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Home My WebLink About15 - PA2003-255 - PA2004-057 - Telecommunications Facility Permits - 4600 W Coast HwyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No./5 November 9, 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: Supplemental Report Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) Telecommunications Facility Permit No. 2004 -002 (PA2004 -057) LOCATION: 4600 West Coast Highway APPLICANTS: Cingular Wireless and Sprint PCS Support Equipment Enclosure Structures Staff has been advised of an inconsistency in the staff report and plans regarding the enclosure structures for the support equipment and the materials with which the structures will be constructed. It has also been suggested that the enclosure structures be covered to ensure they are fully secure from access by the general public. The block wall enclosures for the support equipment will be retaining wall structures, built into a sloping landscaped area adjacent to the parking stalls. Staff recommends that the structures are constructed of split face block or other decorative material, and to address the issue of security, staff recommends that the structures be covered in addition to being fully enclosed and accessed through a self - closing and locked gate. The final design and configuration of the structures shall be subject to the review and approval by the Public Works Director. These changes have been amended in the Conditions of Approval to address these matters. A copy of the revised Findings and Conditions of Approval are attached. Photographic Simulations The applicants were unable to provide new photographic simulations which depict the revised design of the streetlight poles in time for distribution with this supplemental packet. These will be distributed to Council on Tuesday, November 9m Prepared by: � i,on Brown lanner 4600 West Coast Highway November 9, 2004 Page 2 Submitted by: Patricia L. Temple Planning Director FAUSERS \PLN \Shared \PA's \PAs - 2003 \PA2003 - 255 \TP2003 -003 CC Rpt Supplemtl.doc Exhibits: 1. Findings & Conditions of Approval EXHIBIT NO. 1 Findings and Conditions of Approval a FINDINGS AND CONDITIONS OF APPROVAL Telecommunications Facility Permit No. TP2003 -003 and Telecommunications Facility Permit No. TP2004 -002 Findings: 1. The projects have been reviewed, and it has been determined that they are categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) for the following reasons: • The existing streetlight poles are being reconstructed and slightly modified to accommodate the attachment of panel antennas. • The four new streetlight poles and two equipment enclosures are small structures that are minor in nature. 2. The wireless telecommunications facilities 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 support equipment for the telecom facilities are located within a municipal parking lot where adequate space exists for development of the structures and no loss of public parking will occur. • The visual effects of the telecom equipment on public streetscapes is negligible as the antennas will be attached to reconstructed streetlight poles designed to match the existing poles located in the public right -of -way. • The two facilities are co- locating on the same site so as to limit the adverse visual effects of proliferation of facilities in the City. • Effects to public scenic ocean and coastal views have been minimized by matching the design of the existing streetlights and limiting the overall height of the streetlight poles and antennas to 32 feet maximum and the slim design of the antennas. • The light standards will be mounted at a height consistent with the City's lighting standards, therefore ensuring adequate distribution of lighting. 3. The wireless telecommunications facilities, as proposed, conform to the technology, location and design standards for the following reasons: Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 2 The telecom facilities approved under this permit utilize the most efficient technology available in order to minimize the visual impact. The antennas for the telecom facilities approved by this permit will be attached to streetlights and will be painted to match the color and texture of the light poles as required by the City's Design Standards. The support equipment for the telecom facilities will be placed within retaining block wall enclosures that are fully enclosed, covered and screened from public view, and will be screened with landscaping in a manner consistent with the surrounding environment. 4. The wireless telecommunications facilities, as proposed, are exempt from requiring a Coastal Development Permit for the following reasons: The streetlight poles are existing structures that will be modified and replaced with similar structures. The replacement or repair of the existing structures will not result in an increase of 10 percent or more to the overall height of the structures. The property on which the wireless telecom facilities are proposed to be located is more that 300 feet from any beach or sea, and is not located between the sea and the first public road paralleling the ocean, as West Coast Highway lies between the site the and the ocean. The property on which the wireless telecom facilities are proposed to be located are not designated as a significant scenic resource area by the Commission. Public access and public parking will not be affected by installation of the wireless telecom facilities on the subject property. Conditions: 1. The development of the telecom facilities shall be in substantial conformance with the approved site plans and elevations, except as noted in the following conditions. 2. Anything not specifically approved by these Telecom Permits is not permitted and must be addressed in a separate and subsequent Telecom Permit reviews. 3. The applicants shall coordinate the construction plans for development of the facilities and combine the plans if possible to ensure continuity of design. 4. The reconstructed streetlight poles shall be manufactured by the same company to ensure continuity of design and shall be constructed as breakaway poles. / Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 3 5. All work conducted by the applicants on the subject property and in the public right -of -way for the construction of the telecom facilities approved by Telecom Permit No. TP 2003 -003 and Telecom Permit No. TP 2004 -002 shall be approved under an encroachment permit, and construction and maintenance easements issued by the Public Works Department. 6. A total of four reconstructed streetlight poles shall be manufactured and installed per the approved plans. In no case shall the overall height of the reconstructed streetlight poles with panel antennas attached exceed 32 feet measured from the top of sidewalk. The light standards shall be mounted so that the top of the bracket arm does not exceed 34 feet 9 inches measured from top of sidewalk, per Lighting Standard STD - 201 -L. 7. The existing streetlights that are removed shall be salvaged and delivered to the City of Newport Beach Utilities Yard. 8. The two reconstructed streetlight poles located to the west of the entry driveway to the parking lot shall be replaced in the same location as the existing light poles, and two panel antennas per carrier shall be attached to each of the two reconstructed poles. 9. The existing streetlight pole currently located approximately 100 feet to the east of the entryway shall be removed and replaced with two new streetlight poles placed an equal distance of approximately 129 feet from each other. These new streetlight poles shall have a single panel antenna attached per carrier. 10. All exposed elements of the facilities, including the antennas, antenna brackets, coaxial cables and appurtenances attached to each reconstructed streetlight pole shall be color- matched or painted to match the pole to the satisfaction of the Public Works and Utilities Directors. 11. The support equipment for each carrier shall be located within a fully enclosed and covered block wall structure with a self - closing and locking gate. Anti -skate devices shall be installed along the top of the structure. No portion of the support equipment or block wall enclosure shall project into any adjacent parking stall or vehicle maneuvering area. 12. The support equipment structures shall be covered and constructed of split face block or other decorative material. The enclosure structure, including the retaining walls, equipment cabinets, gate swing and work areas shall accommodate a minimum 2 feet 6 inch front overhang for parked vehicles. The final design, materials and configuration of the support equipment structures shall Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 4 be subject to the review and approval of the City Traffic Engineer and Public Works Director. 13. The support equipment for each carrier shall consist of 4 base transreceiver units ground- mounted within a fully enclosed solid block wall structure. The total area for Cingular's equipment shall be approximately 230 square feet (or 8 feet by 28.67 feet in area), as depicted on the attached plans. The total area for Sprint's equipment shall be approximately 235 square feet (or 11.75 feet by 20 feet in area), as depicted on the attached plans. 14. The fully enclosed solid block wall structure shall be screened by plantings to match the existing surrounding landscaping. Landscape plans shall be included with the construction plans for approval by the Public Works and General Services Departments. 15. The applicants shall install a dedicated electric cabinet, meter and other necessary components to service the telecom facilities. 16. The applicants shall assume all costs associated with any alterations to the existing improvements on the subject property and along Superior Avenue for development of the telecom facilities. 17. The applicants 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. 18. Any irrigation systems and landscaping damaged during the course of construction shall be restored as directed by the General Services Department. 19. Any future facility 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. A maximum of three carriers shall be permitted to co- locate at this site. 20. Prior to the issuance of any permits to install the facilities, the applicants 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 Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 5 consideration shall be given to any other existing or proposed wireless communications facility that may be located on the subject property. The applicants recognize that the frequencies used by the cellular facilities 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). 21. The applicants shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 22. The facility operated by Cingular Wireless 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. 23. The facility operated by Sprint PCS shall transmit at a frequency range of between 1851.25 MHz and 1993.75 MHz. Any change or alteration to the frequency range shall require the prior review and approval of the Planning Director. 24. Prior to activation each facility, the applicants 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. 25. The applicants shall provide the City with a telephone number that shall be monitored 24 hours per day to which interference problems may be reported. 26. The applicants 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. Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 6 27. Should interference with the City's Public Safety radio equipment occur, use of the interfering facility shall be suspended until the radio frequency is corrected and verification of the compliance is reported. 28. The applicants 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. 29. The telecom facilities approved by these permits shall comply with any existing easements, covenants, conditions or restrictions on the underlying real property upon which the facility is located. 30. The applicants 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. 31. 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. 32. No advertising signage or identifying logos shall be displayed on the telecom facilities except for small identification, address, warning and similar information plates. Such information plates shall be identified in the plans submitted for issuance of the required permits. 33. The telecom facilities 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 permits for installation of the facilities, drawings and structural design plans shall be submitted to the City for review by the applicable departments. All required permits shall be obtained prior to commencement of the construction. 34. Within 30 days after installation of the telecom facilities, 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 facilities are operating at the approved frequency and complies with FCC standards for radiation. If the report shows that the facilities do not so comply, the use of the Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 7 facilities shall be suspended until the facility is modified to comply and a new report has been submitted confirming such compliance. 35. The operators of each telecom facility shall maintain the facilities in a manner consistent with the original approval of the facility. 36. 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. 37. These telecom permits 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. 38. 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. 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BACKGROUND At the meeting of October 12, 2004, the City Council reviewed the applications of Cingular Wireless and Sprint PCS. The applicants propose to develop and install two wireless telecommunications facilities at the subject property, which is a city -owned municipal parking lot. The facility antennas are proposed to be located on a total of four streetlight poles in the public right -of -way along Superior Avenue, and the base support equipment would be located within the parking lot. After discussion by City Council and testimony from the public, a motion was made to continue the item to the meeting of November 9, 2004. The item was continued to allow the applicants adequate time to research whether or not the facilities could achieve the desired coverage with the antennas mounted on 32 -foot high streetlights poles. Additionally, the applicants needed to provide revised plans that accurately depict the dimension of the lighting standards above grade and to coordinate with Public Works to is 4600 West Coast Highway November 9, 2004 Page 2 ensure adequate distribution of light coverage along Superior Avenue. The applicants were also directed by City Council to explore the possibility of installing the antennas at Hoag Hospital. A copy of the minutes of the prior meetings and previous staff reports are attached for reference. DISCUSSION At the direction of City Council, the applicants and their RF engineers investigated whether or not the wireless facilities could achieve coverage objectives with the antennas mounted at a maximum height of 32 feet. Each applicant has concluded the facilities will work at that height limit and have prepared revised plans which depict the streetlight poles at 32 feet, the top of the antennas mounted at 31 feet, and the light standards mounted at 34 feet 9 inches measured from the top of existing sidewalk. This is consistent with the height of the existing streetlight poles located along this portion of Superior Avenue, and the light standards are being mounted at the height specified on the Lighting Standard STD -201 -L used by the Public Works Department. To ensure continuity of design, the applicants will be using the same streetlight pole manufacturing company. The Public Works Department has reviewed the revised plans and has determined the distribution of light coverage along Superior Avenue will be sufficient. A copy of the new plans is attached for review. New photographic simulations are being prepared by the applicants and will be distributed in the supplemental agenda packet on November 5 th . During testimony from the public, concerns regarding several topics were raised which are discussed below. Alternative Locations and Designs Both applicants desire to improve their existing network capacities in this area of the City, and the intersection of Superior Avenue and West Coast Highway was identified at or near the center of their search ring. Prior to submitting their application to the City in October, 2003, Cingular investigated alternative locations as a potential site for a wireless facility within close proximity to this intersection. The commercial development across the street would not be conducive for a roof - mounted facility because of the low single -story construction and the lower elevation of the site, and installation of a freestanding facility on the site was rejected because it would displace required parking spaces. The applicant contacted Hoag Hospital in early 20 03, and was informed they were not interested in entering into an agreement Cingular Wireless for the installation of a telecom facility on their site. Representatives of Cingular Wireless left messages with the facilities manager of Hoag Hospital again on October 28, 2004. As of this writing, the calls have not been returned. The Telecom Ordinance and Council policy identify the desired design or location of wireless telecom facilities. The use of existing poles or light standards is encouraged and is listed second in priority of eight categories, while new false trees and monopoles (similar to the originally proposed flagpoles) are discouraged. Aesthetically, the use of streetlight 0 4600 West Coast Highway November 9, 2004 Page 3 poles for antenna installations meets the intent of the ordinance and minimizes the impact on views because the streetlight poles are existing. Exposure to Radio Frequency (RF) Emissions The Federal Communications Commission (FCC) has established specific rules and guidelines designed to protect public health by limiting the maximum amount of RF emissions that a wireless facility may produce. The rules are based on standards developed by the Institute of Electrical and Electronic Engineers, Inc. and adopted by the American National Standards Institute, as well as guidelines recommended by the National Council on Radiation Protection and Measurements. Further, the rules were coordinated with and are supported by federal agencies with health and safety responsibilities, including the Environmental Protection Agency, the Food and Drug Administration, the National Institute for Occupational Safety and Health, and the Occupational Safety and Health Administration. The City's Telecom Ordinance requires that all wireless telecom facilities within the City comply with the rules, regulations, and standards of the FCC. As reported at the October 12th Council meeting, Mr. Jonathan Kramer (the technical advisor retained by the City) completed an evaluation of the physical elements of the proposed projects as well as compliance with RF emissions and determined the projects fully comply with the FCC rules. Enacted by the Federal government, the Telecommunications Act of 1996 specifically states "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions" (Section 332 (c)(7)(B)(iv) of the Telecommunications Act of 1996). Light Distribution The Public Works Department has reviewed the revised plans and confirmed that the design as now proposed meets the City's lighting standards. The light standards will be mounted at the same height above grade as the specified on Lighting Standard STD -201- L and therefore the correct distribution of lighting will achieved. The light poles are required to be constructed in the same manner as the existing poles, and will be breakaway poles in the event of a vehicular accident. Coastal Commission Compliance Staff reviewed the project proposals in relation to the regulations adopted by the California Coastal Commission, which was enacted by the State Legislature in 1976. While the proposed projects are located in the coastal zone, staff determined the projects to be exempt from requiring a Coastal Development Permit for the following reasons: 0 4600 West Coast Highway November 9, 2004 Page 4 • The streetlight poles are existing structures that will be modified and replaced with similar structures. • The replacement or repair of the existing structures will not result in an increase of 10 percent or more to the overall height of the structures. • The property on which the wireless telecom facilities are proposed to be located is more that 300 feet from any beach or sea, and is not located between the sea and the first public road paralleling the ocean, as West Coast Highway lies between the site the and the ocean. • The property on which the wireless telecom facilities are proposed to be located are not designated as a significant scenic resource area by the Commission. • Public access and public parking will not be affected by installation of the wireless telecom facilities on the subject property. Methane Gas Remediation Facilities Some members of the public expressed concern about the proposed facilities' proximity to methane gas facilities. The existing methane gas fields and remediation facilities are located to the east of the subject property on the Hoag Hospital parcel where the Administration and Cancer Center buildings are situated. There are no known methane gas fields in the area of the subject property. Thus, the siting of wireless telecom facilities on the subject property would not have an impact public safety as it relates to methane gas. Co- Location of Facilities The Telecom Ordinance requires that new telecom facilities located within 1,000 feet of one another shall co- locate on the same site so as to limit the adverse visual effects of a proliferation of telecom sites in the city. The ordinance also limits the number of facilities at a single site to no more than three. Council has the option of imposing a condition of approval requiring the future co- location of a third and final telecom facility on this site, or limiting the number of wireless telecom facilities to two. TELECOMMUNICATIONS LICENSE AGREEMENT A copy of the Telecommunications License Agreement (TLA), which the City Manager's Office has negotiated with each the applicants, is attached to this report. The TLA authorizes Cingular Wireless and Sprint to use this location under certain conditions, and addresses such matters as the monthly rent for the site ($2,200 per carrier), rent increases, the term (up to four 5 -year terms), bonding and insurance, co- location requirements, restrictions on transfers, and other obligations. ENCROACHMENT PERMITS Encroachment permits issued by the Public Works Department shall be required to allow installation and construction of the facilities on public and city-owned property. 4600 West Coast Highway November 9, 2004 Page 5 0 The encroachment permits will be issued only if the City Council approves the telecom permits and the license agreements are executed by both parties. ALTERNATIVES 1. The City Council has the option to alter the proposed design, conditions of approval or lease agreement in order to address the specific concerns the Council or public may have. 2. The City Council may amend Condition No. 19, which states a third carrier may co- locate on the subject property, and limit the number of facilities at this site of two. Council also has the option to limit the number of streetlight poles on which antennas may be mounted. 3. The City Council can deny the subject permits, in which case both the license agreements and telecom permits shall not be executed. Prepared by: Submitted by: JsJ e t oh son Brown atricia L. Temple istant fanner Planning Director F:\USERS \PLN \Shared \PA's \PAs - 2003 \PA2003 - 255 \TP2003 -003 CC Rpt #3.doc Exhibits: 1. Vicinity Map 2. Findings & Conditions of Approval 3. Staff Reports Dated May 11 and October 12, 2004 and Minutes of the Meetings 4. New Site Plans and Elevations 5. New Propagation Maps w/ antennas mounted at 32 feet maximum 6. Telecommunications License Agreement 7. Public Correspondence 4 _� EXHIBIT NO. 1 VICINITY MAP C �...� �`......,' CJ r' °y 4625 5 % 7 I .31 7 4509 601 .!•j�Jn -^� 8 p 4537 21466 ?0222335, ' 1 • 1 4739 r. 4501 4463 . 4715 '\ 4709 ,`\ ._� 4701 ' a 1 1, R/ 1'FRgy 4547 4535 4555 N01 N21 �."• -�. 4703 a A . 4513 M41 _ N6144G744D3wi_N33446!"59 7 ` 146 f��.`'- ...4507 N!S N 15 w 27 w 17 4409 4405 N31 142'. N31 / 134 138 J -'! 4601 - ^'451 ` Mil C 47024m .'130 f.. 1711)). l� 45034`A6�� @m f, SUPERIOR AVE Subject Property �— l 4600 West Coast Hwy. \` lsunst w 1327 4823 ' 4319 ,\ � .... ... ._ 4a 15. 4ao9 4816 4812 4303 p2-,' CO � 4304 st .._� ''.l Ym ......,�.. 4700 C �...� �`......,' CJ r' °y 4625 4533 4525 .31 4509 601 .!•j�Jn -^� '- - p 4537 ~ 6. ?24 4739 r. 4501 4463 . 4715 '\ 4709 ,`\ ._� 4701 ' ,•,.,. �l 1 1, R/ 1'FRgy 4547 4535 4555 N01 N21 �."• -�. 4703 gt;% +.,.. . 4513 M41 _ N6144G744D3wi_N33446!"59 E 133 146 f��.`'- ...4507 N!S N 15 w 27 w 17 4409 4405 N31 142'. N31 / 134 138 J -'! 4601 - ^'451 ` Mil C 47024m .'130 f.. 1711)). l� 45034`A6�� @m TELECOM PERMIT NO. TP2003 -003 TELECOM PERMIT NO. TP2004 -002 . SITE ADDRESS: 4600 WEST COAST HIGHWAY 0 EXHIBIT NO. 2 Findings and Conditions of Approval 1.. � 0 • FINDINGS AND CONDITIONS OF APPROVAL Telecommunications Facility Permit No. TP2003 -003 and Telecommunications Facility Permit No. TP2004 -002 Findings: 1. The projects have been reviewed, and it has been determined that they are categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) for the following reasons: The existing streetlight poles are being reconstructed and slightly modified to accommodate the attachment of panel antennas. The four new streetlight poles and two equipment enclosures are small structures that are minor in nature. 2. The wireless telecommunications facilities 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 0 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 support equipment for the telecom facilities are located within a municipal parking lot where adequate space exists for development of the structures and no loss of public parking will occur. The visual effects of the telecom equipment on public streetscapes is negligible as the antennas will be attached to reconstructed streetlight poles designed to match the existing poles located in the public right -of -way. The two facilities are co- locating on the same site so as to limit the adverse visual effects of proliferation of facilities in the City. Effects to public scenic ocean and coastal views have been minimized by matching the design of the existing streetlights and limiting the overall height of the streetlight poles and antennas to 32 feet maximum and the slim design of the antennas. 3. The wireless telecommunications facilities, as proposed, conform to the technology, location and design standards for the following reasons: The telecom facilities approved under this permit utilize the most efficient . technology available in order to minimize the visual impact. Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 2 • The antennas for the telecom facilities approved by this permit will be attached to streetlights and will be painted to match the color and texture of the light poles as required by the City's Design Standards. • The support equipment for the telecom facilities will be placed within retaining block wall enclosures and will be screened from public view in a manner consistent with the surrounding environment. 4. The wireless telecommunications facilities, as proposed, are exempt from requiring a Coastal Development Permit for the following reasons: • The streetlight poles are existing structures that will be modified and replaced with similar structures. • The replacement or repair of the existing structures will not result in an increase of 10 percent or more to the overall height of the structures. • The property on which the wireless telecom facilities are proposed to be located is more that 300 feet from any beach or sea, and is not located between the sea and the first public road paralleling the ocean, as West Coast Highway lies between the site the and the ocean. • The property on which the wireless telecom facilities are proposed to be located are not designated as a significant scenic resource area by the Commission. • Public access and public parking will not be affected by installation of the wireless telecom facilities on the subject property. Conditions: 1. The development of the telecom facilities shall be in substantial conformance with the approved site plans . and elevations, except as noted in the following conditions. 2. Anything not specifically approved by these Telecom Permits is not permitted and must be addressed in a separate and subsequent Telecom Permit reviews. 3. The applicants shall coordinate the construction plans for development of the facilities and combine the plans if possible to ensure continuity of design. 4. The reconstructed streetlight poles shall be manufactured by the same company to ensure continuity of design and shall be constructed as breakaway poles. 5. All work conducted by the applicants on the subject property and in the public right -of -way for the construction of the telecom facilities approved by Telecom Permit No. TP 2003 -003 and Telecom Permit No. TP 2004 -002 shall be Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 • Findings and Conditions of Approval Page 3 approved under an encroachment permit, and construction and maintenance easements issued by the Public Works Department. 6. A total of four reconstructed streetlight poles shall be manufactured and installed per the approved plans. In no case shall the overall height of the reconstructed streetlight poles with panel antennas attached exceed 32 feet measured from the top of sidewalk. The light standards shall be mounted so that the top of the bracket arm does not exceed 34 feet 9 inches measured from top of sidewalk, per Lighting Standard STD - 201 -L. 7. The existing streetlights that are removed shall be salvaged and delivered to the City of Newport Beach Utilities Yard. 8. The two reconstructed streetlight poles located to the west of the entry driveway to the parking lot shall be replaced in the same location as the existing light poles, and two panel antennas per carrier shall be attached to each of the two reconstructed poles. • 9. The existing streetlight pole currently located approximately 100 feet to the east of the entryway shall be removed and replaced with two new streetlight poles placed an equal distance of approximately 129 feet from each other. These new streetlight poles shall have a single panel antenna attached per carrier. 10. All exposed elements of the facilities, including the antennas, antenna brackets, coaxial cables and appurtenances attached to each reconstructed streetlight pole shall be color- matched or painted to match the pole to the satisfaction of the Planning and Utilities Directors. 11. The support equipment for each carrier shall be located within a fully enclosed block wall structure with a self - closing and locking gate. Anti -skate devices shall be installed along the top of the block walls. No portion of the support equipment or block wall enclosure shall project into any adjacent parking stall or vehicle maneuvering area. 12. The support equipment structures, including the retaining walls, equipment cabinets, gate swing and work areas shall accommodate a minimum 2 feet 6 inch front overhang for parked vehicles. Prior to the issuance of required construction permits, the plans for the configuration of the support equipment structures shall be reviewed and approved by the City Traffic Engineer and Planning Department. f. J Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 4 13. The support equipment for each carrier shall consist of 4 base transreceiver units ground- mounted within a solid block wall enclosure. The total area for Cingular's equipment shall be approximately 230 square feet (or 8 feet by 28.67 feet in area), as depicted on the attached plans. The total area for Sprint's equipment shall be approximately 235 square feet (or 11.75 feet by 20 feet in area), as depicted on the attached plans. 14. The block wall enclosure structure shall be screened by plantings to match the existing surrounding landscaping. Landscape plans shall be included with the construction plans for approval by the Planning and General Services Departments. 15. The applicants shall install a dedicated electric cabinet, meter and other necessary components to service the telecom facilities. 16. The applicants shall assume all costs associated with any alterations to the existing improvements on the subject property and along Superior Avenue for development of the telecom facilities. 17. The applicants 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. 18. Any irrigation systems and landscaping damaged during the course of construction shall be restored as directed by the General Services Department. 19. Any future facility 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. A maximum of three carriers shall be permitted to co- locate at this site. 20. Prior to the issuance of any permits to install the facilities, the applicants 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. 0 Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 5 The applicants recognize that the frequencies used by the cellular facilities 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). 21. The applicants shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 22. The facility operated by Cingular Wireless 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. 23. The facility operated by Sprint PCS shall transmit at a frequency range of between 1851.25 MHz and 1993.75 MHz. Any change or alteration to the frequency range shall require the prior review and approval of the Planning Director. 24. Prior to activation each facility, the applicants 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. 25. The applicants shall provide the City with a telephone number that shall be monitored 24 hours per day to which interference problems may be reported. 26. The applicants 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. 0 Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 . Findings and Conditions of Approval Page 6 27. Should interference with the City's Public Safety radio equipment occur, use of the interfering facility shall be suspended until the radio frequency is corrected and verification of the compliance is reported. 28. The applicants 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. 29. The telecom facilities approved by these permits shall comply with any existing easements, covenants, conditions or restrictions on the underlying real property upon which the facility is located. 30. The applicants 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. 31. 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. 32. No advertising signage or identifying logos shall be displayed on the telecom facilities except for small identification, address, warning and similar information plates. Such information plates shall be identified in the plans submitted for issuance of the required permits. 33. The telecom facilities 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 permits for installation of the facilities, drawings and structural design plans shall be submitted to the City for review by the applicable departments. All required permits shall be obtained prior to commencement of the construction. 34. Within 30 days after installation of the telecom facilities, 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 facilities are operating at the approved frequency and complies with FCC standards for 0 radiation. If the report shows that the facilities do not so comply, the use of the Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 7 facilities shall be suspended until the facility is modified to comply and a new report has been submitted confirming such compliance. 35. The operators of each telecom facility shall maintain the facilities in a manner consistent with the original approval of the facility. 36. 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. . 37. These telecom permits 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. 38. 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. 0 EXHIBIT NO. 3 Staff Reports Dated May 11 and October 12, 2004 and Minutes of the Meetings 0 L City of Newport Beach City Council Minutes October 12, 2004 Member Nichols was speaking of. Council Member Nichols state -that he is concerned with the upkeep of properties that multi - ownership. Planning Director Temple stated that there be problems with split ownerships, but that the project at 3 arguerite Avenue will be required to have Covenants, Conditio Restrictions (CCRR's). Mayor Ridgeway requested that condominium conversion approved by the Planning Commissio a called up for review by the City Council. He explained that e building is over 50 years old and is nonconforming, specifically requested that the applicable laws and timeframe at apply to the building be addressed. Planning Director Tem stated that the ramifications of various interpretations will also N. CONTINUED BUSINESS 16. TELECOMMUNICATIONS FACILITY PERMIT NO. 2003 -003 (PA2003 -255); TELECOMMUNICATIONS FACILITY PERMIT NO. 2004 -002 (PA2004 -057) - 4600 WEST COAST HIGHWAY (APPLICANTS- CINGULAR WIRELESS AND SPRINT PCS). Assistant Planner Brown stated that the City Council reviewed Cingular Wireless's application at the City Council meeting of May 11, 2004. Since that meeting, Cingular has explored alternative design proposals that might be more acceptable to the community and the City Council. In the meantime, Sprint PCS also submitted an application to co- locate at the site with Cingular. In July 2004, staff retained the services of Jonathan Kramer to help provide technical advice to the City. Staff met with Mr. Kramer and the applicants, and the result is the proposal before the City Council at the current meeting, which is for each applicant to install antennas on four streetlight poles on Superior Avenue. The overall height would be 35 feet. Assistant Planner Brown noted that the existing height of the streetlights is 32 feet. She stated that the support equipment would be located in a block wall enclosure within the nearby parking lot in a landscaped area. She noted that if this was a new application of the same design, it would not have been agendized because it complies with the requirements of the telecommunications ordinance. Council Member Rosansky asked why the streetlight poles couldn't remain at 32 feet and how different from the existing poles they would be. Assistant City Planner Brown stated that the poles themselves will be similar to the existing poles. The difference will be the antennas attached above the light standard. Council Member Rosansky noted that the lights will also extend out from the poles at a lower height and don't really look similar. Gil Gonzalez, Infranext, stated that he's representing Cingular on the . project. He displayed maps showing the existing coverage in the area, coverage with 35 -foot poles and coverage with 32 -foot poles. Council Member Rosansky stated that the additional coverage with the %7 -1 -._- cC 1 - -- 1.1. INDEX (100 -2004) 4 L City of Newport Beach City Council Minutes October 12, 2004 35 -foot poles seems negligible. Mr. Gonzalez explained that the difference is more significant to a Radio Frequency (RF) engineer and that the initial objective was for a 50 -foot pole and the coverage that it would provide. Council Member Webb asked if the light could be placed above the antennas. Mr. Gonzalez stated that it's possible, but could interfere with coverage. Council Member Webb stated that lowering the light could have an effect on the light distribution on Superior Avenue. Council Member Daigle stated that the impact on aesthetics is a concern, and asked if research was done on how the 32 -foot poles would look in comparison to the 35 -foot poles. Mr. Gonzalez stated that they only learned of the concern for the 32 -foot poles the day prior and did not have the time to conduct research. He noted, however, that the 35- foot poles do comply with the height and design requirements, and that another carrier has already been approved for 35 feet. Council Member Daigle asked if the facility would provide 911 service, and noted that Superior Avenue and Coast Highway is a busy intersection. Jason Kozora, Sprint, stated that Sprint does have 911 coverage on its antennas. Council Member Daigle referred to the Federal mandate to provide E -911 service, which is enhanced 911 service with locator technology, and asked if this is also being provided. Mr. Kozora stated that it is. Mr. Gonzalez confirmed that Cingular also has the capability on the site. Council Member Rosansky asked if alternative locations had been looked at and specifically if Hoag Hospital had been approached. Mr. Gonzalez stated that Hoag was contacted before the initial proposal was submitted and they weren't interested. In addition, the City stated that Hoag had already exceeded its height limitations. Council Member Rosansky stated that he spoke with a representative from Hoag and they indicated that they had not been contacted. Council Member Daigle confirmed with Mr. Gonzalez that antenna facilities can also be placed too high Council Member Heffernan reminded everyone that if the facilities are installed at Hoag, the City won't receive the revenue for leasing the sites. He asked if the rate had been determined and if it would be separate leases with Cingular and Sprint. Acting City Attorney Clauson stated that there would be two leases and they would total approximately $4000 per month for five years. Mr. Gonzalez stated that when Cingular looks for a site, the factors that are considered include the RF engineer's target objectives, leasing possibilities and compliance with the City's ordinance and development standards. Council Member Daigle asked if the proposal at the current meeting was the second alternative, with the first being the flagpole. Mr. Gonzalez stated that it's actually the fourth alternative that was looked at, and that they also considered a lower flagpole and another alternative involving the streetlights. Volume 56 - Page 1279 INDEX L] City of Newport Beach City Council Minutes October 12, 2004 Spiro Stameson expressed his opposition, and that of the Villa Balboa residents, to putting telecommunication antennas on streetlight poles along Superior Avenue. He stated that there are other alternatives that should be considered first, such as palm trees, higb rise buildings or vacant land, and that it is inappropriate to put the antennas on a busy street with the possibility of radiation. Joe Rozecho stated that he's a dentist, takes x -rays everyday and has to meet certain rules and restrictions in terms of safety. He stated that it is unknown how much exposure he would face everyday from the antennas on Superior Avenue, and that the matter is serious and needs to be studied further. He stated that it is not just a matter of coverage and revenue, and urged the City Council to study the matter further and determine what the radiation exposure would be. Acting City Attorney Clauson stated that in 1996, the Federal government enacted the Telecommunications Act, which preempts cities from being able to regulate or deny cellular antennas based on radiation concerns as long as the installations comply with Federal Communications Commission (FCC) standards. Council Member Heffernan stated that the City began exploring cellular antennas on public property four years ago with the reasoning that the antennas are going to be installed anyway. He explained that installations are driven by market, Newport Beach is a high cell phone use area, installations can enhance service coverage and the City might as well get the revenue for the installations. He further explained that City ordinances were rewritten to deal with the installations. Jim Hildreth stated that if there are no problems with the antennas, they should be installed on City Hall. Ed Sherman stated that there are 750 to 800 units in Villa Balboa and Versailles, and that these taxpayers supply the City with more than 54,000 per month. He stated that they do not want the antennas in their front yard. Council Member Nichols asked if placing the antennas on Hoag Hospital would be better. Mr. Sherman stated that it would not and that they would be better on City Hall or across Coast Highway on the commercial development. He stated that there are other viable alternatives and the City Council should listen to the residents. Wendy Kaiser stated that she has concerns for the casting of the light on Superior Avenue if the height of the bulbs is changed. Additionally, she asked if the streetlight poles would be breakaway poles, in the case of a vehicle accident. Ms. Kaiser stated that she'd like to see a depiction of what the proposal would look like. She stated that other locations and alternatives should also be looked at, although she does agree with using public property when possible for the revenue benefits. Volume 56 - Page 1280 INDEX 0 City of Newport Beach City Council Minutes October 12, 2004 Mr. Gonzalez displayed several renderings showing what the proposal would look like. Council Member Rosansky confirmed with Mr. Gonzalez that the bulbs would be lowered from 32 feet to 30 feet with the proposal. Mr. Gonzalez stated that the antennas are 56 inches long by eight inches wide, and would be placed at the top of the poles. He further clarified that the bottom of the antennas would be at 30.5 feet. Mr. Gonzalez stated that Cingular has done a lot of compromising and that the proposed design is compatible with the surrounding area, complies with the wireless code and has been modeled after a site that has already been approved by the City. Holly Gerguss stated that installing the antennas in commercial and manufacturing zones should be considered. She specifically suggested that the Hoag Hospital site be considered. Ms. Gerguss asked if Coastal Commission approval was received for the proposed installation. Lastly, she stated that it is difficult to see how the proposal will look and she can understand the residents' frustration. Jeff Davis suggested that the use of the 300 -foot tower at the City's maintenance yard be considered. Monique Butrose stated that her main concerns are for the health and safety of the Villa Balboa residents. Additionally, she urged the City Council to look at the Coastal Commission guidelines and determine if a permit is needed for the installation of the antennas. Assistant Planner Brown introduced Jonathan Kramer, the technical adviser retained by the City. At the request of Mayor Ridgeway, Mr. Gonzalez confirmed that the antennas would be four feet eight inches tall by eight inches wide by four inches thick. Acting City Attorney Clauson added that City standards would have to be met in regards to the construction of the Poles, She stated, however, that there may be an issue with the lighting that wasn't considered and that this would have to be addressed by the Public Works Department. Mr. Kramer, RF Engineer, stated that he evaluated the proposals from both of the carriers, singularly and cumulatively, and has determined that the projects fully comply with FCC rules. In response to comments made by Mr. Rozecho, Mr. Kramer stated that cellular antennas involve non - ionizing radiation whereas x -rays involve ionizing radiation, which is a substantial difference, that the FCC preempts in this area anyway and that any exposure would occur directly in front of an antenna. He concluded that the radiation impact is a non - issue. Mr. Kramer further noted that both cellular companies are not looking to provide new coverage, but to enhance their network capacities, which is very location and height specific. He explained that the coverage with the current proposal is similar to the coverage with the 50 -foot flagpole alternative because the streetlights are further up the hill on Superior Avenue. Volume 56 - Page 1281 INDEX City of Newport Beach City Council Minutes October 12, 2004 INDEX Council Member Rosansky asked if the streetlight poles could be lowered and located farther up the hill, and still provide similar coverage. Mr. Kramer stated that there are limitations on how far away the antennas can be from the base station equipment, and that they are probably close to their limit with the current proposal. Council Member Rosansky asked if the same poles could be used, but lowered to 32 feet. Mr. Kramer stated that the coverage change would probably not be dramatic, but noted that he would also expect requests for poles farther up the hill at some point in the future. Council Member Daigle asked Mr. Kramer to address the benefits of 911 and how the Federal mandates are being phased in. Mr. Kramer stated that E•911 service is a requirement of the FCC for carriers to identify to 911 operators the approximate location of a caller. He noted that the addition of sites enhances a carrier's ability to determine location. In response to earlier comments, Assistant City Manager Kiff stated that the Council's policy actually prioritizes the installation of cellular antennas on City buildings. He added that the policy also discourages the use of mono poles, such as fake palm trees. Linda Janowsky stated that there are so many unknowns with the proposal and that the residents are concerned for their safety. She specifically noted the Hoag Hospital methane gas tower and the lighting on Superior Avenue, and stated that these issues need to be addressed properly. Mr. Gonzalez stated that the proposal falls within the requirements of the FCC. In response to the lighting on Superior Avenue, he noted that the proposal actually adds one streetlight and that the plans have been routed to the Public Works Department for their review. Mr. Gonzalez stated that moving the antennas farther up the hill would affect the spacing of the streetlight poles, which is a concern of the Public Works Department. Council Member Webb asked if the antennas could be installed on Superior Avenue closer to Placentia Avenue. Mr. Gonzalez stated that the bluff would cause some of the coverage to be blocked. Carol Roth stated that she is concerned for the precedence that would be set by approving the current proposal and the possibility of antennas being installed farther up the hill in the future. Assistant Planner Brown stated that the telecommunications ordinance does limit the number of carriers that can be allowed at a specific site to three. Ross Ribaudo stated that the residents of Villa Balboa have been subjected to construction since 1991 on two sides of the complex, and that the proposal would cause construction on a third side. He stated that the residents want to make sure that they're protected and that Volume 56 - Page 1292 City of Newport Beach City Council Minutes October 12, 2004 safety factors have been considered. He asked the City Council to consider their frustration and concerns. Council Member Nichols stated that the public will learn that many antennas already exist in the community, such as at churches and schools, and that radiation is not a problem. Secondly, he stated that the gas plant at Hoag Hospital provides one of the safest and cleanest types of fuel available. Motion by Council Member Rosansky to continue the item to November 9, 2004, to allow the applicant time to study whether they can make the project work at 32 feet, to provide plans showing actual dimensions of where the light standards will be, to coordinate the lighting with the Public Works Department and to explore the possibility of installing the antennas at Hoag Hospital. Mayor Pro Tem Bromberg agreed that additional study should be required. Mr. Gonzalez confirmed that four weeks would provide adequate time for Cingular to do the additional study. Council Member Daigle stated that the aesthetics of the project design • are good for a cellular antenna installation and that the reasons for providing the service should be taken into consideration. She explained that these include instantaneous communication, constant connectivity and a lifeline for public safety. The motion carried by the following roll call vote Ayes: Heffernan, Rosansky, Bromberg, Webb, Daigle, Mayor Ridgeway 'Foes: Nichols Abstain: None Absent: None 17. DATE —SANTA ANA RIVER SAND PROJECT. Assistant-City Manager Kiff stated that the Santa Ana River Project was discusse t the City Council meeting on August 24, 2004. At the direction of the UKX Council, staff worked with the Army Corps of Engineers and the actor in an attempt to find an alternative method for disposing of sand. He reported that an alternative method has been agreed upon a dredging company will work with the contractor. Assistant City a er Kiff displayed a schematic showing where the pipe and the propose area will be located. Council Member Rosansky commended staff on ing an alternative method and the residents for bringing the matte to the City's . attention. 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(' �..� .•t (,re, .kir1 •iL. - \•, _li.• •J�.. • +• fir.: •'rf• _ •=1 �:1r E � � y'. f,! ��. yes a, r.>.'' '•, � -• S ;1 � `�' �` CI ,pJ7l•1j1 :J7_ .J . _1.; • : 4 � : �V '. . _. m. _. a..:'Ir'f .,.1 '.r .. .!`�',p;.xS 1a 1' `c•� +,.:. L `.rY .a.ri'N'.yY� IL _ _ c. �___ ••x'_''3.51..7. �:i�y.> �.. ,,.�;, ;?�5.� •' ] ::�yr • �.' _ }__' 1 _ D n�!. Two.': r v= 4.�?'..i,' a� °��'� . =��• . •. � •. S' '. .. _ i ?,',:.mp,iaA i _ • �Wy,,��;;��..1'��C�` ^liv:' i'9"'.''' i�.t�r pi . _fir /. .•_•�,(.r� °.�. :.7;'ti: '' './_r <r !7f7+e•5.. x. _' oil M. r. OP. 4w ■ OIL A • EXHIBIT NO. 6 Telecommunications License Agreement 0 1 Draft 11!2/04 TELECOMMUNICATIONS LICENSE AGREEMENT (BLEND) This LICENSE AGREEMENT ( "Agreement') is entered into between Cingular, a ( "Company ") and the City of Newport Beach, a municipal corporation and charter city ( "City ") this _�" day of , 2004. Company and City rt ie are each a "Party" and together the "Pas" to this Agreement. RECITALS A. City is the fee title owner of that certain real property located at in the City of Newport Beach, California, such property 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 (the "License Area ") and; C. City is the fee title owner of two (2) streetlights located at , City of Newport Beach, California, such property described more particularly in Exhibit "C" hereto, which description is fully incorporated herein by this reference ( "Streetlights "), D. Company desires to license from City, on a non - exclusive basis, the right to replace the Streetlights with two (2) new streetlights ( "Replacement Streetlights ") to accommodate both the City's standard streetlight fixtures and the operation of Company's wireless telecommunications antenna and related facilities, described more particularly in Exhibit "D "; and the right to use certain related easements for physical access, as depicted in Exhibit "E" hereto, all of which are fully incorporated herein by this reference, and which may require encroachment upon and occupation on a portion of the public - right -of -way; and E. City is willing to make the Replacement Streetlights and 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: License: City grants a non - exclusive license ( "License ") to Company for the term of this Agreement, to replace the Streetlights with the Replacement Streetlights, as it is Cl depicted in Exhibit "D ", for the uses specified in this Agreement. City further grants to Company a non - exclusive license for ingress and egress to the Replacement Streetlights and License Area, for construction, installation and maintenance of the facilities and underground utility wires, cables, conduits as necessary to operate the Telecommunications Facilities, as defined below, subject to the terms of all governmental licenses, permits and approvals required by Federal, State or local governmental agencies. All installation and maintenance activities shall be at Company's sole cost and expense, including but not limited to the fees and costs associated with the permits and government approvals described in Article 3, 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. The Company shall be responsible for all maintenance associated with the Telecommunications Facilities. The City shall be responsible for all maintenance associated with the streetlight portion of the Replacement Streetlights, including but not limited to, the working streetlights themselves, the wires and equipment necessary to operate the streetlights, and the physical poles. Notwithstanding Company's construction and installation of the Replacement Streetlights, it is the parties' intention that Company's interest in the Replacement Streetlights is restricted to this License and the City retains all rights, title and interest in the Replacement Streetlights. 2. Uses: Company shall use the Replacement Streetlights and License Area for the sole purpose of constructing, maintaining, securing and operating a wireless telecommunications antenna and related facilities including any ground support equipment such as electric meters, vaults, above ground boxes, switch gear, transformers, etc., described in Exhibit "D ", to transmit and receive radio communication signals on various frequencies (between _ and _ MHZ), all in compliance with the approved site plans and related drawings dated 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 ( )), (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 Replacement Streetlights and 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 Replacement Streetlights and License Area, or paint, install lighting or decorations, or install I* �; ll any signs, lettering or advertising media of any type or any other visual displays, on or about the Replacement Streetlights and 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 Replacement Streetlights or License Area in the manner required by Federal, State or local law. 3. Telecommunications Permit And Government Approvals: Prior to the issuance of a building permit for construction of the Telecommunications Facilities, Company shall obtain a Telecommunications Permit from the City and an Encroachment Permit from the Public Works Department. Company shall comply with all conditions of approval contained in the Telecom Permit and the Encroachment Permit. 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 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. Within fifteen (15) days following the Commencement Date, and on the first day of each month during the Term and each Renewal Term, Company shall pay to City a License Fee in an amount of Two Thousand Two Hundred and 00/100 Dollars ($2200.00) per month, adjusted in accordance with paragraph (b) immediately below (the License Fee, as adjusted herein, is referred to as the "License Fee'). The License Fee for any partial month shall be prorated in accordance with the actual number of days in that month. C� 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 15 days following the due date. In addition all unpaid fees shall accrue interest at the rate of one - and -a -half percent (1'/ %) per month or any portion of a month until paid in full. 6. Adiustment of License Fee Upon Renewal: Sixty (60) days prior to the start of each Renewal Term, City and Company shall meet to confer regarding the Market Rate of the Telecommunications Facilities. 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. • 7. Adiustment of License Fee Upon Modification of Uses: The License Fee set out in this paragraph is based upon the Facilities, Replacement Streetlights and License Area permitted by the Telecom Permit. Changes in the Facilities, Replacement Streetlights 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. 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 the Replacement Streetlights as streetlights or 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 "). 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 telephone notice to Company. In the event of interference with City's streetlights or 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 (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Facilities and 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. Ememencv: a. Company understands that the Telecommunications Facilities are located on a public 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 Replacement Streetlights and 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 in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Telecommunications Facilities and any equipment of Company's located on the Replacement Streetlights 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 C� J Facilities or other communication facilities by the shut off of power. b. Company agrees to install a clearly marked & accessible master power Ol "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. 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 Replacement Streetlights, Streetlights and 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 Replacement Streetlights, Streetlights and License Area, including its suitability for the use intended by Company. To the best of City's knowledge, the Replacement Streetlights, Streetlights and the License Area has not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in Section 25. The Company has conducted its own appropriate due diligence investigation of the Replacement Streetlights, Streetlights and License Area prior to its execution of this Agreement. 11. No Interest in Property: 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 Replacement Streetlights, Streetlights, License Area, or any public right -of -way, other than a real property license to use and access the Replacement Streetlights and License 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. L 13. Utilities: Company shall not do, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the Replacement Streetlights, except as may be specifically permitted by the Telecom Permit. The Replacement Streetlights shall be separately metered. In addition to the License Fee, Company shall be responsible for the cost of all 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 Replacement Streetlights and 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 Riqhts: Company's right to use the Replacement Streetlights and License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the Replacement Streetlights and License Area for any purpose that does not interfere with Company's use of the Replacement Streetlights and License Area as provided herein. 0 16. Company's Retention of Title: Title to the Telecommunications Facilities and any equipment placed on the Replacement Streetlights and 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, restore the Replacement Streetlights and License Area to its original condition or to a condition satisfactory to and approved by City, and vacate the Replacement Streetlights and License Area. Should Company fail to restore the Replacement Streetlights and 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 Replacement Streetlights and License Area is so restored as required by this Agreement. 18. Assignment: 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 lesser 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 advance 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: 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 its rights hereunder: (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 network 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 Company cures any defaults under this Agreement and the • I..-, 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 this Agreement with the exception of a buyout of the Company by another entity which formally assumes all post, current anc 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. Relocation: Company agrees that whenever any City improvements may be required (for example, the widening of a street or replacement of a bridge), the City may require the relocation of any such Telecommunications Facilities at the Company's expense, without making any claim against the City for reimbursement or damage therefore. 21. 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 Telecommunications Facilities for a 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. t. 4 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 subject to the Company's compliance with the surrender obligations of Section 17, above. 22. Construction: a. Company agrees to take all prudent action to protect the Telecommunications Facilities and City 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 Replacement Streetlights and License Area, 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. d. Company, prior to the issuance of an Encroachment Permit by the Public Works Department 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 Two Thousand and 00 /100 Dollars ($2000.00) ( "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 1 0 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. 23. Maintenance: Company shall take good care of the Telecommunications Facilities and License Area and keep the Telecommunications Facilities and License Area neat, clean and free from graffiti, dirt and rubbish at all times. 24. 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 Replacement Streetlights, 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. . 25. Indemnification Company shall indemnify, release, defend and hold harmless City, its officers, agents, and 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 latent or patent defects in design and construction of Replacement Streetlights, 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 claims are caused by the active negligence, or willful misconduct of City, its officers, agents and employees. 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; A comprehensive general liability insurance policy in the minimum 11 9 /, 8 amount of One Million Dollars ($1,000,000.00) 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 Dollars ($1,000,000.00) 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 (5) 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. 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. 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 12 0 (t� 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. 26. Hazardous Substances: 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 Replacement Streetlights and 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 Replacement Streetlights and 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 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 13 (. _1, 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 Replacement Streetlights and License Area provided under this Agreement, arising from or attributable to the storage or deposit of Hazardous Substances on or under the Replacement Streetlights and 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 Replacement Streetlights and 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 Replacement Streetlights 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. 27. 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 Replacement Streetlights and the License Area, or the use thereof, including all applicable zoning ordinances, building codes and environmental laws. Company shall not occupy or use the Replacement Streetlights and License Area or permit any portion of the Replacement 14 0 Streetlights and 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. 0 28. 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. 29. 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. 30. 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: Attn: 31. Entire Agreement Amendments: 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 15 1r 7 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. 32. 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 any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 0 33. Costs And Attornevs' 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) of expert witnesses, copy charges and attorneys' fees expended in connection with such action including any appeal. 34. Citv 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. 35. Applicable Law: The laws of the State of California shall govern this Agreement. 36. Time is of the Essence: LJ 16 J 7', 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, A Municipal Corporation Homer Bludau, City Manager Name & Title APPROVED AS TO FORM: Robin L. Clauson, Acting City Attorney 17J E 17 Company '_ G 0 EXHIBIT NO. 7 Public Correspondence 0 -1r C� Tarek G.M. Zeitoune D.D.S 200 Paris Lane 4315 Newport Beach, CA 9266' Balboa Mayor and City Council Members Newport Beach City Hall Dear Mayor and City Councils, This letter is a follow up on the city council meeting that was held on October 12. 2004 at Newport Beach City Hall in reference to the safety issue of the antenna to be installed on Superior Avenue. I understand that the project is following the federal guidelines of safety; however, that does not guarantee safety of the residence and or users of Superior Avenue and Sunset Park. Federal agencies can only set general rules and guidelines; however, federal agencies can not and do not study each project individually, including factors pertaining to the risk involved and the safety of human beings in a particular project. Our system, however, allows each city to have a city council member responsible for taking precautionary measures and final decisions, even surpassing federal rules and regulations basing their judgments on COMMON SENSE. Common sense law should apply in this project as the 800 tenants in this area can not afford any health risk to be taken that might be scientifically discovered only several years from now. We often experience cases where federal rules and regulations were present for years, yet altered or changed because science and technology discovered that what seemed to be safe is no longer considered so. It has to be beyond any reasonable doubt that the presence of antennas on Superior Avenue is safe for tenants, for the city council members to approve such a location, otherwise the members of the city council have no options but to move the project to a different location. PLEASE CONSIDER OTHER OPTIONS AT OR AROUND HOAG HOSPITAL STRUCTURES (excluding the high Hoag tower) THAT ARE IN VERY CLOSE SIMILARITY TO THE PROPOSFD LOCATION ON SUPERIOR AVENUE IN TERMS OF CLOSENESS TO PACIFIC COAST HIGHWAY AND THE REQUESTED HEIGHT OF 32 -35 FEET. A GOOD LOCATION WOULD BE ON TOP OF THE OLD PARKING STRUCTURE AT HOAG HOSPITAL FACING THE HARBOR. I urge and remind the city council members that their job is depending on common sense not on federal rules and regulations that can change in years to come as science and new discoveries, in regards to safety, will emerge in the future. I look forward to meeting with you on November 91h at the city council meeting. If you have any questions regarding this matter please contact me at (949) 515 -8181 0 I* Message Brown, Janet From: Brown, Janet Sent: Thursday, October 14, 2004 5:25 PM To: 'dan murphy' Cc: Temple, Patty Subject: RE: The Cingular Tower application Dear Mr. Murphy: Thank you for your e -mail. I will forward it to City Council for their consideration. Page 1 of 1 Please be advised that as a member of the Newport Beach Planning Department, and staff planner on this application, it is my responsibility to present the facts of the case as they relate to the applicable local laws for City Council's review and decision. I am not in a position to support or oppose the proposed project. City Council has the ability to approve the application as presented, modify the proposed project design or conditions of approval, or deny the application in its entirety. Again, thank you for your e -mail. Sincerely, Janet Johnson Brown Assistant Planner City of Newport Beach - - - -- Original Message---- - From: clan murphy [mailto:dpml0 @sbcglobal.net] Sent: Wednesday, October 13, 2004 8:57 PM To: JBrown @city.newport- beach.ca.us Subject: The Cingular Tower application Dear Ms. BroNNm: As a Newport Beach homeowner, taxpayer and registered voter I am asking you not to support the Cingular Tower application. Thank you, Dan Murphy 10/14/2004 _ r I `� COUNCIL AGENDA CITY OF NEWPORT BEACH NOJE 11/110 • CITY COUNCIL STAFF REPORT Agenda Item No.Eo October 12, 2004 TO: Honorable Mayor and Members of the City Council FROM: Janet Johnson Brown, Assistant Planner (949) 644 -3236, ibrown(& city. newaort- beach. ca. us SUBJECT: Telecommunications Facility Permit No. 2003 -003 (PA2003 -255) Telecommunications Facility Permit No. 2004 -002 (PA2004 -057) LOCATION: 4600 West Coast Highway APPLICANTS: Cingular Wireless and Sprint PCS • ISSUE Should the City Council approve Telecommunications Facility Permit No. 2003 -003, Telecommunications Facility Permit No. 2004 -002 and authorize the City Manager's Office to execute Telecommunications License Agreements with the applicants for the purpose of allowing two wireless telecommunications facilities to be co- located on city - owned property? RECOMMENDATION Staff recommends that City Council: 1) Approve Telecom Permit No. 2003 -003 and Telecom Permit No. 2004 -002 subject to the Findings and Conditions of Approval attached to the staff report; and 2) Authorize the City Manager to execute the Telecommunications License Agreements. BACKGROUND At the meeting of May 11, 2004, the City Council reviewed Cingular Wireless's proposal to install a wireless telecommunication facility designed as a 50 -foot flagpole and the • ground- mounted support equipment. Of primary concern to City Council and the public was the impact a 50 -foot tall facility would have on views from the residential developments of Villa Balboa and Newport Crest, and the Sunset View Park located 4600 West Coast Highway October 12, 2004 Page 2 above the subject property. Following discussion by City Council and testimony from • the public, a motion was made to direct staff to look into the various issues discussed, explore alternatives and provide additional information. Staff was also directed to retain the services of a consultant to give an independent evaluation relative to the feasibility of using existing structures in the vicinity. A copy of the previous staff report and minutes of the prior meeting are attached for reference. After the May Council meeting, staff met with the representatives of Cingular Wireless and encouraged them to explore the use of existing streetlights along Superior Avenue as a structure onto which the antennas could be attached. Cingular proposed the installation of three panel antennas on a single reconstructed streetlight pole that would be 24 inches in diameter in order to accommodate the cables that would run from the antennas to the support equipment. Staff rejected this proposal due to the disproportional size of the new streetlight pole. In the meantime, Sprint PCs submitted an application in March, 2004, requesting to install a wireless telecom facility and co- locate with Cingular Wireless at the subject property. Sprint's initial design proposal was also a 50 -foot flagpole with ground - mounted support equipment. However, the application was incomplete due to absent information and no action had been taken by the applicant at the time of Council's review of Cingular's application. In July, 2004, staff met with representatives of both Cingular Wireless and Sprint PCs to • coordinate a facility design for the two carriers. Also present at the meeting was Jonathan L. Kramer of Kramer.Firm, Inc., who was retained by staff to provide technical advice to the city relative to the two proposals. Mr. Kramer offered solutions to address the technical challenges faced by the applicants and proposed a redesign of the wireless telecom facility that would minimize the impact on views in the area. A copy of Mr. Kramer's report is attached as Exhibit 4. The report discusses the purpose of the projects and the applicants' desire to improve coverage and capacity to their existing networks, the design of the project, and an analysis of the radio frequency emissions. The new design proposal is the result of a coordinated effort on the part of the applicants, the technical consultant and staff. Cingular Wireless has taken the lead, working with Sprint PCs to coordinate a comprehensive design of the facilities. Rather than using a single structure to accommodate the antennas needed, each carrier will separate the sectors and use two streetlights each to account for all antennas. The method reduces the height and diameter of the poles and helps address the policy to utilize the most efficient available technology and minimize the visual impact on views in the area. DISCUSSION Cingular Wireless and Sprint PCs propose to develop two wireless telecom facilities at the • subject property located at the southeasterly comer of Superior Avenue and West Coast Highway. The subject property is city -owned and developed with a municipal parking lot. The facility antennas are proposed to be mounted on streetlight poles located in the public 4600 West Coast Highway October 12, 2004 Page 3 • right -of -way along Superior Avenue and the support equipment would be co- located and ground- mounted in separate enclosure structures in a landscaped area within the parking lot. Please refer to the new plans and elevations prepared by the applicants that are attached to this report. Each wireless telecom facility will consist of three sectors of one panel antenna per sector. The carriers propose to install a single panel antenna on one streetlight pole and two panel antennas on a second streetlight pole, utilizing a total of four streetlight poles. The streetlight poles will be reconstructed to ensure the structural integrity of the poles as well as to accommodate the coaxial cables that run from the panel antennas to the support equipment cabinets. Analysis Staff has evaluated the height, location, size and design of the proposed wireless telecom facilities and their relationship to the surrounding land uses in the vicinity based on the new proposal submitted by Cingular Wireless and Sprint PCS. The existing streetlight poles are approximately 32 feet in height measured from the top of existing sidewalk. The reconstructed light poles will be manufactured to match the design •of the existing streetlights. Each proposed streetlight pole will be 8 -sided with faux concrete finish that is 12 inches in diameter at the base, tapering to 8 inches at the top, which is similar to the existing streetlights as per the attached copy of the Lighting Standard STD -201 -L used by the Public Works Department. The overall height of the reconstructed streetlight poles, with the panel antennas attached, will not exceed 35 feet measured from the top of sidewalk. Section 15.70.050 A (Height and Location) of the Municipal Code states the maximum height of antennas on streetlights within the public right -of -way may be 35 feet. The panel antennas measure 56 inches in length by 8 inches wide and 2.75 inches thick, per the plans, and will be attached to the upper 5 feet of the light poles. When attached to the streetlight pole, the antenna will project 5 inches beyond the face of the pole. The antennas will be painted to match the color and texture of the light poles and staff has included a specific condition of approval recommended by Mr. Kramer relative to this requirement. The coaxial cables that connect the antennas to the support equipment cabinets will be located within the poles and will not be visible. The light standards will be attached below the antennas, approximately 28 feet above existing finished grade and will be properly shrouded to control the level of light and glare. Section 15.70.050 B provides location categories and the desired priority order of wireless telecom facilities. Existing poles, light standards or utility towers are listed second in order of priority on a list of eight locations. The wireless telecom facilities proposed by Cingular Wireless and Sprint PCS are consistent with and meet the intent of this section of the • ordinance. Two of the reconstructed streetlight poles, located to the west (or down hill side) of the entry driveway to the parking lot, will be replaced in the same location as the existing light 4600 West Coast Highway October 12, 2004 Page 4 poles, and two panel antennas will be attached to each of the two reconstructed poles. A • third existing streetlight pole currently located approximately 100 feet up hill to the east of the entryway will be removed from its present location and replaced with two new streetlight poles. The new streetlight poles will have a single panel antenna and will be placed an equal distance of approximately 129 feet from each other. By placing a single antenna on the streetlight poles that are higher up Superior Avenue, the impact on views from the Sunset View Park and residents in the Villa Balboa and Newport Crest developments are minimized. In addition, this location for sector facing north assists in meeting the applicants' coverage objectives. On behalf of both applicants, Cingular Wireless has prepared photographic visual simulations from four different vantage points which are attached to this report. The support equipment of four base transreceiver units per carrier will be ground- mounted in two block wall structures built into a sloping landscaped area within the parking lot. As required by the Design Guidelines of the Telecom Ordinance, staff has included a Condition of Approval that the equipment cabinets be fully enclosed and securely locked in the block wall structures and that the enclosure structures be screened with plantings to match the existing landscaping with the intent of blending in with the existing topography and environment. Based on the foregoing information, staff believes that the new design of the proposed facilities is consistent with the design standards, height and location requirements of • Chapter 15.70 (Wireless Telecommunications Facilities) of the Newport Beach Municipal Code. Co- Location Requirements The Telecom Ordinance includes a provision that new telecom facilities located within 1,000 feet of one another shall be required to co- locate on the same site in order to limit the adverse visual effects of a proliferation of telecom sites in the city unless it is determined that such co- location is not feasible. The applicants have coordinated to develop the proposed facilities that are consistent in design, and meet the co- location requirements of the ordinance. Included in the co4ocation requirement section of the ordinance is a limitation of no more than three facilities at a single site. In approving this telecom facility, the City Council may impose a condition of approval requiring the future co- location of a third and final telecom facility on this site. This provision has been included as Condition No. 18 in the Conditions of Approval. Public Notification A notification describing the proposal and the date and time of the City Council review was mailed to property owners of record and homeowner associations within 300 feet of • the proposed location of the telecom facilities. This notice was mailed on September 28, 2004, which complies with the minimum notification requirement of 10 days in advance of the Council review date. • • • 4600 West Coast Highway October 12, 2004 Page 5 TELECOMMUNICATIONS LICENSE AGREEMENT Both Cingular Wireless and Sprint PCS have been working with the City Manager's office to negotiate a Telecommunications License Agreement (TLA) that will authorize them 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 Wireless and Sprint PCS and the City. ENCROACHMENT PERMIT The installation of the telecom facilities at the subject site will also require encroachment permits 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 permits. Alternatives The City Council has the option to alter the proposed design, conditions of approval or lease agreement in order to address the specific concerns the Council or public may have. 2. The City Council can deny the subject permit, in which case both the agreement and permit shall not be executed. Prepared by: Submitted by: Jai 61:46hoson Brown Patricia L. Templ AoistdptPlanner Planning Director F: \USERS \PLN \Shared \PA's\PAs - 2003 \PA2003 - 255 \TP2003 -003 CC Rpt #2.doc Exhibits: 1. Vicinity Map 2. Findings & Conditions of Approval 3. Staff Report Dated May 11, 2004 and Minutes of the Meeting 4. Project Analysis by Jonathan L. Kramer 5. New Site Plans and Elevations 6. Public Works Lighting Standard Type II STD-201 -L 7. New Photographic Visual Simulations 8. New Propagation Maps 9. Public Correspondence • EXHIBIT NO. 1 VICINITY MAP i +1 7 la nu4vvviins� a a a • ,7 SUPERIOR AYE / Subject Property '`— �- 4600 West coast Hwy. lai7; l Surifot van i ' ,4919 / 4a0D' 4x11 /�`Y 401 { 1 .j 4m •� 1 .48m i 1 CO44*T 4600 47ov W 4 4533 ae 4sg m 1 450G 31 T E0,1 4537 3311 1 �Y /a .24- 1Z Z 1/ 4511 /S '.mv / ; 4501 4461 . 4713 �• / :. 1 n4 3S 4401 • 4M <1 4701 4421 4%5 4441 n]/ \143 �� 146 � 4907 �'1476N1bNn M174v0i4gS144W4Y5 M37Mtl4MJ� N 4601 ♦n��..� 4431 TELECOM PERMIT NO. TP2003 -003 TELECOM PERMIT NO. TP2004 -002 SITE ADDRESS: 4600 WEST COAST HIGHWAY EXHIBIT NO. 2 Findings and Conditions of Approval 0 FINDINGS AND • CONDITIONS OF APPROVAL Telecommunications Facility Permit No. TP2003 -003 and Telecommunications Facility Permit No. TP2004 -002 Findings: 1. The projects have been reviewed, and it has been determined that they are categorically exempt from the requirements of the Califomia Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) for the following reasons: • The existing streetlight poles are being reconstructed and slightly modified to accommodate the attachment of panel antennas. • The four new streetlight poles and two equipment enclosures are small structures that are minor in nature. 2. The telecommunications facilities 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 support equipment for the telecom facilities are located within a municipal parking lot where adequate space exists for development of the structures and no loss of public parking will occur. • The visual effects of the telecom equipment on public streetscapes is negligible as the antennas will be attached to reconstructed streetlight poles designed to match the existing poles located in the public right - of -way. • The two facilities are co-locating on the same site so as to limit the adverse visual effects of proliferation of facilities in the City. • Effects to public scenic ocean and coastal views have been minimized by limiting the overall height of the streetlights and antennas to 35 feet maximum and the slim design of the antennas. 3. The wireless telecom facilities, as proposed, conform to the technology, location and design standards for the following reasons: • The telecom facilities approved under this permit utilize the most • efficient technology available in order to minimize the visual impact. Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 2 • • The antennas for the telecom facilities approved by this permit will be attached to streetlights and will be painted to match the color and texture of the light poles as required by the City's Design Standards. • The support equipment for the telecom facilities will be placed within retaining block wall enclosures 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 applicants shall coordinate the construction plans for development of the facilities and combine the plans if possible to ensure continuity of design. 4. All work conducted by the applicants on the subject property and in the • public right -of -way for the construction of the telecom facilities approved by Telecom Permit No. TP 2003 -003 and Telecom Permit No. TP 2004- 002 shall be approved under an encroachment permit, and construction and maintenance easements issued by the Public Works Department. 5. A total of four reconstructed streetlight poles shall be manufactured and installed per the approved plans. In no case shall the overall height of the reconstructed streetlight poles with panel antennas attached exceed 35 feet measured from the top of sidewalk. 6. The existing streetlights that are removed shall be salvaged and delivered to the City of Newport Beach Utilities Yard. 7. The two reconstructed streetlight poles located to the west of the entry driveway to the parking lot shall be replaced in the same location as the existing light poles, and two panel antennas per carrier shall be attached to each of the two reconstructed poles. 8. The existing streetlight pole currently located approximately 100 feet to the east of the entryway shall be removed and replaced with two new streetlight poles placed an equal distance of approximately 129 feet from each other. • I- Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 • Findings and Conditions of Approval Page 3 These new streetlight poles shall have a single panel antenna attached per carrier. 9. All exposed elements of the facilities, including the antennas, antenna brackets, coax cables and appurtenances attached to each reconstructed streetlight pole shall be color- matched or painted to match the pole to the satisfaction of the Planning and Utilities Directors. 10. The support equipment for each carrier shall be located within a fully enclosed block wall structure with a self - closing and locking gate. Anti - skate devices shall be installed along the top of the block walls. No portion of the support equipment or block wall enclosure shall project into any adjacent parking stall or vehicle maneuvering area. 11. The support equipment structures, including the retaining walls, equipment cabinets, gate swing and work areas shall accommodate a minimum 2 feet 6 inch front overhang for parked vehicles. Prior to the issuance of building permits, the plans for the configuration of the support equipment • structures shall be reviewed and approved by the City Traffic Engineer and Planning Department. 12. The support equipment for each carrier shall consist of 4 base transreceiver units ground- mounted within a solid block wall enclosure. The total area for Cingular's equipment shall be approximately 230 square feet (or 8 feet by 28.67 feet in area), as depicted on the attached plans. The total area for Sprint's equipment shall be approximately 235 square feet (or 11.75 feet by 20 feet in area), as depicted on the attached plans. 13. The block wall enclosure structure shall be screened by plantings to match the existing surrounding landscaping. Landscape plans shall be included with the construction plans for approval by the Planning and General Services Departments. 14. The applicants shall install a dedicated electric cabinet, meter and other necessary components to service the telecom facility. 15. The applicants shall assume all costs associated with any alterations to the existing improvements on the subject property and along Superior Avenue for development of the telecom facilities. • I-3 Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval • Page 4 16. 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. 17. Any irrigation systems arid landscaping damaged during the course of construction shall be restored as directed by the General Services Department. 18. Any future facility 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. 19. Prior to the issuance of any permits to install the facility, the applicants 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). 20. The applicants shall not prevent the City of Newport Beach from having adequate spectrum capacity on the City's 800 MHz radio frequencies at any time. 21. The facility operated by Cingular Wireless 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. • ;4 Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 • Findings and Conditions of Approval Page 5 22. The facility operated by Sprint PCS shall transmit at a frequency range of between 1851.25 MHz and 1993.75 MHz. Any change or alteration to the frequency range shall require the prior review and approval of the Planning Director. 23. Prior to activation each facility, the applicants 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. 24. The applicants shall provide the City with a telephone number that shall be monitored 24 hours per day to which interference problems may be reported. • 25. The applicants 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. 26. 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. 27. The applicants 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. 28. The telecom facilities approved by these permits shall comply with any existing easements, covenants, conditions or restrictions on the underlying real property upon which the facility is located. 29. The applicants 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 • 16 Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 6 • required by the development shall not interfere with the access paths used by other vehicles entering and exiting the site. 30. 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. 31. 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. 32. The telecom facilities 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 required permits shall be obtained prior to commencement of the construction. 33. Within 30 days after installation of the telecom facilities, 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 facilities are operating at the approved frequency and complies with FCC standards for radiation. If the report shows that the facilities do not so comply, the use of the facilities shall be suspended until the facility is modified to comply and a new report has been submitted confirming such compliance. 34. The operators of each telecom facility shall maintain the facilities in a manner consistent with the original approval of the facility. 35. 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 • 'v • • • Telecommunications Facility Permit No. 2003 -003 Telecommunications Facility Permit No. 2004 -002 Findings and Conditions of Approval Page 7 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. 36. These telecom permits 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. 37. 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. i `7 0 EXHIBIT NO. 3 Staff Report Dated May 11, 2004 & Minutes of the Meeting 0 0 r6 • City Newport Beach FILE COP Y Regular Meeting May 11, 2004 18. TELECOMMUNICATIONS FACILITY PERMIT NO. 2003 -003 (PA2003 -255) - TELECOMMUNICATIONS LICENSE AGREEMENT - 4600 WEST COAST HIGHWAY (APPLICANT - CINGULAR WIRELESS) (contd. from April 13 & 27, 2004). • Council Member Rosansky asked if the City had made any independent evaluations of the alternatives and the necessity for a 50- foot high structure. Assistant Planner Brown responded in the negative. Council Member Rosansky noted the photo simulations provided by the applicant, but stated that they didn't show the view from several surrounding neighborhoods. Assistant Planner Brown reported that she did request additional simulations, but did not receive them. Council Member Rosansky asked if the facility would be visible from these neighborhoods and impact their views. He also asked if the flagpole would be required to be illuminated at night. Assistant Planner Brown responded in the affirmative to all of these questions. Council Member Rosansky asked if the pole would be able to accommodate other carriers cell sites. Assistant Planner Brown stated that Cingular Wireless has stated that it will not, but that the City does encourage this. Council Member Rosansky stated that the City can expect to have multiple applications for the site. He also noted the maps provided by Cingular Wireless showing the coverage for a 35 -foot facility and a 50 -foot facility. He stated that they were a bit misleading, but it appears that the additional coverage isn't significant. Council Member Rosansky also asked if the height limit were reduced to 35 feet if an existing light standard could be utilized. Assistant Planner Brown stated that Cingular Wireless has indicated that it would be a problem because there wouldn't be room for the supporting equipment cabinets. Council Member Nichols asked if the possibility of other carriers using • the same site had been looked at. City Manager Bludau stated that the City would encourage this. Volume 56 - Page 894 INDEX C -3706 Telecommunica -tions License Agreement 4600 West Coast Hwy./ Cingular Wireless (38/100-2004) r�� Assistant Planner Brown stated that the application by Cingular Wireless is the first application submitted to the City since the telecommunications ordinance was adopted. She stated that the facility is proposed to be located on City -owned property and requires special review by the City Council because the applicant is proposing a facility that is 50 feet in height. The maximum height allowed is 35 feet. Assistant Planner Brown stated that Cingular Wireless has designed the facility as a 50 -foot flagpole, 24 inches in diameter with three panel antennas concealed within the flagpole. The support equipment will be ground - mounted with a retaining block wall enclosure adjacent to the flagpole. She listed the findings that will be necessary for the City Council to make in order to approve the application, and that Cingular Wireless has stated that they have a coverage deficiency in this portion of the City. Cingular Wireless investigated a lower facility and other locations in the area, but there may be other alternatives that have not been identified. The impact on views is also a concern. Assistant Planner Brown reported that the Police Department provided several recommendations to mitigate any AE �� potential interference with the City's emergency communication that these included in the for systems, and are conditions approval. • Council Member Rosansky asked if the City had made any independent evaluations of the alternatives and the necessity for a 50- foot high structure. Assistant Planner Brown responded in the negative. Council Member Rosansky noted the photo simulations provided by the applicant, but stated that they didn't show the view from several surrounding neighborhoods. Assistant Planner Brown reported that she did request additional simulations, but did not receive them. Council Member Rosansky asked if the facility would be visible from these neighborhoods and impact their views. He also asked if the flagpole would be required to be illuminated at night. Assistant Planner Brown responded in the affirmative to all of these questions. Council Member Rosansky asked if the pole would be able to accommodate other carriers cell sites. Assistant Planner Brown stated that Cingular Wireless has stated that it will not, but that the City does encourage this. Council Member Rosansky stated that the City can expect to have multiple applications for the site. He also noted the maps provided by Cingular Wireless showing the coverage for a 35 -foot facility and a 50 -foot facility. He stated that they were a bit misleading, but it appears that the additional coverage isn't significant. Council Member Rosansky also asked if the height limit were reduced to 35 feet if an existing light standard could be utilized. Assistant Planner Brown stated that Cingular Wireless has indicated that it would be a problem because there wouldn't be room for the supporting equipment cabinets. Council Member Nichols asked if the possibility of other carriers using • the same site had been looked at. City Manager Bludau stated that the City would encourage this. Volume 56 - Page 894 INDEX C -3706 Telecommunica -tions License Agreement 4600 West Coast Hwy./ Cingular Wireless (38/100-2004) r�� City of Newport Beach Regular Meeting May 11, 2004 Mayor Ridgeway stated that this site has been looked at before and that several site designs were presented in the past. He noted in particular a lighthouse design, and stated that it was less obtrusive than the flagpole design and would accommodate multiple users. He stated that he'd like to see other designs considered, and the possibility of using the site above the proposed site. Council Member Heffernan stated that the City becoming a landlord of cell sites has been looked at for four years. He stated that it improves cell coverage for the area and provides the City with a new revenue source. He felt that it would be the objective of the City to become the landlord of multiple cell sites, and noted that the cell providers are accustomed to dealing with site specific issues in other communities. Mayor Ridgeway stated that there will have to be discretionary action by the City on any alternate sites. Gil Gonzalez, Cingular Wireless, stated that there was not a difference in the scale of the two maps that were presented. He stated that other alternatives were investigated, and that the lower height wasn't acceptable to Cingular Wireless. He explained that the higher the facility, the better the coverage. He also noted that there isn't enough room for their equipment cabinets on the sidewalks if the existing light standards are utilized. Additionally, Mr. Gonzalez stated that other designs were not looked at because it was felt that the flagpole design was the most compatible. In response to co- locating with another carrier, he stated that he'd have to look into the structural compatibility. Council Member Rosansky asked for a better explanation as to why the existing light standards can't be used. Mr. Gonzalez stated that Cingular Wireless desires to have the equipment cabinets within 100 feet of the antennas. Jayson Mojica, Cingular Wireless, stated that it's not only the loss of coverage, it's the number of cables that are needed. He explained that four cables are needed per antenna, which means that 24 cables will be needed. Council Member Rosansky asked if it would be feasible to locate the antennas within the existing light standards and run the cables to the proposed cabinet location. He expressed his understanding that Cingular Wireless desires to limit the cable run. Mr. Mojica stated that the coverage would suffer and the structure wouldn't be able to handle the number of cables. He admitted it would be feasible, but that he hasn't looked at that alternative. He further explained that the terrain rises drastically above the site. Council Member Rosansky asked if it would be possible to achieve the same coverage with two 35 -foot cell sites instead of one 50 -foot cell site. Mr. Mojica stated that Cingular Wireless already has sites within a mile of the proposed site, and that the proposed site is needed because of the problem with the terrain. He stated that a second site would probably end up being located where there is already a cell site and coverage. Mr. Gonzalez added that the coverage objective of the search ring was recommended by the Cingular Wireless engineers and that the location is chosen so that it doesn't overlap coverage with existing sites, which can cause Volume 56 - Page 895 INDEX • • City of Newport Beach Regular Meeting May 11, 2004 • interference. Council Member Rosansky referred to the maps provided by Cingular Wireless and asked what the difference is between "good" and "marginal" coverage. Mr. Mojica stated that "marginal" would result in 25% of the calls being dropped. Council Member Bromberg asked if Cingular Wireless had installed a facility such as the one proposed in such close proximity to residential areas. Mr. Gonzalez responded in the affirmative. Council Member Bromberg asked if Cingular Wireless conducted any outreach for the proposed facility. Mr. Gonzalez responded in the negative, but stated that Cingular Wireless was available to respond to any comments as a result of the entitlement process. Mayor Ridgeway asked if the residents of Villa Balboa and the other community associations on the bluff were notified. Assistant Planner Brown reported that a mailing was done to property owners within 300 feet of the proposed site, which included Villa Balboa and Newport Crest. Chris Hansen, Newport Crest, stated that a 24 -inch diameter steel pipe is not a pole, it's a cylinder. He stated that he was not notified of the project. Mayor Ridgeway requested that a map of the radius where the notices were sent be provided to the City Council. • Council Member Rosansky additionally asked when the notices were sent. Mr. Hansen stated that after learning of the project, he met with the Planning Department and gained a better understanding of the situation. Mr. Hansen stated that the facility would impact the views from his property and he referred to Resolution No. 83 -43, which provides view protection for Newport Crest. Mr. Hansen requested that the City Council limit the height of the facility to 35 feet, as required by City ordinance. Additionally, he requested that residents of Newport Crest be notified of this and future telecommunication facilities. Frank Jenes, Villa Balboa Board of Directors, provided a handout and stated that Cingular Wireless seems to be taking advantage of the City's rules for flagpole height. He stated that the proposed facility isn't a flagpole and that the height combined with the base and the elevation, puts the total height at 84 feet, which is 12 feet above the bluff. Mr. Jenes stated that approving the facility would also set an inappropriate precedence. He stated that the site should not be used for such a tall structure and he provided photos to illustrate the impact on the views from Sunset View Park. Mr. Jenes stated that it would be helpful to have a visual of what the facility would look like. Lastly, he expressed his concern for the facility having to be illuminated. • Jim Hildreth stated that he has nothing against Cingular Wireless, but that it reminds him of the pole at the end of Park Avenue on Little Volume 56 - Page 896 INDEX City of Newport Beach Regular Meeting May 11, 2004 ZI!i` 3 Balboa Island, which is a hollow cylinder that stinks. He stated that it • appears to be a contradiction by the City to underground utility poles and then recommend approval of the proposed facility. He stated that it's being done for revenue and that the Mayor may have a conflict of interest if he gets revenue from such facilities also. Mr. Hildreth stated that the residents have a right to a view. Mayor Ridgeway asked if he had a contract with a company, other than Cingular Wireless, if he had a conflict of interest. City Attorney Burnham responded in the negative. Ross Ribaudo, Villa Balboa, stated that he did receive a notice and that it was dated April 1, 2004. He asked if the tower would have a direct affect on the public views from Sunset View Park and would the exemption to the policy inspire Hoag Hospital to appeal their current height limitations. Additionally, he asked if it would be safe to build a steel tower on a known field of methane gas and close to a power - generating plant that will be using natural gas as its fuel. Donald Richroath, Villa Balboa, stated that the pole is a monstrosity. He urged the City Council to limit the height of the structure to the existing limitations imposed on Hoag Hospital. He complimented the idea of considering a lighthouse design. Mayor Ridgeway referred to the photos in the staff report and noted that the dimension of the flag is 12 feet by 18 feet. He stated that the illustrations appear to be out of scale and that the flag doesn't appear • to be in proportion to the pole. Mayor Pro Tern Adams stated that the two drawings are not of the same scale. Council Member Bromberg stated that a flagpole would be nice, but agreed that the proposed facility isn't really a flagpole. He stated that the 50 -foot pole at the end of Park Avenue on Balboa Island is a vent from a sewer pump station and looks .like a flagpole. He stated that it's a nice looking structure. Council Member Bromberg noted the resolution referred to by Mr. Hansen and stated that the proposed facility does appear to violate the terms. Lastly, Council Member Bromberg expressed his concern for setting a precedence by approving a 50 -foot pole with a 24 -inch base. Mayor Ridgeway stated that the resolution appears to be related to an Environmental Impact Report (EIR) for a project that was never built. He asked if it was still valid. City Attorney Burnham stated that it only pertains to the CalTrans West, site, has been superseded and is probably not relevant. Council Member Bromberg stated that it still provides an indication of what the policymakers in the City were thinking in 1983 and their concern for preserving views. Council Member Rosansky stated that the Superior Avenue /Coast • Highway intersection is a fairly key intersection in West Newport, and Volume 56 - Page 897 • City of Newport Beach Regular Meeting May 11, 2004 INDEX that there is residential development and a view park in the area, all of which will be impacted by the pole. He stated that it's not just a matter of approving a 50 -foot pole, it's also a matter of considering the use of the existing structures in the area. He felt that the item should be continued and that staff should hire a consultant to look into the claims made by the applicant about the necessity for a 50 -foot structure and the feasibility of using existing structures. Additionally, he felt that a demonstration should also be done to give an accurate depiction of what the structure will look like. Motion by Council Member Rosansky to continue the item, and direct staff to hire a consultant to look into the issues discussed and provide more information. Mayor Ridgeway stated that he didn't want to discourage the applicant, but that the intersection is significant and the proposed design is not in good taste. He also expressed his support for improving coverage, collecting the revenue and continuing to work with the applicant, and agreed that more information is needed. City Manager Bludau stated that it could cost the City $5,000 to verify the information- provided by the applicant. He encouraged the City Council to consider if a 50 -foot tower would even be approved. Council Member Rosansky stated that he's opposed to a 50 -foot tower, but that he couldn't rule it out if it is determined that it is the only • feasible alternative. He felt that an independent evaluation would be helpful. Assistant City Attorney Clauson noted that the matter would not be before the City Council if the applicant had not requested the additional 15 feet above the current height limit. She stated that if the item is. continued, the City can continue to work with the applicant. Mayor Pro Tem Adams expressed his concern for the applicant currently having the ability to install a 35 -foot pole which is two feet in diameter. Assistant City Attorney Clauson stated that there are also provisions for flagpoles, and that the applicant would have to show that their proposed facility qualifies as a flagpole. City Attorney Burnham stated that continuing the matter would allow the City and the applicant to work on a design that would be more palatable to the City Council and the community. Mayor Pro Tem Adams stated that although the example of a lighthouse being done tastefully might be possible, he expressed his concern for the City Council not having discretionary approval on such facilities. He felt that the ordinance may need to be looked at again. Council Member Heffernan suggested that the policy include direction to.staff to contact the district's council member prior to presenting the proposal to the full City Council. He stated that the ordinance was meant to streamline the process and encourage cellular carriers to install sites on City -owned property, and that an initial read by the • council member on the aesthetics issue might save some time and money. Volume 56 - Page 898 City of Newport Beach Regular Meeting May 11, 2004 Assistant City Manager Kiff stated that such a provision is included in the policy. He explained that when a proposal is not required to go to the City Council, the City Manager's office is still required to notify the council members of the pending application and the City Council has the right to call the item up for review. City Attorney Burnham pointed out the importance of the application under consideration, since it will set the stage for future permits. Mayor Ridgeway agreed that it was appropriate to be careful. Amended motion by Council Member Rosanskp to continue the item to the City Council meeting of June 8, 2004, and direct staff to hire a consultant to look into the issues discussed and provide more information. Council Member Nichols asked if the poles in Newport Coast are similar to the proposed pole. Council Member Heffernan stated that those poles are for the Edison supply lines, but that an example of one can be found at MacArthur Boulevard and Jamboree Road. The amended motion carried by the following roll call vote: Ayes: Heffernan, Rosansky, Adams, Bromberg, Nichols, Mayor Ridgeway Noes: None Abstain: None Absent: Webb 19. CABLE COMMUNICATIONS FRANCHISES ORDINANCE. Assistant City Manager Kiff stated that the City has worked extensively with the cable companies on the proposed ordinance and that it is the second one being presented to the City Council. Council Member Heffernan stated that the proposed ordinance was also reviewed by the Ad Hoc Telecommunications Committee and outside legal counsel. He pointed out that the ordinance does not extend the franchise agreements with Adelphia and Cox, but is needed. Assistant City Manager Kiff explained that the ordinance provides the framework for how the City would treat any cable company. After it's adopted, the City will work with Adelphia and Cox to enter into agreements that follow the ground rules. Mayor Ridgeway noted that the ground rules are limited since the Federal Government has preempted the cable franchise industry. Assistant City Manager Kiff added that the City can't control the rates, for example. Jim Hildreth stated that the ordinance does not include a provision for Volume 56 - Page 899 INDEX • Cable Communication s Franchises Ordinance (42/ 100 -2004) • n K �' 0 EXHIBIT NO. 4 Project Analysis by Jonathan L. Kramer • October 1, 2004 Ms. Janet Johnson Brown Assistant Planner City of Newport Beach Planning Department 3300 Newport Boulevard Newport Beach, CA 92658 Re: Applications of Cingular Wireless and Sprint PCS for a Wireless Co- location Facility on Superior Avenue near West Coast Highway Subject: Project Analysis Dear Ms. Brown: At the direction of the City of Newport Beach I have reviewed the project plans and underlying technical information provided by applicants Cingular Wireless and Sprint PCS for the referenced location. The scope of my review included an evaluation of the physical elements of the proposed project and the FCC OET Bulletin 65 radio frequency emissions compliance for the two firms proposed joint use. • Background As you are aware, Cingular and Sprint both applied for stand -alone radio tow- ers in the parking lot at the comer of West Coast Highway and Superior Ave- nue. On July 22, 2004 the City met with the applicants' representatives to discuss how we might achieve some level of visual mitigation while balancing the ap- plicants' interests to establish additional service in the target areas. At that meeting we explored the possibility of visually aligning the two projects to share common design elements utilizing light standards along Superior Ave- nue as antenna supports. Kmimr.Firm Inc. As a result, the applicants have now submitted a jointly - engineered plan that commudratlom Terhn Tele dogy Counsdfr Gmemn,entAgen- abandons the use of stand -alone towers and in place of those towers uses ties and Private lnsdw m small antennas mounted atop light standards along Superior Avenue. Since 1981 w .KrvnerFirm.c <Balance of page intentionally left blank> Main Oft. Kramer@Kn Finn.con Tel i 1 (310) 173 9900 Fu i 1 (310) 173 5900 Suhe 306 •2001 S. Barrington Avenue L. L Angeles. CWK.ia 90025.5379 60 *No Ms. Janet Johnson Brown October 1, 2004 Page 2 Project Purpose Both applicants indicate that they have existing radio frequency coverage in the areas of interest. Their mirrored goals are to add additional signal strength and network capacity in these areas. Both applicants share a common purpose and goal in connection with the pro- posed project. Both firms seek to provide additional signal strength and net- work capacity in the area abutting the project. Cingular's area of interest is along West Coast Highway from about 54 1h St. to the intersection of W. Balboa Boulevard and south along W. Balboa Boule- vard to 37h Street. Its second area of interest is in the bluff area above the project site. Sprint's area of interest is generally along West Coast Highway from about Brookhurst south to W. Balboa Boulevard, and south along W. Balboa Boule- vard to about 30'h Street. Sites of this nature permit wireless carriers to enhance existing service in • highly traveled areas by adding both signal strength above their minimum lev- els, and by adding network capacity to handle more users in the areas of inter- est. Current Design Cingular and Sprint jointly proposed to install their antennas on four light standards along Superior Avenue, and to place their base station equipment in an area adjacent to the parking lot at Superior and West Coast Highway. Connections between the base station equipment, power and telephone utili- ties, and the antennas will all be via underground conduits. The proposed coordinated project design of both applicants substantially re- duces the visual impact of both projects over their initial requests at the park- ing lot, and by the alignment of the light standard antenna designs, makes both projects appear to be of one design, thus calling less attention to both projects as might be the case with different designs. The applicants' do not propose using radomes (antenna covers) on the light standards to shield the visual elements of the antennas. It is my opinion that in these cases, the proposed designs would not substantially benefit from the Kr w.Fim, inc is K7 Ms. Janet Johnson Brown October 1, 2004 Page 3 inclusion of radomes. Rather, requiring the applicants to include radomes in their designs here would add to the overall project height and call additional attention to the project. The applicants generically indicate that they intend to color -match portions of the projects to the light standards. I recommend as a condition of approval the inclusion of more specific language similar to: "Applicant shall color -match all exposed elements of the project including without limitation all antennas, antenna brackets, cables, and all appurte- nances thereto installed on each light standard to the color of each light standard." The City's Planning Department should review and retain approval authority for the proposed color and texture matching required by the language just pro- posed. Radio Frequency Emissions Analysis • Both applicants are subject to the FCC's OET Bulletin 65 radio frequency emissions requirements. That bulletin is titled, "Evaluating Compliance With FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields." (See www.FCC.gov /oct/rfsafety.) The FCC sets the national radio frequency emissions safety standards in the U.S. Further, the FCC "completely occupies the field" of standards setting in this subject area. As such, the City is not permitted to set its own local stan- dards for radio frequency emissions, whether higher, lower, or the same. The City is, however, authorized by the FCC to evaluate planned compliance with the federal rules in connection with these applications. Cingular and Sprint have both provided the adequate, usual, and customary documentation to demonstrate planned compliance with the FCC's rules on a single site and on a cumulative basis (when considering radio frequency emis- sions from both sites). Using the antenna information, power emissions, and angle of emissions in- formation in both applications, I have conducted my own evaluation of the planned radio frequency emissions by both applicants using the FCC's ap- proved calculation formulas contained in FCC OET 65. My independent modeling permits me to concur with both applicants that in all areas accessible . Kmmer.Firm inc K - Ms. Janet Johnson Brown • October 1, 2004 Page 4 by the general public the signal strength will be at a level that is fully compli- ant with the FCC's general population/uncontrolled emissions rules. In other words, at any point access able by the general public around these projects, the radio frequency emissions are low enough that a member of the public could remain in a fixed location for any length of time and yet not be pre- sented with radio frequency emissions that exceed the FCC's national limits. Inasmuch as each controlled RF field is inaccessible to the general public, and there is no cumulative RF emissions impact from the operations of the pro- posed sites, I conclude that there is no need, nor is there a regulatory basis for the City to condition the proposed sites based on radio frequency emissions matters. Respectfully submitted, Kramer.Firm, Inc. by Lpal � L. Kramer RF Engineer W2334B Kr er.Firm inc • • 0 EXHIBIT NO. 5 New Site Plans and Elevations 0 0 2 -� 0 • • e �i'.021e _° tlafq col m, -1 09926 VINtlO31lYJ '3NIM' _ j.. f ool 311n5 '3n1tl0 NOSllXJIn °3y5'3ne0 •••:• ` •, :..:''.`.r q se3esy e££63 e1'I I sS $ ,:: r,m _. i">: "� -I y$I c-. I ! 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G.E. M250 A2 REMOVABLE • • 4" J 0 a POWER MODULE DOOR LUMINAIRE CUT OFF OPTICS OR PRE - APPROVED EQUAL AMERON CONCRETE POLE MIX 37 OR APPROVED EQUAL. TTlITL' Q . AMERON BRACKET MOUNTING POLE CAT. ARM HEIGHT HEIGHT NO. ALUMINUM 6- CI -23 -F8 8' 29' -9" 26' -3" 6- C7 -28 =1`8 e' 34' -9" 31' -3" 1. BRACKET ARM, MOUNTING AND POLE HEIGHTS TO BE SHOWN ON PLANS. 2. 3' -0" DIA. CIRCULAR FOUNDATION MAY BE USED IN PLACE OF 2'-6' SQ. FOUNDATION. 3. ALL BASES SHALL BE POURED TO 4" BELOW SIDEWALK GRADE. 4. THE AREA AROUND ALL STANDARDS SHALL BE FORMED AND POURED WITH GROUT TO EXTEND 6" ON EACH SIDE AND BACK OF STANDARD AND FROM BACK OF CURB TO FRONT OF STANDARD. GROUT SHALL BE POURED FROM TOP OF BASE TO SIDEWALK GRADE. GROUT SHALL CONSIST OF 2 PARTS SAND AND 1 PART CEMENT. 5, EACH POLE SHALL HAVE A PULL BOX. SEE STD -204 -L 6. FUSE HOLDER IN ADJACENT PULL BOX, SEE STD -205 -L 7. ALL THREADED CONNECTIONS SHALL HAVE PRE - APPROVED ANTI -SEIZE COMPOUND. 8. SEE POLE LEVELING DETAIL TO THE RIGHT. S. FOR POLE WIRING , SEE CNB STD - 205 -L. GALV. STEEL NU7 GALV. STEEL WASHERS GALV. STEEL NUT _ CITY OF NEWPORT BEACH (APPROVED: PUBLIC WORKS DEPARTMENT LIGHTING.. STANDARD,. TYPE II RCE N0.36106 POLE LUG FOUNDATION BOLT INSTALL ANTI -SEIZE COMPOUND TO THREADS LEVELING DETAIL DOOR OPENING FACES STREET PUBLIC WORKS DIRECTOR DRAWING NO. STD-201— SET BACK PER 14 - SQ. PLAN & ADA REQUIREMENTS \ DOOR OPENING FACES STREET ' p ° ,g0 t 1" x 36" x 4" r. �a•: GALVANIZED ANCHOR -. BOLT WITH GALVANIZED 'a a ,0 n ' ' •2' NUT AND (2) WASHERS. °0 o 4. EXTEND 3 -V ABOVE O ,° -6" TOP OF FOUNDATION. d 5Q. BASE DETAIL ELEVATION CITY OF NEWPORT BEACH (APPROVED: PUBLIC WORKS DEPARTMENT LIGHTING.. STANDARD,. TYPE II RCE N0.36106 POLE LUG FOUNDATION BOLT INSTALL ANTI -SEIZE COMPOUND TO THREADS LEVELING DETAIL DOOR OPENING FACES STREET PUBLIC WORKS DIRECTOR DRAWING NO. STD-201— 11 EXHIBIT NO. 7 New Photographic Visual Simulations r� {c- m N 4 m ❑ x a w m `^ F f1 � Jll rc J a w z r' dO ty 2 Id❑ IL � ❑ d,�s z a _w' r ❑ N "r m w a W E W.. F W El W Q' a i j z a � Y � v IL rc 3 z ® 6 P LL 0 W_ N 1 D u . r. p U .. ti [n OLL r {6 3 U 0 3 aY 7 � w 4zw n I&& o 2 i U ?r I Z W Q R n W m � - W F Z ;n... ¢ it ❑ z rc w : o a � Y n m a o s 3 •: Y 6 - IL 0 J Iz 3 - o w o z W LL n a } I- C] t � a L a z a w U; n1 w o K • t till w . U ,i • I • m : n o m N ¢ B m u N W 0 n Q > u V A a m j o F P W 1 ¢ p u o a � w _ Y �• o W C � � ] •L 1 �cc u J p+ Y - i u ' o - a a Z ; "� d'�' o p Z W m ' IFS 1..1 *.- �a�� Ul z WN. O Ll a N P YV f Z � 3 rn6 0 m V c�' r'o W m Z " fl a � o F : Q N - e W EL a 9 ° N a o v Y 4 G W F � 0 • . IL ° 3 J Z o w N LL m 0 i rc y a I- In IWIQI Cy - U L � - (� : z N ° z F F • U i.11 • • • jai A m W W w m _ r ¢ o s R 3 W Z } = a a n ¢ ❑ a Q m ' W Z V ♦ � r O � a u Q w n � I:. 0 Z ❑ - o h a i Z m o ¢ a F - �n a r w 3 Z j a - IL a w Z t ❑ W LL - w o _ % o ❑ ? a F _ D ry ZZ ZZ d zz- loo qj co N s J < � IS L. N Z ❑ Q ❑ Z m rn C / W U X U a al N m a v x w a m rc a 3 w Z I a ❑ z a W z w a 0 a W a N F ' 0 , J i w 0 i R m zi a Y a F a EL w w Z LL 0 } tn 0 4 0 U N c� V x 3 z 0 a 0 J ti d a a �o C b m z F w • C l 0 EXHIBIT NO. 8 New Radio Frequency Propagation Maps 0 1.2 �J DD - DDf> - _ pp e • .wa \ Lei t� z •_ i CP -1 l' I 1� S.f CP -1 l' I 1� t� r ao 4- t ,}r r �r J41 16 r y4 a� r r ♦ �� ti 4u _ 1 i a 1 1 � � 1 1 r•' •a f1 a` 0 EXHIBIT NO. 9 Public Correspondence 0 E Page 1 of 1 Brown, Janet • From: Todd Main itodd @somersetauctions.com] Sent: Monday, September 27, 2004 5:48 PM \J • To: jbrown @city.newport- beach.ca.us Subject: Cell Tower Mr. Brown, I have lived in the Villa Balboa Community for a total of 5 years and have been an owner for 2 1/2 years. I understand that there have been proposals set forth to stage cell towers along Superior Ave. I am sure you understand the deep concern that the residents have regarding the added clutter along Superior Ave. I am sure The City of Newport Beach will gain from this proposal ... but what about us the local residents. I am strongly against this or any other obstruction added to Superior ... no matter the size. The street lights are enough of an obstruction, let alone adding cell towers to them. I am aware that Sprint PCS has also submitted a proposal for cell towers on Superior... Please JUST SAY NO!!!!!!!!!!! Respectfully, Todd Main 240 Nice In Newport Beach 10/01/2004 �r Brown, Janet From: Mark Cully [mcully@earthlink.net] Sent: Sunday, September 26, 2004 9:11 PM To: jbrown @city.newport- beach.ca.us • Cc: paradigm @aol.com Subject: Revised Cingular Telecom Facility / Villa Balboa Dear Ms. Brown: I recently received City- issued correspondence which stated that the Cingular proposal for the installation of a flagpole -type of antennae has been "scrapped ", however, I have also received correspondence which stated that a new proposal has been made by Cingular for the installation of telecom antennae affixed to light standards located on Superior Avenue. At your earliest convenience, please provide me with an update concerning what proposal(s) have or will be presented to the City of Newport Beach by Cingular for review, along with which proposal(s) have been withdrawn by Cingular. In addition, if you would provide me with the exact locations of the two light standards and any other pertinent information you may have, it would be greatly appreciated. Thank you for your assistance. Mark Cully • • Page 1 of 1 Brown, Janet • From: David Jaffe [dajaffe@sbcglobal.net] Sent: Monday, September 13, 2004 2:04 PM • • To: parandigm @aol.com; jbrown @city.newport- beach.ca.us Subject: Structures along West Coast Hwy I will be unable to attend the City Council meeting for Sept. 14, 2004, however, please note my opposition to the proposed cellular towers at West Coast Hwy and Superior Blvd. Thank you, David Jaffe 200 Paris Ln #102 Newport Beach, CA 92663 David A. Jaffe, PhD 10/01/2004 v� j Brown, Janet From: Brown, Janet Sent: Friday, September 24, 2004 2:33 PM • To- 'RosslVAsso @aol.com' Cc: Rosansky, Steven; Temple, Patty Subject: FW: FW: Cingular Towers Mr. Ribaudo, Please see the below response to your question /concern regarding the proposed wireless telecom facility. This was prepared by the independent technical advisor, Jonathan Kramer, retained by the City for this project. I hope this addresses your concerns. Should you have any other questions or comments, please feel free to contact me. Janet Johnson Brown Assistant Planner City of Newport Beach (949) 644 -3236 -- Original Message — From: Jonathan L.Kramer Sent: Friday, September 24, 2004 10:17 AM To: Brown; Janet • Subject: Re: FW: Cingular Towers Good morning, Janet: I frame my answer to your question having worked as a telecommunications engineer around the U.S. for the past nearly 30 years. The direct answer to your query is, yes, telecommunications facilities including cell antennas atop light standards may act as a lightning rod. Having stated that, however, there is no evidence that I can find that would remotely suggest that lightning rods cause lightning to strike in a particular area. Rather, if by chance lightning is to strike due to the underlying physics involved (due to charging of the atmosphere, the topography, etc.), the lightning will seek to connect sky and the earth via the lowest resistance (most conductive) path, and that path may well be via the grounded cell site antennas and mounts. Why might a cell site act as a lightning rod? The outside shields and mounting structure of a cell site antenna are grounded (it's a City-code requirement under Article 810 of the National Electrical Code). If the cell site antennas are mounted on a tower, the City's code would require that tower to be grounded, too. As such, in the event of a lightning strike in the area, it may be more likely to impact the cell site, and less likely to impact nearly residences. • In Southern California I'm unaware of any structure near a cell site that sustained damage due to a lightning strike at the cell site. - Jonathan Original Message--- - From: RosslVAsso @aol.com [mailto:RosslVAsso @aol.com] • Sent: Monday, September 13, 2004 1:03 PM • To: jbrown @city.newport- beach.ca.us • Subject: Cingular Towers > Dear Ms. Brown, • The reason I am emailing you regarding the Cingular Tower request that • is scheduled to come before the council on September 28th is because I • will be out of state and will not be able to attend that meeting. • I spoke before the council at the first meeting regarding this subject • and asked two questions at that time. • The first was my concern about the obstruction of public views from • Sunset Park, and will this set a precedent for Hoag Hospital to • request an exception to their height limitation agreements with the • city? > The second question was about safety. I asked if building this tower would add to the risk of danger because of its' proximity to Hoag's Power Plant which is presently being built. Could this tower which Is presently proposed act as a lightning rod because it will be build on top of a known • methane gas pocket that currently requires Hoag to burn off 24 -7. This has • been going on since I am here in Newport Beach (21 years). The question • asked was "Is my family safe ? ". These questions have not been • answered as yet. • Lastly, I would appeal to the council to please give us some relief • from the construction that has been going on on two sides of our • comples since 1991. 1 know that it will continue with the hospital's • plan to expand over the next ten years. Contrary to popular belief, • the traffic up Superior Ave onto Hospital Road has already doubled and the new tower has not even been • opened yet. We really do not need any additional construction in our • area. We have had enough. > Ross Ribaudo > 260 Cagney Lane Unit 320 > Newport Beach, CA 92663 • Page 1 of 1 Brown, Janet From: CRICHROATH@aol.com • Sent: Tuesday, September 07, 2004 5:53 PM To: jbrown @city.newport- beach.ca.us Cc: Parandigm @aol.com Subject: Cingular Wireless Proposed Tower As a homeowner in Villa Balboa I continue to monitor the progress of the Cingular Wireless proposed tower location and height. This is done through the continuous communication of our Association which is, like myself, opposed to any tower which violates the existing zoning code. I plan to attend the next City Council meeting. Donald Richroath 200 Paris Lane • • 10/01/2004 v Brown, Janet • From: RHAWKINS23@aol.com Sent: Saturday, September 04, 2004 12:01 PM To: jbrown @city.newport- beach.ca.us Subject: [BULK] Cingular Wireless Plan Importance: Low • • Page 1 of 1 Mr. Steve Rosansky Ms. Janet Johnson Brown I am writing to you regarding the request by Cingular Wireless for a cell tower at the corner of Superior and West Coast Highway. It seems to me that a smaller tower could be placed on top of one of the existing Hoag Hospital towers on their main campus. Hoag's multi -story towers provide the height necessary and would not obstruct views. I would think Hoag would be interested in the revenue from such an agreement. Please consider this option when you review the Cingular plan. Thank you, Ralph Hawkins rhawkins23 aol.com Villa Balboa resident 10/01/2004 y� Brown, Janet From: Jody Henning [beazygirl @hotmail.comj Sent: Thursday, July 29, 2004 7:38 AM • To: parandigm @aol.com; jbrown @city.newport- beach.ca.us Subject: Cell Towers I am adamently opposed to Cingular's request for a variance. As an owner of very expensive property in Villa Balboa I am concerned about the future of property surrounding us. My concerns include the effects of cell towers on not only our health but our property values and the potential for Hoag Hospital to continue developing to the maximum in their best interest only. Don't we stick to zoning codes anymore? My view would not be impacted by these towers but I can't imagine having to live with a display of flags outside my windows lit up all night. Please, please do not grant them their variances. Thank you for your consideration. Judith M. Henning 280 Cagney Lane Newport Beach, Ca Discover the best of the best at MSN Luxury Living. hftp: / /Iexus.msn.com/ • • Brown, Janet From: Light Time [lightime@sbcglobal.netj nt: Wednesday, July 28, 2004 12:28 PM Oubject: jbrown@city.newport-beach.ca.us Cingular zoning variance request Dear Ms Brown: We are home owners in Villa Balboa Comunity. We paid premium price for an ocean view and pay taxes to protect this investment accordingly. There is no valid reason to allow any type of variance in the zoning codes especially construction heights. This is particularly true on the variance being sought by Cingular for an antena. We urge you to vote against any variance of city codes to help protect our beautiful environment. We would appreciate any comments you may have. Thank You, Linda & Ed Sherman • • Brown, Janet From: Al Stalla [alstalla@yahoo.com] Sent: Tuesday, July 27, 2004 5:22 PM To: jbrown @city.newport- beach.ca.us • Cc: alstalla @yahoo.com Subject: Opposition to Cingular Wireless proposed cell tower in Superior and West Coast Hwy. Dear Ms. Janet Johnson, City Planner, I'm a homeowner in the Villa Balboa complex in Newport Beach. I'm asking you to please OPPOSE the proposed cell tower twenty -four inches in diameter and fifty feet tall near the entrance road to the park and ride lot at Superior and West Coast Highway. This violates zoning codes, which would allow a twenty -six foot tower or a flag pole thirty-five feet tall. I thank you for your consideration to this matter. Sincerely, Al Stalla 210 Lille Lane #202 Newport Beach, CA 92663 • • Do you Yahoo!? Yahoo! Mail is new and improved - Check it out! hftp://promotions.yahoo.com/new—mail C� Brown, Janet From: Mark Cully [mcully@earthlink.net] Sent: Tuesday, July 27, 2004 2:28 PM To: paradigm @aol.com Cc: jbrown @city.newport- beach.ca.us Subject: Proposed Cingular Wireless Tower Installation Dear Council Member Rosanky: I wish to thank you for the opportunity to express my opinion concerning the proposed installation of a Cingular wireless antenna tower in the park located at the intersection of Coast Highway and Superior Avenue. I am writing to you as a property owner, tax payer and as an owner of wireless stock, myself. I have been a property owner in Villa Balboa (VB) for over sixteen years. During that time I have been proud of the work both our Board of Directors and property management team have done to maintain a tranquil environment, instill and maintain a pride of ownership and to ensure that VB acts as a responsible citizen of Newport Beach and as a good neighbor to Hoag Hospital. As a part of being a responsible citizen and good neighbor, VB has worked diligently with Hoag and the City of Newport Beach to ensure that hospital expansion plans and the creation of a park and pedestrian walkway serve all involved without causing undo hardship to any particular party. I, as a property owner, sincerely believed that after sixteen years that all conceivable "neighbor- related" tasks had been completed and that day -to -day living would continue uninterrupted. Now, sixteen years later, there is yet another issue at hand - an event one could characterize as an assault. This time the issue is raised not by one of our neighbors or by our City representatives, but rather by a third party, one which neither governs the citizens of Newport Beach, provides recreational services to its citizens nor provides life- saving services to the community. Rather, this proposal has been set forth by a for - profit company who is not MY neighbor and does not provide public services to ME. Rather, this is a veiled attempt by a major corporation asking that the quality of life of those living in VB be adversely impacted in the name of profit. • It is my understanding that the proposed wireless tower would be housed within a pole which would exceed City height limits and be lit at night. What better way is there to describe an eyesore? Merely hanging an American flag from the pole will not hide the fact that, if approved by the City of Newport Beach, this will be the beginning of an "antenna farm ". To say the least, I am offended by Cingular using patriotism as a means to achieve their goal. I am concerned as to what impact this and future antennae would have on the residents of VB. A few of the issues I believe adversely impact residents of VB are the excessive glare at night from flood lights which would illuminate the flag, noise from the flag during windy days and the possible near and long -term health - related issues caused by being located adjacent to the antenna. As a tax payer, I am greatly concerned by liability- related claims against the City of Newport Beach, and in turn its taxpayers, due to the fact that the antenna is located on city -owned property. Regardless of whether Cingular indemnifies the City of Newport Beach against future litigation by • third parties, the liability exists and, as a tax - paying property owner, the risk is too high. believe that if the homeowners of VB, or for that fact ANY homeowner, had known that there was potential for a city park to become an "antenna farm ", the creation of that park would have been opposed. In conclusion, I am disclosing to you that I am a holder of AT &T Wireless stock, which is in the midst Oa merger with Cingular Wireless. As a result of the merger, I will soon own stock in Cingular ireless. The purpose of stating this fact is to impress upon you the sincerity of my e-mail. I, as a wireless stock holder, cannot with good conscious ask my neighbors or any other citizens of Newport Beach to sacrifice their quality of life for my personal financial gain. To that end, I am asking that, in spite of the potential for financial gain by the City of Newport Beach, please do not allow this or ANY wireless or antenna transmission towers, regardless of height, to be installed adjacent to VB. I thank you for your time and the good work and conscientious decisions you will make on behalf of the citizens of Newport Beach. Sincerely, Mark C. Cully • 513 Brown, Janet From: George Theodorou [g_theo @hotmail.comj Sent: Tuesday, July 27, 2004 2:04 PM • To: JBrown @city.newport - beach.ca.us Subject: RE: Height Limitations Along West Coast Highway Thank you for your concern and interest. We all appreciate your hard work and support for all of the residents of Newport Beach. Sincere regards, George Theodorou >From: "Brown, Janet" <J Brown @city. newport-beach. ca.us> >To: 'George Theodorou' <g theo @hotmail.com> >CC: "Rosansky, Steven" <parandigm @aol.com >, "Berger, George" > <GABerger@ city .newport- beach.ca.us >, "Temple, Patty" > <PTemple @city. newport- beach. ca. us> > Subject: RE: Height Limitations Along West Coast Highway >Date: Tue, 27 Jul 2004 11:20:13 -0700 >Dear Mr. and Mrs. Theodorou: >1 appreciate your concerns and thank you for expressing them by e-mail. • >Staff met last Thursday with the people from Cingular and Sprint to >discuss design alternatives that would be much less obtrusive and have >a minimal impact on views in the area. The two companies are >cooperating and are now working on a proposal that would incorporate >installation of antennas to existing streetlight poles along Superior >Avenue and possibly new light standards in the parking lot, instead of >the originally proposed 50 foot flagpole. >Staff has requested the item be continued from tonight's meeting to the > meeting of August 24. In the meantime, we're waiting completion of the >new design proposal and are hopeful we can find a solution that works >for the community as well as the wireless telecom companies. >Sincerely, > Janet Johnson Brown, Assistant Planner > - -- Original Message ----- >From: George Theodorou [mailto:g_theo @hotmail.com] >Sent: Sunday, July 25, 2004 2:16 PM >To: jb rown@ city. newport-beach. ca, us • > Subject: Height Limitations Along West Coast Highway >Dear Ms. Brown, >1 am writing to express my concern about a decision by the City Council Wreview the height limitations along West Coast Highway. It is my nderstanding that a number of cell phone companies have asked the > Council to extend the height limitations far above those required per >the agreement between Hoag Hospital and the City of Newport Beach. >plead that the City Council please review this issue and DO NOT allow >any cell phone company from extending beyond the current height >restriction. As a 3.5 year resident of the Villa Balboa Community we >are all concerned that allowing this type of exception may open a >pandora's box that many companies /entities >will encroach upon. The community of Newport Beach is not only one of >the best communities in the world because of our loaction and beauty, >but also how we respect the law and our property rights. Allowing >companies to violate the current height requirement will have a >devastating impact on our > property values (poorer views) and also cause an eyesore in the West > Coast Highway area that we should avoid. >Thank you for your concern. As the City Planner, I hope that you will >urge the City Council to review the matter appropriately and consider >the impact this may have on our fellow residents. I urge you to #ecommend to the Council to defeat this proposal and any similar roposals. >Sincerely, > George & Georgia Theodorou >950 Cagney Lane, #301 > Newport Beach, CA 92663 >Don't just search. Find. Check out the new MSN Search! >hftp://search.msn.click-uri.com/go/onmOO200636ave/direct/Ol/ MSN Toolbar provides one -click access to Hotmail from any Web page — FREE download! http: / /toolbar.msn. click -url. com /go /onm00200413ave /direct/0l/ • Page 1 of 1 Brown, Janet From: Gail Borzilleri [gailsail @hotmail.comj • Sent: Tuesday, July 27, 2004 1:09 PM To: ]brown @city.newport - beach.ca.us Subject: [BULK] Cingular Structure Importance: Low Dear Ms. Brown, I am a retired teacher living in Villa Balboa and my sincere concern for the variances that are being considered by Newport Beach for West Coast Highway. Please feel free to put my name on any petition against this proposal. Gail E. Bozilleri Home Address : 280 Cagney Lane, 214 Mailing address: 1048 Irvine Ave. #319 Newport Beach 92660 • Phone: 949 -548 -9300 Gail B. 949 -548 -9300 Plannin a family vacation? Check out the MSN Family Travel guide! • 10/01/2004 Brown, Janet From: jylee@usd.edu Oubject: nt: Monday, July 26, 2004 2:03 PM parandigm @aol.com; jbrown @city.newport- beach.ca.us cell tower To whom this may concern, My father who is a resident of the 200 Paris building in Villa Balboa is regrettably unable to attend the City council meeting on July 27, due to a business trip. Therefore, on behalf of my father, I am writing this email to stress his concerns regarding the building of the cell tower. Ever since we moved to Newport Beach, we have always cherished our lovely view and enjoyed it to its fullest. However, ever since the construction began by Hoag hospital, we have been denied our enjoyment. In all fairness however, it is the property of Hoag and they should be able to do what they please, as long as it is in accordance with all laws and regulations. Therefore, we dealt with all the construction for the past so many years. Now the issue of building a tower that will violate the zoning codes is a possibility that also threatens our enjoyment. Just as it is fair to allow the construction of Hoag because it did not violate any zoning codes, it should be just as fair to deny the building of the tower because it does violate the zoning code. Even with the past construction, my father's concerns were minimal because he knew and relied on the fact that there would be no construction that would be higher than the bluff. Therefore, it is the opinion of my father that this tower should NOT be allowed to be built in the proposed area. Not only would this proposed construction cause an enormous amount of burden to our personal enjoyment of our property, but would also cause an enormous financial burden as well. hank you for your time. Sincerely, Jimmy Lee, on behalf of Dal K. Lee 200 Paris Lane #210 Newport Beach, CA 92663 • Brown, Janet From: Parandigm@aol.com Sent: Sunday, July 25, 2004 5:43 PM • To: Cyndie @Chen - Family.org; jbrown @city.newport- beach.ca.us Subject: Re: lobbying against placement for cell tower Dear Cyndie: The Cingular people have apparently withdrawn their initial proposal and are going to submit plans for a reduced height alternative that may incorporate the City street lights on Superior. We should know more in a couple of weeks. Stay tuned. Steve Rosansky Newport Beach City Council- District 2 In a message dated 7/25/2004 4:08:47 PM Eastern Daylight Time, Cyndie Tsao <Cyndie @Chen- Family.org> writes: >1 am a home -owner in Villa Balboa and am completely AGAINST placement >of the cell tower on the corner of Superior and PCH Hwy. >There are low- visibility options that do not require the placement of a > "flag pole" with 24 hour lighting. >Please take my opinion into consideration when this matter is discussed • >on July 27 in the city council meeting. >Thank you for your time! >Sincerely, >Cyndie Chen • Brown, Janet From: George Theodorou [g_theo @hotmail.com] nt: Sunday, July 25, 2004 2:16 PM jbrown@city.newport-beach.ca.us qubject: Height Limitations Along West Coast Highway Dear Ms. Brown, I am writing to express my concern about a decision by the City Council to review the height limitations along West Coast Highway. It is my understanding that a number of cell phone companies have asked the Council to extend the height limitations far above those required per the agreement between Hoag Hospital and the City of Newport Beach. I plead that the City Council please review this issue and DO NOT allow any cell phone company from extending beyond the current height restriction. As a 3.5 year resident of the Villa Balboa Community we are all concerned that allowing this type of exception may open a pandora's box that many companies /entities will encroach upon. The community of Newport Beach is not only one of the best communities in the world because of our loaction and beauty, but also how we respect the law and our property rights. Allowing companies to violate the current height requirement will have a devastating impact on our property values (poorer views) and also cause an eyesore in the West Coast Highway area that we should avoid. Thank you for your concern. As the City Planner, I hope that you will urge e City Council to review the matter appropriately and consider the impact is may have on our fellow residents. I urge you to recommend to the Council to defeat this proposal and any similar proposals. Sincerely, George & Georgia Theodorou 950 Cagney Lane, #301 Newport Beach, CA 92663 Don't just search. Find. Check out the new MSN Search! hftp://search.msn.click-uri.com/go/onmOO200636ave/direct/01 / Page 1 of 1 Brown, Janet From: Don [ddarling@math.uci.edu] • Sent: Friday, July 23, 2004 2:26 PM To: ]brown @city.newport- beach.ca.us Subject: Cell Phone Tower To the Newport Beach City Council I strongly urge that the variance for the Verizon cell telephone pole be disallowed. Donald A. Darling 230 Lille Ln. #312 Newport Beach CA. 92663 ddading(o)math. uci.ed u • • 10/01/2004 Page 1 of 1 Brows • From: Sent: To: Cc: i, Janet SStameson @aol.com Wednesday, July 21, 2004 12:47 PM Parandigm @aol.com jbrown@city.newport-beach.ca.us Subject: Cingular Wireles proposal to install cellphone tower at Park and ride The honorable Stven Rosansky, City council District #2: Sir My wife and I have been residents of Villa Balboa for over ten years now and want to expess our strong opposition to the Cingular Wireless proposal to install a cellphone tower near the entrance road to the park and ride lot at Superior an West Coast Highway. Insallation of such a tower would have a negative impact on the surounding enviroment (it could even present a radiation hazard), and our property values. If this insallation is approved it would open the flood gates for other companies to do the same. If a height variance is approved it would be in violation with other agreements between the City and Hoag Hospital and would trigger an uproaror in this community. Please vote no on this proposal Thank you, • Louise and Sam Stameson • 10/01/2004 17/ CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT 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 0. ISSUE COUNCIL AGENDA NO. PA to -1a -oy Agenda Item No. is May 11, 2004 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. BACKGROUND 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. 0 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. • DISCUSSION The applicant in this case desires to install a wireless telecommunication facility on city- owned property located at the comer 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 comer 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 0 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: 0 I I J et h son Brow Patricia L. Temple • sist lanner 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 • • f� EXHIBIT NO. 1 VICINITY MAP • 5 21+6e999221151 1 1 • i e 4" e e SUPERIOR AVE Subject Property �r lei? 4600 West Coast Hwy. �`� � 4. 4e21 Sunsot TELECOM PERMIT NO. TP2003 -003 (PA2003 -255) SITE ADDRESS: 4600 WEST COAST HIGHWAY 4" 1 tom`' 4eo5 +616 4Al2 4aOl +700 '•1 Y +825 ,5 L 601' gi , __ +517 } 244 �\ +511 _ _ Jr +719 +715 +709 e -�..� ` +521 +501 4547 4515 446) 707 +7011 r RJV "21 .E 111 /} 1 +2 146 _�'- +507 ��'� " 554415 "27 "1744094405N5144074401 "254417446` "59 /, 1144 i9e +801 �`-'l X451 ' "11 "11 g +70247W' 1]0 1. r', 111111. + — �y iij mn TELECOM PERMIT NO. TP2003 -003 (PA2003 -255) SITE ADDRESS: 4600 WEST COAST HIGHWAY 0 EXHIBIT NO. 2 Findings and Conditions of Approval E 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. 19- 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 permitlagreement, 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. IOb Telecommunications Facility Permit No. 2003 -003 Findings and Conditions of Approval Page 3 7. 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. iA 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 • 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. 11 EXHIBIT NO. 3 Ordinance No. 2002 -24 1] id 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 regulations. 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 0 • 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 ` 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 *,_31' • 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. I. 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. Operator or 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 is 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. EA J 5 �`i • 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 40 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 alternate location for a proposed new facility. 3. Condition Requirinq 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. Building- 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 71 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 fighting 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 aq, • 1. 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 aq 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. Filing. 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 5.b 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 Propert y. Review of telecom applications for facilities on private property shall be as follows: 1. FEM. 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 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 City 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 +�� 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. Chan ed 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 �� 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: lJ 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 � �j 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 24`" day of September, 2002, and adopted on the 8t' day of October, 2002, by the following vote, to -wit: AYES, COUNCILMEMBERS Heffernan, O'Neil, Bromberg, Adams, Proctor, Mayor Ridgeway NOES,COUNCILMEMBERS None ABSENT, COUNCILMEMBERS, MAYOR (J ATTEST: �( � LK V �1/h2/ � • I y CITY CLERK Glover 17 `51 0 • STATE OF CALIFORNIA } COUNTY OF ORANGE 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 bl 0 EXHIBIT NO. 4 Council Policy L -23 0 0 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 �0 0 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. D. 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 0 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 LVJ • 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 • 0 4 �5 0 EXHIBIT NO. 5 Applicant's Proposal and Project Justification 11 7 45 CINGULAR WIRELESS PROPOSAL FOR A WIRELESS TELECOMMUNICATIONS FACILITY SC -084 -05 Superior Avenue & PCH Park and Ride City of Newport Beach APN: 424 -041 -13 4 0 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� 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 locations /designs 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 -load 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 ofPCH/Sucerior- 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. Al SBA Hoag HospItal, North side of a roof - mounted facility was consider for the property. Hoag Hospital was not interested in CW's proposal. Park and Ride, northeast corner of PCN /Superior 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, Co location 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 & 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 Moke. 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. `(� • MEW)] 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 % 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. • Aq April 26, 2004 Janet Johnson Brown Assistant Plann& 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, ,'D 150 Paularino Avenue m Suite A -166 m (osta Mesa, (A 92626 -3318 im Phone: 114 -551 -6051 ® fax: 114-557-6149 am www.s6asite.com 9 4MM1M=))))) 0 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 ft 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 ggonzalezQsbasite.com. Thank you, Gil Gonzalez Zoning Consultant SBA Network Services, Inc. 150 Paularino Avenue ® Suite A -166 0 (osta Mesa, (A 92626 -3318 ® Phone; 114-551-6052 ® fax: 114-551-6Z49 93 www.shasite.com h 0 EXHIBIT NO. 6 Radio Frequency Propagation Maps 11 I* �3 7 -rp 'U7 Al C!i AdL rill 'U7 Al C!i AdL rill pknor r u x 10...1' ''�*'�. i11. "' •. � � _ t _ _ c rc' ' L JL-r� a m'• ri ��k;� .,,;fit:•;. • , .. /� � l�l •fir ('' � _ , .: iii• `,1 ,.- V. 0 EXHIBIT NO. 7 Photo Simulations 0 h m W N N Q V W a W m H a 0 n i W Z u a. a 0 a i z W a n 0 tt W 6 N � f 0 J W D a 0 Z a Y K a a F 0 IL 3 w Z LL 0 } F J ❑ 4 U N L . rn3 V U X 3 W_ [1 0 u u 0 n 0 a o • z F m X W 6� • 0 m m ry m Q U u Q W m 0 0 n 3 2 I U a a Z Q W Z w Q ¢ 0 W N F 0 J W 0 ¢ 0 Z Q Y Q a F 0 a 3 W Z W 0 F i LA U ul �3 U X 3 w z 0 u 0 J .n a 0 0 a 0 ¢ a a z m K W A a g 0 N N ' O q N n3f or. z aii mow U � NNo 0 0 °o, a RyG • 0 r J W a ❑ z Q Y R Q a F 0 a w w z L, 0 } F- U Ul ❑ U N Di U X N 3 W_ z 0 a 0 J A. al ❑ w m 0 a 0 a a 0 z W r • F J W R ❑ Z d Y ¢ d a F 0 Q w W Z 4 0 Y F A ❑ ❑ A X 3 z ❑ u a J W S n c� l W Z W Q ¢ ❑ W W a N z ❑ W A 0 n 0 ¢ a Z m w A - 0 EXHIBIT NO. 8 Site Plan and Elevations 0 0 ,U\ �,., •. -.. ^,.,^ a,.w 3A] VIM S13HD '3SVCC OOt 311pi '3AINU N0513HD11'1 S�££ ton ^ ,r ^= z @ $ ys ay �cY - a 4 0 4 ✓f a p 1 SS31361M juinbulo X av saaiva a •..r —�.. -.... *. rrr�r a ✓ut a ° ° QC �^"JJ r G 1 - "r'a VJ ) Q 1111111 c� -jj i N II i e uj [yeryypp 11111(( 111 • C Sli I's I I I I 1_ 1 I 1 O = � t II co O W Q:� J O 0, `g a V) ( G s ! 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CALIFORNIA 92612 1 I 0 EXHIBIT NO. 9 Public Correspondence 48 0 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. 1 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 • 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 • q0 • Brown, Janet From: RosslVAsso @aol.com Sent: Sunday, April 11, 2004 6:27 PM To: jbrown @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. 1 ... 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. 0 Page 1 of 1 04/12/2004 1 1 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 @adelnhla.netj 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 511ney. Cc: Janet Brown - NB Planner; Steven Rosansky - City Council, District 2; Bob Francis; Donald Richroath; Ross1VAsso @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• 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 0 q�, CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. is 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 rentl 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: Dave�F�iff Assistant City Manager Robin Clauson Assistant City Attorney Attachments: License Agreement with Cingular 0 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 11'" 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 2 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'/� percent per month or any portion of a month until paid in full. 6. Adjustment 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 t 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. Adiust 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 extemal 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: 4 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 Property: 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 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 I . 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: 0 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. 0 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 workers compensation and employers 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 is 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 101 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 Partv- 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 Attornevs' 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. E 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, A Municipal Corporation Homer Bludau, City Manager APPROVED AS TO FORM: Robin L. Clauson, Assistant City Attorney F:\users\caf\ shared\ cp\ Ag\ TelecomLicens \Cingular050704.doc IR CINGULAR WIRELESS A Corporation Name & Title EXHIBIT "A" LEGAL DESCRIPTION TO BE PROVIDED 0 0 • } \ % ƒ q |' [ f .. ---- - - - -�. � G'\��' \ \�7 lg; \B | § ^/ C |ngu |ar BA , ,_. _ma ;, 2c- _ „ /� \ AJ: �■ f § .� _� CALIFORNIA _. m : IN, /] \ Q ; 0 P Z Zl i z i I I / / F 1 / /I / n (J / Z, /I / c / /I / d i i a $ to { qa 9 dE 0 R�' n I _ e wor ern`eY nc E � v X cingular WIRELESS em wr nome. wn. /r • am , mw 3345 NICNEtSON DRIVE. SURE IDD IRVINE, CALIFORNIA 9266D 1 i l 1 J+� i IA �a iD •2 1C +n 1 ; d� B� J� f � 1 / 3345 NICNEtSON DRIVE. SURE IDD IRVINE, CALIFORNIA 9266D 1 i l 1 J+� i IA �a iD •2 1C +n 1 ; d� B� J� f • Message Fisher, Cathy From: Brown, Janet Sent: Friday, May 07, 2004 11:08 AM To: Fisher, Cathy PRINTED:" 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) Paae 1 of 2 AGENDA Here is public correspondence regarding telecom permit I received after completion of staff report on Wednesday. - - - -- Original Message---- - From: Frank Jenes [ma ilto:f ran kjenes @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 Sliney; 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; Eaton at Home; Maria Bercovitz; Michael Sachs; Peter Sliney Phil Bias; Carleen Hallstead; Jennifer 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 Paae 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 • n. in7nnnn i. 0 ti ag 11 kft dP �i • i . Y 1 �• r�fC _v Y • t 1 • \C.,�: �4. v :'.. j + —Iwo_ •�:•�'::. i Yft7 ri �i f f,. 4 IAI. iv t f I erF r' 4 r.