HomeMy Public PortalAboutAgreement_2015-12-24_New Cingular Wireless PCS, LLC_AT & T_Tolling AgreementTOLLING AGREEMENT
This Tolling Agreement ("Agreement") is made and entered into this day of December,
2015 ("Effective Date") by and between New Cingular Wireless PCS, LLC, a Delaware limited
liability company d/b/a AT&T Mobility ("AT&T") and Temple City, a political entity of the
state of California ("City").
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A. AT&T has filed an application with the City for a permit to construct a wireless
telecommunications facility at 5319 Halifax Road, City File No. 130000714 ("Application"). The
Application does not seek a collocation.
B. On April 23, 2014, the City Planning Commission held a hearing on AT&T's
Application. At the conclusion of this hearing, the Planning Commission did not vote on the
Application. Instead, the Planning Commission requested AT&T to revise the Application in
order to provide a different design for the wireless telecommunications facility.
C. Subsequent to the Planning Commission's request, City staff sent AT&T a notice that the
Application would be deemed incomplete until the revisions were submitted.
D. Notwithstanding the foregoing, the City has determined that the status of the Application
exempts it from that certain moratorium adopted by the City on January 20, 2015 and extended
on February 17, 2015, which moratorium prohibits the siting and processing of applications for
the siting of wireless telecommunications facilities within the City for the purpose of allowing
the City to enact reasonable regulations relating to such siting and processing.
E. In response to the Planning Commission's request for differing design for the facility
requested by the Application, AT&T has submitted revised drawings and other materials for a
different design for its wireless telecommunications facility under the Application. The City is
processing the revised Application and will set the matter for hearing before the Planning
Commission.
F. The federal Telecommunications Act of 1996 ("Act") requires that local governments act
on wireless siting applications "within a reasonable period of time." 47 U.S.C. § 332(c)(7)(B)(ii).
In a 2009 declaratory ruling, the Federal Communications Commission established a legal
presumption that a `reasonable period of time" means 90 days to act on an application to
collocate a wireless facility or 150 days to act on any other request to install a wireless facility
(the "shot clock"). See In Re: Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B) to Ensure Timely Siting Review, Etc., FCC 09-99 (FCC November 18, 2009) (the
"Ruling"). Under the Ruling, the applicable shot clock may be tolled by mutual agreement of the
applicant and the jurisdiction in order to resolve issues cooperatively.
G. The Act states that "[a]ny person adversely affected by any final action or failure to act
by a State or local government or any instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or failure to act, commence an action in any
court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v).
H. Because AT&T and the City have been working cooperatively toward a resolution of the
Application, and because AT&T and the City prefer to avoid unnecessary litigation without
either party risking the loss of important rights, AT&T and the City wish to enter into a tolling
agreement to define the reasonable period of time within which the City will resolve the
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Application, including holding a Planning Commission hearing on the Application and, if
necessary, an appeal hearing before the City Council.
NOW, THEREFORE, the parties agree as follows:
1. To allow for the Application, as revised, to be heard by Planning Commission, and to
allow any subsequent appeal to the City Council to be heard, the parties agree that (a) the
Planning Commission's decision will be the City's final action on the Application if not
appealed; and (b) if the Planning Commission's decision is appealed, the City Council's decision
on appeal will be the "final action" on the Application. The parties agree that the City shall take
"final action," on or before April 1, 2016. The parties agree that no limitations period under
state or federal law for any claim by AT&T shall commence to run before the applicable "final
action" date.
2. If the City has not taken final action on the Application by April 1, 2016, this Agreement
shall not be construed as an admission by the City that such failure to act is unreasonable or
unlawful, nor shall it be construed to waive or otherwise impair the rights of AT&T with respect
to any such claim, including AT&T's right to file an "unreasonable delay" claim under 47
U.S.C. 332(c)(7)(B) within 30 days following April 1, 2016.
3. This Agreement may be executed in counterparts and facsimile/PDF, each of which shall
be deemed an original. The individuals whose signatures appear below on behalf of each party
are authorized to execute this Agreement on behalf of the respective parties and to bind them to
the terms thereof.
IN WITNESS WHEREOF, the Parties hereto have set their hands and caused this Agreement to
be effective as of the Effective Date written above.
SO AGREED:
New Cingular Wireless PCS LLC, a
Delaware limited liability company dba
AT&T Mobility
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Temple City, a political entity of the state of
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December 24, 2015
9701 LAS TUNAS DRIVE • TEMPLE CITY • CALIFORNIA 91780-2249 • (626) 285-2171
New Cingular Wireless
Andrew Hollihan
1452 Edinger Avenue, 3=d Floor
Tustin, CA 92780
Dear Andrew Hollihan:
Attached are signed originals of the Tolling Agreement between New Cingular Wireless PCS, LLC,
d/b/a AT&T Mobility and City of Temple City. Please fill in the effective date of the Tolling Agreement
at the time it is fully executed.
Please mail back one copy of the fully executed Tolling Agreement to City of Temple City, Attn: City
Clerk, 9701 Las Tunas Drive, Temple City, CA.
Should you have any questions, please do not hesitate to call Bryan Cook, City Manager, at (626) 285-
2171.
Sincerely,
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City Clerk