[Ord. No. 19-08, 6-18-2019]
This Chapter shall be known and may be cited as the "Small Wireless Facility Deployment Code," and it is intended to establish a uniform and consistent approach to handling requests for the deployment of small wireless facilities in the City, consistent with State and Federal law including Sections 67.5110 to 67.5121, RSMo., (while in effect) and Sections 67.1830 to 67.1846, RSMo. City ordinances shall apply to small wireless deployments except to the extent inconsistent with this Chapter. This Chapter shall apply to all Persons desiring to construct, operate, or maintain Small Wireless Facilities within the City.
[Ord. No. 19-08, 6-18-2019]
As used in this Chapter, the following terms shall mean:
- Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
- APPLICABLE CODES
- Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or the City's amendments to such codes enacted to prevent physical property damage or reasonably foreseeable injury to persons to the extent not inconsistent with Sections 67.5110 to 67.5121, RSMo., (while in effect).
- Any person who submits an application and is a wireless provider.
- A request submitted by an applicant to the City for a permit to collocate small wireless facilities on a utility pole or wireless support structure, or to approve the installation, modification, or replacement of a utility pole.
- AUTHORITY or CITY
- Republic, Missouri.
- AUTHORITY POLE or CITY POLE
- A utility pole owned, managed, or operated by or on behalf of the City, but such term shall not include municipal electric utility distribution poles.
- AUTHORITY WIRELESS SUPPORT STRUCTURE
- A wireless support structure owned, managed, or operated by or on behalf of the City.
- COLLOCATE or COLLOCATION
- To install, mount, maintain, modify, operate, or replace small wireless facilities on or immediately adjacent to a wireless support structure or utility pole, provided that the small wireless facility antenna is located on the wireless support structure or utility pole.
- COMMUNICATIONS FACILITY
- The set of equipment and network components, including wires, cables, and associated facilities used by a cable operator, as defined in 47 U.S.C. Section 522(5); telecommunications carrier, as defined in 47 U.S.C. Section 153(51); a provider of information service, as defined in 47 U.S.C. Section 153(24); or a wireless services provider; to provide communications services, including cable service, as defined in 47 U.S.C. Section 522(6); telecommunications service, as defined in 47 U.S.C. Section 153(53); an information service, as defined in 47 U.S.C. Section 153(24); wireless communications service; or other one-way or two-way communications service.
- COMMUNICATIONS SERVICE PROVIDER
- A cable operator, as defined in 47 U.S.C. Section 522(5); a provider of information service, as defined in 47 U.S.C. Section 153(24); a telecommunications carrier, as defined in 47 U.S.C. Section 153(51); or a wireless provider.
- DECORATIVE POLE
- A City pole that is specially designed and placed for aesthetic purposes.
- A one-time, non-recurring charge.
- HISTORIC DISTRICT
- A group of buildings, properties, or sites that are either listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register, the individual who has been delegated the authority by the Federal agency to list properties and determine their eligibility for the National Register, in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic Agreement codified at 47 C.F.R. Part 1, Appendix C, or are otherwise located in a district made subject to special design standards adopted by City ordinance or under State law as of January 1, 2018, or subsequently enacted for new developments.
- MICRO WIRELESS FACILITY
- A small wireless facility that meets the following qualifications:
- A written authorization required by the City to perform an action or initiate, continue, or complete a project.
- An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including any government authority.
- A recurring charge.
- The area on, below, or above a public roadway, highway, street, sidewalk, alley, or similar property used for public travel, but not including a Federal interstate highway, railroad right-of-way, or private easement.
- SMALL WIRELESS FACILITY
- A wireless facility that meets both of the following qualifications.
- 1. Each wireless provider's antenna could fit within an enclosure of no more than six (6) cubic feet in volume; and
- 2. All other equipment associated with the wireless facility, whether ground or pole-mounted, is cumulatively no more than twenty-eight (28) cubic feet in volume, provided that no single piece of equipment on the utility pole shall exceed nine (9) cubic feet in volume; and no single piece of ground mounted equipment shall exceed fifteen (15) cubic feet in volume, exclusive of equipment required by an electric utility or municipal electric utility to power the small wireless facility.
- TECHNICALLY FEASIBLE
- By virtue of engineering or spectrum usage, the proposed placement for a small wireless facility or its design or site location can be implemented without a reduction in the functionality of the small wireless facility.
- UTILITY POLE
- A pole or similar structure that is or may be used in whole or in part by or for wireline communications, electric distribution, lighting, traffic control, signage, or a similar function, or for the collocation of small wireless facilities; provided, however, such term shall not include wireless support structures, electric transmission structures, or breakaway poles owned by the State Highways and Transportation Commission.
- WIRELESS FACILITY
- Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including equipment associated with wireless communications and radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include:
- 1. The structure or improvements on, under, or within which the equipment is collocated;
- 2. Coaxial or fiber-optic cable between wireless support structures or utility poles;
- 3. Coaxial or fiber-optic cable not directly associated with a particular small wireless facility;
- 4. A wireline backhaul facility.
- WIRELESS INFRASTRUCTURE PROVIDER
- Any person, including a person authorized to provide telecommunications service in the State, that builds or installs wireless communication transmission equipment or wireless facilities but that is not a wireless services provider.
- WIRELESS PROVIDER
- A wireless infrastructure provider or a wireless services provider.
- WIRELESS SERVICES
- Any services using licensed or unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location or mobile, provided to the public using wireless facilities.
- WIRELESS SERVICES PROVIDER
- A person who provides wireless services.
- WIRELESS SUPPORT STRUCTURE
- An existing structure, such as a monopole or tower, whether guyed or self-supporting, designed to support or capable of supporting wireless facilities; an existing or proposed billboard; an existing or proposed building; or other existing or proposed structure capable of supporting wireless facilities, other than a structure designed solely for the collocation of small wireless facilities. Such term shall not include a utility pole.
- WIRELINE BACKHAUL FACILITY
- A physical transmission path, all or part of which is within the right-of-way, used for the transport of communication data by wire from a wireless facility to a network.
[Ord. No. 19-08, 6-18-2019]
The provisions of this Section shall only apply to activities of a wireless provider within the right-of-way to deploy small wireless facilities and associated utility poles.
Subject to the provisions of this Chapter and Sections 67.5110 to 67.5121, RSMo., (while in effect), a wireless provider may, as a permitted use not subject to zoning review or approval, collocate small wireless facilities and install, maintain, modify, operate, and replace utility poles along, across, upon, and under the right-of-way, except that the placement in the right-of-way of new or modified utility poles in single-family residential zoning districts or areas zoned as historic as of August 28, 2018, shall remain subject to any applicable zoning requirements that are consistent with Sections 67.5090 to 67.5103, RSMo., including but not limited to, non-discriminatory requirements for underground utilities as set forth in the City's ordinances. In order to maximize compliance with pre-established requirements for placement of utility facilities underground, to the extent that components of small wireless facilities functionally cannot be placed underground in accordance with such requirements they shall instead be installed in the least conspicuous location as reasonably possible under the circumstances as determined by the Community Development Director. Undergrounding shall not be required for modifications or replacements for existing poles to accommodate small wireless facilities. Small wireless facilities collocated outside the right-of-way in property not zoned primarily for single-family residential use shall be classified as permitted uses and not subject to zoning review or approval. Such small wireless facilities and utility poles shall be installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by the City, other governmental authorities or other authorized right-of-way users.
A wireless provider must obtain a permit from the City and with such reasonable conditions as may be imposed by the City, for work in a right-of-way that will involve excavation, affect traffic patterns, obstruct traffic in the right-of-way, or materially impede the use of a sidewalk.
Each new, replacement, or modified utility pole installed in the right-of-way shall not exceed the greater of ten (10) feet in height above the tallest existing utility pole in place as of January 1, 2019, located within five hundred (500) feet of the new pole in the same right-of-way, or fifty (50) feet above ground level. New small wireless facilities in the right-of-way shall not extend more than ten (10) feet above an existing utility pole in place as of August 28, 2018, or for small wireless facilities on a new utility pole, above the height permitted for a new utility pole. A new, modified, or replacement utility pole that exceeds these height limits shall be subject to all applicable zoning requirements that apply to other utility poles, to the extent consistent with Sections 67.5090 to 67.5103, RSMo., and this Chapter.
A wireless provider shall be permitted to replace decorative poles when necessary to collocate a small wireless facility, but any replacement pole shall reasonably conform to the design aesthetics of the decorative pole or poles being replaced, as determined by the Community Development Director.
Subject to Subsection 525.040(C), and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. Section 1.1307(a)(4) of the Federal Communications Commission rules, a wireless provider must use appropriate and reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a historic district, as determined by the Director of Community Development. Any such design or concealment measures shall not have the effect of prohibiting any provider's technology, nor shall any such measures be considered a part of the small wireless facility for purposes of the size restrictions in the definition of small wireless facility.
Small wireless facility collocations shall not interfere with or impair the operation of existing utility facilities, or City, or third-party attachments. A wireless provider shall repair, at the wireless provider's expense, all damage to the right-of-way directly caused by the activities of the wireless provider in the right-of-way and shall return the right-of-way to its functional equivalence before the damage under the competitively neutral, reasonable requirements and specifications of the City. If the wireless provider fails to make the repairs required by the City within a reasonable time after written notice, the City may make those repairs and charge the wireless provider the reasonable, documented cost of such repairs.
[Ord. No. 19-08, 6-18-2019]
The provisions of this Section shall apply to the permitting of small wireless facilities to be installed by or for a wireless provider in or outside the right-of-way and to the permitting of the installation, modification, and replacement of utility poles by a wireless provider inside the right-of-way.
Wireless providers or their agents shall apply for and obtain a permit pursuant to applicable Code and this Chapter to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility as provided in Section 525.030, above. The City shall receive applications for process, and issue such permits subject to the following requirements:
An applicant shall not be required to perform services or provide goods unrelated to the permit, such as in-kind contributions to the City, including reserving fiber, conduit, or pole space for the City;
An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant shall include construction and stamped engineering drawings and information demonstrating compliance with the criteria in Subdivision (9) of this Subsection and an attestation that the small wireless facility complies with the volumetric limitations in the definition of Small Wireless Facility contained in Section 525.020, above;
An applicant shall not be required to place small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole;
There is no limit as to the placement of small wireless facilities by minimum horizontal separation distances;
An applicant shall comply with reasonable, objective, and cost-effective concealment or safety requirements as provided herein;
An applicant that is not a wireless services provider shall provide evidence of agreements or plans demonstrating that the small wireless facilities will be operational for use by a wireless services provider within one (1) year after the permit issuance date, unless the City and the applicant agree to extend this period or if delay is caused by lack of commercial power or communications transport facilities to the site and the applicant notifies the City thereof. An applicant that is a wireless services provider shall provide the information required by this Subdivision by attestation;
Within fifteen (15) days of receiving an application, the City shall determine and notify the applicant, in writing, whether the application is complete. If an application is incomplete, the City shall specifically identify the missing information in writing. The processing deadline in Subdivision (8) of this Subsection shall be tolled from the time the City sends the notice of incompleteness to the time the applicant provides the missing information. That processing deadline may also be tolled by agreement of the applicant and the City;
An application for collocation shall be processed on a non-discriminatory basis and deemed approved if the City fails to approve or deny the application within forty-five (45) days of receipt of the application. An application for installation of a new, modified, or replacement utility pole associated with a small wireless facility shall be processed on a non-discriminatory basis and deemed approved if the City fails to approve or deny the application within sixty (60) days of receipt of the application;
The City may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements in Subsection (B) of Section 525.030, above, only if the action proposed in the application could reasonably be expected to:
Materially interfere with the safe operation of traffic control equipment or City-owned communications equipment;
Materially interfere with sight lines or clear zones for transportation, pedestrians, or non-motorized vehicles;
Materially interfere with compliance with the Americans with Disabilities Act, 42 U.S.C. Sections 12101 to 12213, or similar Federal or State standards regarding pedestrian access or movement;
Materially obstruct or hinder the usual travel or public safety on the right-of-way;
Materially obstruct the legal use of the right-of-way by the City, a utility, or other third party;
Fail to comply with reasonable and non-discriminatory spacing requirements of general application adopted by ordinance or regulations promulgated by the State Highways and Transportation Commission that concern the location of ground mounted equipment and new utility poles, subject to wireless provider requests for exception or variance;
Fail to comply with applicable codes, including nationally recognized engineering standards for utility poles or wireless support structures;
Fail to comply with the reasonably objective and documented aesthetics of a decorative pole and the applicant does not agree to pay to match the applicable decorative elements;
Fail to comply with reasonable and non-discriminatory undergrounding requirements contained in City ordinances as of January 1, 2018, or subsequently enacted for new developments, that require all new utility facilities in the area to be placed underground and prohibit the installation of new or the modification of existing utility poles in a right-of-way without prior approval, including by wireless provider requests for exception or variance.
The City shall document the complete basis for a denial, in writing, and send the documentation to the applicant with the communication denying an application. The applicant may cure the deficiencies identified by the City and resubmit the application within thirty (30) days of the denial without paying an additional application fee. The City shall approve or deny the revised application within thirty (30) days. Any subsequent review shall be limited to the deficiencies cited in the denial;
An applicant may file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities; provided, however, the denial of one (1) or more small wireless facilities in a consolidated application shall not delay processing of any other small wireless facilities in the same batch; and
An application may include up to twenty (20) separate small wireless facilities, provided that they are for the same or materially same design of small wireless facility being collocated on the same or materially the same type of utility pole or wireless support structure, and geographically proximate. If the City receives individual applications for approval of more than fifty (50) small wireless facilities or consolidated applications for approval of more than seventy-five (75) small wireless facilities within a fourteen-day period, whether from a single applicant or multiple applicants, the City may, upon its own request, obtain an automatic thirty-day extension for any additional collocation or replacement or installation application submitted during that fourteen-day period or in the fourteen-day period immediately following the prior fourteen-day period. The City shall promptly communicate its request to each affected applicant. In rendering a decision on an application for multiple small wireless facilities, the City may approve the application as to certain individual small wireless facilities while denying it as to others based on applicable requirements and standards, including those identified in this Chapter. The City's denial of any individual small wireless facility or subset of small wireless facilities within an application shall not be a basis to deny the application as a whole;
Installation or collocation for which a permit is granted under this Chapter shall be completed within one (1) year after the permit issuance date unless the City and the applicant agree, in writing, to extend this period, or the applicant notifies the City, in writing, that the delay is caused by a lack of commercial power or communications transport facilities to the site;
Approval of an application authorizes the applicant to:
Undertake the installation or collocation; and
Operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of ten (10) years, which shall be renewed for equivalent durations so long as the facilities and poles remain in compliance with the criteria set forth in Subdivision (9) of this Section, unless the applicant and the City agree to an extension term of less than ten (10) years. The provisions of this paragraph shall be subject to the right of the City to require, upon adequate notice and at the facility owner's own expense, relocation of facilities as may be needed in the interest of public safety and convenience, and the applicant's right to terminate at any time;
Abandoned small wireless facilities shall be removed as provided in this Chapter and Section 525.130 or an agreement, as applicable;
In determining whether sufficient capacity exists to accommodate the attachment of a new small wireless facility, the City shall take into account that any grant of access hereunder shall be subject to a reservation to reclaim such space, when and if needed, to meet a core utility purpose or documented plan projected at the time of the application pursuant to a bona fide development plan; and
In emergency circumstances that result from a natural disaster or accident, the City may require the owner or operator of a wireless facility to immediately remove such facility if the wireless facility is obstructing traffic or causing a hazard on the City's roadway, at the expense of the owner or operator of the wireless facility. In the event that the owner or operator of the wireless facility is unable to immediately remove the wireless facility, the City may remove the wireless facility from the roadway or other position that renders the wireless facility hazardous. Under these emergency circumstances, the City shall not be liable for any damage caused by removing the wireless facility and may charge the owner or operator of the wireless facility the City's reasonable expenses incurred in removing the wireless facility.
A permit is not required for:
Routine maintenance on previously permitted small wireless facilities;
The replacement of small wireless facilities with small wireless facilities that are the same or smaller in size, weight, and height; or
The installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles, in compliance with applicable codes.
For work described in Subdivisions (1) and (2) of this Subsection that involves different equipment than that being replaced, the wireless provider shall submit a description of such new equipment so that the City may maintain an accurate inventory of the small wireless facilities at that location.
For work described in Subdivisions (1), (2) and (3) of this Subsection, the wireless provider shall provide at least five (5) business days' notice by e-mail to the Public Works Director for any work that may affect traffic patterns, obstruct traffic in the right-of-way, or materially impede the use of a sidewalk. All work that may affect traffic patterns or, obstruct traffic in the right-of-way shall require an approved traffic management plan and must adhere to the Manual on Uniform Traffic Control Devices (MUTCD) for traffic control in a work zone. In cases of emergency, the wireless provider may proceed with required work without providing at least five (5) business days' notice; however, all emergency work shall be reported as soon as reasonably practicable by e-mail to the Public Works Director. All emergency work occurring outside of business hours shall be immediately reported to on-call Public Works employee. All emergency work which will or may affect traffic upon a road or vehicular access to a road must be coordinated with the City's Police Department.
No approval for the installation, placement, maintenance, or operation of a small wireless facility under this Chapter shall be construed to confer authorization for the provision of cable television service, or installation, placement, maintenance, or operation of a wireline backhaul facility or communications facility, other than a small wireless facility, in the right-of-way.
If applicable, the municipal electric utility shall not require an application for the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles, in compliance with applicable codes.
[Ord. No. 19-08, 6-18-2019]
This Section only applies to collocations on City poles and wireless support structures that are located outside the right-of-way.
Subject to Subsection (C) of this Section, the City shall authorize the collocation of small wireless facilities on City wireless support structures and poles to the same extent, if any, that it permits access to such structures for other commercial projects or uses. Such collocations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City, or its agent, and the wireless provider.
The City shall not enter into an exclusive agreement with a wireless provider concerning City poles or wireless support structures, including stadiums and enclosed arenas, unless the agreement meets the following requirements:
The wireless provider provides service using a shared network of wireless facilities that it makes available for access by other wireless providers, on reasonable and non-discriminatory rates and terms that shall include use of the entire shared network, as to itself, an affiliate, or any other entity; or
The wireless provider allows other wireless providers to collocated small wireless facilities, on reasonable and non-discriminatory rates and terms, as to itself, an affiliate, or any other entity.
When determining whether a rate, fee, or term is reasonable and non-discriminatory for the purposes of this Section, consideration may be given to any relevant facts, including alternative financial or service remuneration, characteristics of the proposed equipment or installation, structural limitations, or other commercial or unique features or components.
[Ord. No. 19-08, 6-18-2019]
The provisions of this Section apply to collocations on City poles within the right-of-way by a wireless provider.
Neither the City nor any person owning, managing, or controlling City poles in the right-of-way shall enter into an exclusive arrangement with any person for the right to attach to such poles. A person who purchases or otherwise acquires a City pole is subject to the requirements of this Section.
The City shall allow the collocation of small wireless facilities on its poles using the process set forth in Section 525.040 and this Chapter.
An application shall include sealed engineering and construction drawings by a Missouri licensed engineer, as well as plans and detailed cost estimates for any make-ready work as needed, for which the applicant shall be solely responsible.
Make-ready work shall be addressed as follows, unless the City (or its successor) and applicant agree to different terms in a pole attachment agreement:
The rates, fees, and terms and conditions for the make-ready work to collocate on a City pole shall be non-discriminatory, competitively neutral, and commercially reasonable, and shall comply with Sections 67.5110 to 67.5121, RSMo., and this Chapter;
Unless the City allows the applicant to perform any make-ready work, the City shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation by a wireless provider, including pole replacement if necessary, within sixty (60) days after receipt of a complete application. If applicable, make-ready work, including any pole replacement, shall be completed by the City within sixty (60) days of written acceptance of the good faith estimate and advance payment by the applicant. The City may require replacement of its pole on a non-discriminatory basis for reasons of safety and reliability, including a demonstration that the collocation would make the pole structurally unsound, including, but not limited to, if the collocation would cause a utility pole to fail a crash test; and
The person owning, managing, or controlling the City pole shall not require more make-ready work than required to meet applicable codes or industry standards. Fees for make-ready work shall not include costs related to preexisting or prior damage or non-compliance unless the City had determined, prior to the filing of the application, to permanently abandon and not repair or replace the structure. Fees for make-ready work, including any pole replacement, shall not exceed actual costs or the amount charged to other communications service providers for similar work, and shall not include third party fees, charges, or expenses, except for amounts charged by licensed contractors actually performing the make-ready work.
When a small wireless facility is located in the right-of-way of the State Highway System, equipment and facilities directly associated with a particular small wireless facility, including coaxial and fiber optic cable, conduit, and ground mounted equipment, shall remain in the utility corridor except as needed to reach a City or utility pole in the right-of-way but outside the utility corridor in which the small wireless facility is collocated.
[Ord. No. 19-08, 6-18-2019]
This Section governs the rates and fees to collocate small wireless facilities and the rates and fees for the placement of utility poles, but does not limit the City's ability to recover specific removal costs from the attaching wireless provider for abandoned structures or other rates or fees allowed under this Chapter or Sections 67.5110 to 67.5121, RSMo. The rates to collocate on City poles shall be non-discriminatory regardless of the services provided by the collocating applicant.
The City shall not require a wireless provider to pay any rates, fees, or compensation to the authority or other person other than what is expressly authorized by this Chapter or Sections 67.5110 to 67.5121, RSMo., (while in effect) for the use and occupancy of a right-of-way, for collocation of small wireless facilities on utility poles in the right-of-way, or for the installation, maintenance, modification, operation, and replacement of utility poles in the right-of-way.
Application fees shall be as follows:
The total fee for any application under Subsection (B) of Section 525.040 for collocation of small wireless facilities on existing City poles shall be one hundred dollars ($100.00) per small wireless facility. An applicant filing a consolidated application under Subdivision (11) of Subsection (B) of Section 525.040 shall pay one hundred dollars ($100.00) per small wireless facility included in the consolidated application; and
The total application fees for the installation, modification, or replacement of a pole and the collocation of an associated small wireless facility shall be five hundred dollars ($500.00) per pole.
The rate for collocation of a small wireless facility to a City pole shall be one hundred fifty dollars ($150.00) per pole per year.
The City shall not charge a wireless provider any fee, tax other than a tax authorized by Subdivision (3) below, or other charge, or require any other form of payment or compensation, to locate a wireless facility or wireless support structure on privately owned property, or on a wireless support structure not owned by the City.
The City shall not demand any fees, rentals, licenses, charges, payments, or assessments from any applicant or wireless provider for, or in any way relating to or arising from, the construction, deployment, installation, mounting, modification, operation, use, replacement, maintenance, or repair of small wireless facilities or utility poles, if not allowed by this Chapter or Section 67.5116, RSMo., (while in effect).
[Ord. No. 19-08, 6-18-2019]
Subject to the provisions of this Chapter, Sections 67.5110 to 67.5121, RSMo., (while in effect), and applicable Federal law, the City shall continue to exercise zoning, land use, planning, and permitting authority within its territorial boundaries, including with respect to wireless support structures and utility poles, except that the City shall not have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility not owned or controlled by the City, other than to comply with applicable codes.
Nothing herein limits the ability of the City to require an applicant to obtain one (1) or more permits of general applicability that do not apply exclusively to wireless facilities in addition to the Permit required by this Chapter.
Each applicant shall comply with all applicable City ordinances, resolutions, City Charter, rules, and regulations heretofore and hereafter adopted or established, to the extent that they are consistent with State and Federal law.
Nothing herein shall be deemed to relieve an applicant of the provisions of an existing franchise, license or other agreement or permit.
The exercise of one (1) remedy under this Chapter shall not foreclose use of another, nor shall the exercise of a remedy or the payment of damages or penalties relieve an applicant of its obligations to comply with its permits. Remedies may be used alone or in combination; in addition, the City may exercise any rights it has at law or equity.
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provisions of this Chapter.
No applicant shall be relieved of its obligation to comply with any of the provisions of this Chapter by reason of any failure of the City to enforce prompt compliance.
The provisions hereof shall specifically apply to any lands or property annexed as of the date of such annexation.
Nothing contained herein shall in any manner be deemed or construed to alter, modify, supersede, supplement or otherwise nullify any other ordinances of the City, Charter, or requirements thereof, whether or not relating to or in any manner connected with the subject written hereof, unless expressly provided otherwise herein or hereafter.
The use of the right-of-way under this Chapter is subject to the police powers of the City and Charter to adopt and enforce ordinances necessary to the health, safety and welfare of the public. A person using the right-of-way pursuant to this Chapter shall comply with all applicable general laws and ordinances enacted by the City pursuant to its police powers and Charter.
In addition to the requirements set forth in this Chapter, the City may adopt such orders, rules and regulations which are reasonably necessary to accomplish the purposes of this Chapter and are consistent herewith.
In no event shall any language or requirement in this Chapter be construed as or constitute a waiver or limitation of City's defenses with regard to sovereign immunity, governmental immunity, or official immunity under Federal or State constitutions, Statutes, and/or laws.
[Ord. No. 19-08, 6-18-2019]
This Chapter shall not nullify, modify, amend, or prohibit a mutual agreement between the City and a wireless provider made prior to August 28, 2018, but an agreement that does not fully comply with Sections 67.5110 to 67.5121, RSMo., (while in effect) shall apply only to small wireless facilities and utility poles that were installed or approved for installation before August 28, 2018, subject to any termination provisions in the agreement.
Such an agreement shall not be renewed, extended, or made to apply to any small wireless facility or utility pole installed or approved for installation after August 28, 2018, unless it is modified to fully comply with Sections 67.5110 to 67.5121, RSMo., (while in effect). In the absence of an agreement, and until such a compliant agreement or ordinance is entered or adopted, small wireless facilities and utility poles that become operational or were constructed before August 28, 2018, may remain installed and be operated under the requirements of Sections 67.5110 to 67.5121, RSMo., (while in effect).
[Ord. No. 19-08, 6-18-2019]
A wireless provider shall indemnify and hold the City and its elected and appointed officers and employees harmless against any damage or personal injury caused by the negligence of the wireless provider or its employees, agents, or contractors, including but not limited to reasonable attorney's fees incurred by the City.
A wireless provider shall have in effect insurance coverage as contained in Section 515.900. A self-insured wireless provider does not need to name the City or its officers and employees as additional insured. A wireless provider shall furnish proof of insurance, if applicable, prior to the effective date of any permit issued for a small wireless facility.
The bonding requirements for small wireless facilities shall be one thousand five hundred dollars ($1,500.00) per small wireless facility. For wireless providers with multiple small wireless facilities within the City, the total bond amount across all facilities shall be seventy-five thousand dollars ($75,000.00), which amount may be combined into one (1) bond instrument. The purpose of such bonds shall be to:
Provide for the removal of abandoned or improperly maintained small wireless facilities, including those that an authority determines need to be removed to protect public health, safety, or welfare;
Restore the right-of-way in connection with removals under Section 67.5113, RSMo., and this Chapter;
Recoup rates or fees that have not been paid by a wireless provider in over twelve (12) months, so long as the wireless provider has received reasonable notice from the City of any non-compliance listed above and been given an opportunity to cure.
Applicants that have at least twenty-five million dollars ($25,000,000.00) in assets in the State and do not have a history of permitting non-compliance within the City shall, under Section 67.1830, RSMo., be exempt from the insurance and bonding requirements otherwise authorized by this Chapter.
Any contractor, subcontractor, or wireless infrastructure provider shall be under contract or agreement with a wireless services provider to perform work in the right-of-way related to small wireless facilities or utility poles, and such entities shall be properly licensed under the laws of the State and all applicable City ordinances. Each contracted entity shall have the same obligations with respect to his or her work as a wireless services provider would have under this Chapter, under Sections 67.5110 to 67.5121, RSMo., and other applicable laws if the work were performed by a wireless services provider. The wireless services provider shall be responsible for ensuring that the work of such contracted entities is performed consistently with the wireless services provider's permits and applicable laws relating to the deployment of small wireless facilities and utility poles, and responsible for promptly correcting acts or omissions by such contracted entity at the wireless services provider's expense.
[Ord. No. 19-08, 6-18-2019]
Whenever, by reason of changes in the grade or widening of a street or in the location or manner of constructing a water pipe, drainage channel, sewer, or other City-owned underground or above ground structure, it is deemed necessary by the City, in the interest of public safety and convenience, to move, alter, or change the location of underground or above ground facilities of a wireless provider, the wireless provider shall relocate such facilities, on alternative right-of-way provided by the City, if available, upon adequate notice, in writing, by the City, without claim for reimbursement or damages against the City.
The construction, operation, maintenance, and repair of small wireless facilities shall be in accordance with applicable codes and relevant City ordinances pertaining to construction, operation, maintenance, and repair inside or outside the right-of-way.
All small wireless facilities shall be installed and located with due regard for minimizing interference with the public and with other users of a right-of-way, including the City.
An applicant shall not place small wireless facilities where they will damage or interfere with the use or operation of previously installed facilities or obstruct or hinder the various utilities serving the residents and businesses in the City of their use of any right-of-way.
Any and all rights-of-way disturbed or damaged during the construction of small wireless facilities shall be promptly repaired or replaced by the applicant, at the applicant's expense, to its functional equivalence as existed before the disturbance or damage.
All small wireless facilities and associated utility poles owned, leased, or controlled by the wireless provider shall be maintained by and at the expense of the wireless provider in good and clean condition that includes but is not limited to being free of rust, peeling paint and graffiti.
A small wireless facility shall not be readily noticeable and shall use the smallest equipment that is technically feasible.
For metal utility poles used for a small wireless facility, all cabling shall be run inside the pole to the maximum extent technically feasible.
No generators shall be allowed at any small wireless facility or associated utility pole.
Small wireless facilities and associated utility poles shall not be lighted nor contain any markings, except for ownership and contact information to be no larger than two (2) inches in height unless required by applicable Federal or State agency. Commercial advertising shall not be allowed.
All small wireless facility equipment on the outside of the utility pole shall be placed at minimum eight (8) feet above the right-of-way.
Utility poles associated with a small wireless facility:
Shall not be located within one hundred (100) feet of an apron of an emergency service facility.
Shall be placed in alignment with existing trees, utility poles, and street lights.
Shall be located at least five (5) feet away from the widest part of an alley or driveway, including any flare associated with the alley or driveway.
Shall not be located in such a manner that would negatively impact any business, residence, or property.
Any wireless infrastructure provider, contractor, or subcontractor must be properly licensed under laws of the State and all applicable local ordinances.
Each wireless infrastructure provider, contractor, or subcontractor shall have the same obligations with respect to its work as the wireless services provider would have hereunder and applicable law if the work were performed by the wireless services provider. The wireless services provider shall be responsible for ensuring that the work of wireless infrastructure providers, contractors or subcontractors is performed consistent with their permits and applicable law, and shall be responsible for promptly correcting any acts or omissions by a wireless infrastructure provider, contractor or subcontractor at the wireless services provider's expense.
[Ord. No. 19-08, 6-18-2019]
All applications for a permit shall be filed with the City's Public Works Department. The Public Works Director is authorized to develop an application for use by Wireless Service Provider. An Application for a Permit shall include, at minimum, the following:
Construction and stamped engineering drawings by a Missouri licensed engineer which demonstrate compliance with the criteria in Section 525.040(B)(9) and this Chapter;
An attestation that the small wireless facilities complies with the volumetric, limitations in the definition of small wireless facility;
Information on the height of any new, replacement or modified utility pole;
Applicable indemnity, insurance, and performance bond information required under City ordinances;
An applicant that is not a wireless services provider must provide evidence of agreements or plans demonstrating that the small wireless facilities will be operational for use by a wireless services provider within one (1) year after the permit issuance date, unless the City and the applicant agree to extend this period or if the applicant notifies the City the delay is caused by lack of commercial power or communications transport facilities. An applicant that is a wireless services provider must provide this information by attestation;
Plans and detailed cost estimates for any make-ready work as needed. The applicant shall be solely responsible for the cost of any make-ready work; and
Projected commencement and termination dates for the permit, or if such dates are unknown at the time the permit is issued, a provision requiring the permit holder to provide the Director of Public Works with reasonable advance notice of such dates once they are determined.
[Ord. No. 19-08, 6-18-2019]
In the event that: 1) the use of any portion of a small wireless facility and/or associated utility pole is discontinued for a continuous period of twelve (12) months, and sixty (60) days after no response to written notice from the City to the last known address of the wireless provider; or 2) any small wireless facility and/or associated utility pole has been installed in the right-of-way without complying with the requirements of this Chapter; a wireless provider shall be deemed to have abandoned such small wireless facility and/or associated utility pole(s).
The City, upon such terms as it may impose, may give a wireless provider written permission to abandon, without removing, any small wireless facility, or portion thereof, directly constructed, operated or maintained. Unless such permission is granted or unless otherwise provided in this Chapter, a wireless provider shall promptly remove, within a reasonable time, the abandoned small wireless facility and associated utility pole(s) and shall restore, using prudent construction standards, any affected right-of-way to their former state at the time such system was installed and in accordance with the then adopted engineering standards, so as not to impair their usefulness. In removing its facilities and equipment, a wireless provider shall refill, at its own expense, any excavation necessarily made by it and shall leave all right-of-way in as good condition as that prevailing prior to such removal without materially interfering with any authority pole or other utility wires, poles or attachments. The City shall have the right to inspect and approve the condition of the right-of-way, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this Chapter and any security fund provided shall continue in full force and effect during the period of removal and until full compliance by a wireless provider with the terms and conditions of this Chapter.
Upon abandonment of any small wireless facility, wireless support structure, or associated utility, pole in place, a wireless provider, if required by the City, shall submit to the City a written instrument, satisfactory in form to the City, transferring to the City the ownership of such poles or equipment allowed to remain within the right-of-way.
Upon written approval by City, a wireless provider may abandon underground portions of a small wireless facility in place so long as it does not materially interfere with the use of the right-of-way or with the use thereof by any public utility, cable operator or other person.
If a wireless provider defaults under any provision of this Chapter and such default is not cured within sixty (60) days following notice by the City to the wireless provider of its default, the City shall maintain all it rights and remedies, at law and in equity, including the ability to charge fines, recover fees and costs. The City may also remove the small wireless facilities' associated equipment, and associated utility pole(s) and charge the reasonable, documented, actual cost to the wireless provider.
[Ord. No. 19-08, 6-18-2019]
Any person violating any provision of this Chapter shall, upon conviction by the City's Municipal Court, be punished by a fine not to exceed five hundred ($500.00) or by imprisonment not to exceed ninety (90) days, or by both such fine and imprisonment. Each day the violation continues may be charged as a separate offense.
[Ord. No. 19-08, 6-18-2019]
This Chapter shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or collocated on City poles prior to such date, the rate set forth in this Chapter for collocation of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the collocation.
[Ord. No. 19-08, 6-18-2019]
If any provision of this Chapter or the application thereof to anyone or to any circumstance is held invalid, the remainder of those Sections and the application of such provisions to others or other circumstances shall not be affected thereby.