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
5. Accordingly, because no records of any County or City approvals authorizing the expansion of the tower from 70 ft. to its current height have been located, ATC voluntarily agrees to reduce the height of the existing tower to the 70 ft. maximum identified in the 1962 CCP.
6. To the best of the City's information and knowledge, the only known violation of the 1962 CUP or applicable law with respect to the Wireless Communications Facility is the tower's height.
7. The City and ATC desire to resolve this matter.
AGREEMENT
In consideration of and in return for the promises, covenants, and agreements made herein by the Parties, the sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. The above recitals are incorporated into the terms of this Agreement.
2. The height of the existing tower component of the Wireless Communications Facility will be reduced to a maximum of 70 ft., when the height is measured from the existing adjacent grade to the highest appurtenance affixed to the tower.
3. All work required to reduce the height of the tower to a maximum of 70 ft. shall be performed and completed by ATC, at its sole cost and expense, within 12 months from the date that a building permit is issued by the City in accordance with Section 5, below. ATC shall submit a complete application for a building permit within two (2) months of the Effective Date.
4. ATC agrees that once the height of the tower is reduced, A TC will comply with the 1962 CUP and maintain the Wireless Communications Facility in compliance with all applicable laws, including, but not limited to, the San Clemente Municipal Code and the California Building Code. This includes, but is not limited to, obtaining any necessary permits and other approvals for construction, modifications and/or uses prior to any such changes, to ensure continued compliance -2-
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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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would have materially affected his or her settlement with the debtor or released party.
11. As required by law, the City hereby reserves its right to enforce future violations of law relating to the Wireless Communications Facility or those violations currently unknown, as provided by law, and seek any remedies or rights available to the City. This section is merely intended to clarify that the City is not waiving any future rights or obligations it may have under law pertaining to future occurring or currently unknown, and therefore not contemplated, violations oflaw that may exist.
12. Advice of Counsel. The Parties represent that they have had the opportunity, whether or not they have chosen to do so, to discuss this Agreement with legal counsel.
13. Entire Agreement. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. This Agreement may be amended only by an agreement in writing signed by all Parties, except that a change in contact information may be made simply by sending notice to the other party.
14. Severability. Each provision of this Agreement is separate, distinct and severable from the others. If any provision is held unenforceable, the rest of the Agreement shall be enforced to the greatest extent possible.
15. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of California.
16. Choice of Venue. The venue for any disputes arising out of this Agreement shall be in the County of Orange. ATC waives any rights that it may have to removal under Code of Civil Procedure section 395.
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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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19. Signatures. By signing below, the Parties acknowledge that they have read, understood, and agree to all of the terms of this Agreement.
Dated: June 29, 2023 By:
Dated: June J.L_, 2023 By:
APPROVED AS TO FORM:
Dated: July 6 , 2023 By:
Dated: June .,S_, 2023 By:
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CITY OF SAN CLEMENTE
Andy Hall, City Man ger
AMERICAN TOWER MANAGEMENT,
LLC 4 i
Margaret R binson
--
Vice President, Legal Operations UST
American Tower Management, LLC
Elizabeth A. Mitchell
City Attorney for the City of San
Clemente
Emily L. Murr
Counsel to An-1-<a=.,,,..,.-
LLC