower penetrates the view plane to ocean & island C. See handout photos depicting what views would look like 7. Sample Height Posts Needed a. It would be desirable to place a sample temporary post or something so the height could be visualized from the Sunset View Park pedestrian /bicycle trail �1 1 n . >f p •i � �:% * is r is a O. Al Id ,: ,.. k. • y R F � M �. L 1 i r • NR, ,r x c )• pC4'� y t Fit-,-, A i Milk . Emilio :rig y Y. 1� i. yY Milk . Emilio :rig y Y. 1� i. RESOLUTION NO. 83 -43 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AMENDMENTS TO THE LAND USE, RESIDENTIAL GROWTH AND RECREATION AND OPEN SPACE ELEMENTS OF THE NEWPORT BEACH GENERAL PLAN FOR THE CALTRANS WEST, BIG CANYON AREA 16, NEWPORT CENTER BLOCK 400 AND CAMPUS DRIVE SITES (GPA 81 -2). WHEREAS, Section 707 of the Charter of the City of Newport Beach provides that the City Council, upon recommendation of the Planning Commission, may amend the General Plan or any part or element or map thereof; and WHEREAS, the General Plan of the City of Newport Beach contains among other elements, the Land Use, Residential Growth and Recreation and Open Space Elements and Maps which serve as a guide for future planning and development of the City; and WHEREAS, the Planning Commission has held a public hearing at which it considered amendments to the Land Use, Residential Growth and Recreation and Open Space Elements and Maps of the Newport Beach General Plan and adopted Resolution No. 1088, recommending to the City Council certain changes and amendments in said elements and maps; and WHEREAS, the City of Newport Beach has, in the General Plan Housing Element, established policies to increase the production of housing in the community and to provide affordable housing opportunities in the City; and WHEREAS, the City Council has adopted Council Policy P -1 to implement the provisions of Government Code Section 65590 (Mello) and has included this policy as one of its Housing Element implementation actions; and WHEREAS, the City recognizes it responsibility to designate sufficient vacant land for residential use with appropriate standards to produce housing at the lowest possible cost consistent with Section 65913 of the Government Code; and WHEREAS, the City of Newport Beach recognizes the unique opportunity to provide affordable housing on the CalTrans site; and WHEREAS, the City of Newport Beach recognizes the opportunity to require affordable housing either on- or off -site in conjunction with residential development in the City; and WHEREAS, the City of Newport Beach has prepared a final Environmental Impact Report (EIR) in compliance with the California Environmental Quality Act (CEQA) and the State EIR Guidelines; and WHEREAS, the City Council has reviewed and considered the certified final EIR in making its decision on the proposed amendment to the Newport Beach General Plan; and NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of Newport Beach that: 1. The City Council makes the findings contained in the Statement of Facts with respect to significant impacts identified in the Final EIR together with the finding that each fact in support. of the findings is true and is based upon substantial evidence in the record, including the final EIR. The Statement of Facts is attached hereto as Exhibit "A" and incorporated herein by this reference as if fully set forth. 2. The City Council finds that the facts set forth in the Statement of Overriding Considerations are true and are supported by substantial evidence in the record, including the final EIR. The Statement of Overriding Considerations is attached hereto as Exhibit "B" and incorporated herein by this reference as if fully set forth. 3. The City Council finds that the final EIR has identified all significant environmental effects of the project and that there are no known potential environmental impacts not addressed in the final EIR. 4. The City Council finds that all significant effects of the project are set forth in the Statement of Facts. 5. The City Council finds that although the final EIR identifies certain significant environmental effects that will result if the project is approved, all significant effects that can feasibly be avoided or mitigated have been avoided or mitigated by the imposition of conditions on the approved General Plan Amendment and the imposition of mitigation measures as set forth in the Statement of Facts and the final EIR. • 6. The City Council finds that potential mitigation measures and project alternatives not incorporated into the project were rejected as infeasible, based upon specific economic, social and other considerations as set forth in the Statement of Facts and the final EIR. 7. The City Council finds.that the unavoidable significant impacts of the project, as identified in the Statement of Facts, that have not been - 2 - WHEREAS, the City Council by this Resolution adopts the Statement of Facts and Statement of Overriding Considerations as required by Sections 15068 and 15089 of the State EIR Guidelines; and WHEREAS, the City Council desires to adopt certain amendments to the Land Use, Residential Growth and Recreation and Open Space Elements and Maps . of the Newport Beach General Plan, as set forth below, NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of Newport Beach that: 1. The City Council makes the findings contained in the Statement of Facts with respect to significant impacts identified in the Final EIR together with the finding that each fact in support. of the findings is true and is based upon substantial evidence in the record, including the final EIR. The Statement of Facts is attached hereto as Exhibit "A" and incorporated herein by this reference as if fully set forth. 2. The City Council finds that the facts set forth in the Statement of Overriding Considerations are true and are supported by substantial evidence in the record, including the final EIR. The Statement of Overriding Considerations is attached hereto as Exhibit "B" and incorporated herein by this reference as if fully set forth. 3. The City Council finds that the final EIR has identified all significant environmental effects of the project and that there are no known potential environmental impacts not addressed in the final EIR. 4. The City Council finds that all significant effects of the project are set forth in the Statement of Facts. 5. The City Council finds that although the final EIR identifies certain significant environmental effects that will result if the project is approved, all significant effects that can feasibly be avoided or mitigated have been avoided or mitigated by the imposition of conditions on the approved General Plan Amendment and the imposition of mitigation measures as set forth in the Statement of Facts and the final EIR. • 6. The City Council finds that potential mitigation measures and project alternatives not incorporated into the project were rejected as infeasible, based upon specific economic, social and other considerations as set forth in the Statement of Facts and the final EIR. 7. The City Council finds.that the unavoidable significant impacts of the project, as identified in the Statement of Facts, that have not been - 2 - reduced to a level of insignificance have been substantially reduced in their impacts by the imposition of conditions on the approved General Plan Amendment and the imposition of mitigation measures. In making its decision on the project, the City Council has given greater weight to the adverse environmental impacts. The City Council finds that the remaining unavoidable issignificant impacts are clearly outweighed by the economic, social and other benefits of the project, as set forth in the State of overriding Considerations. B. The City Council finds that the final EIR has described all reasonable alternatives to the project that could feasibly obtain the basic objectives of the project, even when those alternatives might impede the attainment of project objectives and might be more costly. Further, the City Council finds that a good faith effort was made to incorporate alternatives in the preparation of the draft EIR and all reasonable alternatives were considered in the review process of the final EIR and ultimate decisions on the project. 9. The City Council finds that the project should be approved and that any alternative to this action should not be approved for the project based on the information contained in the final EIR, the data contained in the Statement of Facts and for the reasons stated in the public record and those contained in the Statement of Overriding Considerations. 10. The City Council finds that a good faith effort has been made to seek out and incorporate all points of view in the preparation of the draft and final EIR as indicated in the public record on the project, including the final EIR. 11. The City Council finds that during the public hearing process on General Plan Amendment 81 -2, the Planning Commission and the environmental documents evaluated a range of alternative land uses and intensities and the project, as approved by this Resolution, is included within that range of alternatives. Therefore, the City Council finds that it is not necessary to • refer the General Plan Amendment back to the Planning Commission for report and recommendation. The City Council has considered the recommendation of the Planning Commission in its decision on the project. 12. The City Council finds and determines that the Final Environmental Impact Report consists of the following documents: a) Volume I - Draft EIR b) Volume II - Technical Appendices �c� c) Volume III - Attachments No. 1 and 2 including comments and responses, additional information, and Planning Commission minutes and staff reports. d) Additional Planning Commission minutes e) Planning Commission Resolutions f) City Council Minutes g) City Council Staff Reports (with attachments) h) Comments and responses received prior to final action and not contained in a) through g) above. All of the above information has been and will be on file with the Planning Department, City of Newport Beach, City Hall, 3300 Newport Boulevard, Newport Beach, CA 92663, (714).640 -2197. BE IT FURTHER RESOLVED by the City Council of the City of Newport Beach that the Land Use, Residential Growth and Recreation and Open Space Elements and Maps are hereby amended, establishing the following land uses, policies and constraints on future development: Land Use Element CalTrans West: Designate the ±13 acre site northwesterly of the intersection of West Coast Highway and Superior Avenue for Multiple - Family Residential uses at 15 dwelling units per buildable acre. 1. The preferred access to the CalTrans West site is from the proposed Bluff Road (Balboa Boulevard extension) across a portion of the Banning property. A reasonable effort must be made to establish this access from Bluff Road at the time of approval of the tentative tract map for the CalTrans West site if it is submitted prior to tentative maps for the Banning- Newport Ranch. Temporary and limited access may be developed from realigned Superior Avenue. The precise location of all access will be determined at the time of approval of the tentative tract map. 2. That existing views of ocean and bay shall be preserved for a line -of -sight four feet above the lower balcony level of a Newport Crest residence. 3. 20% of the total dwelling units shrill be affordable to low and moderate income households as defined in the City's Housing Element. 4. 10% of the total dwelling units shall be affordable to low and moderate income households as set forth in Section 50093 of the Health and Safety Code. 5. CalTrans West will be required to comply with the park dedication ordinance. A park of at least 5 acres in size is to be developed between Coast Highway, Superior Avenue, 15th Street (extended), and Bluff Road (Balboa Boulevard extended). The specific size, location, design, and the means to acquire and develop the park will be determined at the time of approval • of the tentative tract maps for CalTrans West and /or the adjacent Banning- Newport Ranch residential developments. 6. A view park of tl acre shall be located on -site and shall partially satisfy the requirements for park dedication contained in Chapter 19.50 of the Newport Beach Municipal Code. 7. A pedestrian and bicycle easement shall be developed to connect the view park with the neighborhood park. The easement shall as much as possible be located to take advantage of ocean and bay views. Precise location and design shall be determined at the time of approval of the tentative tract map. - 4 - 8. The applicant or successor in interest shall participate in 509 of all costs related to the provision of a pedestrian and bicycle bridge over Superior Avenue at a point to be determined in conjunction with the location of the view park at the time of approval of th tentative tract map. 9. A landscaped greenbelt shall be established adjacent to Newport Crest. The greenbelt shall be a minimum of 30 feet wide and be maintained by the applicant or successor in interest. Park credit shall not be given for the greenbelt. 10. CalTrans will enter into an agreement to dedicate to the City of Newport Beach the property required for the realignment of Superior Avenue. 11. Because of difficulties in providing vehicular access to CalTrans East, and in recognition of both the State's need to dispose of this site and Hoag Hospital's need for additional land, CalTrans has entered into negotiations with Hoag Hospital for the acquisition of CalTrans East. Adoption of detailed zoning and approval of a tentative tract map on CalTrans West shall not occur until CalTrans offers satisfactory evidence that it will restrict access from CalTrans East to Coast Highway. 12. At the time of future discretionary actions the project shall be required to contribute a sum equal to their fair share of future circulation system improvements as shown on the City's Master Plan of Streets and Highways and any other mitigation measures as required. Big Canyon - Area 16: Designate the ±11 acre site southwesterly of the intersection of MacArthur Boulevard and Ford Road for Medium - Density Residential uses at 10 dwelling units per buildable acre. 1. That the requirements of the Park Dedication Ordinance shall be satisfied through on -site or off -site land dedication, the assessment of in -lieu fees or a combination of the above as determined by the Planning Commission and City Council, after recommendation by the Parks, Beaches and Recreation Commission, at the time of approval of the tentative tract map. 2. That a number of units equal to at: least 109 of the total units be constructed on -site or off -site and be affordable to low and moderate income families using City standards. 3. At the time of future discretionary actions the project shall be required to contribute a sum equal. to their fair share of future circulation system improvements as shown on the City's Master plan of Streets and Highways and any other mitigation measures as required. 4. Prior to the approval by the City of any future discretionary actions (i.e., zoning and tentative tract) , the question park credits, development rights and ownership of the Mouth of Big Canyon shall be resolved. Newport Center - Block 400: Allocate an additional 80,000 square feet of medical office development in Newport Center, with related parking facilities. This development is allocated to Block 400, on the parcel located at 400 Newport Center Drive East. 1. The propert shall be rezoned to P -C (Planned Community) District. 2. Specify the development be subject to further review and approval of a use permit. 3. At the time of future discretionary actions the project shall be required to contribute a sum equal to their fair share of future circulation system improvements as shown on the City's Master - 5.- Plan of Streets and Highways and any other mitigation measures as required. Campus Drive: Designate the area bounded by Campus Drive, Dove Street, Birch Street, and Bristol street for a mixture of General Industry and Administrative, Professional and Financial Commercial uses. 1. Establish a permitted intensity of development for the Campus • Drive area (as shown on Exhibit 7 following Page 12 of the draft EIR) of 0.5 floor area ratio, with a floor area ratio of up to 1.0 permitted floor area may be approved if a finding can be made that the traffic and circulation system impacts are no greater than those generated by an office development of 0.5 FAR. The floor area ratio limits are defined as the ratio of gross structural area to the buildable area of the site. 2. Direct that the zoning in the area be amended to implement this General Plan Amendment. 3. At the time of future discretionary actions, individual projects shall be required to contribute a sum equal to their fair share of future circulation system improvements as shown on the City's Master Plan of Streets and Highways and any other mitigation measures as required. sidential Growth Element CalTrans West: Statistical Area A -2 is amended to permit residential development on the CalTrans West site at 15 dwelling units per buildable acre. The property shall be re -zoned to the P -C (Planned Community) District. Big Canyon - Area 16: Statistical Area L -2 is amended to permit residential development on the Big Canyon - Area 16 site at 10 dwelling units per buildable acre. Recreation and Open Space Element CalTrans West: 1. CalTrans West will be required to comply with the park dedication ordinance. A park of at least 5 acres in size is to be developed between Coast Highway, Superior Avenue, 15th Street (extended) , and Bluff Road (Balboa Boulevard extended). The specific size, location, design, and the means to acquire and develop the park will be determined at the time of approval of the tentative tract maps for CalTrans West and /or the adjacent Banning - Newport Ranch residential developments. 2. A view park of it acre shall be located on =site and shall partially satisfy the requirements for park dedication contained in Chapter 19.50 of the Newport Beach Municipal Code. 3. A pedestrian and bicycle easement shall be developed to connect the view park with the neighborhood park. The easement shall as much as possible be located to take advantage of ocean and bay views. Precise location and design shall be determined at the time of approval of the tentative tract map. is 4. The applicant or successor in interest shall participate in 50% of all costs related to the provision of a pedestrian and bicycle bridge over Superior Avenue at a point to be determined in conjunction with the location of the view park at the time of approval of the tentative tract map. • • Big Canyon - Area 16: 1. Remove the Recreation and Open Space /Golf Course designation. ADOPTED this 9th day of May , 1983. ATTEST: L J City Clerk PT:nma �M L . , 4/25/83