(a) Standard Conditions of Approval. Permission to site wireless communications facilities in the right-of-way shall be conditioned on compliance with the standard conditions of approval provided in this section. The Department may add or modify conditions of approval as necessary or appropriate to protect and promote the public health, safety, and welfare.
(b) Wireless ROW Permit Duration. For Type II and Type III permits, the wireless ROW permit will automatically expire ten years from the issuance date, except when Federal or State law authorizes the City to issue a permit with a shorter term. Any request for a permit renewal shall be reviewed as request for a new permit subject to all applicable procedures and standards in effect at the time the request is received.
(c) Standard Conditions of Approval for Type I Permits. Any Type I permit approved or deemed granted by the operation of law shall be automatically subject to the following conditions of approval:
(1) Permit duration. The City's grant or grant by operation of law of a Type I permit constitutes a Federally-mandated modification to the underlying permit or approval of the subject tower and/or base station. The City's grant or grant by operation of law of a Type I permit will not extend the permit term for any underlying permit or other regulatory approval, and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station.
(2) Accelerated permit terms due to invalidation. In the event that any court of competent jurisdiction invalidates any portion of 47 U.S.C. § 1455(a) or any FCC rule that interprets 47 U.S.C. § 1455(a) such that Federal law would not mandate approval of any Type I permit, such permit shall automatically expire one year from the effective date of the judicial order, unless the decision specifically does not authorize accelerated termination of previously approved Type I permits. A permittee shall not be required to remove its improvements approved under the invalidated Type I permit if it submits an application for a Type II or Type III permit for those improvements before the one-year period ends. The Department may extend beyond one-year the time in which a permittee may apply for a Type II or Type III permit for an invalidated Type I permit.
(3) No waiver of standing. The City's grant or grant by operation of law of a Type I permit does not waive, and shall not be construed to waive, any standing by the City to challenge 47 U.S.C. § 1455(a), any FCC rules that interpret 47 U.S.C. § 1455(a), or any particular Type I permit.
(d) Standard Conditions of Approval for All Wireless ROW Permits. All applications for Type I, II, and III permits shall be subject to the following standard conditions of approval by operation of law:
(1) Compliance with all applicable laws. Permittee shall at all times maintain compliance with all applicable Federal, State and local laws, regulations, ordinances, or other rules.
(2) Inspections; emergencies. The City or its designee may inspect a wireless communications facility in the right-of-way upon reasonable notice to the permittee. The permittee shall cooperate with all inspections. The City reserves the right to support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.
(3) Contact information for responsible parties. Permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address, and email address for at least one natural person. All such contact information for responsible parties shall be provided to the Department.
(4) Indemnities. The permittee and, if applicable, the non-government owner of a wireless communications facility shall defend, indemnify, and hold harmless the City and its agents, officers, officials, and employees from:
A. Any and all damages, liabilities, injuries, losses, costs, and expenses arising out of any claims, demands, lawsuits, writs of mandamus, or other actions or proceedings brought against the City to challenge, attack, seek to modify, set aside, void, or annul the City's approval of the applicable wireless ROW permit; and
B. Any and all damages, liabilities, injuries, losses, costs, and expenses and any claims, demands, lawsuits, or other actions or proceedings of any kind, whether for personal injury, death, or property damage, arising out of or in connection with the activities or performance of the permittee or its agents, employees, licensees, contractors, subcontractors, or independent contractors.
C. In the event the City becomes aware of any such actions or claims, the City shall promptly notify the permittee and shall reasonably cooperate in the defense. It is expressly agreed 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 permittee (as applicable) shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense.
(5) Interference with public safety radio services. In the event that the City has reason to believe that permittee's radio communications operations are causing interference with the City's radio communications operations, then the permittee shall, at its cost, immediately cooperate with the City to either rule out permittee as the interference source or eliminate the interference. Cooperation with the City may include, but shall not be limited to, temporarily switching the transmission equipment on and off for testing.
(6) 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, or removal of the facility.
(7) General maintenance. The site and the facility, including but not limited to all landscaping, fencing, and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.
(8) Good condition required. Wireless communications facilities shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not menace or endanger the life or property of any person.
(9) Graffiti abatement. Permittee shall remove any graffiti on the wireless facility at permittee's sole expense.
(10) RF 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 RF exposure standards.
(11) Relocation for public improvement projects. Permittee shall remove and relocate the permitted wireless communications facility at permittee's sole expense to accommodate construction of a public improvement project by the City as the City may determine to be appropriate in its sole discretion.
(12) Removal if discontinued use. In the event that the use of a wireless communications facility is discontinued, the owner shall provide written notice to the City of its intent to discontinue use and the date when the use shall be discontinued. If a wireless communications facility is not removed within ninety days of discontinued use, the City may remove it at the owner's expense irrespective of the notice requirement under this section.
(13) Taxes and assessments. To the extent taxes or other assessments are imposed by taxing authorities on the use of City property as a result of an applicant's use or occupation of the right-of-way, the applicant shall be responsible for payment of such taxes, payable annually unless otherwise required by the taxing authority.
(Ord. 070-17. Passed 3-27-17.)