Chapter 18.207
WIRELESS COMMUNICATION FACILITIES FOR ELIGIBLE FACILITIES REQUESTS
Sections:
18.207.010 Legislative intent.
18.207.040 Prior approvals required.
18.207.050 Application requirements.
18.207.070 Standard conditions of approval.
18.207.010 Legislative intent.
A. Background. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, codified as 47 U.S.C. Section 1455(a) (“Section 6409”), generally requires that state and local governments “may not deny, and shall approve” requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communication Commission (“FCC”) regulations interpret this statute and establish procedural rules for local review, which generally preempt certain subjective land-use regulations, limit permit application content requirements and provide the applicant with a potential “deemed-granted” remedy when the state or local government fails to approve or deny the request within 60 calendar days after submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified as 47 U.S.C. Section 332, applies to only “personal wireless service facilities” (e.g., cellular telephone towers and equipment), Section 6409 applies to all “wireless” facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.).
B. Findings. The city council finds that the overlap between wireless deployments covered under Section 6409 and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. The city council further finds that a separate permit application and review process specifically designed for compliance with Section 6409 contained in a chapter devoted to Section 6409 will mitigate such potential confusion, streamline local review and preserve the city’s land-use authority to maximum extent possible.
C. Legislative Intent. The city of Concord intends this chapter to establish reasonable and uniform standards and procedures in a manner that protects and promotes the public health, safety and welfare, consistent with and subject to federal and California State law, for wireless facilities collocations and modifications pursuant to Section 6409, and related FCC regulations codified in 47 C.F.R. Section 1.40001 et seq. as may be amended or superseded in the future. This chapter is not intended to, nor shall it be interpreted or applied to:
1. Prohibit or effectively prohibit any personal wireless service provider’s ability to provide personal wireless services;
2. Prohibit or effectively prohibit any entity’s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules, regulations or other legal requirements for rights-of-way management;
3. Unreasonably discriminate among providers of functionally equivalent services;
4. Deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC’s regulations concerning such emissions;
5. Prohibit any collocation or modification that the city may not deny under federal or California State law;
6. Impose any unfair, unreasonable, discriminatory or anticompetitive fees that exceed the reasonable cost to provide the services for which the fee is charged; or
7. Otherwise authorize the city to preempt any applicable federal or California State law. [Ord. 17-11 § 3 (Exh. 2)].
18.207.020 Definitions.
The abbreviations, phrases, terms and words used in this chapter will have the meanings assigned to them in this section or, as may be appropriate, in Chapter 18.20 CDC, Article II (Definitions), as may be amended from time to time, unless context indicates otherwise. Undefined phrases, terms or words in this section will have the meanings assigned to them in 47 U.S.C. Section 702, as may be amended from time to time, and, if not defined therein, will have their ordinary meanings. In the event that any definition assigned to any phrase, term or word in this chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
“Base station” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(1), as may be amended, which defines that term as a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in 47 C.F.R. Section 1.40001(b)(9) or any equipment associated with a tower. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the state or local government under this section, supports or houses equipment described in 47 C.F.R. Sections 1.40001(b)(1)(i) and (ii) that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the state or local government under this section, does not support or house equipment described in 47 C.F.R. Sections 1.40001(b)(1)(i) and (ii).
“Collocation” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. As an illustration and not a limitation, the FCC’s definition effectively means “to add” and does not necessarily refer to more than one wireless facility installed at a single site.
“CPCN” means a “certificate of public convenience and necessity” granted by the CPUC or its duly appointed successor agency pursuant to California Public Utilities Code Section 1001 et seq., as may be amended.
“CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or its duly appointed successor agency.
“Director” means the community and economic development director or the community and economic development director’s designee.
“Eligible facilities request” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(3), as may be amended, which defines that term as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (1) collocation of new transmission equipment; (2) removal of transmission equipment; or (3) replacement of transmission equipment.
“Eligible support structure” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(4), as may be amended, which defines that term as any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the state or local government under this definition.
“Existing” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(4), as may be amended, which provides that a constructed tower or base station is existing for purposes of the FCC’s Section 6409 regulations if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
“FCC” means the Federal Communications Commission or its duly appointed successor agency.
“RF” means radio frequency or electromagnetic waves generally between 30 kHz and 300 GHz in the electromagnetic spectrum range.
“Section 6409” means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as may be amended.
“Site” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(6), as may be amended, which provides that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
“Substantial change” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(7), as may be amended, which defines that term differently based on the particular wireless facility type (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition organizes the FCC’s criteria and thresholds for a substantial change according to the wireless facility type and location.
1. For towers outside the public rights-of-way, a substantial change occurs when:
a. The proposed collocation or modification increases the overall height more than 10 percent or the height of one additional antenna array not to exceed 20 feet (whichever is greater); or
b. The proposed collocation or modification increases the width more than 20 feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or
c. The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or
d. The proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site.
2. For towers in the public rights-of-way and for all base stations, a substantial change occurs when:
a. The proposed collocation or modification increases the overall height more than 10 percent or 10 feet (whichever is greater); or
b. The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or
c. The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing ground-mounted equipment cabinets; or
d. The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are 10 percent larger in height or volume than any existing ground-mounted equipment cabinets; or
e. The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
3. In addition, for all towers and base stations wherever located, a substantial change occurs when:
a. The proposed collocation or modification would defeat the existing concealment elements of the support structure as reasonably determined by the director; or
b. The proposed collocation or modification violates a prior condition of approval; provided, however, that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or excavation that is inconsistent with the thresholds for a substantial change described in this definition.
“Tower” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(9), as may be amended, which defines that term as any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. Examples include, but are not limited to, monopoles, monotrees and lattice towers.
“Transmission equipment” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(8), as may be amended, which defines that term as equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
“Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.
“Wireless communication facility” or “wireless facility” means the collective or combined equipment, network components or eligible support structures that are necessary or integral in providing personal wireless services, including but not limited to antennas, transmission equipment, towers, and base stations, or as otherwise defined by state or federal law and regulations. [Ord. 17-11 § 3 (Exh. 2)].
18.207.030 Applicability.
This chapter applies to all requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted pursuant to Section 6409. Even if the proposed project would otherwise require an administrative permit or a minor use permit, requests submitted for approval pursuant to Section 6409 must be first reviewed under this chapter. If the approval authority finds that the project qualifies for approval under Section 6409, then no administrative permit or minor use permit will be required. However, the applicant may voluntarily elect to seek an administrative permit or a minor use permit under Chapter 18.205 CDC either in lieu of a Section 6409 approval or after the approval authority finds that an application does not qualify for approval pursuant to Section 6409. [Ord. 17-11 § 3 (Exh. 2)].
18.207.040 Prior approvals required.
A. Section 6409 Approval. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for approval under Section 6409 shall require an amendment to the underlying use permit for the tower or base station (each amendment a “Section 6409 approval”) subject to the director’s approval, conditional approval or denial without prejudice pursuant to the standards and procedures contained in this chapter.
B. Other Permits and Regulatory Approvals. No collocation or modification approved pursuant to this chapter may occur unless the applicant also obtains all other permits and regulatory approvals as may be required by any other federal, state or local government agencies, which include without limitation building permits, encroachment permits, electrical permits and any other permits and/or regulatory approvals issued by other departments or divisions within the city. Furthermore, any Section 6409 approval granted under this chapter shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals. [Ord. 17-11 § 3 (Exh. 2)].
18.207.050 Application requirements.
A. Application Required. The director shall not approve any request for a collocation or modification submitted for approval pursuant to Section 6409 except upon a duly filed application consistent with this section and any other written rules the city or the director may establish from time to time in any publicly stated format.
B. Application Content. All applications for a Section 6409 approval must include all the content, information and materials required by the director for the application. The city council authorizes the director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the director finds necessary, appropriate or useful for processing requests for Section 6409 approvals. The city council further authorizes the director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the director deems necessary or appropriate to organize, document and manage the application intake process. All such rules and regulations must be in written form and publicly stated to provide applicants with prior notice.
C. Procedures for a Duly Filed Application. Any application for a Section 6409 approval will not be considered duly filed unless submitted in accordance with the procedures in this subsection (C).
1. Pre-Submittal Conference. Before application submittal, the applicant must schedule and attend a pre-submittal conference with the director for all proposed collocations or modifications to any concealed, camouflaged or stealth wireless tower or base station or on structures in the public right-of-way. Pre-submittal conferences for all other proposed collocations or modifications are strongly encouraged but not required. The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and review process, including whether the project qualifies for approval pursuant to Section 6409 or not; any latent issues in connection with the existing wireless tower or base station, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that city staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The city may require a fee or deposit to reimburse the city for its reasonable costs to provide the services rendered in the pre-submittal conference. The director may, in the director’s discretion, grant a written exemption to the submittal appointment under subsection (C)(2) of this section and/or for a specific requirement for a complete application to any applicant who (a) schedules, attends and fully participates in any pre-submittal conference and (b) shows to the director’s satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the city’s review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project.
2. Submittal Appointment. All applications must be submitted in person to the city at a pre-scheduled appointment with the director. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The director may develop alternative rules that allow multiple (i.e., “batched”) applications to be submitted at the same time. Any application received without an appointment or the required application fee, whether delivered in person, by mail or through any other means, will not be considered duly filed unless the applicant received a written exemption from the director at a pre-submittal conference.
3. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request (such as an email) to the director. The director shall use reasonable efforts to provide applicants with an appointment within not more than 15 working days after a written request is received and, if applicable, confirm that the applicant complied with the pre-submittal conference requirement.
D. Applications Deemed Withdrawn. To promote efficient review and timely decisions, and consistent with CDC 18.405.040, any application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the director within 180 calendar days after the director deems the application incomplete in a written notice to the applicant. The director may, in the director’s discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the one-hundred-eightieth day that shows good cause to grant the extension. Delays due to circumstances outside the applicant’s reasonable control will be considered good cause to grant the extension. [Ord. 17-11 § 3 (Exh. 2)].
18.207.060 Decisions.
A. Public Notice – Administrative Review. The director shall administratively review a complete and duly filed application for a Section 6409 approval and may act on such application without a public hearing not less than 10 calendar days after the applicant posts notice at the project site. The posted notice must contain (1) a general explanation of the proposed collocation or modification; (2) the applicant’s identification and contact information as provided on the application submitted to the city; (3) contact information for the approval authority; and (4) a statement substantially similar to “Federal Communications Commission regulations may deem this application granted by the operation of law unless the city approves or denies the application within 60 calendar days from the filing date, or the city and applicant reach a mutual tolling agreement.”
B. Decision Notices. Within five working days after the director acts on an application for a Section 6409 approval or before the FCC shot clock expires (whichever occurs first), the director shall send a written notice to the applicant. In the event that the director denies the application, the written notice to the applicant must contain (1) the reasons for the decision; (2) a statement that the denial will be without prejudice; and (3) instructions for how and when to file an appeal.
C. Required Findings for Approval. The director may approve or conditionally approve any application for a Section 6409 approval when the director finds that the proposed project:
1. Involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and
2. Does not substantially change the physical dimensions of the existing wireless tower or base station.
D. Criteria for Denial Without Prejudice. Notwithstanding any other provision in this chapter, and consistent with all applicable federal laws and regulations, the director may deny without prejudice any application for a Section 6409 approval when the director finds that the proposed project:
1. Does not meet the findings required in subsection (C) of this section;
2. Involves the replacement of the entire support structure; or
3. Violates any legally enforceable law, regulation, rule, standard or permit condition reasonably related to public health and safety, which includes without limitation laws, regulations, rules, standards or permit conditions related to building and electric codes, aviation safety and flood control.
E. Conditional Approvals. Subject to any applicable limitations in federal or state law, nothing in this chapter is intended to limit the director’s authority to conditionally approve an application for a Section 6409 approval to protect and promote the public health and safety.
F. Appeals. Any applicant may appeal the director’s written decision to deny without prejudice an application for Section 6409 approval. The written appeal together with any applicable appeal fee must be tendered to the city within 10 calendar days from the director’s written decision, and must state in plain terms the grounds for reversal and the facts that support those grounds. The city manager shall be the appellate authority for all appeals from the director’s written decision to deny without prejudice an application for Section 6409 approval. The city manager shall review the application de novo; provided, however, that the city manager’s decision shall be limited to only whether the application should be approved or denied in accordance with the provisions in this chapter and any other applicable laws. The city manager shall issue a written decision that contains the reasons for the decision, and such decision shall be final and not subject to any further administrative appeals. [Ord. 17-11 § 3 (Exh. 2)].
18.207.070 Standard conditions of approval.
In addition to all other conditions adopted by the approval authority, all Section 6409 approvals, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions in this section. The director (or the city manager in the city manager’s capacity as the appellate 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. The city’s grant or grant by operation of law of a Section 6409 approval constitutes a federally mandated modification to the underlying permit or other prior regulatory authorization for the subject wireless tower or base station, and will be regarded as a modification to the underlying approval for the subject wireless tower or base station. The city’s grant or grant by operation of law of a Section 6409 approval will not extend the permit term, if any, for any underlying permit or underlying prior regulatory authorization. Accordingly, the term for a Section 6409 approval shall be coterminous with the underlying permit 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 10 years in total length.
B. Compliance Obligations Due to Invalidation. In the event that any court of competent jurisdiction invalidates all or any portion of Section 6409 or any FCC rule that interprets Section 6409 such that federal law would not mandate approval for any Section 6409 approval(s), such approval(s) shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved Section 6409 approvals 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 its improvements approved under the invalidated Section 6409 approval when it has obtained the applicable permit(s) or submitted an application for such permit(s) before the one-year period ends.
C. City’s Standing Reserved. The city’s grant or grant by operation of law of a Section 6409 approval does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409, any FCC rules that interpret Section 6409 or any Section 6409 approval.
D. Strict Compliance with Approved Plans. Before the permittee submits any applications to the building division, the permittee must incorporate this Section 6409 approval, all conditions associated with this Section 6409 approval and the approved photo simulations into the project plans (the “approved plans”). The permittee must construct, install and operate the wireless facility 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 wireless facility, must be submitted in a written request subject to the director’s prior review and approval, who may revoke the Section 6409 approval if the director finds that the requested alteration, modification or other change may cause a substantial change as that term is defined by the FCC in 47 C.F.R. Section 1.40001(b)(7), as may be amended.
E. Build-Out Period. This Section 6409 approval will automatically expire one year from the approval or deemed-granted date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved wireless facility, which include without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, the wireless 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 calendar days prior to the automatic expiration date in this condition.
F. Maintenance Obligations – Vandalism. 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 plans and all conditions in this Section 6409 approval. 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. Each year after the permittee installs the wireless facility, the permittee shall submit a written report to the director, in a form acceptable to the director, that documents the then-current site condition.
G. 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 this permit. The permittee further acknowledges that failure to maintain compliance with this condition may result in a code enforcement action.
H. 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 Section 6409 approval. 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. In the event that the city fails to timely notice, prompt or enforce compliance with any applicable provision in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation, the applicant or permittee will not be relieved from its obligation to comply in all respects with all applicable provisions in the Concord Municipal Code, any permit, any permit condition or any applicable law or regulation.
I. 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 applicable 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 Concord 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. The director or the director’s designee may issue a stop work order for any activities that violate this condition.
J. 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.
K. Permittee’s Contact Information. The permittee shall furnish the planning division with accurate and up-to-date contact information for a person responsible for the wireless 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.
L. Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the city, its agents, officers, officials, employees and volunteers from any and all (1) 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 city or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the city’s approval of this Section 6409 approval, and (2) 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 Section 6409 approval 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 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 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 Section 6409 approval, and that such indemnification obligations will survive the expiration or revocation of this Section 6409 approval.
M. Performance Bond. Before the building division issues any construction permit in connection with this Section 6409 approval, the permittee shall post a performance bond from 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 removal. The written estimate must include the cost to remove all equipment and other improvements, which include 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, and in accordance with California Government Code Section 65964(a), 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.
N. Recall to the Approval Authority – Approval Revocation. The original approval authority may recall this Section 6409 approval for review at any time due to complaints about noncompliance with the applicable laws or any approval conditions attached to this Section 6409 approval. At a duly noticed public hearing and in accordance with all applicable laws, the approval authority may revoke this Section 6409 approval or amend these conditions as the approval authority deems necessary or appropriate to correct any such noncompliance.
O. Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which include 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, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee. The permittee may keep electronic records; provided, however, that hard copies kept in the city’s regular files will control over any conflicts between such hard copies and the permittee’s electronic copies, and complete originals will control over all other copies in any form. [Ord. 17-11 § 3 (Exh. 2)].