All WTFP approvals for facilities located or proposed to be located in the PROW, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this section, in addition to any conditions imposed by the approval authority pursuant to this chapter and the rules and guidelines. The approval authority shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances to protect public health and safety or allow for the proper operation of the approved facility consistent with the goals of this chapter.
(A) Permit term. A WTFP shall be valid for a period of ten years, unless it is revoked sooner in accordance with this chapter or pursuant to any other provision of federal or state law that authorizes the city to issue a WTFP with a shorter term, or such WTFP is extended pursuant to § 12.52.170. At the end of the term, the WTFP shall automatically expire. Except as otherwise provided in division (A)(1)(a), any other permits or approvals issued in connection with any collocation, modification or other change to the facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend the ten-year term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.
(1) Eligible facility permits. In addition to the provisions of division (A), the following provisions apply.
(a) The city’s grant or grant by operation of law of an EFP will not extend the term, if any, for any ministerial permit or other underlying prior regulatory permit, approval or other authorization. Accordingly, the term for an EFP approval shall be coterminous with the ministerial permit and other underlying permit, approval or other prior regulatory authorization for the subject tower or base station. This condition shall not be applied or interpreted in any way that would cause the term of the underlying permit for the modified facility to be less than ten years in total length, unless such underlying permit is abandoned or revoked pursuant to this code or any other provision of federal or state law.
(b) Accelerated approval terms due to invalidation. In the event that any court of competent jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets Section 6409(a) such that federal law would not mandate approval for any eligible facilities request pursuant to Section 6409(a), such EFP approval shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of any previously approved EFP or the Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes, without limitation, extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove any equipment, components, structures and improvements approved under the invalidated EFP approval when it has submitted an application for a SWFP under § 12.52.050 for those WTFs before the one-year period ends. If the SWFP is denied, the permittee shall remove all its equipment, components, structures and improvements before the one-year period ends.
(c) No waiver of standing. The approval of an EFP (either by express approval or by operation of law) does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409(a), any FCC rules that interpret Section 6409(a) and/or any eligible facilities approval pursuant to Section 6409(a) (whether by the approval authority or by operation of law).
(B) Strict compliance with approved plans. Any application filed by the permittee for a ministerial permit to construct or install the WTF, generator and other equipment and structures that are located in the PROW approved by a WTFP must incorporate the WTFP approval, all conditions associated with the WTFP approval and the approved photo simulations into the project plans (the “approved plans”). The permittee must construct, install, operate and maintain the facility and related equipment and structures in strict 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 WTF, must be submitted in a written request subject to the Director’s prior review and approval. With respect to EFPs, the Director may revoke the EFP approval if the Director finds that the requested alteration, modification or other change may cause a substantial change as that term is defined by Section 6409(a) or the FCC in 47 C.F.R. § 1.6100(b)(7), or any successor regulation (see §§ 12.52.020 (Definitions) and 12.52.050(E) of this chapter).
(C) Build-out period. The WTF approval will automatically expire one year from the MTWP approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved facility under this code, and any other permits or approvals required by any federal, state or other local public agencies with jurisdiction over the subject property, the eligible facility or its use. The Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this condition.
(D) Maintenance obligations. 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 substantial compliance with the approved plans and all conditions in the WTFP. 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 at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
(E) Property maintenance. The permittee shall ensure that all equipment and other improvements to be constructed and/or installed in connection with the approved plans are maintained in a manner that is not detrimental or injurious to the public health, safety, and general welfare and that the aesthetic appearance is continuously preserved, and substantially the same as shown in the approved plans at all times relevant to the WTFP. The permittee further acknowledges that failure to maintain compliance with this condition may result in a code enforcement action.
(F) 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 (“governing laws”) applicable to the permittee, the subject property, the WTF and any use or activities in connection with the use authorized in the WTFP, which includes without limitation any laws applicable to human exposure to RF emissions. 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 governing laws. In the event that the city fails to timely notice, prompt or enforce compliance with any applicable provision in the municipal code, any permit, any permit condition or any governing laws, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the code, any permit, any permit condition or any governing laws.
(G) Adverse impacts on other properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse 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 at the site. Impacts of radio frequency emissions on the environment, to the extent that such emissions are compliant with all governing laws, are not “adverse impacts” for the purposes of this condition. 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 hours authorized by the 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. The Director or the Director’s designee may issue a stop work order for any activities that violate this condition.
(H) Inspections — Emergencies. The permittee expressly acknowledges and agrees that the city’s officers, officials, staff or other designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the city’s officers, officials, staff or other designee 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 will be permitted to supervise the city’s officers, officials, staff or other designee while any such inspection or emergency access occurs to the extent not inconsistent with city requirements.
(I) Permittee’s contact information. The permittee shall furnish the Director with accurate and up-to-date contact information for a person responsible for the facility, which includes without limitation such person’s full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times and immediately provide the Director with updated contact information in the event that either the responsible person or such person’s contact information changes.
(J) Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the WTF approved by the permit is removed in its entirety from the PROW, an insurance policy or policies of public liability insurance which shall be in the form and substance satisfactory to the city, and shall be maintained until the term of the permit ended and the facility is removed from the PROW. The insurance shall comply with the minimum limits and coverages and provisions set forth in the rules and guidelines, and as otherwise established from time to time by the city, and which fully protect the city from claims and suits for bodily injury, death, and property damage.
(K) Indemnification.
(1) The permittee, and if applicable, the owner of the WTF upon which the facility is installed in the PROW, shall agree in writing to defend, indemnify, protect and hold harmless city, its elected and appointed officials, officers, boards, commissions, agents, consultants, employees, volunteers and independent contractors serving as city officials (collectively “indemnitees”), from and against any and all claims, actions, or proceeding against the indemnitees or any of them, to attack, set aside, void or annul, an approval of the Director or Development Review Committee concerning the permit and the construction, operation, maintenance and/or repair of the facility. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, reasonable attorneys’ fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The permittee shall also agree not to sue or seek any money or damages from the city in connection with the grant of the permit and also agree to abide by the city’s ordinances and other laws. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit city from participating in a defense of any claim, action or proceeding. The city shall have the option of coordinating the defense, including, but not limited to, choosing counsel for the defense at the permittee’s expense.
(2) Additionally, to the fullest extent permitted by law, the permittee, and every permittee and if applicable, the owner of the WTF upon which the facility is installed in the PROW, shall jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed officials, officers, boards, commissions, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney’s fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the WTF, or to any work done by or use of the PROW by the permittee, owner or operator of the facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the city and its elected and appointed officials, officers, boards, commissions, agents, consultants, employees and volunteers and independent contractors serving as city officials.
(L) Performance security. Prior to issuance of any WTFP, the permittee shall pay for and provide a performance bond or other form of security that complies with the following minimum requirements.
(1) The security shall expressly survive the duration of the permit term and shall remain in effect until the facility is fully and completely removed and the site reasonably returned to its original condition, to cover the removal costs of the facility in the event that use of the facility is abandoned or the approval is otherwise terminated.
(2) The security shall be in a format and amount approved by the Director and City Attorney’s office. The amount of security shall be as determined by the Director to be necessary to ensure proper completion of the applicant’s removal obligations. In establishing the amount of the security, and in accordance with Cal. Gov’t Code § 65964(a), the Director shall take into consideration information provided by the applicant regarding the cost of removal of the facility and all related structures and equipment. The amount of the security instrument shall be calculated by the applicant as part of its application in an amount rationally related to the obligations covered by the security instrument. The permittee shall be required to submit the approved security instrument to the Director prior to issuance of any WTFP for the proposed facility.
(3) Security shall always be imposed if the WTF is located in a PROW adjacent to any residentially zoned property or residential uses.
(M) Acceptance of conditions. The WTFP shall not become effective for any purpose unless/until a city “Acceptance of Conditions” form, in a form approved by the City Attorney’s office, has been signed and notarized by the applicant/permittee before being returned to the Director within ten days after the determination letter has been served on the applicant and published on the city’s website in accordance with § 12.52.060(A). The permit shall be void and of no force or effect unless such written agreement is received by the city within said ten-day period.
(Ord. 2021-09 § 5 (part), 2021)