(a)
Title and intent.[1] This Section shall be known and may be cited as the "Small Wireless Facility Deployment Code," and it is intended to encourage and streamline the deployment of small wireless facilities in the City and to help ensure that robust and dependable wireless radio-based communication services and networks are available throughout 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. The sections and provisions of Article II of Chapter 9[2] shall apply to small wireless deployments except to the extent inconsistent with this Section 15-373.
(b)
ANTENNA
APPLICABLE CODES
APPLICANT
APPLICATION
AUTHORITY OR CITY
AUTHORITY POLE
AUTHORITY WIRELESS SUPPORT STRUCTURE
CO-LOCATE or CO-LOCATION
COMMUNICATIONS FACILITY
COMMUNICATIONS SERVICE PROVIDER
DECORATIVE POLE
FEE
HISTORIC DISTRICT
MICRO WIRELESS FACILITY
PERMIT
PERSON
RATE
RIGHT-OF-WAY
SMALL WIRELESS FACILITY
(1)
(2)
TECHNICALLY FEASIBLE
UTILITY POLE
WIRELESS FACILITY
(1)
(2)
(3)
(4)
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PROVIDER
WIRELESS SERVICES
WIRELESS SERVICES PROVIDER
WIRELESS SUPPORT STRUCTURE
WIRELINE BACKHAUL FACILITY
Definitions.[3] As used in this Section, the following terms shall have
the following meanings:
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or the City's
amendments 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 co-locate small wireless facilities on a utility pole or wireless
support structure, or to approve the installation, modification, or
replacement of a utility pole.
The City of Bellefontaine Neighbors.
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.
A wireless support structure owned, managed, or operated
by or on behalf of the City;
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.
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. § 522(5); a telecommunications carrier, as
defined in 47 U.S.C. § 153(51); a provider of information
service, as defined in 47 U.S.C. § 153(24); or a wireless
services provider; to provide communications services, including cable
service, as defined in 47 U.S.C. § 522(6); telecommunications
service, as defined in 47 U.S.C. § 153(53); an information
service, as defined in 47 U.S.C. § 153(24); wireless communications
service; or other one-way or two-way communications service.
A cable operator, as defined in 47 U.S.C. § 522(5);
a provider of information service, as defined in 47 U.S.C. § 153(24);
a telecommunications carrier, as defined in 47 U.S.C. § 153(51);
or a wireless provider.
A City pole that is specially designed and placed for aesthetic
purposes.
A one-time, nonrecurring charge.
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 CFR 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.
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.
A wireless facility that meets both of the following qualifications:
Each wireless provider's antenna could fit within an enclosure
of no more than six (6) cubic feet in volume; and
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. The following types of associated ancillary equipment shall
not be included in the calculation of equipment volume: electric meter,
concealment elements, telecommunications demarcation box, grounding
equipment, power transfer switch, cut-off switch, and vertical cable
runs and related conduit for the connection of power and other services.
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.
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 co-location 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.
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:
The structure or improvements on, under, or within which the
equipment is co-located;
Coaxial or fiber-optic cable between wireless support structures
or utility poles;
Coaxial or fiber-optic cable not directly associated with a
particular small wireless facility;
A wireline backhaul facility.
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.
A wireless infrastructure provider or a wireless services
provider.
Any services using licensed or unlicensed spectrum, including
the use of wifi, whether at a fixed location or mobile, provided to
the public using wireless facilities.
A person who provides wireless services.
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 co-location of small wireless facilities. Such term
shall not include a utility pole.
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.
[3]
See Section 67.5111, RSMo.
(c)
Deployment of small wireless facilities and associated poles in right-of-way.[4]
(1)
The provisions of this subsection shall only apply to activities
of a wireless provider within the right-of-way to deploy small wireless
facilities and associated utility poles.
(2)
Subject to the provisions of this subsection 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, co-locate
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 requirements for underground utilities
as set forth in this chapter or in other sections of the Code. Small
wireless facilities co-located 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.
(3)
A wireless provider must obtain a permit pursuant to this chapter,
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.
(4)
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 as set forth in the Municipal Code to the extent consistent
with Sections 67.5090 to 67.5103, RSMo.
(5)
A wireless provider shall be permitted to replace decorative
poles when necessary to co-locate 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
Planning Director.
(6)
Subject to Subsection (d)(3) below, and except for facilities
excluded from evaluation for effects on historic properties under
47 CFR 1.1307(a)(4) of the Federal Communications Commission rules,
a wireless provider must use appropriate and reasonable, technically
feasible, nondiscriminatory, and technologically neutral design or
concealment measures in an historic district, as determined by the
City Planner. 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.
(7)
Small wireless facility co-locations shall not interfere with
or impair the operation of existing utility facilities, or City or
third-party attachments. A wireless provider shall repair 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.
[4]
See Section 67.5112, RSMo.
(d)
Permits for poles in right-of-way and wireless facilities in all
locations.[5]
(1)
The provisions of this subsection 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.
(2)
Wireless providers or their agents shall apply for and obtain a permit pursuant to Article II of Chapter 9 of this Code to[6] co-locate a small wireless facility or install a new,
modified, or replacement utility pole associated with a small wireless
facility as provided in Subsection (c) above. Wireless providers or
their agents shall apply for and obtain a building permit to co-locate
a small wireless facility or install a new, modified, or replacement
utility pole associated with a small wireless facility on private
property. The City shall receive applications for, process, and issue
such permits subject to the following requirements:
a.
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;
b.
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 engineering drawings and information demonstrating compliance with the criteria in Subsection (d)(2)(i) of this section and an attestation that the small wireless facility complies with the volumetric limitations in the definition of "small wireless facility" in Subsection (b) above;
c.
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;
d.
There is no limit as to the placement of small wireless facilities
by minimum horizontal separation distances;
e.
An applicant shall comply with reasonable, objective, and cost-effective
concealment or safety requirements as provided herein;
f.
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 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 subsection by attestation;
g.
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 Subsection (d)(2)(h) of this section 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;
h.
An application for co-location shall be processed on a nondiscriminatory
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 nondiscriminatory basis and deemed approved if the City fails
to approve or deny the application within sixty (60) days of receipt
of the application;
i.
The City may deny a proposed co-location of a small wireless
facility or installation, modification, or replacement of a utility
pole that meets the requirements in Subsection (c)(4) above only if
the action proposed in the application could reasonably be expected
to:
1.
Materially interfere with the safe operation of traffic control
equipment or City-owned communications equipment;
2.
Materially interfere with sight lines or clear zones for transportation,
pedestrians, or nonmotorized vehicles;
3.
Materially interfere with compliance with the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 to 12213, or similar
federal or state standards regarding pedestrian access or movement;
4.
Materially obstruct or hinder the usual travel or public safety
on the right-of-way;
5.
Materially obstruct the legal use of the right-of-way by the
City, a utility, or other third party;
6.
Fail to comply with reasonable and nondiscriminatory 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;
7.
Fail to comply with applicable codes, including nationally recognized
engineering standards for utility poles or wireless support structures;
8.
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; or
9.
Fail to comply with reasonable and nondiscriminatory 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;
j.
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;
k.
Consolidated application.
1.
An applicant may file a consolidated application and receive
a single permit for the co-location 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
2.
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 co-located 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
co-location 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 subsection. 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;
l.
Installation or co-location for which a permit is granted under
this subsection shall be completed within one (1) year after the permit
issuance date unless the City and the applicant agree to extend this
period, or the applicant notifies the City that the delay is caused
by a lack of commercial power or communications transport facilities
to the site.
m.
Approval of an application authorizes the applicant to:
1.
Undertake the installation or co-location; and
2.
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 Subsection (d)(2)(i) of this section, unless the applicant and the City agree to an extension term of less than ten (10) years. The provisions of this subsection 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;
n.
There shall be a temporary moratorium on applications for small
wireless facilities and the co-location thereof for the duration of
a federal or state-declared natural disaster plus a reasonable recovery
period, or for no more than thirty (30) days in the event of a major
and protracted staffing shortage that reduces the number of personnel
necessary to receive, review, process, and approve or deny applications
for the co-location of small wireless facilities by more than fifty
percent (50%);
o.
Abandoned small wireless facilities shall be removed as provided
in this Code or an agreement, as applicable;
p.
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
q.
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.
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.
(3)
A permit is not required for:
a.
Routine maintenance on previously permitted small wireless facilities;
b.
The replacement of small wireless facilities with small wireless
facilities that are the same or smaller in size, weight, and height;
or
c.
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 Subsection (d)(3)(a) and (b) of this section
that involves different equipment than that being replaced, the wireless
services 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.
(4)
No approval for the installation, placement, maintenance, or
operation of a small wireless facility under this section 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.
(5)
A 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.
[5]
See Section 67.5113, RSMo.
(e)
Co-locations on city poles and wireless support structures outside
of right-of-way.[7]
(1)
This subsection only applies to co-locations on City poles and
wireless support structures that are located outside the right-of-way.
(2)
Subject to Subsection (e)(3) of this section, the City shall
authorize the co-location 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
co-locations shall be subject to reasonable and nondiscriminatory
rates, fees, and terms as provided in an agreement between the City,
or its agent, and the wireless provider in a form approved by the
Board of Aldermen.
(3)
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:
a.
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 nondiscriminatory rates and
terms that shall include use of the entire shared network, as to itself,
an affiliate, or any other entity; or
b.
The wireless provider allows other wireless providers to co-locate
small wireless facilities, on reasonable and nondiscriminatory rates
and terms, as to itself, an affiliate, or any other entity.
(4)
When determining whether a rate, fee, or term is reasonable
and nondiscriminatory for the purposes of this subsection, 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.
[7]
See Section 67.5114, RSMo.
(f)
Co-locations on city poles within right-of-way.[8]
(1)
The provisions of this subsection apply to co-locations on City
poles within the right-of-way by a wireless provider.
(2)
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 subsection.
(3)
The City shall allow the co-location of small wireless facilities
on its poles using the process set forth in Subsection (d).
(4)
An application shall include engineering and construction drawings,
as well as plans and detailed cost estimates for any make-ready work
as needed, for which the applicant shall be solely responsible.
(5)
Make-ready work shall be addressed as follows, unless the City
(or its successor) and the applicant agrees to different terms in
a pole attachment agreement:
a.
The rates, fees, and terms and conditions for the make-ready
work to co-locate on a City pole shall be nondiscriminatory, competitively
neutral, and commercially reasonable, and shall comply with Sections
67.5110 to 67.5121, RSMo.;
b.
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 co-location
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 nondiscriminatory basis
for reasons of safety and reliability, including a demonstration that
the co-location would make the pole structurally unsound, including,
but not limited to, if the co-location would cause a utility pole
to fail a crash test; and
c.
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 noncompliance 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.
(6)
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 co-located.
[8]
See Section 67.5115, RSMo.
(g)
Rates and fees.[9]
(1)
This subsection governs the rates and fees to co-locate small
wireless facilities on City poles 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. The rates to co-locate on City poles shall be nondiscriminatory
regardless of the services provided by the co-locating applicant.
(2)
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 Sections 67.5110 to 67.5121, RSMo.
(while in effect) for the use and occupancy of a right-of-way, for
co-location 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.
(3)
Application fees shall be as follows:
a.
The total fee for any application for co-location 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 Subsection (d)(2)(k) shall pay one hundred dollars ($100.00)
per small wireless facility included in the consolidated application;
and
b.
The total application fees for the installation, modification,
or replacement of a pole and the co-location of an associated small
wireless facility on such pole shall be five hundred dollars ($500.00)
per pole.
(4)
Yearly fee for co-location on City pole; no fee on private property;
statutory authority.
a.
The rate for co-location of a small wireless facility to a City
pole shall be one hundred fifty dollars ($150.00) per pole per year.
b.
The City shall not charge a wireless provider any fee, tax other than a tax authorized by Subsection c. 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.
c.
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 Section 67.5116, RSMo. (while in effect).
[9]
See Section 67.5116, RSMo.
(h)
Authority preserved.[10] Subject to the provisions of 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.
[10]
See Section 67.5118, RSMo.
(i)
Prior agreements.[11]
This section 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).
[11]
See Section 67.5119, RSMo.
(j)
Indemnification, insurance, and bonding requirements.[12]
(1)
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 attorneys' fees incurred by the City.
(2)
A wireless provider shall have in effect insurance coverage, or demonstrate a comparable self-insurance program, all in accordance with Section 9-11 of this Code. 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.
(3)
The bonding requirements of Section 9-11 shall apply to small wireless facilities. The purpose of such bonds shall be to:
a.
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;
b.
Restore the right-of-way in connection with removals under Section
67.5113, RSMo.;
c.
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 noncompliance listed above
and been given an opportunity to cure;
d.
Bonding requirements shall not exceed 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 not exceed seventy-five thousand
dollars ($75,000.00), which amount may be combined into one bond instrument.
(4)
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 noncompliance
within the City shall, under Section 67.1830, RSMo., be exempt from
the insurance and bonding requirements otherwise authorized by this
section.
(5)
Any contractor, subcontractor, or wireless infrastructure provider
shall be under contract 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 section, 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.
[12]
See Section 67.5121, RSMo.
(k)
Expiration.[13] This Section 15-373 shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or co-located on City poles prior to such date, the rate set forth in Subsection (g) of this section for co-location of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the co-location.
[13]
See Section 67.5122, RSMo.
