(A) Standard conditions. Except as may be authorized in division (B) below, all wireless facilities approved under this chapter or deemed approved by the operation of law shall be automatically subject to the conditions in this division (A) and these conditions shall be deemed to be incorporated by reference to any permit approved or deemed approved by law.
(1) Permit term; approval applies to land. This permit will automatically expire ten years and one day from its issuance unless Cal. Gov't Code § 65964(b) authorizes the city to establish a shorter term for public safety or substantial land use reasons. 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, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. This permit shall run with the land and shall be valid for the term specified in these conditions of approval. No change in ownership of the wireless facility, the site, or the subject property shall affect the permit term. This permit may not be transferred to another site or property.
(2) Permit renewal. The permittee may apply for permit renewal not more than one year before this permit expires. The permittee must demonstrate that the subject wireless facility complies with all the conditions of approval associated with this permit and all applicable provisions in this chapter 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 this chapter or other applicable law. Upon renewal, this permit will automatically expire ten years and one day from its issuance.
(3) Approved plans. Any final construction plans shall incorporate the permit, together with all conditions of approval and the photo simulations associated with the permit (collectively, the "approved plans"). The permittee must construct, install and operate the wireless facility in substantial compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, shall be subject to the Director's prior review and approval. After the Director receives a written request to approve an alteration, modification or other change to the approved plans, the Director may refer the request to the approval authority if the Director finds that it substantially deviates from the approved plans or implicates a significant or substantial land-use concern.
(4) CPUC G0-159A Certification. Within 15 business days after the city issues this permit, the permittee shall serve copies of California Public Utility Commission notification letters required by CPUC General Order No. 159A to the City Clerk, Director and City Manager.
(5) Build-out period. This permit will automatically expire 12 months from the approval date (the "build-out period") unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, support structure or the wireless facility and/or its use. The permittee may request in writing, and the city may grant in writing, one six-month extension if the permittee submits substantial and reliable written evidence demonstrating justifiable cause for such extension. If the build-out period and any extension finally expire, this permit shall be automatically void but the permittee may resubmit a complete application, including all application fees, for the same or substantially similar project.
(6) Post-installation certification. Within 60 calendar days after the permittee commences full, unattended operations of a wireless facility approved under this chapter or deemed-approved by law, the permittee shall provide the Director with documentation reasonably acceptable to the Director that the wireless facility has been installed and/or constructed in strict compliance with the approved construction drawings and photo simulations. Such documentation shall include without limitation as-built drawings, GIS data and site photographs.
(7) 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 this permit. At all times, the permittee shall keep the site area free from all litter and debris. The permittee shall regularly inspect the wireless facility to determine whether any maintenance is needed. The permittee, at no cost to the city, shall remove and remediate any graffiti or other vandalism on the wireless facility within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
(8) 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 any use or activities in connection with the use authorized in this permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the Director (such as, without limitation, those requirements affixed to a building permit). 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 Madera Municipal Code, this chapter, any permit, any permit condition or any applicable laws, shall be deemed to relieve, waive or lessen the permittee's obligation to comply in all respects with same.
(9) Adverse impacts on other properties. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue or unnecessary adverse impacts on nearby properties that may arise from the permittees or its authorized personnel's construction, installation, operation, modification, maintenance, repair, removal and/or other activities on or about the site and/or wireless facility. 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 Madera 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. If the Director finds good cause to believe that ambient noise from the wireless facility or related equipment violates applicable provisions in the Madera Municipal Code, the Director, in addition to any other actions or remedies authorized by the permit, the Madera Municipal Code or other applicable laws, may require the permittee to commission a noise study by a qualified professional to evaluate the wireless facility's compliance.
(10) Inspections; emergencies. The permittee expressly acknowledges and agrees that, upon reasonable prior notice to the permittee, the city's officers, officials, staff, agents, contractors or other designees may enter onto the site and inspect the wireless facility and related equipment and/or improvements to ensure compliance with this permit and all associated conditions. Notwithstanding the prior sentence, the city's officers, officials, staff, agents, contractors or other 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 property or persons. The permittee, if present, may observe the city's officers, officials, staff or other designees while any such inspection or emergency access occurs.
(11) Contact information. At all times relevant to this permit, the permittee shall keep on file with the Director basic contact and site information. This information shall include, but is not limited to, the following: (A) the name, physical address, notice address (if different), direct telephone number and email address for (i) the permittee and, if different from the permittee, the (ii) site operator, (ii) equipment owner, (iii) site manager and (iv) agent for service of process; (B) the wireless facility's site identification number and/or name used by the permittee and, to the extent applicable, site operator, equipment owner and site manager; and (C) a toll-free telephone number to the wireless facility's network operations center where a live person with power-down control over the wireless facility is available 24 hours-per-day, seven days-per-week. Within ten business days after a written request by the city, the permittee shall furnish the Director with an updated form that includes all the most-current information described in this condition.
(12) Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility 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 (A) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, 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 permit, and (B) 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 this permit or the wireless facility. 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. The permittee expressly acknowledges and 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. The permittee expressly acknowledges and agrees that the permittee's indemnification obligations under this condition are a material consideration that motivates the city to approve this permit, and that such indemnification obligations will survive the expiration, revocation or other termination of this permit.
(13) Removal bond. Before the city issues any permits required to commence construction in connection with this permit, the permittee shall post a bond issued by a surety and in a form acceptable to the Director in an amount reasonably necessary to cover the cost to remove the improvements and restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities or similar 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. 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 to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.
(14) Permit revocation. Notwithstanding any revocation procedures in this Title X, any permit granted under this chapter or deemed approved by the operation of law may be revoked in accordance with the provisions and procedures in this condition. The Director may initiate revocation proceedings when the Director has information that the facility may not be in compliance with all applicable laws, which includes without limitation, any permit in connection with the facility and any associated conditions with such permit(s). A permit granted under this chapter or deemed approved by the operation of law may be revoked only by the City Council after a duly notice public hearing. Before any public hearing to revoke a permit granted under this chapter or deemed approved by the operation of law, the Director must issue a written notice to the permittee that specifies (A) the facility; (B) the violation(s) to be corrected; (C) the timeframe in which the permittee must correct such violation(s); and (D) that, in addition to all other rights and remedies the city may pursue, the city may initiate revocation proceedings for failure to correct such violation(s). The City Council may revoke a permit when it finds substantial evidence in the written record to show that the facility is not in compliance with any applicable laws, which includes without limitation, any permit in connection with the facility and any associated conditions with such permit(s). Any decision by the City Council to revoke or not revoke a permit shall be final and not subject to any further appeals. Within five business days after the City Council adopts a resolution to revoke a permit, the Director shall provide the permittee with a written notice that specifies the revocation and the reasons for such revocation.
(15) Record retention. Throughout the permit term, the permittee must maintain a complete and accurate copy of the written administrative record, which includes without limitation the permit application, this 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 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, however, 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.
(16) Abandoned facilities. The wireless facility authorized under this permit shall be deemed abandoned if not operated for any continuous 12-month period. Within 90 days after a wireless facility is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the wireless facility and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Madera 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 and shall reimburse the city for all such costs 30 calendar days after a written demand for reimbursement and reasonable documentation to support such costs.
(17) Landscaping. 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, the permittee shall hire and pay for a licensed arborist to select plant and maintain replacement landscaping in an appropriate location for the species. Any replacement tree must be substantially the same size as the damaged tree or as otherwise approved by the city. The permittee shall be responsible to maintain any replacement landscape features for a three-year period after such landscaping has been installed. Notwithstanding anything in this condition to the contrary, the Director may agree in a written agreement signed by the permittee to accept an annual in-lieu fee to perform the maintenance work on the permittee's behalf.
(18) Cost reimbursement. The permittee acknowledges and agrees that:
(a) The permittee's request for authorization to construct, install and/or operate the wireless facility will cause the city to incur costs and expenses;
(b) The permittee shall be responsible to reimburse the city for all costs incurred in connection with the permit, which includes without limitation costs related to application review, 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;
(c) 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 30 calendar days after a written demand for reimbursement and reasonable documentation to support such costs; and
(d) 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.
(19) Successors and assigns. The conditions, covenants, promises and terms contained in this permit will bind and inure to the benefit of the city and permittee and their respective successors and assigns.
(20) 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 permit or the wireless facility, 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.
(21) City's standing reserved. The city's grant or grant by operation of law of a permit pursuant to this chapter does not waive, and shall not be construed to waive, any standing by the city to challenge any: (A) FCC rules or regulations that interpret the Telecommunications Act and/or Section 6409 of the Spectrum Act; or (B) any permit issued pursuant to this chapter.
(22) Severable conditions. If any provision in these conditions or such provision's application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable:
(a) Such provision or its application to such person, entity or circumstance will be deemed severed from this permit;
(b) All other provisions in this permit or their application to any person, entity or circumstance will not be affected; and
(c) All other provisions in this permit or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by law.
(B) Modified conditions. The City Council authorizes the Director to modify, add or remove conditions to any permit as the Director deems necessary or appropriate to:
(1) Protect and/or promote the public health, safety and welfare;
(2) Tailor the standard conditions in division (A) to the particular facts and circumstances associated with the deployment; and/or
(3) Memorialize any changes to the proposed deployment needed for compliance with this chapter, generally applicable health and safety requirements and/or any other applicable laws.
(Ord. 995 C.S., passed 10-19-22)