VOLUNTARY COMPLIANCE AGREEME:'lT
PARTIES
This Voluntary Compliance Agreement ("Agreement") is entered into by and between American Tower Management, LLC ("ATC") and the City of San Clemente ("City"), ATC and the City are sometimes referred to in this Agreement individually as "Party" and collectively as the "Parties". This Agreement is entered into as of July�' 2023 ("Effective Date").
RECITALS,
This Agreement is made with reference to the following:
1. A TC operates a wireless communication facility (Site No. 89366) ("Wireless Communications Facility"), located at Rancho San Clemente Trail, Rancho San Clemente, California 92672 (Al'N: 690-552-05) ("Property") that was approved under a Conditional Use Permit in 1962 by the Orange County ("County") Planning Division, which then had jurisdictio:i over the Property (" 1962 CUP"),
2. The 1962 CUP permits a wireless communications facility, consisting of "an approximate 28 ft. by 58 ft, building and a 70 ft. antenna tower", in connection with a public telephone service.
3, According to ATC, the tower component of the Wireless Communications Facility is 137.6 ft. in height, which is further extended to 156 ft. when the height is measured from the highest existing appurtenance affixed to the tower.
4, Neither the City, the County, nor ATC have been able to locate any records authorizing the expansion in height of the tower from 70 ft, to the current height. �Sl52S02911\H 1113 538. 2
with the 1962 CUP and applicable law in effect at that time. ATC shall also maintain the Wireless Communications Facility in compliance with all applicable state and federal laws and regulations, now existing or hereinafter enacted.
5. ATC agrees, prior to commencing any work to reduce the height of the tower stipulated in this Agreement, to obtain a building permit from the City for alterations to the tower.
The City agrees to process and issue the building permit with reasonable diligence and without delay.
6. The City agrees that, following the reduction in the height of the tower, the Wireless Communications Facility will be in compliance with the 1962 CUP, and specifically that (i) the 1962 CUP is vested; (ii) the 1962 CUP does not contain an expiration date; and (iii) the 1962 CCP permits the current use of the Wireless Communications Facility for wireless telecommunication purposes; and (iv) the 1962 CUP permits a 70' tower. As a result, the City shall not require a discretionary approval, including but not limited to a new CUP or renewal of the 1962 CUP, in connection with the reduction in height and ongoing operation of the Wireless Communications Facility consistent with the 1962 CUP.
7. In contemplation of, and based on ATC's agreement to reduce the tower height in compliance with this Agreement and to maintain the Wireless Communications Facility in compliance with the law as set forth in Section 4 above, the City hereby will forego any enforcement proceedings for non-compliance related to ATC's tower prior to expiration of the deadline established in Section 3 above.
8. ATC hereby releases the City, its agents, employees, attorneys, elected officials, appointed officials and representatives, from any and all actions, causes of action, losses, claims, demands, damages, costs, loss of use, loss of revenue, expenses, compensation and other form of -3-
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damages arising from or relating to any enforcement proceedings for non-compliance as of ihe expiration of the deadline established in Section 3 above (the "ATC Released Claims"). However, this release provision does not extinguish, release, or discharge any of the obligations and rights set forth and encompassed in ihis Agreement. A TC shall indemnify, defend ( with counsel acceptable to City) and hold the City its agents, employees, attorneys, elected officials, appointed officials and representatives from any and all actions, causes of action, losses, claims, demands, damages, costs, loss of use, loss of revenue, expenses, compensation and other form of damages by any third party arising from or relating to the A TC Released Claims or this Agreement, the 1962 CUP or A TC construction, operation or maintenance of the Wireless Communications Facility, including, but not limited to, any environmental review or approval in connection therewith.
9. Effective upon ATC's completion of the work on ihe tower in compliance with applicable laws and as contemplated by this Agreement, the City releases ATC, its agents, employees, attorneys, elected officials, appointed officials and representatives, from any and all known actions, causes of action, losses, claims, demands, damages, costs, loss of use, loss of revenue, expenses, compensation and other form of damages arising from or relating to any noncompliance of ATC's tower. However, this release provision does not extinguish, release, or discharge any of the obligations and rights set forth and encompassed in this Agreement.
10. ATC also hereby specifically waives the protections of California Civil Code section 1542, which provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, -4-
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17. Successors and Assigns. This Agreement and all terms, conditions and obligations contained herein are binding upon and inure to the benefit of any assigns and successors-in-interest of the Parties, and each of them. Each of the Parties represents and warrants that as of the Effective Date none of the claims or causes of action being released herein have been transferred, assigned or otherwise conveyed to any other person or entity, and each of the Parties is the holder of the claims being released.
18. Force Majeure. Neither Party shall be liable for its failure or delay to perform under this Agreement (a) caused by reason of acts of God, wars, revolution, terrorism, civil commotion, or similar unlawful acts of third parties, fire, flood or other casualty, embargo, acts of government in its sovereign capacity, labor difficulties, including without limitation, strikes, slowdowns, business shutdowns, govermnent regulations preventing performance, epidemics or pandemics preventing performance, labor or supply shortages preventing performance, picketing or boycotts, or any other similar circumstances beyond the reasonable control and not involving any fault or negligence of such Party, and (b) provided that Party gives prompt notice to the other Party and makes all commercially reasonable efforts to perform.
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