§ 106.01.090 CONDITIONS OF APPROVAL.
   (A)   Generally. In addition to any supplemental conditions imposed by the Director or Hearing Officer, as the case may be, all permits granted pursuant to this chapter shall be subject to the following conditions, unless modified by the approving authority:
      (1)   Code compliance. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules, including, without limitation, those applying to use of the ROW.
      (2)   Permit duration. A wireless en-croachment permit shall be valid for a period of ten (10) years, unless pursuant to another provision of the code or these conditions, it expires sooner or is terminated. At the end often (10) years from the date of issuance, such permit shall automatically expire, unless an extension or renewal has been granted. A person holding a wireless encroachment permit must either (1) remove the facility within thirty (30) days following the permit’s expiration (provided that removal of support structure owned by city, a utility, or another entity authorized to maintain a support structure in the ROW need not be removed, but must be restored to its prior condition, except as specifically permitted by the city); or (2) at least ninety (90) days prior to expiration, submit an application to the Director to renew the permit, which application must, among all other requirements, demonstrate that the impact of the wireless facility cannot be reduced. The wireless facility must remain in place until it is acted upon by the city and all appeals from the city’s decision exhausted.
      (3)   Timing of installation. The installation and construction authorized by a wireless encroach-ment permit shall begin within one (1) year after its approval, or it will expire without further action by the city. The installation and construction authorized by a wireless encroachment permit shall conclude, including any necessary post-installation repairs and/or restoration to the ROW, within ninety (90) days following the day construction commenced.
      (4)   Commencement of operations. The operation of the approved facility shall commence no later than one hundred and eighty (180) days after the completion of installation, or the wireless encroach-ment permit will expire without further action by the city. The permittee shall provide Director notice that operations have commenced by the same date.
      (5)   As-built drawings. The permittee shall submit an as-built drawing within ninety (90) days after installation of the facility. As-builts shall be in an electronic format acceptable to the city.
      (6)   Inspections; emergencies. The city or its designee may enter onto the facility area to inspect the facility upon 24 hours prior notice to the permittee. The permittee shall cooperate with all inspections and may be present for any inspection of its facility by the city. The city reserves the right to enter or direct its designee to enter the facility and
support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. The city shall make an effort to contact the permittee prior to disabling or removing any facility elements, but in any case shall notify permittee within 24 hours of doing so.
      (7)   Inspections and reporting. The permittee, when directed by the city, must perform an inspection of the facility and submit a report to the Director on the condition of the system to include any identified concerns and corrective action taken. Additionally, as the city performs maintenance on municipal infrastructure additional maintenance concerns may be identified. These will be reported to the owner of the facility. The city shall give the permittee 30 days to correct the identified maintenance concerns after which the city reserves the right to take any action it deems necessary, which could include revocation of the permit. The burden is on the permittee to demonstrate that it complies with the requirements herein. Prior to issuance of a permit under this chapter, the owner of the facility shall sign an affidavit attesting to understanding the city’s requirement for performance of annual inspections and reporting.
      (8)   Contact. The 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.
      (9)   Insurance. The permittee shall obtain and maintain throughout the term of the permit a type and amount of insurance as specific in the Wireless Regulations. The relevant policy(ies) shall name the city, its elected/appointed officials, commission members, officers, representatives, agents, and employees as additional insured. The permittee shall use its best efforts to provide thirty (30) days prior notice to the Director of to the cancellation or material modification of any applicable insurance policy.
      (10)   Indemnities. The permittee and, if applicable, the owner of the property upon which the wireless facility is installed shall defend, indemnify and hold harmless the city, its agents, officers, officials, and employees (i) from any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, law suits, writs of mandamus, and other actions or proceedings brought against the city or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the city’s approval of the permit, and (ii) from any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, law suits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the private property owner or any of each one’s agents, employees, licensees, contractors, subcontractors, or independent contractors. In the event the city becomes aware of any such actions or claims the city shall promptly notify the permittee and, if applicable, the private property owner and shall reasonably cooperate in the defense. 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 reimburse the city for any costs and expenses directly and necessarily incurred by the city in the course of the defense.
      (11)   Performance bond. Prior to issuance of a wireless encroachment permit, the permittee shall file with the city, and shall maintain in good standing throughout the term of the approval, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned or the permit expires, or is revoked, or is otherwise terminated. The security shall be in the amount equal to 100% of the cost of removal of the facility as specified in the application for the permit or as that amount may be modified by the Director in the permit based on the characteristics of the installation. The permittee shall reimburse the city for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the City Council. Reimbursement shall be paid when the security is posted and during each administrative review.
      (12)   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, and removal of the facility.
      (13)   Interference.
         (a)   The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the city shall be moved to accommodate a permitted activity or encroachment, unless the city determines that such movement will not adversely affect the city or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the city’s structure, improvement, or property. Prior to commencement of any work pursuant to a wireless encroachment permit, the permittee shall provide the city with documentation establishing to the city’s satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property within the ROW or city utility easement to be affected by permittee’s facilities.
         (b)   The facility shall not damage or interfere in any way with city property, the city’s operations or the operations of prior-existing, third party installations. The city will reasonably cooperate with the permittee and/or carrier to carry out such activities as are necessary to correct the interference.
            1.   Signal Interference - The permittee shall correct any such interference within 24 hours of written notification of the interference. Upon the expiration of the 24-hour cure period and until the cause of the interference is eliminated, the permittee shall cease operation of any facility causing such interference until such interference is cured.
            2.   Physical Interference - The city shall give the permittee 30 days to correct the interference after which the city reserves the right to take any action it deems necessary, which could include revocation of the permit.
         (c)   The city at all times reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the sites. Such actions may temporarily interfere with the operation of the facility. The city will in all cases, other than emergencies, give the applicant 30 days written notification of such planned, non-emergency actions.
      (14)   No right, title, or interest. The permission granted by a wireless encroachment permit shall not in any event constitute an easement on or an encumbrance against the ROW. No right, title, or interest (including franchise interest) in the ROW, or any part thereof, shall vest or accrue in permittee by reason of a wireless encroachment permit or the issuance of any other permit or exercise of any privilege given thereby.
      (15)   No possessory interest. No possessory interest is created by a wireless encroachment permit. However, to the extent that a possessory interest is deemed created by a governmental entity with taxation authority, the permittee acknowledges that the city has given to the permittee notice pursuant to Cal. Revenue and Taxation Code § 107.6 that the use or occupancy of any public property pursuant to a wireless encroachment permit may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Permittee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interact taxes or other taxes, fees, and assessments levied against permittee’s right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this permit.
      (16)   General maintenance.
         (a)   The site and the facility, including, but not limited to, all landscaping, fencing, and related transmission equipment, must be maintained in a neat, safe and clean manner and in accordance with all approved plans. All graffiti on facilities must be removed at the sole expense of the permittee within forty-eight (48) hours after notification from the city. 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 permit.
         (b)   The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems (water, sewer, storm drains, gas, oil, electrical, etc.) that result from any activities performed in connection with the installation and/or maintenance of a wireless facility in the ROW. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the Director the city will engage resources at the permittee’s sole cost and expense to complete such repairs. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the Director shall cause such repair to be completed at permittee’s sole cost and expense.
         (c)   The permittee shall keep the site area free from all litter and debris at all times. Each year after the permittee installs the wireless facility, the permittee, if requested by the Director, shall submit a written report to the satisfaction of the Director, documenting the then-current site condition.
      (17)   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. After transmitter and antenna system optimization, but prior to unattended operations of the facility, the permittee or its representative must conduct on-site post-installation RF emissions testing to demonstrate actual compliance with the FCC Office of Engineering and Technology Bulletin 65 RF emissions safety rules for general population/uncontrolled RF exposure in all sectors. For this testing, the transmitter shall be operating at maximum operating power, and the testing shall occur outwards to a distance where the RF emissions no longer exceed the uncontrolled/general population limit.
      (18)   Testing. Testing of any equipment shall take place on weekdays only, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days.
      (19)   Modifications. No changes shall be made to the approved plans without review and approval in accordance with this chapter.
      (20)   Agreement with city. If not already completed, the permittee shall enter into the appropriate agreement with the city, as determined by the city, prior to constructing, attaching, or operating a facility on municipal infrastructure. This permit is not a substitute for such agreement.
      (21)   Conflicts with improvements. For all facilities located within the ROW, the permittee shall remove or relocate, at its expense and without expense to the city, any or all of its facilities when such removal or relocation is deemed necessary by the city by reason of any change of grade, alignment, or width of any ROW, for installation of services, water pipes, drains, storm drains, power or signal lines, traffic control devices, ROW improvements, or for any other construction, repair, or improvement to the ROW.
      (22)   Abandonment. If a facility is not operated for a continuous period of 6 months, the wireless encroachment permit and any other permit or approval therefor shall be deemed abandoned and terminated automatically, unless before the end of the 6 month period (i) the Director has determined that the facility has resumed operations, or (ii) the city has received an application to transfer the permit to another service provider. No later than thirty (30) days from the date the facility is determined to have ceased operation or the permittee has notified the Director of its intent to vacate the site, the permittee shall remove all equipment and improvements associated with the use and shall restore the site to its original condition to the satisfaction of the Director. The permittee shall provide written verification of the removal of the facilities within thirty (30) days of the date the removal is completed. If the facility is not removed within thirty (30) days after the permit has been discontinued pursuant to this subsection, the site shall be deemed to be a nuisance, and the city may cause the facility to be removed at permittee’s expense or by calling any bond or other financial assurance to pay for removal. If there are two (2) or more users of a single facility or support structure, then this provision shall apply to the specific elements or parts thereof that were abandoned, but will not be effective for the entirety thereof until all users cease use thereof.
      (23)   Encourage co-location. Where the facility site is capable of accommodating a co-located facility upon the same site in a manner consistent with the permit conditions for the existing facility, the owner and operator of the existing facility shall allow co-location of third party facilities, provided the parties can mutually agree upon reasonable terms and conditions.
      (24)   Records. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition or fails to produce true and complete copies of such records within a reasonable time after a written request from the city, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.
      (25)   Attorney’s fees. In the event the city determines that it is necessary to take legal action to enforce any of these conditions, or to revoke a permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorney’s fees, incurred by the city, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the city should otherwise agree with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding.
      (26)   The permittee is responsible for obtaining power to the facility and for the cost of electrical usage.
      (27)   Failure to comply with the city’s adopted noise standard after written notice and opportunity to cure have been given shall be grounds for the city to revoke the permit.
      (28)   The permittee shall remove all non-operational equipment from any structure on which it installs new equipment under the permit.
   (B)   Eligible facilities requests. In addition to the conditions provided in Section 12.18.090 of this chapter and any supplemental conditions imposed by the Director or Hearing Officer as the case may be, all permits for an eligible facility requests granted pursuant to this chapter shall be subject to the following additional conditions, unless modified by the approving authority:
      (1)   Permit subject to conditions of underlying permit. Any permit granted in response to an application qualifying as an eligible facilities request shall be subject to the terms and conditions of the underlying permit.
      (2)   No permit term extension. The city’s grant or grant by operation of law of an eligible facilities request permit constitutes a federally-mandated modification to the underlying permit or approval for the subject tower or base station. Notwithstanding any permit duration established in another permit condition, the city’s grant or grant by operation of law of an eligible facilities request permit will not extend the permit term for the underlying permit or any other underlying regulatory approval, and its term shall have the same term as the underlying permit or other regulatory approval for the subject tower or base station.
      (3)   No waiver of standing. The city’s grant or grant by operation of law of an eligible facilities request does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409(a) of the Spectrum Act, any FCC rules that interpret Section 6409(a) of the Spectrum Act, or any modification to Section 6409(a) of the Spectrum Act.
   (C)   Small cell facilities requests. In addition to the conditions provided in 12.18.090 of this chapter and any supplemental conditions imposed by the Director or Hearing Officer, as the case may be, all permits for a small cell facility granted pursuant to this chapter shall be subject to the following condition, unless modified by the approving authority:
      (1)   No waiver of standing. The city’s grant of a permit for a small cell facility request does not waive, and shall not be construed to waive, any standing by the city to challenge any FCC orders or rules related to small cell facilities, or any modification to those FCC orders or rules.
(Ord. 1282, passed 5-1-19)