HomeMy WebLinkAboutCROWN CASTLEINvURANOE NOT REQUIRED A-2018-311
WORK MAY PROCEED
CLERK OF COUNCIL
®QTc, FEB 0 5 2019
c(k 0 `j ) SETTLEMENT AGREEMENT AND MUTUAL RELEASE
-50\4I ✓ ', This Settlement Agreement and Mutual Release (the "Agreement") is entered into as of
December_, 2018 by and between CROWN CASTLE NG WEST LLC, a Delaware limited
liability company ("Crown Castle"); and CITY OF SANTA ANA, a charter city and municipal
corporation in the State of California (the "City"). Crown Castle and the City are occasionally
collectively referred to herein as the "Parties," or individually as a "Party." This Agreement is
being made by the Parties based upon the following recitals of facts:
RECITALS
A. WHEREAS, on September 5, 2017, Crown Castle filed ten (10) applications with
the City for permits authorizing the installation of Wireless Telecommunication Facilities
("WCFs") in the public right-of-way (the "Permit Applications") pursuant to and in accordance
with Chapter 33, Article X of the Santa Ana Municipal Code ("SAMC"). Pursuant to the Permit
Applications, Crown Castle sought to place ten (10) small cell nodes comprised of 2-8 inch radios
with integrated antennas on ten (10) new utility poles (each a 31 -foot tapered steel pole). The
Permit Applications are identified by the City as follows: SOC101-2800 N. Main Street; SOC102
- 2700 N. Main Street; SOC458 - 310 E. Memory Lane; SOC459 - 15241 E. Memory Lane;
S00007 - 1421 West 17t' Street; S00O26 -1011 N. Main Street; S00075 - 1356 E. McFadden
Avenue; S00054 - 1630 South Lyon Street; SOC273 - 3506 West Lake Center Drive; and
SOC268 - 3401 S. Harbor Boulevard.
B. WHEREAS, on September 28, 2017, after the City's initial review of the Permit
Applications, the City transmitted by email a notice of incompleteness dated September 28, 2017,
for each of the ten (10) Permit Applications; subsequently, Crown Castle responded by delivering
additional information by electronic mail on September 28, 2017 and hand -delivering hard copies
of additional information on September 29, 2017.
C. WHEREAS, on February 5, 2018, the City pursuant to SAMC Sec. 33-239(a)
transmitted denials of all ten (10) Permit Applications via individual denial letters from the City's
Public Works Agency (the "Denials").
D. WHEREAS, on or about March 26, 2018, Crown Castle transmitted a letter to the
City alleging that the Permit Applications were not lawfully denied, and were "deemed approved"
pursuant to California Government Code section 65964.1 (the "Crown Castle Letter").
E. WHEREAS, on or about April 25, 2018, the City filed an action seeking judicial
review of the alleged deemed approval in the matter of City of Santa Ana v. Crown Castle NG
West LLC, Case No. 30-2018-00988490-CU-MC-CJC (the "Action"). On June 22, 2018, the City
served the Complaint filed in the Action on Crown Castle. Following two orders extending time
for Crown Castle to file a responsive pleading, both granted to allow time for the negotiation of a
potential settlement, Crown Castle filed an Answer to the City's Complaint on October 22, 2018,
and a First Amended Answer on November 14, 2018. A Case Management Conference for the
Action has been set for January 11, 2019.
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F. WHEREAS, without either admitting or denying any fact or allegation, by this
Agreement, the Parties hereto have agreed to a process to fully and completely resolve all disputes
and claims that the Parties now have arising out of or relating to the Permit Applications, proposed
WCFs, and/or the Action.
G. WHEREAS, a declaratory ruling and order was adopted by the Federal
Communications Commission on September 26, 2018 In the Matter of Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-
79 and Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure
Investment, WT Docket No. 17-84 (the "FCC Order"), and the FCC Order is the subject of several
pending appeals in federal courts of appeal, and a reconsideration petition filed to the FCC. The
Parties agree and acknowledge that the FCC Order may have a future impact on rental amounts
due and owing under this Agreement, as set forth in detail herein.
NOW, THEREFORE, in consideration of the terms, conditions and covenants herein set
forth, the Parties hereto agree as follows:
AGREEMENT
1. Motion to Stay the Action. On or before January 11, 2019, the 'Parties will file a
joint request to stay the Action for six (6) months, to provide time for Crown Castle to submit new
information regarding the Permit Applications that were subject to the Denials and for the City to
review and act on such new information as set forth in this Agreement.
2. Re -Opening of Permit Applications & Review of Revised Applications. The
City will re -open the Permit Applications, accept and consider the New Information identified at
Section 3 hereof, and issue a determination in accordance with the modified timeline set forth at
Section 6 hereof. The Permit Applications, together with the New Information and the Further
Information (if any) submitted pursuant to this Agreement, shall be referred to as the "Revised
Permit Applications." For purposes of this Agreement alone, the City and Crown Castle agree
to toll the FCC shot clock applicable to the Permit Applications to allow for the City to act on the
Revised Permit Applications and, if necessary, the completion of any appeals. Further, for
purposes of this Agreement alone, the City hereby expressly waives any and all SAMC
requirements that would otherwise prohibit the City's review of the Revised Applications in
accordance with this Agreement.
3. Submittal of New Information. Within sixty (60) days of the Effective Date,
Crown Castle will submit to City, by personal delivery, the following documents related to the
Permit Applications (the "New Information"):
a. four (4) sets of modified plans showing:
i. the placement of the WCFs on 10 new street light poles to be installed by
Crown Castle and owned by the City in accordance with Section 10 of this
Agreement (the "City Poles") at the 10 locations mutually selected by the
Parties and identified on Exhibit A to this Agreement (the "Revised
Locations") rather than the original locations identified on the Permit
Applications (the "Original Locations");
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ii. the proposed design for the City Poles, using a design consistent with
Exhibit B to this Agreement;
b. three (3) sets of traffic control plans; however, this requirement shall be waived for
any Revised Locations on the same block as the Original Locations;
updated radio frequency emission reports or a stamped certification from a
California -registered engineer indicating that the proposed WCF equipment and
heights of the City Poles meet Federal Communications Commission (FCC)
requirements and guidelines;
d. permit inspection and issuance fees of $936.10 per site ($9,361.00 total), which
represent fees for the 2017-18 fiscal year; however, the Parties agree that all other
fees related to the Revised Permit Applications, including but not limited to those
identified at Section 5 of this Agreement, shall be waived; and
e. revised noticing materials in accordance with Section 4(b) of this Agreement.
4. Notice. In connection with the Revised Permit Applications, the Parties have
agreed that the notices pursuant to SAMC Sec. 33-239 shall be provided as follows:
a. Notices to owners of adjacent properties within a three -hundred foot radius of the
Revised Locations ("Adjacent Properties") shall be provided as follows:
Category 1 Revised Locations — New Application Notices Not Required
Lor Revised Permit. Applications; Courtesy Notice to be Provided if
Approved The Parties acknowledge and agree that for the following seven
(7) Revised Permit Applications, the Adjacent Properties to the Revised
Locations are the same as the Adjacent Properties to the Original Locations:
(1) SOC 101— 2800 N. Main Street; (2) SOC 102 — 2700 N. Main Street; (3)
S00007 — 1421 West 17a' Street; (4) S00O26 — 1011 N. Main Street; (5)
S00075 — 1356 E. McFadden Avenue; (6) SOC273 — 3506 West Lake
Center Drive; and (7) SOC268 — 3401 S. Harbor Boulevard (the "Category
1 Locations"). Accordingly, new application notices will not be provided
to owners of the Adjacent Properties to the Category 1 Locations. However,
Crown Castle acknowledges and agrees that for any Revised Permit
Applications for Category 1 Locations that are approved, the City's
approval will include, among other terms and conditions, a requirement that
Crown Castle provide a courtesy notice with a color photo simulation of the
approved WCF to the owners of the Adjacent Properties advising them of
the actual WCF that was approved.
ii. Category 2 Revised Locations —Application Notices Required for Revised
Applications. The Parties further acknowledge and agree that for the
following three (3) Revised Permit Applications, the Adjacent Properties to
the Revised Locations are materially different from the Adjacent Properties
to the Original Locations: (1) SOC459 —31.0 E. Memory Lane; (2) SOC459
—15241 E. Memory Lane; and (3) S00054 —1630 South Lyon Street (the
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"Category 2 Locations"). Accordingly, Crown Castle shall submit to the
City the following noticing materials for the Category 2 Locations: new
mailing labels for all Adjacent Properties; color photo simulations of the
proposed WCFs and City Poles; and radius maps for the new mailer. The
City shall then provide the notice required by SAMC Sec. 33-239 to the
owners of Adjacent Properties to the Category 2 Locations.
b. Application Notices shall be provided to neighborhood associations representing
residential properties in Category 2 Locations only. However, Crown Castle
acknowledges and agrees that for any Revised Permit Applications for Category 1
Locations that are approved, the City's approval will include, among other terms
and conditions, a requirement that Crown Castle provide a courtesy notice with a
color photo simulation of the approved WCP to the neighborhood associations
representing residential properties in the Category 1 Locations advising them of the
actual WCF that was approved.
c. Posting of a notice at the proposed installation site on the existing street light or
similar structure to be replaced, or as close thereto as reasonably possible shall be
required for Category 2 Locations only.
5. Fee Waivers. For the purposes of this Agreement only, the City will honor the
2017-18 fiscal year fees for permit inspection and issuance and will also waive the following fees:
(1) accrued and unpaid plan check fees for the Permit Applications in the amount of $9,493.12;
and (2) application fees for the Revised Permit Applications; and (3) plan check fees for reviewing
the New Information related to the Permit Applications.
6. Timeline for City Action on Revised Permit Applications.
a. Submittal of New Information by Crown Castle. Within sixty (60) days of the
Effective Date, Crown Castle will submit to City, by personal delivery, the New
Information listed at Section 3 of this Agreement. Within ten (10) calendar days of
submittal of the New Information related to the Permit Applications, the City will
tender any request for clarification or additional information to Crown Castle
("Further Information"). Crown Castle will provide the requested Further
Information, or a response regarding the timeline to prepare the same, within five
(5) calendar days of such request.
b. Revised Permit Applications Deemed Complete. The Revised Permit Applications
shall be deemed "complete" and the review periods set forth at Sections 6(c) and
6(d) below shall commence upon any of the following: (i) if the City does not timely
request Further Information, at the conclusion of the tenth calendar day following
Crown Castle's submittal of the New Information; or (ii) if the City does request
Further Information, upon the earlier of (x) City's receipt and written
acknowledgment that the Further information or (y) five (5) calendar days after
Crown Castle's submittal of the Further Information.
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c. City Review of Category 1 Applications. The City agrees that the executive
director of the public works agency, or his or her designee, ("Director," per SAMC
Sec. 33-231) will act on each Revised Permit Application for a Category I Location
within thirty (30) calendar days after the Revised Permit Application is deemed
complete according to Section 6(b).
d. City Review of Category 2 Applications. The City agrees the Director will act on
each Revised Permit Application for each Category 2 Location within sixty (60)
days after the Revised Permit Application is deemed complete according to Section
6(b); provided that, irrespective of whether a Revised Permit Application has
already been deemed complete according to Section 6(b), Crown Castle shall work
cooperatively with the City in accordance with SAMC Sec. 33-239 to consider or
otherwise respond to any comments on the Revised Permit Application received by
the Director within thirty (30) days from the date the corresponding notice required
by Section 4 is provided.
e. Appeals. In the event of any timely appeal of a decision on any of the Revised
Permit Applications, the City shall take final action on the appeal within the
timeframe set forth under the uniform hearing and appeal procedures set forth at
Chapter 3 of the SAMC. The City agrees and acknowledges that in the event the
Director conditionally approves or denies a Revised Permit Application, Crown
Castle shall retain all rights to appeal the denial or conditions imposed by the
Director in accordance with Chapter 3 of the SAMC.
f. Independent Review. The City's decision on each Revised Permit Application will
be made independently and will not impact the approval or denial of the other
Revised Permit Applications.
7. Impact of City Decision on Revised Permit Applications. The City can make no
guarantee or assurances that it will approve the Revised Permit Applications. However, the Parties
agree that an approval or denial of a Revised Permit Application or Applications will have the
following impact on the Parties' respective rights and the Action.
a. Director's Decisions. The Director shall issue a decision on each Revised Permit
Application. The City agrees and acknowledges Crown Castle shall have the right
under the SAMC to appeal those Director's decisions on the Revised Permit
Applications which are denials as well as any approvals which it believes include
conditions that vary materially from the proposed WCF included in the
corresponding Revised Permit Application.
b. Impact ol"City Approval of Seven or More Revised Permit Applications — Waiver
of Claims & Dismissal ofAction. If the City's final action on at least seven (7) of
the Revised Permit Applications is an approval, all the City's decisions replace the
Denials for all the corresponding sites and further, (i) Crown Castle will (a)
withdraw its 'Letter and (b) agree in writing not to invoke California Government
Code section 65964.1 with respect to either the Permit Applications or the Revised
Permit Applications; and (ii) City shall, within ten (10) business days of the
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expiration of the applicable appeal period(s), file a Request for Dismissal with
Prejudice of the Action, thereby terminating the Action.
c. Impact of City Approval of Less Than Seven Revised Permit Applications — No
Waiver or Dismissal. If the City's final action is to approve less than seven (7) of
the Revised Permit Applications, then the City's approval of a Revised Permit
Application will replace the Denial of the earlier Permit Application for that site.
With regard to any Revised Permit Applications denied by the City by final action
and any Denials that are not replaced by a final action on the corresponding Revised
Permit Application (the "Denied Sites"), the Parties shall reserve all arguments
with respect to the Denied Site, including but not limited to the claims and
arguments set forth in the Crown Castle Letter and the Complaint in the Action,
except for a denial (if any) of a Revised Permit Application that involves a public
hearing before a Hearing Officer on appeal. The Parties agree that any decision
on a Revised Permit Application made by a Hearing Officer at a noticed public
hearing is final and will replace the Denial of the earlier Permit Application for that
site.
d. The Parties further agree that, under either scenario outlined at subdivisions (b) and
(c) above, Crown Castle will retain the right to challenge any denial of a Revised
Permit Application on the merits, regardless of whether that denial is by final action
of the Director or of a Hearing Officer on appeal.
e. In the event, following City action on the Revised Permit Applications, claims
remain as to certain Denied Sites, the Parties will promptly make appropriate filings
to narrow the scope of the Action only to Denied Sites that remain the subject of
Denials. If there are no such Denied Sites, (i) Crown Castle will instead (a)
withdraw its Letter and (b) agree in writing not to invoke California Government
Code section 65964.1 with respect to either the Permit Applications or the Revised
Permit Applications; and (ii) City shall, within ten (10) business days of the
expiration of the applicable appeal period(s), file a Request for Dismissal with
Prejudice of the Action, thereby terminating the Action. Crown Castle shall retain
all rights and arguments described above with respect any of the Denied Sites until
the conclusion of any relevant appeals periods.
8. Decommissioning of Existing Poles at Revised Locations. The Parties agree and
acknowledge that there are existing poles located near to the Revised Locations as shown on
Exhibit A (the "Existing Poxes"), which are currently owned by Southern California Edison
("SCE") and are a part of SCE's ongoing "buy back" program, in which City is a participant. For
Revised Permit Applications that are approved, the Parties agree and acknowledge that SCE and/or
City will be responsible for completing the procedures required by the "buy back" program to
decommission the Existing Poles, and for removing the Existing Poles, separately and
independently from the installation of the City Poles at the Revised Locations by Crown Castle.
The Parties also agree to cooperate with regard to the decommissioning and removal of the
Existing Poles at such Locations. The Parties further agree that Crown Castle will have no
responsibilities or exposure to liability relating to any use, decommissioning, or removal of the
Existing Poles.
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9. Effective Date. The "Effective Date" of this Agreement shall be the date this
Agreement is signed by the last party to sign it.
10. Installation of City Poles and WCFs by Crown Castle. The Parties agree and
acknowledge that Crown Castle will place a new City Pole at each of the Revised Locations that
receives approval of the Revised Permit Application in accordance with the approved Revised
Permit Application and plans. The Parties agree that Crown Castle may proceed with installation
of the approved City Poles and associated WCFs prior to the completion of the decommissioning
and removal process of the Existing ,Poles by SCE or City, and that Crown Castle's installation of
such City Poles may proceed and remain in place regardless of the status or success of the
decommissioning process. Pursuant to a form mutually acceptable to the Parties, Crown Castle
will transfer ownership of the City Poles and any associated manufacturers warranties to the City
immediately upon installation at the Revised Locations.
11. Rent. Crown Castle will pay an annual rental fee to the City for the non-exclusive
use of space on all of the City Poles for the WCFs ("Annual Rent") in accordance with the
following terms and conditions:
a. Crown Castle will pay Annual Rent in the amount of $1,000 per year, per City Pole
with no escalation for an initial two (2) year term (the "Initial Term") commencing
on the date of installation of the first City Pole. The Annual Rent for the initial year
of the Initial Term shall be due and payable to the City within sixty (60) days after
the installation of the first City ,Pole. At the commencement of the Initial Term,
Crown Castle shall have the right, but not the obligation, to pre -pay the Annual
Rent for both years of the Initial Term.
b. At the conclusion of the Initial Tenn, the term will automatically extend for an
additional eight (8) years (the "Remaining Tenn"). Crown Castle shall have the
right but not the obligation to further extend the Remaining Term for up to two (2)
additional five (5) year periods (each a "Renewal Term") by providing written
notice to the City at least ninety (90) days prior to the expiration of the then -current
term; provided that Crown Castle has no uncured defaults under this Agreement as
of the date each such Renewal Term would go into effect.
c. At the conclusion of the Initial Term, the Parties agree that for the duration of the
Remaining Term, and any Renewal Terms, Crown Castle will pay the following
amount of Annual Rent:
i. if the FCC Order is final and effective (as evidenced by a final non -
appealable order of a court of competent jurisdiction upholding the FCC
Order) at the conclusion of the Initial Term, the amount of "fair and
reasonable compensation" under Section 253(c) of the Communications Act
that is permitted by the FCC Order per year, per City Pole; or
ii. if, at the conclusion of the Initial Term, the appropriate rental amount that
complies with the FCC Order is unclear, or the FCC Order is not final and
effective (as evidenced by a final non -appealable order of a court of
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competent jurisdiction upholding the FCC Order) — the amount of $1,000
per year, per City Pole, with no escalation.
12. City Poles — Crown Castle Responsibilities.
a. Installation (?f Luminaires. Crown Castle will install luminaires on each of the City
Poles (the "Luminaires") for the purpose of providing light within the public right-
of-way areas surrounding the Revised Locations. The Parties will cooperate in
designating the type of luminaire appropriate for the City Poles and agree that the
WCF installation design will be generally consistent with the concept photos
attached hereto as Exhibit B; or if those are technically infeasible, with an
alternative design approved by the City. The Parties agree that Exhibit B is
intended to provide conceptual examples of the appropriate design for the WCF
installations, and that actual specifications for the same will be included in the
design drawings submitted to the City.
b. Provision of Electrical Power to WCFs and Luminaires. Crown Castle further
agrees that it will, at its sole cost and expense, be responsible for the provision of
electrical power to the WCFs and Luminaires. No above -ground meter pedestal
will be installed unless unmetered power is technically infeasible or unviable due
to SCE policy or requirements. The Parties shall work together to negotiate a flat
Wireless Technologies Rate ("WTR") or similar unmetered rate or rates for the
WCFs and Luminaires with SCE. If an unmetered solution is not possible or
permitted by SCE, the Parties will agree upon an appropriate alternative solution
for providing electrical power to the WCFs and Luminaires.
c. Maintenance & Inspections. Crown Castle hereby agrees that it will maintain the
WCFs and City Poles in accordance with Section 13 of this Agreement. Crown
Castle may conduct, at its sole expense, routine inspections of the WCFs and
supporting structures.
d. Reservation of Rights. Crown Castle reserves the right to operate and maintain its
WCFs, to discontinue such maintenance, and to remove its WCFs from the City
Poles, in the manner it deems best to fulfill its own service requirements, and its
public, employee and worker safety obligations.
e. Right of Way Access. To the extent not already governed by applicable law, the
City hereby grants access to public rights-of-way as necessary for Crown Castle to
conduct the installation, operation, maintenance, and inspection responsibilities for
the WCFs, City Poles, and Luminaires as required by this Agreement or any
condition to the Revised Permit Application approvals.
13. Maintenance of WCFs, City Poles, & Luminaires. Crown Castle hereby agrees
that itwill maintain the WCFs and City Poles in good condition, appearance and operation, and in
compliance with all applicable state, county, city, or government agency laws, ordinances and
requirements now in force or hereafter enacted (the "Applicable Laws"). Crown Castle, at Crown
Castle's sole expense, shall whenever required, promptly make all repairs, replacements,
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alterations, or improvements to the WCFs and/or City Poles needed to comply with the Applicable
Laws or the requirements of this Agreement. Crown Castle must take action promptly to correct
any conditions related to the WCFs and/or City Poles that threaten the public health or safety. If
Crown Castle fails to do so, City may step in and take corrective action at Crown Castle's expense.
The Parties acknowledge and agree that during the term set forth in Section 11, Crown Castle shall
have the non-exclusive right to install, operate, maintain, modify, and/or repair the WCFs, and the
exclusive obligation to install, operate, maintain, modify, and/or repair the City Poles.
Notwithstanding the foregoing sentences, Crown Castle understands and agrees that it may not
modify the appearance of the approved WCFs, Luminaires, or City Poles without obtaining the
prior written approval from the Director or his designee, said approval not to be unreasonably
withheld. City may require Crown Castle to relocate, at the City's sole cost and expense, any City
Pole, along with the associated Luminaire and WCF, upon ninety (90) days' prior written notice
to Crown Castle, whenever City reasonably determines that the relocation is needed for any of the
following purposes: (a) if required for the construction, modification, repair, relocation, or
maintenance of a City or other public agency project; (b) because the WCF is interfering with or
adversely affecting proper operation of City facilities; or (c) to protect or preserve the public health
or safety. In any such case, City shall use reasonable efforts to afford Crown Castle a reasonably
equivalent alternate location for the City Pole. The Parties agree that Crown Castle shall be
responsible for installation and the cost of powering of the Luminaires, and all other
responsibilities relating to these fixtures shall be the responsibility of the City. The City
understands and agrees that following installation of the Luminaires on the City Poles by Crown
Castle, including any re -installation of a Luminaire that may be required during the term of this
Agreement due to destruction of the City Pole and replacement of that City Pole, all other
responsibility for the maintenance, repairs, light/fixture/part replacements, alterations, or
improvements to the Luminaires shall be the responsibility of the City.
14. Termination of Use of City Poles. Crown Castle shall have the right to terminate
its use of any City Pole upon thirty (30) days' written notice to City and compliance with this
section. If City determines that Crown Castle has violated its obligations under Section 10, 11, 12
or 13 of this Agreement with respect to one or more WCFs, Luminaires, and/or City Poles, City
shall have the right to terminate Crown Castle's use of any affected City Pole if Crown Castle does
not cure such violation within sixty (60) days following written notice. This sixty (60) day cure
period shall not apply to violations that affect the public health or safety. In the event of any
termination of Crown Castle's right to use any City Pole, City shall return any annual rent already
paid for use of the City Pole following the date of removal of the WCF, and within thirty (30) days
after such termination of use of the City Pole, Crown Castle shall safely remove the WCF from
the applicable City Pole (and the associated meter, if any), and repair any damage caused by such
removal. Once the WCF is removed in accordance with this provision, or upon final removal of
all WCFs at the termination of this Agreement, Crown Castle shall no longer be responsible for
the City Poles and Luminaires or payment of Annual Rant.
15. Attorneys' Fees and Costs. The Parties shall bear their own attorneys' fees and
costs expended in the litigation of the Action and in the preparation of this Agreement.
16. City's Release. Except for the obligations set forth herein, City, on behalf of City
and its respective officers, agents, employees, representatives, successors and assigns ("City
Releasors"), and each of them, shall and hereby do relieve, release, exonerate and forever discharge
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each person or entity comprising Crown Castle and each of their respective officers, directors,
shareholders, members, managers, partners, trustees, attorneys, employees, agents, beneficiaries,
nominees, affiliates, predecessors, successors and assigns, and each of them (collectively, the
"Crown Castle Released Parties"), from any and all claims, debts, liabilities, obligations, costs,
fees (including attorneys' or consultants' fees and costs), penalties, fines, judgments, damages,
rights, demands, liens, covenants, warranties, suits, actions, and/or causes of action of whatever
nature, known or unknown, fixed or contingent, which arise out of or relate to the Permit
Applications, Revised Permit Applications, WCFs, and/or the Action which may exist in favor of
City Releasors and against the Crown Castle Released Parties as of the date of this Agreement.
This release expressly includes claims with respect to the subject matter of the Action, of which
City Releasors are presently unaware or which City Releasors do not presently suspect to exist
which, if known by City Releasors, would materially affect City Releasors' release to the Crown
Castle Released Parties. City, and to the extent allowable by law, City Releasors, expressly waive
any of their rights granted under California Civil Code section 1542 (as well as any other statutes
or common law principles of similar effect pertaining the foregoing release), which provides as
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR"
City represents and warrants to Crown Castle that City has executed this Agreement with
full knowledge of any and all rights which City or City Releasors may have by reason of any of
the matters described herein. City, on behalf of itself and, to the extent allowable by law, on behalf
of City Releasors, hereby further assumes the risk of mistake of fact in connection with the true
facts involved in connection with the matters described herein, and with respect to any facts which
are now unknown to City relating thereto.
17. Crown Castle's Release. Except for the obligations set forth herein, Crown Castle,
on behalf of Crown Castle and Crown Castle's respective officers, directors, shareholders,
members, managers, parent companies, subsidiary companies, partners, employees, agents,
attorneys, nominees, predecessors, successors and assigns ("Crown Castle Releasors"), and each
of them, shall and hereby do relieve, release, exonerate and forever discharge City and each of its
respective officers, agents, employees, representatives, successors and assigns, and each of them
(collectively, the "City Released Parties"), from any and all claims, debts, liabilities, obligations,
costs, fees (including attorneys' or consultants' fees and costs), penalties, fines, judgments,
damages, rights, demands, liens, covenants, warranties, suits, actions, and/or causes of action of
whatever nature, known or unknown, fixed or contingent, which arise out of or relate to the Permit
Applications, Revised Permit Applications, WCFs, and/or the Action which may exist in favor of
Crown Castle Releasors and against the City Released Parties as of the date of this Agreement.
This release expressly includes claims with respect to the subject matter of the Action of which
Crown Castle Releasors are presently unaware or which Crown Castle Releasors do not presently
suspect to exist which, if known by Crown Castle Releasors, would materially affect Crown Castle
Releasors' release to the City Released Parties. Crown Castle, and to the extent allowable by law,
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the Crown Castle Releasors, expressly waive any of their rights granted under California Civil
Code section 1542 (as well as any other statutes or common law principles of similar effect
pertaining the foregoing release), which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR"
Crown Castle represents and warrants to City that Crown Castle has executed this
Agreement with full knowledge of any and all rights which Crown Castle or Crown Castle's
Releasors may have by reason of any of the matters described herein. Crown Castle, on behalf of
itself and, to the extent allowable by law, on behalf of Crown Castle's Releasors, hereby further
assumes the risk of mistake of fact in connection with the true facts involved in connection with
the matters described herein, and with respect to any facts which are now unknown to Crown
Castle relating thereto.
GENERAL PROVISIONS
18. Attorneys' Fees and Costs for Future Enforcement or Dispute Over This
Agreement. Should any dispute arise between the Parties hereto or their legal representatives,
successors and assigns concerning any provision of this Agreement or the rights and duties of any
person in relation thereto, the party prevailing in such dispute shall be entitled, in addition to such
other relief that may be granted, to recover reasonable attorneys' fees and legal costs in connection
with such dispute.
19. Informed Consent. Crown Castle represents and warrants to City, and City
represents and warrants to Crown Castle, and the Parties agree with the other, that each Party has
either received independent legal advice from its counsel or has been given the option to receive
independent legal advice from their respective counsel with respect to the advisability of malting
the settlement provided for herein, and with respect to the advisability of executing this Agreement
and the respective Releases; and each of the undersigned further declare that they understand the
contents hereof, and it is executed voluntarily with full knowledge of its significance.
20. No Admission of Liability. The Parties hereto agree that this Agreement and
Release is a compromise settlement of a disputed claim and shall not be construed as an admission
of liability by any Party. This Agreement and Release shall not be asserted or relied upon as
evidence in any arbitration, litigation, or other administrative or court proceedings for any purpose
except to enforce its terms.
21. Choice of Law/Venue. This Agreement shall be governed by and construed under
the laws of the State of California. If any provision of this Agreement is invalid or contravenes
California law, such provision shall be deemed not to be a part of this Agreement and shall not
affect the validity or enforceability of the remaining provisions. Nothing contained herein shall
be construed so as to require the commission of any acts contrary to law, and wherever there is a
1129494.1 I/LA
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conflict between any provisions of this Agreement and any present or future statute, law, ordinance
or regulation, the former shall be curtailed and limited only to the extent necessary to make it
comply with such statute, law, ordinance or regulation. Any action arising out of this Agreement,
or the matters addressed herein, shall be brought within the Superior Court for the State of
California, County of Orange.
22. Construction and Interpretation. The Parties hereto agree that this Agreement
and Release shall be construed and interpreted in accordance with the laws, rules and regulations
of the State of California. The headings in this Agreement and Release are inserted for
convenience only and shall not be deemed a part of this Agreement for construction or
interpretation.
23. Counterparts. This Agreement may be executed in counterparts, including
signatures of any party to a counterpart which is delivered by fax or email, each of which shall be
deemed an original, but such counterparts, when taken together, shall constitute one agreement.
24. Successors and Assigns. Except as otherwise set forth herein, this Agreement shall
be binding upon and inure to the benefit of the Parties and their respective heirs, beneficiaries,
legal representatives, successors and assigns.
25. Integrated Agreement. This Agreement expresses the entire agreement of the
Parties hereto relating to the claims released herein. There are no other agreements, written or
oral, express or implied, between the Parties, and/or their successors and assigns, with respect to
the matters released herein.
26. Modification. This Agreement may not be altered, amended or modified in any
respect except by written agreement of the Parties, duly executed by the Party or Parties to be
charged.
27. Authority. Each individual executing this Agreement represents, warrants and
certifies that he or she has full power and authority to execute and bind his or her respective
principal and his or her execution of the Agreement is valid and enforceable against the principal
in accordance with its terms.
28. Further (Documents. The Parties hereto agree to execute and deliver such other
additional documents as may be required to effectuate each of the terms of this Agreement.
29. Notices. All notices which shall or may be given pursuant to this Agreement shall
be in writing and delivered personally or transmitted (a) through the United States mail, by
registered or certified mail, postage prepaid; or (b) by means of prepaid overnight delivery service,
addressed as follows:
if to City:
City of Santa Ana
Executive Director of Public Works
20 Civic Center Plaza
Santa Ana, CA 92701
1129494.11/LA
377510-00002/12-19d8/,1nA,b -12-
With copy to:
City Attorney (same address)
if to Crown Castle:
Crown Castle NG West LLC
c/o Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
Attn: Ken Simon, General Counsel
With a copy to:
Crown Castle NG West LLC
c/o Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
Attn: SCN Contracts Management
Notices shall be deemed given upon receipt in the case of personal delivery, three days after deposit
in the mail, or the next business day in the case of facsimile, email, or overnight delivery. Either
party may from time to time designate any other address for this purpose by written notice to the
other party delivered in the manner set forth above.
[SIGNATURES FOLLOW]
t 129494 1 VLA
377510-00002/12-19-18/elm/bh -13-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year first above written.
—P,
s
is
f��
Norma Mitre
Acting Clerk of the Council
"CROWN CASTLE":
CROWN CASTLE NG WEST LLC, a Delaware
limited liability company
By: /
Name: Vw?Ry /t*stc✓Z
Title: PIRee- bg 01061 0133
"CITY":
CITY OF SANTA ANA, a charter city and
municipal corporation in the State of California
By: �a —AA�
Name: 'aWt.v tnAev -rA
Title: Ac-lhaa e—al hno "a c - y�-
APPROVED AS TO FORM
LI iMtOk. AuiMut City Atlooey
1129494.1 VLA
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EXHIBIT A
Locations
Crown
Node Site ID 2017 Lat 2018 Lat
ID
2018 Long Street Address/Cross Street
S00007
Gold 27
33.76015
33.76017
-117.88791
1421 West 17th Street
S00O26
Gold 30
33.75341
33.75343
-117.86703
1011 North Main Street
S00054
IE09_003
33.72553
33.72553
-117.84528
1630 South Lyon Street
S00075
IE09 025
33.73357
33.73357
-117.85164
1356 East McFadden Avenue
SOC101
IE09 051
33.77425
33.77422
-117.86717
2805 North Main Street
SOC102
IE09 052
33.77355
33.77352
-117.8672
2753 North Main Street
SOC268
IE10 001
33.70163
33.70164
-117.91939
3599 South Harbor
SOC273
IE10 003A
33.69915
33.69913
-117.91723
3562 West Lake Center Dr.
SOC458
IE09_049
33.77295
33.77298
-117.8647
310 East Memory Lane
SOC459
IE09_050
33.77342
33.77342
-117.86287
15241 East Memory lane
1129494 11 LA EXHIBIT A
377510-00002/12-19-18/eIMbsb -I-
Design 1 (Preferred): Side -Mounted Node Attachment
1129494.1 LL.4 EXHIBIT B
379510-00002/12-19-19 d.bsb -2-
Design 2 (Alternative): Pole Top Canister
11'9414 11 i LXI IIBI I B
-.?-
Design 2 (Alternative): Pole Top Canister
1129494_II/LA EXHIBIT B
377510-00002/12-19-18/elm/bsb -4-