Condition(s) of approval for the application shall assure compliance with the applicable provisions of federal, state and local laws, assure compatibility with surrounding properties and uses, and protect the public health, safety and general welfare. Except as may be authorized in this Section 15.53.100, Subsection B (“Modified Conditions”) below, all Wireless Permit issued under this code shall be automatically subject to the conditions in the following subsection (A). The Director may amend these conditions to comply with federal, state and local laws.
A. Standard Conditions.
1. Compliance with Plans. The use shall be limited to the project approved by the City in writing on (approval date). Any wireless device modification including collocating on/with the facility approved under this application, shall be subject to Director review and may require an amendment to the permit, subject to either staff or Planning Commission approval, depending on the nature of the proposed change.
2. Permit Term. This permit will automatically expire ten years and one day from its issuance unless (1) the City makes finding of public safety reasons or substantial land use reasons to justify a specified shorter duration or (2) California Government Code Section 65964(b) is revised to establish a presumptive period shorter than ten years in which case the period shall be automatically reduced to that shorter period. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law (including any “eligible facilities request”), will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.
3. Permit Renewal. Not more than one year before this Wireless Permit expires, the permittee (hereafter, a permittee shall mean permittee or its successors) may apply for permit renewal. The permittee must demonstrate that the subject wireless facility or other infrastructure deployment complies with all the conditions of approval associated with this Wireless Permit and all applicable provisions in the Fullerton Municipal Code that exist at the time the decision to renew or not renew is rendered. The Director may modify or amend the conditions on a case-by-case basis as may be necessary or appropriate to ensure compliance with the Fullerton Municipal Code, this Code or other applicable law. Upon renewal, this Wireless Permit will automatically expire ten years and one day from its issuance.
4. Post-Installation Certification. Within 60 calendar days after the permittee commences full, unattended operations of a wireless facility or other infrastructure deployment approved or deemed-approved, the permittee shall provide the Director with documentation reasonably acceptable to the Director that the wireless facility or other infrastructure deployment has been installed and/or constructed in strict compliance with the approved construction drawings and applicable FCC requirements. (See Section 15.53.040.A.7 for applicable requirements). Such documentation shall include without limitation GIS data and site photographs. Such documentation shall also include a report from a California licensed electrical engineer confirming that on-site RF testing was completed after the permittee commenced full, unattended operations and which testing confirmed compliance with all applicable RF requirements and the RF compliance report.
5. Build-Out Period. This Wireless Permit will automatically expire 18 months after the approval date unless the permittee commences construction within that period or the Director grants, in writing, one extension of time for a period of not more than six months. The applicant shall request an extension pursuant to this subdivision in writing and demonstrate justifiable cause for the extension. If this build-out period expires, the permit shall be automatically void but the permittee may immediately or thereafter submit a new and complete application, including all application fees, for the same or substantially similar project.
6. Site Maintenance. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved construction drawings and all conditions in the Wireless Permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism or remediate conditions that violate the permit at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred. Applicant shall obtain an Encroachment Permit from the Public Works Department for any work on public rights-of-way, as determined by the Director.
7. Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the wireless facility or other infrastructure deployment or any use or activities in connection with the use authorized in this Wireless Permit, which includes without limitation any laws applicable to human exposure to RF emissions. If the City determines that the wireless facility is operating in violation of applicable RF emission standards, the facility shall immediately shut down and not re -start operations until the city confirms that the facility has been returned to full compliance with federal RF emission standards. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee’s obligations to maintain compliance with all laws. No failure or omission by the City to timely notice, prompt or enforce compliance with any applicable provision in the Fullerton Municipal Code, any permit condition or any applicable law or regulation, shall be deemed to relieve, waive or lessen the permittee’s obligation to comply in all respects with all applicable provisions in the Fullerton Municipal Code, any permit, any permit condition or any applicable law or regulation.
8. Adverse Physical Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue or unnecessary adverse physical impacts on nearby properties that may arise from the permittee’s or its authorized personnel’s construction, installation, operation, modification, maintenance, repair, removal and/or other activities on or about the site. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction work hours authorized by the Fullerton Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons or any work during an emergency declared by the City or other state or federal government agency or official with authority to declare an emergency within the City. The Director may issue a stop work order for any activities that violates this condition in whole or in part. Permittee agrees to fully cooperate with the City in assisting the City to achieve its accommodation obligations under the Americans with Disabilities Act, the Fair Housing Act Amendments of 1988 and other applicable laws.
9. Inspections, Emergencies. The Permittee expressly acknowledges and agrees that the City’s officers, officials, staff, agents, contractors or other City designees may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee. Notwithstanding the prior sentence, the City’s officers, officials, staff, agents, contractors or other City designees may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to persons or property. The permittee, if present, may observe the City’s officers, officials, staff or other designees while any such inspection or emergency access occurs.
10. Permittee’s Contact Information. Within ten days from the final approval, the permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the wireless facility or other infrastructure deployment, which includes without limitation such person’s full name, title, direct telephone number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times and promptly provide the City with updated contact information if either the responsible person or such person’s contact information changes. Such contact information shall be made publicly available on the City website to permit the public to contact the site operator to address any concerns, including but not limited to, excess noise. The Permittee shall display its contact information on the pole.
11. Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility or other infrastructure deployment is installed shall defend, indemnify and hold harmless the City, City Council and the City’s boards, commissions, agents, officers, officials, employees and volunteers (collectively, the “indemnitees”) from any and all (i) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, lawsuits, writs and other actions or proceedings (“claims”) brought against the indemnitees to challenge, attack, seek to modify, set aside, void or annul the City’s approval of this Wireless Permit and (ii) other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee’s or its agents’, directors’, officers’, employees’, contractors’, subcontractors’, licensees’ or customers’ acts or omissions in connection with Wireless Permit or the wireless facility or other infrastructure deployment. In the event the City becomes aware of any claims, the City will use best efforts to promptly notify the permittee and the private property owner (if applicable) and shall reasonably cooperate in the defense. Permittee agrees that 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 promptly reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. Permittee agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the City to approve this Wireless Permits, and that such indemnification obligations will survive the expiration, revocation or other termination of this Wireless Permit.
12. Surety Bond. Before the City issues any permits required to commence construction in connection with this permit, the permittee shall post a bond from a surety company authorized to transact business in the State of California in a form acceptable to the Director in an amount equal to the estimated amount of performing the work, plus 50%, to cover the cost to remove the improvements, restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities or other infrastructure removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws, including any street cuts or pavement restoration requirements. In establishing or adjusting the bond amount required under this condition, the Director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility or other infrastructure deployment to a standard compliant with applicable laws. The bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility or other infrastructure deployment in accordance with this condition.
13. Permit Revocation. Any permit granted under this code may be revoked in accordance with the provisions and procedures of Municipal Code Section 15.70.090 (“Revocation”) except that references to a conditional use permit shall be considered references to a wireless permit.
14. Record Retention. Throughout the permit term and for a period of four years after the expiration or earlier termination of the permit, the permittee must maintain a complete and accurate copy of the written administrative record, which includes without limitation the Wireless Permit application, Wireless Permit, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval, any ministerial permits or approvals issued in connection with this approval and any records, memoranda, documents, papers and other correspondence entered into the public record in connection with the Wireless Permit (collectively, “records”). If the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved by inspecting the missing records will be construed against the permittee. The permittee shall protect all records from damage from fires, floods and other hazards that may cause deterioration. The permittee may keep records in an electronic format provided that hard copies or electronic records kept in the City’s regular files will control over any conflicts between such City-controlled copies or records and the permittee’s electronic copies and complete originals will control over all other copies in any form. The requirements in this condition shall not be construed to create any obligation to create or prepare any records not otherwise required to be created or prepared by other applicable laws. Compliance with the requirements in this condition shall not excuse the permittee from any other similar record-retention obligations under applicable law.
15. Abandoned Facilities and Cessation of Operation. The wireless facility or other infrastructure deployment authorized under this Wireless Permit shall be deemed abandoned if not operated in its permitted manner for any continuous six-month period. Within 90 days after a wireless facility or other infrastructure deployment is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the wireless facility or other infrastructure deployment and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Fullerton Municipal Code. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said 90-day period, the City shall have the right (but not the obligation) to perform such removal and restoration with or without notice and the permittee and property owner shall be jointly and severally liable for all costs and expenses incurred by the City in connection with such removal and/or restoration activities. The Permittee shall obtain a separate encroachment permit from the Public Works Department for any work related to the abandonment of existing wireless facilities.
16. Landscaping. The permittee shall protect existing street tree(s) and not impact its growth patterns. The permittee shall replace any landscape features damaged or displaced by the construction, installation, operation, maintenance or other work performed by the permittee or at the permittee’s direction on or about the site. If any trees are damaged or displaced, as determined by the City, the permittee shall hire and pay for a licensed arborist to select, plant and maintain replacement landscaping in an appropriate location for the species, subject to Chapter 9.06 (“Community Forestry”), and especially Section 9.06.100 (“Alteration and removal of street trees”). See also Chapter 15.50 (“Landscaping and Irrigation Requirements”). Only workers under the supervision of an International Society of Arboriculture certified arborist shall be used to install the replacement tree(s).
17. Cost Reimbursement. The permittee acknowledges and agrees that (i) the permittee’s request for authorization to construct, install and/or operate the wireless facility will cause the City to incur costs and expenses; (ii) the permittee shall be responsible to reimburse the City for all reasonable costs incurred in connection with the permit, which includes without limitation costs related to application review, plan checking, permit issuance, site inspection and any other costs reasonably related to or caused by the request for authorization to construct, install and/or operate the wireless facility or other infrastructure deployment, including any third party costs; (iii) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the City for all such costs ten days after a written demand for reimbursement and reasonable documentation to support such costs and (iv) the City shall have the right to withhold any permits or other approvals in connection with the wireless facility until and unless any outstanding costs have been reimbursed to the City by the permittee.
18. Underground Equipment. Unless infeasible, no above-ground accessory equipment is allowed on the surface of the public Right-of-Way. Accessory equipment which is to be undergrounded must be installed within the parkway landscaped or hardscaped area in a flush to grade underground vault that is load-rated to meet disabled access and City standards, if applicable. Pull boxes must be installed with approved traffic lids. Underground vaults must be constructed with a slip -resistant cover. Vaults shall be placed within landscaped parkways where such area exists. All new construction must meet current disabled access requirements and City standards.
19. Future Undergrounding Programs. Notwithstanding any term remaining on any Wireless Permit, if other utilities or communications providers in the public rights-of-way underground their facilities in the segment of the public rights-of-way where the permittee’s small wireless facility or other infrastructure deployment is located, the permittee must also underground its equipment, except the antennas and any approved electric meter, at approximately the same time. Accessory equipment such as radios and computers that require an environmentally controlled underground vault to function shall not be exempt from this condition. Small wireless facilities and other infrastructure deployments installed on wood utility poles that will be removed pursuant to the undergrounding program may be reinstalled on a streetlight that complies with the City’s standards and specifications. Such undergrounding shall occur at the permittee’s sole cost and expense except as may be reimbursed through tariffs approved by the state public utilities commission for undergrounding costs.
20. Electric Power Meters. If the commercial electric utility provider has or in the future adopts or changes its rules obviating the need for a separate or ground-mounted electric meter and enclosure, including but not limited to the use of an unmetered connection to the electrical power grid, the permittee on its own initiative and at its sole cost and expense shall remove the separate or ground-mounted electric meter and enclosure. Prior to removing the electric meter, the permittee shall apply for any encroachment and/or other ministerial permit(s) required to perform the removal. Upon removal, the permittee shall restore the affected area to its original condition that existed prior to installation of the equipment.
21. Rearrangement and Relocation. The permittee acknowledges that the City, in its sole discretion and at any time, may: (A) change any street grade, width or location; (B) add, remove or otherwise change any improvements in, on, under or along any street owned by the City or any other public agency, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications and/or (C) perform any other work deemed necessary, useful or desirable by the City (collectively, “City work”). The City reserves the rights to do any and all City work without any admission on its part that the City would not have such rights without the express reservation in this Wireless Permit. If the Director determines that any City work will require the permittee’s wireless facility located in the public rights-of-way to be rearranged and/or relocated, the permittee shall, at its sole cost and expense, do or cause to be done all things necessary to accomplish such rearrangement and/or relocation. If, for example, the permittee places a new standalone pole in the right of way and the city later replaces its existing high-voltage streetlights with low -voltage streetlights, the city may require permittee, at permittee’s sole expense, to promptly cause the removal of permittee’s pole; in such event, the City will offer the use of one or more nearby city owned pole(s) for use by the applicant to the same extent, and under the same terms and conditions that such poles would be made available to any new applicant for a wireless facility. If the permittee fails or refuses to either permanently or temporarily rearrange and/or relocate the permittee’s wireless facility or other infrastructure deployment within a reasonable time after the Director’s notice, the City may (but will not be obligated to) cause the rearrangement or relocation to be performed at the permittee’s sole cost and expense. The City may exercise its rights to rearrange or relocate the permittee’s wireless facility or other infrastructure deployment without prior notice to permittee when the Director determines that City work is immediately necessary to protect public health or safety. The permittee shall reimburse the City for all costs and expenses in connection with such work within 30 days after a written demand for reimbursement and reasonable documentation to support such costs.
22. Truthful and Accurate Statements. The permittee acknowledges that the City’s approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee’s behalf. In any matter before the City in connection with the Wireless Permit or the wireless facility or other infrastructure approved under the Wireless Permit, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any material information necessary to prevent any material factual statement from being incorrect or misleading.
B. Modified Conditions. The Director may modify, add or remove conditions to any Wireless Permit the Director deems appropriate to: (1) protect and/or promote the public health, safety and welfare, (2) tailor the standard conditions in subsection (A), of this section, above, to the particular facts and circumstances associated with the deployment and/or (3) memorialize any changes to the proposed deployment need for compliance with the Fullerton Municipal Code, generally applicable health and safety requirements and/or any other applicable laws. To the extent required by applicable FCC regulations, the Director shall ensure that any different conditions applied to wireless facilities are no more burdensome than those applied to other infrastructure deployments.
C. Reservation of Rights. The City reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation. These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or compensation for use of public rights-of-way, execution of a leasing agreement, and related matters; provided, however, that such regulatory rights and authority must be consistent with federal and state law that is applicable to cable or telecommunications services provided by telephone corporations.
(Ord. 3315 § 2 (part), 2022)