(A) Compliance with law. Distributed antenna system (DAS) equipment shall comply with all applicable federal, state, and local laws, rules, and regulations, city policies, applicable codes and industry standards.
(B) Operational and maintenance requirements.
(1) A user shall install, and continuously maintain approved distributed antenna system (DAS) equipment to prevent interference with the city’s facilities, the city’s use of city right-of-way, or the facilities or operations of other users.
(2) A user may not construe a contract, permit, correspondence, or other communication as affecting a right, privilege or duty previously conferred or imposed by the city to or on another person. The city reserves the right to continue or extend a right, privilege, or duty or to contract with additional users without regard to resulting economic competition.
(3) A user is solely responsible for the risk and expense of installation, operation, and maintenance of the user’s distributed antenna system (DAS) equipment. The city does not warrant or represent that the city right-of-way is suitable for placement of a user’s distributed antenna System (DAS) equipment. A user shall submit a structural engineering analysis by a North Carolina registered professional engineer certifying that the pole or other structure that is proposed to support the distributed antenna system (DAS) equipment can reasonably support the proposed distributed antenna system (DAS) equipment considering the conditions of the street and the anticipated hazards from traffic to be encountered at the location. A user shall inspect the city right-of-way on which the user’s distributed antenna system (DAS) equipment will be placed and shall base its determination of the suitability of the city right-of-way for user’s purposes on such inspection, on a structural engineering analysis by a North Carolina registered professional engineer certifying that the pole or other structure that is proposed to support the distributed antenna system (DAS) equipment can reasonably support the proposed distributed antenna system (DAS) equipment considering the conditions of the street and the anticipated hazards from traffic to be encountered at the location. A user accepts the city right-of-way “as is” and “where is” and assumes all risks related to the use. The city is not liable for any damage to distributed antenna system (DAS) equipment due to an event causing damage to the distributed antenna System (DAS) equipment.
(4) If the Director determines that a user’s distributed antenna system (DAS) equipment impairs safety, the Director may require the user, at user’s sole expense and risk, to change, move, remove, or rearrange the distributed antenna system (DAS) equipment. The Director may also require a user to move or rearrange its distributed antenna system (DAS) equipment to maximize the available useable infrastructure and accommodate the distributed antenna system (DAS) equipment of an additional user, unless the movement or rearrangement of distributed antenna system (DAS) equipment materially impairs the use or function of the existing user’s system. An existing user is only required to comply with this subsection if the additional user agrees to compensate the existing user for its actual costs to move or rearrange distributed antenna system (DAS) equipment. If a user fails or refuses to comply with the Director’s request to change, move, remove or rearrange any of its distributed antenna system (DAS) equipment, the distributed antenna system (DAS) equipment becomes unauthorized. The city may change, move, remove, or rearrange an unauthorized distributed antenna system (DAS) equipment without liability to user and at user’s sole cost.
(5) The Director may inspect, at any time, the construction or installation of a user’s distributed antenna system (DAS) equipment on city right-of-way. If the Director determines that a user’s installation or construction may violate this article, applicable electrical codes, the city’s standards for the city right-of-way involved, or the conditions of the user’s application or permit, the Director may immediately suspend the user’s construction or installation activities. The Director shall send written notice to the user not later than the third business day after a suspension identifying the alleged violation. A suspension under this subsection is effective until the user corrects the alleged violation, at the user’s sole expense. A user may appeal a suspension under this subsection to the Director of Public Works.
(6) As a condition of the user having its facilities in city right-of-way, the user agrees to and shall, to the extent permitted by law, defend, indemnify and hold harmless the city, its employees, officers, agents and contractors against any claim of liability or loss of any kind, including administrative orders and regulations, and specifically including, without limitation, any claim of liability or loss from personal injury or property damage resulting from or arising out of the presence of user’s equipment in city right-of-way and also as to any willful misconduct of the user, its employees, contractors or agents, except to the extent such claims or damages may be due to or caused by the willful misconduct of the city, or its employees, officers, contractors or agents.
(7) The city shall not be liable to the user, or any of its respective agents, representatives, or employees for any lost revenue, lost profits, loss of technology, use of rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if the city has been advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise that is related to, arises out of, flows from or is, in some part, caused by user’s distributed antenna system (DAS) equipment to or use of city right-of-way.
(C) Termination.
(1) The city may immediately suspend the permission of a user to install new or additional distributed antenna system (DAS) equipment if the user materially fails to comply with the terms of its permit, or if the city provides written notice to the user for cause. If the user fails to cure the default on or before the sixtieth day after receipt of the notice, the city may terminate the user’s distributed antenna system (DAS) equipment permit.
(2) A user shall immediately begin removal of its distributed antenna system (DAS) equipment after termination of a user’s distributed antenna System (DAS) equipment permit for violations of the terms of a franchise, permit, license or other authority, a voluntary termination by a user, or a termination by the city for cause. Unless the Director grants an extension of time, a user must remove all distributed antenna system (DAS) equipment not later than the sixtieth day after the effective date of termination.
(3) After termination of a user’s distributed antenna system (DAS) equipment permit, the user must comply with the terms of this article, the user’s franchise, permit, license, or other authority until all distributed antenna system (DAS) equipment are removed.
(Ord. No. 16-067, § 1, passed 12-8-2016)