A. Compliance With Law And Ordinances: A permittee shall comply with all applicable law, including, but not limited to, applicable historic preservation ordinances of the City and utility undergrounding requirements.
B. Public Right-Of-Ways Ownership: Issuance of any permit pursuant to this chapter shall not confer any ownership rights in the public right-of-way.
C. Public Right-Of-Way Interference Prohibited: No permittee may construct, operate, place, locate, or maintain any small cell facility so as to interfere with the use of the public right-of-way by the City, the general public, or any other persons authorized to use or be present in or upon the public right-of-way.
D. Damaged Property: No permittee or affiliate thereof shall take any action or cause any action to be done which may impair or damage any ROW, or other property located in, on or adjacent thereto. Any and all public right-of-way, public property, or private property that is disturbed or damaged by the permittee or affiliate thereof during the construction, operation, maintenance, or repair of a small cell facility shall be promptly repaired by permittee. In the event permittee fails to make such repairs within a reasonable time period, the City may complete or cause to be completed the repair work and bill the actual and reasonable costs to the permittee. Public property, private property, and public right-of-way must be restored to as good a condition as before the disturbance or damage occurred to the reasonable satisfaction of the City.
E. Unexpected Repair Or Emergency: In the event of an unexpected repair or emergency, the owner of a small cell facility may commence such repair and emergency response work as required under the circumstances, provided it shall notify the City promptly before such repair or emergency work, or the next day thereafter if advance notice is not practicable.
F. Maintaining Facilities: Each permittee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Federal, State, and local requirements. Permittee shall be responsible for all electrical or other utility costs associated with operating each installed SCF.
G. Inspections And Information Requests: Every small cell facility shall be subject to the right of periodic inspection by the City, after notification to the small cell facility owner. Each operator must respond to requests for information regarding its system and plans for the system as the City may from time to time issue, including requests for information regarding its plans for construction, operation and repair of the public right-of-way.
H. Relocating Facilities In Right-Of-Way: The City retains the right and privilege, after notifying the small cell facility owner, to move any small cell facility located within the public right-of-way as the City may determine to be necessary, in response to any public health or safety emergency.
I. City Not Liable For Damage; Exception: To the extent permitted by South Dakota law, the City shall not be liable for any damage to any small cell facility within the public right-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public right-of-way by or on behalf of the City, except to the extent such damage is due to or caused by the City's negligence or willful misconduct.
J. Restoration: Restoration shall comply with the following:
1. When a permittee, or any person acting on its behalf, does any work in or affecting any public right-of-way, it shall, at its own expense, promptly remove any obstructions therefrom and restore such right-of-way or property to the same, or better than the, condition which existed before the work was undertaken. As used in this section, "promptly" shall mean as soon as required by the City in the reasonable exercise of the City's discretion.
2. If weather or other conditions do not permit the complete restoration required hereunder, the permittee shall temporarily restore the affected right-of-way or property. Such temporary restoration shall be at the permittee's sole expense, and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
3. A permittee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting the right-of-way.
4. Restoration and repair work shall be the responsibility of the permittee for two (2) years after completion thereof. Such work shall be limited to further restoration or repairs arising out of deficient completion of the initial work but shall not include further restoration or repairs arising out of events not related to the initial completion of the work.
K. Maintenance: The site and small cell facilities and SCF support structures, including all landscaping, fencing and related transmission equipment must be maintained at all times in a neat and clean manner and in accordance with all approved plans. This includes, but is not limited to, mowing, weeding and trimming.
L. Graffiti Removal: All graffiti on small cell facilities must be removed at the sole expense of the permit holder after notification by the City to the owner or operator of the small cell facilities.
M. Certificate Of Completion:
1. A certificate of completion will only be granted upon satisfactory evidence that the SCF was installed in substantial compliance with the approved plans and photo simulations.
2. If it is found that the SCF installation does not substantially comply with the approved plans and photo simulations, the applicant shall make any and all such changes required to bring the SCF installation into compliance within the timeframe established by the Municipality. Failing to obtain a Certificate of Completion within the applicable timeframe shall cause a permit to be revoked.
N. Compliance: All small cell facilities must comply with all standards and regulations of the FCC and any State or other Federal government agency with the authority to regulate small cell facilities.
O. Applicant Insurance: Each applicant shall secure and maintain liability insurance policies, as accepted by the City, insuring the applicant and including the City, and its elected and appointed officers, officials, boards, commissions, agents, representatives and employees as additional insureds, as their interest may appear under this section except workers compensation and employer's liability, which insurance shall be maintained during and for one year after termination of the permit. Expected coverage shall be the same or substantially similar to the following:
1. General liability insurance with limits of:
a. Five million dollars ($5,000,000.00) per occurrence for bodily injury (including death); and
b. Two million dollars ($2,000,000.00) for property damage resulting from any one accident; and
c. Five million dollars ($5,000,000.00) general aggregate including premises-operations, products/completed operations, and explosion, collapse and underground hazards.
2. Automobile liability for owned, non-owned and hired vehicles in the amount of two million dollars ($2,000,000.00) combined single limit for each accident for bodily injury and property damage.
3. Worker's compensation within State statutory limits and employer's liability insurance with limits of one million dollars ($1,000,000.00) each accident/disease/policy limit.
Upon receipt of notice from its insurer(s) applicant shall provide City with thirty (30) days' prior written notice of cancellation of any required coverage.
The applicant shall obtain, furnish to the City replacement insurance policies meeting the requirements of this section.
P. Financial Assurance: Upon the approval of an SCF application, the permittee shall post a bond, letter of credit, or other form of surety acceptable to the City.
1. The purpose of such financial assurance shall be to:
a. Provide for the removal of abandoned or improperly maintained SCFs, including those that the City determines need to be removed to protect public health, safety, or welfare;
b. Restoration of the ROW in connection with removals as provided for in this chapter; or
c. Recoup rates or fees that have not been paid by the permittee in over twelve (12) months, so long as the permittee has received reasonable notice from the City of any of the non-compliance listed above and an opportunity to cure.
2. The amount of the financial assurance shall be two hundred dollars ($200.00) per approved SCF permit. For permittees with multiple SCFs within the City, the total amount of financial assurance across all facilities may not exceed ten thousand dollars ($10,000.00), which amount may be combined into one surety instrument. (Ord. O2018-18, 12-26-2018)