§ 12.22.180. Additional conditions of approval for wireless telecommunications facilities co-located on primary use owned by the city.

Any wireless telecommunications facility permitted to be co-located on a primary use that is owned by the city shall comply with all of the following additional conditions:

A.

Construction.

1.

Permittee shall perform all work within, around, or on the primary use in accordance with plans furnished to and approved by the director, in a manner acceptable to the director.

2.

Permittee shall, at its sole cost and expense, shall undertake and diligently perform to completion the installation of its facilities.

3.

In connection with permittee's installation or maintenance of its facilities, the permittee shall agree to:

a.

Repair any damage caused by permittee to any building, public facility, utility facility, or other improvement in, on, or under any portion of the primary use;

b.

Perform all work required or permitted hereby: (i) in a manner so as to cause minimal inconvenience or undue interference with vehicular traffic and property owners located adjacent to the primary use; (ii) at such times and in such manner as may be reasonably requested or approved by the director; and (iii) only with all necessary or appropriate provisions for the safety and convenience of all persons potentially affected thereby; and

c.

Replace and/or restore any area (regardless of whether located on the primary use or not) affected by permitee's work or other acts pursuant hereto at least as good a condition as such areas were in prior to commencement of such work, reasonable wear and tear and casualty beyond permittee's control expected.

B.

As-Built Drawing. Permitee shall submit an "as-built" drawing within 90 days after installation of the facilities.

C.

Access. Permitee shall not place any facilities which will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the primary use site. Permittee agrees to allow the city reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the primary use site, including, but not limited to, pavement, trees, public utilities, lighting and public signage.

D.

Default. In addition to the remedies provided herein, any person who violates any of the conditions of this section may be subject to the administrative proceedings set forth in chapters 1.25 and 1.26 of this Code, including, but without limitation, civil penalties, late payment penalties, administrative fees, and other related charges.

E.

License Fee.

1.

A wireless telecommunications antenna facility subject to this section and that is co-located on city-owned property will be subject to an annual license fee, set by the director no later than the time of issuance of the permit. The first annual license fee shall be paid no later than 15 days after installation of the wireless telecommunications antenna facility. Thereafter, permittee shall make an annual license fee payment on each July 1.

2.

If the permit is revoked or terminated for any reason other than a default by permittee, the city shall refund to permittee the unused portion of the annual license fee that was paid by permittee for the year in which such termination occurs.

3.

Commencing each July 1 following installation of the wireless telecommunications antenna facility, and thereafter on each July 1, the annual license fee will be automatically increased by multiplying the annual license fee for the preceding year by 3.5%.

4.

If permittee fails to pay the annual license fee within 10 days after permittee receives notice of its failure to pay the license fee as of the due date, the past-due license fee will bear interest from the date due until paid at the lesser of (i) 12% per annum; or (2) the maximum rate permitted by law, if the 12% rate exceeds that maximum.

5.

Permittee shall agree that the license fee is the right to locate its wireless telecommunications antenna facility upon the city-owned primary use and is in no way intended to be an abrogation or diminishment of any rights that may exist for permittee under California Public Utilities Code Sections 7901 and 7901.1.

F.

Relocation. If, at any time, the director determines, at his sole and absolute discretion, that the primary use needs to be removed, relocated, or realigned due to a public improvement project, permittee shall agree, within 180 days after receipt of written notice from the director, forthwith and diligently take all necessary action in the determination of the director to remove, relocate, and/or realign, as the case may be, its wireless telecommunications antenna facility at the sole cost and expense of permittee. Relocation and/or realignment of the wireless telecommunications antenna facility shall be determined at the discretion of the director.

G.

Assumption of Risk.

1.

Permittee agrees to inspect the primary use prior to installing its wireless telecommunications antenna facility. Permittee shall exercise its rights under its permit at its own risk and expense, assuming full responsibility for all risks incidental to the use of its wireless telecommunications antenna facility on the primary use thereon.

2.

Permittee agrees that the city assumes no responsibility whatsoever for the safe condition, security, or maintenance of the wireless telecommunications antenna facility on the primary use, or for the protection of persons and property therein, as all such responsibility shall solely be permittee's.

3.

Permittee agrees that the city assumes no responsibility whatsoever for any damage caused, directly or indirectly, on the primary use by permittee's installation of the wireless telecommunications antenna facility, as all such responsibility shall solely be permittee's.

4.

Permittee agrees that the city does not have requisite information to determine the exact location, size, type, and depth of all utility facilities crossing through or aligned with the area used by the permit. Permittee assumes the risk that adverse physical conditions or the applicability and effect of the operative or the applicability and effect of the operative or proposed laws or regulations applicable to the area of permittee's wireless telecommunications antenna facility may not have been revealed by the city's investigation.

5.

To the maximum extent permitted by law, permittee waives its right to recover from the city, its members, officers, employees, and agents, any and all damages, losses, liabilities, costs, or expenses whatsoever (including attorney's fees and costs) and claims therefore, whether direct or indirect, known or unknown, foreseen or unforeseen, which may arise on account of, in any way growing out of, or connected with the permittee's use of the land subject to the permit or any law or regulation applicable thereto, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act (33 U.S.C. Section 466 et seq.), the Safe Drinking Water Act (14 U.S.C. Sections 1401-1450), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substance Control Act (15 U.S.C. Sections 2601-2629), the California Hazardous Waste Control Law (California Health and Safety Code Sections 25100 et seq.), the Porter-Cologne Water Quality Control Act (California Health and Safety Code Section 13000 et seq.), the Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and the Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code Section 25249.5 et seq.).

H.

Removal and Restoration.

1.

Upon the expiration or termination of the permit, permittee agrees to peacefully remove its wireless telecommunications antenna facility including, but not limited to, vacating the primary use and leaving it in as good condition as on the date of installation, except for reasonable wear and tear damage not caused by permittee. If permittee fails to promptly remove its wireless telecommunications antenna facility within 30 days after expiration or earlier termination of the permit, the city may, after 15 days prior written notice to permittee, remove the same. Any such removal shall be without any liability to the city or any damage to such wireless telecommunications antenna facility that may result from reasonable efforts of removal. Permittee shall pay the city upon demand all reasonable costs incurred by the city in removing such wireless telecommunications antenna facility, to the extent such costs exceed the amount of the removal bond posted. The city has no obligation to store such wireless telecommunications antenna facility, and permittee shall have no claim if the city destroys a wireless telecommunications antenna facility not removed by permittee.

2.

If permittee continues to have a wireless telecommunications antenna facility within the primary use after expiration or earlier termination of the permit, such holding over, unless otherwise agreed to by the director in writing, shall constitute and be considered a tenancy at will. The monthly license fee for that tenancy shall be equal to 12.5% of the annual license fee paid during the preceding year and will be subject to all other terms of this section, including the annual percentage increase.

I.

No Estate. Permittee agrees that these conditions do not create or vest in permittee any estate in the primary use, but only the limited privileges of egress, entry, and use as described in these conditions and in the permit.

J.

Possessory Interest Tax. Permittee agrees that its interest by way of a permit may be subject to a possessory interest tax or property tax, and that such tax shall not reduce the annual license fee due the city hereunder, and any such tax shall be the liability of and be paid by permittee.

K.

Assignment. Permittee may assign or transfer a permit or any of the rights only with the approval of the director, which consent shall not be unreasonably withheld or delayed.

(Ord. No. 7164, § 2, 5-18-2009)