2022-09-13; City Council; ; First Amendment to License Agreement with T-Mobile West Authorizing the Sublicense of a Portion of the Wireless Communication Facility License Area to Dish Wireless — Carlsbad City Council, September 13, 2022

CA Review __AF__
Meeting Date Sept. 13, 2022
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Curtis M. Jackson, Real Estate Manager
[email protected], 442-339-2836
Subject First Amendment to License Agreement with T-Mobile West Authorizing the Sublicense of a Portion of the Wireless Communication Facility License Area to Dish Wireless
District: 2
Reco
mmended Action
Adopt a resolution approving the first amendment to the license agreement between T-Mobile West LLC and the City of Carlsbad authorizing T-Mobile West LLC to sublicense a portion of the licensed area to Dish Wireless LLC to operate a wireless communication facility at Calavera Hills Community Park and authorizing the City Manager to execute the amendment.

Executive Summary
The City Council is being asked to approve an amendment to a license agreement with T-Mobile West LLC for a wireless communication facility at Calavera Hills Community Park. The amendment would allow the company to sublicense a portion of the facility to Dish Wireless, another authorized wireless communication provider, and to slightly expand the licensed area.

Only the City Council has the authority to approve license agreements. The City Council’s approval of this action will authorize the City Manager to execute the proposed amendment.

Discussion
History of agreement
• The city and T-Mobile first entered into a license agreement to operate wireless telecommunication facilities at the park in 2008 (Resolution No. 2008-285). • In 2013, the city approved an extension to a minor conditional use permit (MCUP (07- 04x1) to allow for the wireless facilities. The permit is valid through March 14, 2023. • The city and T-Mobile entered into a new 10-year license agreement on April 12, 2019, that allowed the company to continue to operate the wireless communication facility at the park. The license provides for two automatic extensions of five years each, unless the license holder is in default, with the final extension expiring on April 11, 2039. • In October 2021, T-Mobile asked to negotiate an amendment to allow the sublicense of a portion of the facility to Dish Wireless.

Sept. 13, 2022
Item #4 Page 1 of 21
Pr
oposed amendment
As part of the sublicense, the area covered by the license is to be expanded by 48-square-feet and an additional panel antenna will be located on the existing light pole. The minor conditional use permit does not need to be amended.

Staff recommend the City Council authorize the execution of this first amendment to the agreement. T-Mobile will pay the city 50% of the rent it receives from Dish Wireless annually for the duration the agreement. If Dish Wireless fails to occupy the premises, T-Mobile will be under no obligation to pay the city additional rent and T-Mobile’s use of the additional 48 square feet of license area would be terminated. By allowing the sublicense of T-Mobile’s wireless communication facility, telecommunication coverage will be increased and continue to provide service reliability to customers in the surrounding area.

Options
Staff recommend the City Council approve this amendment, which will allow Dish Wireless to provide wireless communication services in the area and have a minimal impact on the site. The city will also receive some additional revenue from the facility being subleased, as detailed below. Staff see no drawbacks in approving this amendment. If it is rejected, T-Mobile would not be able sublease the site to Dish Wireless, limiting that provider’s ability to serve its customers in Carlsbad.

Fiscal Analysis
Under the existing license agreement, T-Mobile pays the city $49,828 per year. With this amendment, T-Mobile will additionally pay the city 50% of the rent it receives from Dish Wireless. T-Mobile anticipates charging $12,000 per year to sublicense the premises, so the city should receive approximately $6,000 per year in additional rent from T-Mobile, for a total of $55,828 per year.

Next Steps
T-Mobile and city staff will implement the terms of the amended agreement.

Environmental Evaluation
The proposed action is exempt from the California Environmental Quality Act as outlined in CEQA Guidelines 15301 – Existing Facilities. This section exempts the leasing of property involving negligible or no expansion of use beyond that existing at the time of the agency’s determination.

Exhibits

1. City Council resolution
Sept. 13, 2022
Item #4 Page 2 of 21
RESOLUTION NO. 2022-218

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,

CALIFORNIA, APPROVING THE FIRST AMENDMENT TO THE SITE LICENSE

AGREEMENT BETWEEN T-MOBILE WEST LLC AND THE CITY OF CARLSBAD

TO SUBLICENSE A PORTION OF THE WIRELESS COMMUNICATION FACILITY

LICENSE AREA TO DISH WIRELESS, LLC AND AUTHORIZING THE CITY

MANAGER TO EXECUTE THE AMENDMENT
WHEREAS, on Oct. 14, 2008, the city and T-Mobile West LLC (T-Mobile) first entered into a license agreement to operate wireless telecommunication facilities at the Calavera Hills Community Park (Resolution No. 2008-285); and
WHEREAS, On March 15, 2013, T-Mobile obtained approval of a Minor Conditional Use Permit (MCUP 07-04xl) to install six wireless antennae to an existing light standard monopole. MCUP 07- 04xl is valid through March 14, 2023; and
WHEREAS, On April 12, 2019, the city and T-Mobile entered into a new ten-year license agreement (Agreement) which provides for two automatic extensions of five years each, unless Licensee is in default, with the final extension expiring on April 11, 2039 (Resolution No. 2019-045); and
WHEREAS, in October 2021, T-Mobile requested to negotiate a license amendment to allow the sublicense of their facility to Dish Wireless, LLC (Dish Wireless), who is also a wireless communication provider; and
WHEREAS, as part of the sublicense, T-Mobile and Dish Wireless will require a 48 square foot expansion of the license area adjacent to T-Mobile's existing facilities and will locate an additional panel antenna on the existing light standard monopole; and WHEREAS, T-Mobile will pay the city fifty percent (50%) of the rent they receive from Dish Wireless annually. If Dish Wireless fails to occupy the premises, T-Mobile will be under no obligation to pay the city additional rent and T-Mobile's use of the additional 48 square feet of license area would be terminated; and
WHEREAS, T-Mobile anticipates charging $12,000 per year to sublicense the premises to Dish Wireless; as such, the city should receive approximately $6,000 per year in additional rent from T Mobile.

Exhibit 1
Sept. 13, 2022 Item #4 Page 3 of 21
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:

1. The above recitations are true and correct.

2. The Amendment to the Site License Agreement is approved and the City Manager is authorized to execute the Amendment, which is attached hereto as Attachment A.

3. That the City Manager, or his designee, is hereby authorized to take all actions necessary to implement the license agreement amendment with T-Mobile West, LLC, that are consistent with and in full compliance with the terms and conditions expressed in the Agreement, as amended, and to the satisfaction of the City Attorney.

PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 13th day of September, 2022, by the following vote, to wit:

AYES:

NAYS:

ABSENT:

Blackburn, Bhat-Patel, Norby.

None.

Hall, Acosta.

MATT HALL, Mayor
FAVIOLA MEDINA, City Clerk Services Manager
(SEAL)
Sept. 13, 2022 Item #4 Page 4 of 21

FIRST AMENDMENT TO

AMENDED AND RESTATED COMMUNICATIONS SITE LICENSE AGREEMENT

THIS FIRST AMENDMENT TO AMENDED AND REST A TED COMMUNICATIONS SITE LICENSE AGREEMENT (the "First Amendment") is made effective this l2\h_ day of ��, 2022 ("Effective Date"), by and between CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as "City") and T-MOBILE WEST LLC, a Delaware limited liability company, by and through its Attorney In Fact, CCTMO LLC, a Delaware limited liability company (hereinafter referred to as "Licensee").

RECITALS
WHEREAS, the City and Licensee entered into an Amended and Restated Communications Site License Agreement dated April 12, 2019 (the "License") whereby Licensee licensed certain real property, together with access and utility easements, located in San Diego County, California from the City (the "License Area"), all located within certain real prope1ty owned by the City ("City's Property");
and
WHEREAS, the License Area may be used for the purpose of constructing, maintaining and operating a communications facility, including tower structures, equipment shelters, cabinets, meter boards, utilities, antennas, equipment, any related improvements and structures and uses incidental thereto; and
WHEREAS, the License had an initial term that commenced on April 12, 2019 and expires on April 11, 2029. The License provides for two (2) automatic extensions of five (5) years each, unless Licensee is in default. According to the License, the final extension expires on April 11, 2039;and
WHEREAS, the City and Licensee desire to amend the License on the terms and conditions contained herein.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the City and Licensee agree as follows:
l. Recitals; Defined Terms. The parties acknowledge the accuracy of the foregoing recitals. Any capitalized terms not defined herein shall have the meanings ascribed to them in the License.

2. Consent to Sublicense. In accordance with Section 14.2 of the License, the City hereby acknowledges and agrees to the sub I icense of a portion of the License Area, as expanded, to Dish Wireless LLC or an affiliate or subsidiary (the "Dish Subtenant") for purposes of installation, maintenance and replacement
of equipment, antennas, cables, fiber, and related
accessories on the License Area for the operation of a wireless communications facility thereon.

In accordance with Section 3.6 of the License, the City hereby consents to such installation, maintenance and replacement. As used herein, the term "sublicense" includes any arrangement by which a third party can collocate its equipment at the License Area, whether it is by sublease, license, easement or any other agreement or arrangement.

Site Name: Calavera Hills Comm
Business Unit#. 822887
Attachment A
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Item #4 Page 6 of 21

3. First Additional License Area. The existing License Area is hereby expanded in size to include additional space, which consists of a six (6)' x eight (8)' or forty-eight (48) square foot parcel of real property adjacent to the existing License Area at a location more particularly described on Exhibit A-1 attached hereto and shown on the Site Plan attached hereto as Exhibit B (the "First Additional License Area"). The License Area, as expanded, is described on Exhibit A l attached hereto. Notwithstanding anything to the contrary in this First Amendment, Licensee is not relinquishing any rights to any license area, access easements, and/or utility easements that it possesses prior to the date of this First Amendment. In the event the location of any of Licensee's or its sub licensees' existing improvements, utilities, and/or access routes are not depicted or described on the Site Plan and/or legal descriptions, Licensee's leasehold rights and access and utility easement rights over such areas shall remain in full force and effect and the License Area shall be deemed to include such areas.

4. First Additional Monthly Rent. In consideration of the license of the First Additional License Area, Licensee agrees to pay to the City fifty percent (50%) of the rental, license or similar payments actually received by Licensee from such Dish Subtenant ( excluding any reimbursement of taxes, construction costs, installation costs, or revenue share reimbursement) (the "First Additional Monthly Rent") within thirty (30) days after receipt of said payments by Licensee. Licensee shall have no obligation for payment to the City of such share of rental, license or similar payments if not actually received by Licensee. Non-payment of such rental, license or other similar payment by a Dish Subtenant shall not be an event of default under the License.

Licensee shall have sole discretion as to whether, and on what terms, to sublease, license or otherwise allow occupancy of the Premises. There shall be no express or implied obligation for Licensee to sublease, license or otherwise allow occupancy of the Premises. Licensee shall exercise commercially reasonable efforts to collect rental, license or similar payments from the Dish Subtenant. Licensee shall pay to the City the First Additional Monthly Rent until the earlier of (i) the expiration of the term of License; or (ii) the expiration or termination of the sub license with the Dish Subtenant.

5. Return of the First Additional License Area.
a) Licensee shall have the option, upon thirty (30) days prior written notice to the City, in its sole and absolute discretion, to return the First Additional License Area to the the City and to terminate the license of the same by removing all improvements from the First Additional License Area and returning same to its condition as of the Effective Date, ordinary wear and tear excepted (the "Return of the First Additional License Area"). Effective upon removal of all improvements from the First Additional License Area, the First Additional Monthly Rent shall cease and will no longer be due or payable.
b) In the event the sub license with the Dish Subteant is terminated, the Dish Subtenant abandons the First Additional License Area, or the Dish Subtenant fails to make any rental, license, or similar payment within thirty days of when the payment is due, the lease of the First Additional License Area shall terminate.

6. Access. The City grants Licensee an access and utility license, as described in Exhibit A-3, for the duration of the term of the License. The access and utility license shall be Site Name: Calavera Hills Comm
Business Unit# 822887 2
Sept. 13, 2022
Item #4 Page 7 of 21
subject to all the terms and conditions provided in the License, including but not limited to Sections

3.3.1 and 5.7.

7. Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to Licensee as follows :
a) The City is duly authorized to and has the full power and authority to enter into this First Amendment and to perform all of the City's obligations under the License as amended hereby . b) Licensee is not currently in default under the License, and to the City's knowledge, no event or condition has occurred or presently exists which, with notice or the passage of time or both, would constitute a default by Licensee under the License. c) The City agrees to provide such further assurances as may be requested to carry out and evidence the full intent of the parties under the License as amended hereby, and ensure Licensee's continuous and uninterrupted use, possession and quiet enjoyment of the License Area under the License as amended hereby .
d) The City acknowledges that the License Area, as defined, shall include any portion of City's Property on which communications facilities or other Licensee improvements exist on the date of this First Amendment.

8. IRS Form W-9. The City agrees to provide Licensee with a completed IRS Form W-9, or its equivalent, upon execution of this First Amendment and at such other times as may be reasonably requested by Licensee. In the event the City's Property is transferred, the succeeding the City shall have a duty at the time of such transfer to provide Licensee with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in the rent to the new the City. The City's failure to provide the IRS Form W-9 within thirty (30) days after Licensee's request shall be considered a default and Licensee may take any reasonable action necessary to comply with IRS regulations including, but not limited to, withholding applicable taxes from rent payments.

9. Letter Agreement. This First Amendment supersedes that certain Letter Agreement by and between the City and Licensee dated September 7, 2021 and in case of any conflict or inconsistency between the terms and conditions contained in the Letter Agreement and the terms and conditions contained in this First Amendment, the terms and conditions in this First Amendment shall control.

10. Counterparts. This First Amendment may be executed in separate and multiple counterparts, each of which shall be deemed an original but all of which taken together shall be deemed to constitute one and the same instrument.

11. Remainder of License Unaffected. In all other respects, the remainder of the License shall remain in full force and effect. Any portion of the License that is inconsistent with this First Amendment is hereby amended to be consistent.

12. Recordation. Licensee, at its cost and expense, shall have the right to record a memorandum of this First Amendment in the Official Records at any time following the execution of this First Amendment by all parties hereto. In addition, Licensee shall have the right in its Site Name: Calavera Hills Comm
Business Unit# : 822887 3
Sept. 13, 2022
Item #4 Page 8 of 21
discretion, to record a notice of lease, affidavit or other form to be determined by Licensee without the City's signature in form and content substantially similar to the memorandum, to provide record notice of the terms of this First Amendment.

Site Name: Calavera Hills Comm
Business Unit#: 822887
[Signature pages follow]
4 City and Licensee have caused this First Amendment to be duly executed on the day and year first written above.

Site Name: Calavcra Hills Comm
Business Unit#: 822887
By: _ __...._ __ :..µ..,, ______ _
Print Na
Title:��
The City affirms that this First Amendment
was approved at a duly noticed public
meeting held on (�� 2022
[Licensee Execution Page Follows]
5 Sept. 13, 2022 Item #4 Page 9 of 21
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Item #4 Page 10 of 21
This First Amendment is executed by Licensee as of the date first written above.

Site Name: Calavera Hills Comm
Business Unit# : 822887 6
LICENSEE:

T-MOBILE WEST LLC, a Delaware limited
liability company
By: CCTMO LLC, a Delaware limited
liability company
Bylts:Att~
Prmt Name: "'fara Groda
Title: Sr-M Ntl RE Ops
Sept. 13, 2022
Item #4 Page 11 of 21
Exhibit A-1
(Legal Description of the First Additional License Area) A PORTION OF LOT "J" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,

COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON NOVEMBER 16, 1896, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: