All small cell wireless telecommunications facilities must comply at all times with the following operation, license and maintenance standards:
A. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules, including, without limitation, those applying to use of the PROW. The permittee shall ensure that all equipment and other improvements to be constructed and/or installed in connection with the approved permit are maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that the aesthetic appearance is continuously preserved, and substantially the same as shown in the approved plans at all times relevant to the permit.
B. Permittee shall obtain a license for each location and pay the appropriate fees established in the most current fee schedule.
C. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent at its sole cost within forty-eight (48) hours:
1. After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or
2. After permittee, owner, operator or any designated maintenance agent receives notification from the City.
D. Insurance. The permittee shall obtain and maintain throughout the term of the permit and subsequent small cell site license a type and amount of insurance as specified by City's risk management office. The relevant policy(ies) shall name the City, its elected/appointed officials, commission members, officers, representatives, agents, and employees as additional insured. The permittee shall use its best efforts to provide thirty (30) days prior notice to the public works director of the cancellation or material modification of any applicable insurance policy.
E. Indemnities. The permittee and, if applicable, the owner of the property upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, and employees from: (i) any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, law suits, writs of mandamus, and other actions or proceedings brought against the City or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the City's approval of the permit, and (ii) any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, law suits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the private property owner or any of each one's agents, employees, licensees, contractors, subcontractors, or independent contractors. In the event the City becomes aware of any such actions or claims the City shall promptly notify the permittee and, if applicable, the private property owner and shall reasonably cooperate in the defense. The City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the property owner and/or permittee (as applicable) shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of defending such claims.
F. Performance Bond. Prior to issuance of an encroachment permit, the permittee shall file with the City, and shall maintain in good standing throughout the term of the equipment occupancy, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned, or the permit expires, or is revoked, or is otherwise terminated. The security shall be in the amount equal to one-hundred percent (100%) of the cost of removal of the facility as specified in the application for the permit or as that amount may be modified by the public works director in the permit based on the characteristics of the installation. The permittee shall reimburse the City for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the City Council. Reimbursement shall be paid when the security is posted and during each administrative review.
G. Adverse Impacts on Adjacent Properties. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility. All facilities, including each piece of equipment, shall be located and placed in a manner so as to not interfere with the use of the PROW, impede the flow of vehicular or pedestrian traffic, impair the primary use and purpose of poles/signs/traffic signals or other infrastructure, interfere with outdoor dining areas or emergency facilities, or otherwise obstruct the accessibility of the PROW.
H. Contact Information. Each permittee of a wireless telecommunications facility shall provide the public works director with the name, address and twenty-four hour (24-hour) local or toll-free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility (contact information). Contact information shall be updated within seven (7) days of any change.
I. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of:
1. Subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems (water, sewer, storm drains, gas, oil, electrical, etc.) that result from any activities performed in connection with the installation and/or maintenance of a wireless facility in the public right-of-way;
2. General dirt and grease;
3. Chipped, faded, peeling, and cracked paint;
4. Rust and corrosion;
5. Cracks, dents, and discoloration;
6. Missing, discolored or damaged artificial foliage or other camouflage;
7. Graffiti, bills, stickers, advertisements, litter and debris. All graffiti on facilities must be removed at the sole expense of the permittee within forty-eight (48) hours after notification from the City;
8. Broken and misshapen structural parts; and
9. Any damage from any cause.
J. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in a neat, safe and good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the public works director.
K. Any changes in equipment shall require a new permit.
L. Each facility shall be operated and maintained to comply at all conditions of approval. The permittee, when directed by the City, must perform an inspection of the facility and submit a report to the public works director on the condition of the facility to include any identified concerns and corrective action taken. Additionally, as the City performs maintenance on City-owned infrastructure, additional maintenance concerns may be identified. These will be reported to the permittee. The City shall give the permittee thirty (30) days to correct the identified maintenance concerns after which the City reserves the right to take any action it deems necessary, which could include revocation of the permit or license. The burden is on the permittee to demonstrate that it complies with the requirements herein. Prior to issuance of a permit under this chapter, the owner of the facility shall sign an affidavit attesting to understanding the City's requirement for performance of annual inspections, reporting and license renewal.
M. All facilities permitted pursuant to this chapter shall comply with the Americans with Disabilities Act.
N. The permittee is responsible for obtaining power to the facility and for the cost of electrical usage.
O. Failure to comply with the City's adopted noise standard after written notice and reasonable opportunity to cure have been given shall be grounds for the City to revoke the permit or license.
P. Interference.
1. The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the City shall be moved to accommodate a permitted activity or encroachment, unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City's structure, improvement, or property. Prior to commencement of any work pursuant to an encroachment permit, the permittee shall provide the City with documentation establishing to the City's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property within the PROW or City utility easement to be affected by the permittee's facilities.
2. The facility shall not damage or interfere in any way with City property, the City's operations or the operations of prior-existing, third-party installations. The City will reasonably cooperate with the permittee and/or carrier to carry out such activities as are necessary to correct the interference.
a. Signal Interference. The permittee shall correct any such interference within twenty-four (24) hours of written notification of the interference. Upon the expiration of the twenty-four-hour (24-hour) cure period and until the cause of the interference is eliminated, the permittee shall cease operation of any facility causing such interference until such interference is cured.
b. Physical Interference. The City shall give the permittee thirty (30) days to correct the interference after which the City reserves the right to take any action it deems necessary, which could include revocation of the permit.
3. The City at all times reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the sites. Such actions may temporarily interfere with the operation of the facility. The City will in all cases, other than emergencies, give the applicant thirty (30) days written notification of such planned, nonemergency actions. The City is not responsible for loss of use.
4. Radio Frequency Exposure Compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate radio frequency exposure standards. After transmitter and antenna system optimization, but prior to unattended operations of the facility, the permittee or its representative must conduct on-site post-installation radio frequency emissions testing to demonstrate actual compliance with the FCC Office of Engineering and Technology Bulletin 65 Radio Frequency emissions safety rules for general population/uncontrolled radio frequency exposure in all sectors. For this testing, the transmitter shall be operating at maximum operating power, and the testing shall occur outwards to a distance where the radio frequency emissions no longer exceed the uncontrolled/general population limit, a. Testing of any equipment shall take place on weekdays only, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.
5. Records. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition or fails to produce true and complete copies of such records within a reasonable time after a written request from the City, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.
6. Attorney's Fees. In the event the City determines that it is necessary to take legal action to enforce any of these conditions, or to revoke a permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorney's fees, incurred by the City, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the City should otherwise agree with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding.
(Ord. 2531 §2 (part); Ord. 2543 §2 (part))