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BILL NO. 2019-073 ORDINANCE NO.
AN ORDINANCE OF THE COUNCIL OF THE CITY OF NIXA,
MISSOURI, AMENDING THE CODE OF THE CITY OF NIXA TO
INCLUDE CHAPTER 25, SMALL CELL PLACEMENT AND
ADOPTING ARTICLE I-SMALL WIRELESS DEVICE STANDARDS
FOR PLACEMENT ON CITY UTILITY POLES AND ARTICLE II –
SMALL CELL DEVICE STANDARDS FOR PLACEMENT
ON NON-CITY UTILITY POLES
WHEREAS, ARTICLE II, Section 2.1 of the Home Rule Charter of the City of Nixa, Missouri
provides the City of Nixa all powers of the General Assembly of the State of Missouri have
authority to confer upon any City, provided such powers are consistent with the Constitution of
the State of Missouri and are not limited or denied by the City of Nixa’s Charter or by statute; and
WHEREAS, the City of Nixa, Missouri desires to encourage wireless infrastructure investment
by providing a fair and predictable process for the development of small wireless facilities, while
enabling the City of Nixa, Missouri to promote the management of the rights-of-way in the overall
interest of public health, safety and welfare.
WHEREAS, the Council of the City of Nixa wishes to amend the Code to create Chapter 25,
Article I and II, to provide regulations that are compliant with state and federal law, including the
Uniform Small Wireless Facility Deployment Act, Sections 67.5111 to 67.5122 RSMo, and the
Federal Communications Commission Order titled Accelerating Wireless Broadband Deployment
by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and
Order, FCC 18-133 (September 27, 2018).
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF NIXA, AS
FOLLOWS:
Section I: The Code of the City of Nixa, Missouri, is hereby amended by adding Chapter 25, Small
Cell Placement, and adopting Articles I and II which shall be numbered 25-1 through 25-33 and
shall read as follows:
ARTICLE I – Small Wireless Device Standards for Placement on Municipal/City/Utility
Poles
Section 25-1. - Purpose and Scope:
(a) The purpose and intent of this Article I is to provide a uniform and comprehensive set
of regulations and standards for the permitting, development, collocation, installation, design,
operation and maintenance of small wireless telecommunications facilities on
Municipal/City/Utility Poles in the City of Nixa. These regulations are intended to prescribe clear
and reasonable criteria to assess and process applications in a consistent and expeditious manner,
while reducing the impacts associated with small wireless telecommunications facilities. This
Article provides standards necessary to: (1) preserve and promote harmonious land uses and the
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public right-of-way in the City; (2) promote and protect public health and safety, community
welfare, visual resources, and the aesthetic quality of the City consistent with the goals, objectives
and policies of the Comprehensive Plan; (3) provide for the orderly, managed, and efficient
development of small cell wireless telecommunications facilities in accordance with the state and
federal laws, rules, and regulations; and (4) encourage new and more efficient technology in the
provision of wireless telecommunications facilities.
(b) This Article is not intended to, nor shall it be interpreted or applied to:
(1) prohibit or effectively prohibit any personal wireless service provider's ability
to provide personal wireless services;
(2) prohibit or effectively prohibit any entity's ability to provide any interstate or
intrastate telecommunications service, subject to any competitively neutral and
nondiscriminatory rules or regulation for rights-of-way management;
(3) unreasonably discriminate among providers of functionally equivalent services;
(4) deny any request for authorization to place, construct or modify personal
wireless service facilities on the basis of environmental effects of radio frequency
emissions to the extent that such wireless facilities comply with the FCC's
regulations concerning such emissions;
(5) prohibit any collocation or modification that the City may not deny under
federal or state law; or
(6) otherwise authorize the City to preempt any applicable federal or state law.
(c) This Article I, along with any executed Small Cell Wireless Agreements, may be
amended, modified, vacated or terminated at any time to comply with state and/or federal laws
and/or regulations, as well as the ruling of a Court of Law of competent jurisdiction which
addresses issues regarding Small Wireless Facilities and/or any FCC Order or Ruling.
(d) Chapter 24 concerning the use of city property and right of way is applicable to the
placement of small wireless telecommunications facilities as provided for in this Article. In the
event of any conflict between the provisions of this Article and Chapter 24, this Article shall
govern.
Section 25-2. – Severability:
(a) If any section, subsection, sentence, clause, phrase, or word of this Article is, for any
reason, deemed or held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction, or preempted by legislative enactment, such decision or legislation shall not affect the
validity of the remaining portions of this Ordinance. The City Council of the City of Nixa hereby
declares that it would have adopted this Ordinance and each section, subsection, sentence, clause,
phrase, or word thereof, regardless of the fact that any one or more sections, subsections, clauses,
phrases, or words might subsequently be declared invalid or unconstitutional or preempted by
subsequent legislation.
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Section 25-3. – Definitions:
(a) For the purposes of this Article I, the following terms, phrases, words, and abbreviations
shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent
with the context, words used in the present tense include the future tense and vice versa, words in
the plural number include the singular number and vice versa, and masculine gender includes the
feminine gender and vice versa. The words ‘shall” and “will” are mandatory, and “may” is
permissive. Unless otherwise expressly stated or contrary to the context, terms, phrases, words,
and abbreviations not defined herein shall be given the City Code, and, if not defined therein, their
common and ordinary meaning. For further convenience, the first letter of terms, phrases, words,
and abbreviations defined in this Article have been capitalized, but an inadvertent failure to
capitalize such letter shall not affect its meaning, nor shall the inadvertent capitalization of the first
letter of a term, phrase, word or abbreviation not defined herein affect the meaning thereof.
(b) Defined terms:
(1) "Antenna" means communications equipment designed for the purpose of transmitting
or receiving electromagnetic radiofrequency (RF) signals, to be operated or operating from
a fixed location pursuant to FCC authorization, for the provision of wireless service and
any comingled information services. Antenna does not include an unintentional radiator,
mobile station or device.
(2) “Applicable Codes” means uniform building, fire, electrical, plumbing or mechanical
codes adopted by a recognized national code organization or local amendments to those
codes, as adopted by the City of Nixa, Missouri, (i.e. National Electrical Code (“NEC”),
National Electrical Safety Code (“NESC”), etc.).
(3) “Applicable Standards” means all applicable engineering and safety standards
governing the installation, maintenance, and operation of Facilities and the performance of
all work in or around electric Utility Facilities and includes the most current versions of
the NESC, NEC, and OSHA, each of which is incorporated by reference in this Ordinance,
and/or other reasonable safety and engineering requirements of the City, provided such
requirements of the City are applied on a non-discriminatory basis to utility and attaching
entities and all other users, and provided further that such requirements of the City are
consistent with this Ordinance. All future updates or revisions of said Applicable
Standards are hereby incorporated herein.
(4) “Applicant” means any person or entity that submits a collocation or attachment
application and the agents, employees and contractors of such person or entity.
(5) “Application” means a written submission to the City of Nixa, Missouri requesting
a permit for authorization of the deployment or collocation of a small wireless facility or
personal wireless facility at a specified location on a Municipal/City/Utility Pole.
(6) “Associated Equipment” means equipment, switches, wiring, cabling, associated with
an antenna located at the same fixed location as the antenna, and, when collocated on a
structure, is mounted or installed at the same time as such antenna.
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(7) “Attachment(s)” means any equipment that is placed in the communication space of
City Poles on the same face of the Pole and may include an Antenna Attachment made on
the pole top, pursuant to this Ordinance. Attachments in the Supply Space and pole top
Attachments will be defined in the permitting process and will only be on Municipal Utility
Poles designated by City, with street access and which are mutually agreed to by the
City and the Applicant. All such Attachments are subject to the requirements in this
Ordinance and any Small Cell Wireless Agreement between the City and the Applicant.
(8) “City” means the City of Nixa, Christian County, Missouri.
(9) “Collocate or Collocation” means to install, mount, maintain, modify, operate, or
replace a small wireless facility on or immediately adjacent to a Municipal/City/Utility
Pole, provided that the small wireless facility antenna is located on the wireless support
structure or utility pole.
(10) “Communications Service” means a cable service, as defined in 47 U.S.C. 522(6), as
amended; information service, as defined in 47 U.S.C. 153(24), as amended;
telecommunications service, as defined in 47 U.S.C. 153(53), as amended; mobile service,
as defined in 47 U.S.C. 153(53), as amended; or wireless service other than mobile service.
(11) “Communications Service Provider” means a cable operator, as defined in 47 U.S.C.
522(5), as amended; a provider of information service, as defined in 47 U.S.C. 153(24), as
amended; a telecommunications carrier, as defined in 47 U.S.C. 153(51), as amended; or a
Wireless Provider.
(12) “Communication Space” means that space located above the Common Space on the
Pole and below the Communication Worker Safety Zone. No Communications Facilities
shall be located on the Common Space or the Communications Worker Safety Zone under
this Ordinance unless mutually agreed otherwise by the Applicant and the City.
(13) “Communication Worker Safety Zone” means that dedicated space on a pole that
separates the City’s Supply Space from the Communication Space. No power supply
facilities or small cell wireless facilities shall be allowed in the Communication Worker
Safety Zone.
(14) “Electrical Supply Space” or “Supply Space” means that portion of a utility pole which
is determined to be useable for electric power supply and that is located between the
topmost location of the “Communication Worker Safety Zone and the top of the Pole.
(15) “FCC” means the Federal Communications Commission of the United States.
(16) “Fee” means a one-time charge.
(17) “Historic District” or “Historic Landmark” means a building, property, or site, or
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
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properties and determine their eligibility for the National Register, in accordance with
Section VI.D.1.a.i through Section VI.D.1.a.v of the Nationwide Programmatic Agreement
codified at 47 CFR Part 1, Appendix C.
(18) “Law” means a federal or State statute, common law, code, rule, regulation, order, or
local ordinance or resolution.
(19) “Make Ready” means all work that the City reasonably determines to be required prior
to attachment by the Applicant to accommodate the small cell wireless attachment(s)
and/or to comply with all Applicable Standards. Such work includes, but is not limited to,
rearrangement and/or transfer of existing attachments and/or facilities, inspections,
engineering work, permitting work, tree trimming (other than tree trimming performed for
normal maintenance purposes), pole replacement and construction, but does not include
routine maintenance.
(20) “Micro Wireless Facility” means a small wireless facility that is not larger in
dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that
has an exterior antenna, if any, no longer than 11 inches.
(21) “Municipal/City/Utility Pole” means an electrical distribution pole, which the highest
voltage on such pole is equal to or less than 15 kilo volts, and/or a street light pole, that the
City owns and is maintained by the City in its capacity as a municipal electric utility. I. It
does not include poles and other structures that are included in the definition of “Utility
Pole.”
(22) “Permit” means the approved Application issued by the City after all reviews are
completed by the appropriate City departments in response to a Permit Application being
granted. A Permit, after all Make Ready work is completed, provides permission to a
Wireless Provider for the placement, Modification, or removal on or from the City’s poles
or support structures of the specific small cell wireless facility identified in the Application.
(23) “Person” means an individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization.
(24) “Public Safety Agency” means the functional division of the federal government, the
State, a unit of local government, or a special purpose district located in whole or in part
within this State, that provides or has authority to provide firefighting, police, ambulance,
medical, or other emergency services to respond to and manage emergency incidents.
(25) “Rate” means a recurring charge.
(26) “Right-of-Way” means the area on, below, or above a public roadway, highway, street,
public sidewalk, alley, or utility easement dedicated for compatible use. Right-of-way does
not include any City- owned aerial lines.
(27) “Small Cell/Wireless Facility” means a wireless facility that meets each of the
following qualifications:
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(i) Each antenna is located inside an enclosure of no more than three (3) cubic feet
in volume, or in the case of an antenna that has exposed elements, the antenna and
all of the antenna’s exposed elements could fit within an imaginary enclosure of no
more than three (3) cubic feet in volume; and
(ii) 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 electrical utility to power the small wireless
facility; and
(A) are mounted on structures 50 feet or less in height including their
Antennas, or
(B) are mounted on structures no more than 10 percent taller than other
adjacent structures, or
(C) do not extend existing structures on which they are located to a height
of more than 50 feet or by more than 10 percent, whichever is greater;
(iii) The Facilities do not result in human exposure to radiofrequency radiation in
excess of the applicable safety standards specified by the FCC.
(28) “Unauthorized Attachment(s)” means any Attachment or Facility of any kind placed
on or around a City Pole(s) without such authorization as is required by this Ordinance.
(29) “Utility Pole” means a pole or similar structure that is used in whole or in part by a
communications service provider or for, lighting, traffic control, signage, or a similar
function, or for the collocation of small wireless facilities; but shall not include wireless
support structures, electric transmission structures or breakaway poles owned by the state
highways and transportation commission. The term Utility Pole does not include
Municipal/City/Utility Poles.
(30) “Wireless facility” means equipment at a fixed location that enables wireless
communications between user equipment and a communications network, including:
(i) equipment associated with wireless communications; and
(ii) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup
power supplies, and comparable equipment, regardless of technological
configuration. Wireless facility includes small wireless facilities.
Wireless facility does not include wireline backhaul facilities, coaxial or fiber optic cable
that is between wireless support structures or utility poles or coaxial, or fiber optic cable
that is otherwise not immediately adjacent to or directly associated with an antenna.
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(31) “Wireless Infrastructure Provider” means any person authorized to provide
telecommunications service in the State that builds or installs wireless communication
transmission equipment, wireless facilities, wireless support structures, or utility poles and
that is not a wireless services provider but is acting as an agent or a contractor for a wireless
services provider for the application submitted to the City.
(32) “Wireless Provider” means a wireless infrastructure provider or a wireless services
provider.
(33) “Wireless Services” means any services provided to the general public, including a
particular class of customers, and made available on a nondiscriminatory basis using
licensed or unlicensed spectrum, whether at a fixed location or mobile, provided using
wireless facilities.
(34) “Wireless Services Provider” means a person who provides wireless services.
(35) “Wireless Support Structure” means a pole, tower, base station, or other structure,
whether or not it has an existing antenna facility, that is capable of supporting a small
wireless facility.
(36) “Wireline Backhaul Facility” means 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.
Section 25-4. – Authority for Attachments and Modifications:
(a) No Attachment or Wireless Facility shall be placed on or around any
Municipal/City/Utility Poles or modified until (i) an Application has been submitted by the
telecommunication provider, a Permit is granted by the City, and all Make Ready work is
completed, all in accordance with this Article, and (ii) Applicant has obtained all necessary
permits, licenses, consents, certifications and approvals from all governmental authorities and
other parties in connection therewith.
(b) Modifications, which do not require lane closures, traffic control issues and which do
not implicated non-attaching entities or persons shall not be subject to an additional Application
and Permit to the extent that (i) such modification to the Attachment involves only substitution of
internal components, and does not result in any change to the external appearance, dimensions, or
weight of the Attachment, as approved by the City, or (ii) such modification involves replacement
of the Attachment with an attachment that is the same or small in weight and dimensions as the
approved Attachment. However, written notification shall be provided to the Director of Nixa
Utilities for all such Modification which do not require an additional Application or Permit.
(c) Placement or Attachment of any of Wireless Facilities at a new or different position on
any Municipal/City/Utility Pole, in each instance where such placement or Attachment makes the
information provided on the initial Application inaccurate, shall constitute a modification requiring
the submission of a new Application and issuance of a new Permit. This does not apply in
circumstances where a Provider is transferring or rearranging its Wireless Facilities at the request
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of a third-party as part of that third-party’s Make Ready work necessary to attach its facilities to
the Municipal/City/Utility Pole.
Section 25-5. - Permitting of Small Wireless Facilities:
(a) Permitted Use. Small wireless facilities shall be classified as permitted uses and subject
to administrative review, except as provided in this Article I regarding Height Exceptions or
Variances, and subject to zoning review.
(b) Small Cell Wireless Agreement. For applications involving Municipal/City/Utility
Poles, no Permit shall issue unless the Applicant has first entered into a Small Cell wireless
Agreement with the City. Applications involving non-Municipal/City/Utility Poles are not
governed by this Article.
(c) Permit Required. An applicant shall obtain one or more permits from the City to
collocate a small wireless facility on a Municipal/City/Utility Pole. An application shall be
received and processed, and permits issued shall be subject to the following conditions and
requirements:
(1) Application Requirements. A Wireless Provider shall provide the following
information to the City, together with the City’s Small Cell Facilities Permit Application,
as a condition of any permit application to collocate small wireless facilities on a
Municipal/City/Utility pole or wireless support structure:
(i) A copy of the Small Cell Wireless Pole Attachment agreement between the City
and the Wireless Provider;
(ii) Site specific structural integrity established by pole loading and wind bearing
studies and make-ready analysis prepared by a professional or structural engineer;
(iii) The location where each proposed small wireless facility or utility pole would
be installed and photographs of the location and its immediate surroundings
depicting the utility poles or structures on which each proposed small wireless
facility would be mounted or location where utility poles or structures would be
installed. This should include a depiction of the completed facility;
(iv) Specifications and drawings prepared by a professional or structural engineer,
for each proposed small wireless facility covered by the application as it is proposed
to be installed;
(v) The equipment type and model numbers for the antennas and all other wireless
equipment associated with the small wireless facility;
(vi) A proposed preliminary schedule for the installation and completion of each
small wireless facility covered by the application, if approved. This proposed
scheduled can be altered by mutual agreement of the City and any wireless
provider; and.
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(vii) Certification that the collocation complies with the Collocation
Requirements and Conditions contained herein, to the best of the applicant’s
knowledge;
(2) Application Process. The City shall process applications related to
Municipal/City/Utility Poles as follows:
(i) The first completed application shall have priority over applications received by
different applicants for collocation on the same utility pole or wireless support
structure.
(ii) Within fifteen (15) days of receiving an application, the City shall determine
and notify the applicant in writing whether the application is complete. If the
application is incomplete, the City shall specifically identify the missing
information in writing. The processing deadline in the below subdivision is 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
mutual agreement of the Applicant and the City.
(iii) An application to collocate a small wireless facility on an existing
Municipal/City/Utility pole shall be processed on a nondiscriminatory basis within
60 days after the submission of a completed application.
(iv) The City shall deny an application if the proposed action in the application
could reasonably be expected to:
(A) Materially interfere with the safe operation of traffic control equipment
or City-owned communications equipment;
(B) Materially interfere with sight lines or clear zones for transportation,
pedestrians, or nonmotorized vehicles;
(C) 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;
(D) Materially obstruct or hinder the usual travel or public safety on the
right-of-way;
(E) Materially obstruct the legal use of the right-of-way by the City, a utility,
or other third party;
(F) 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.
The City’s spacing requirements shall not prevent a Wireless Provider from
serving any location and shall include a waiver, zoning, or other process
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that addresses Wireless Provider requests for exception or variance and does
not prohibit granting of such exceptions or variances. Notwithstanding the
foregoing ground mounted equipment shall be four (4) feet from the
Municipal/City/Utility Pole;
(G) Fail to comply with applicable codes, including nationally recognized
engineering standards for utility poles or wireless support structures;
(H) 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
(I) Fail to comply with reasonable and nondiscriminatory undergrounding
requirements contained in the City’s ordinances as of January 1, 2018, or
subsequently enacted for new developments, that require all 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, provided that such requirements include a waiver or other process
of addressing requests to install such utility poles and do not prohibit the
replacement or modification of existing utility poles consistent with this
section or the provision of wireless services.
(v) If the City determines that applicable codes, ordinances or regulations that
concern public safety, or the Collocation Requirements and Conditions contained
herein require that the utility pole or wireless support structure be replaced before
the requested collocation, approval shall be conditioned on the replacement of the
utility pole or wireless support structure at the cost of the Provider.
(vi) The City shall document the basis for a denial, including the specific code
provisions or application conditions on which the denial is based, and send the
documentation to the applicant on or before the day the City denies an application.
The applicant may cure the deficiencies identified by the City and resubmit the
revised application once within 30 days after notice of denial is sent to the applicant
without paying an additional application fee. The City shall approve or deny the
revised application within 30 days after the applicant resubmits the application or
it is deemed approved. Failure to resubmit the revised application within 30 days
of denial shall require the Applicant to submit a new application with applicable
fees, and recommencement of the City’s review period.
(vii) Any review of a revised application shall be limited to the deficiencies cited
in the denial. However, this provision does not apply if the cure requires the review
of a new location, new or different structure to be collocated upon, new antennas,
or other wireless equipment associated with the small wireless facility.
(3) Small Cell Wireless Agreement. At least 30 days prior to submitting an application for
a permit to collocate a small wireless facility on a Municipal/City/Utility Pole, the City and
the applicant shall enter into a Master Pole Attachment Agreement, provided by the City
for the initial collocation on a Municipal/City/Utility Pole by the applicant.
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(4) Tolling. The time period for applications may be further tolled by: An express written
agreement by both the applicant and the City; or A local, State or federal disaster
declaration or similar emergency that causes the delay.
(5) Consolidated Applications. An applicant seeking to collocate small wireless facilities
within the jurisdiction of the City may file a consolidated application for the collocation of
up to five (5) small wireless facilities provided all such small wireless facilities involve
substantially the same type of small wireless facility and substantially the same type of
support structures. Such consolidated applications shall be reviewed and processed within
ninety (90) days of receipt of the completed consolidated application. If an application
includes multiple small wireless facilities, the City may remove small wireless facility
collocations from the application and treat separately small wireless facility collocations
for which incomplete information has been provided or that do not qualify for consolidated
treatment or that are denied. The City may issue separate permits for each collocation that
is approved in a consolidated application.
(6) Duration of Permits. The duration of a permit shall be for a period of not less than 5
years, and the permit shall be renewed for equivalent durations unless the City makes a
finding that the small wireless facilities or the new or modified utility pole do not comply
with the Applicable Standards, safety and/or City codes or any provision, condition or
requirement contained in this Ordinance. If this Article VI is repealed, renewals of permits
shall be subject to the applicable City code provisions or regulations in effect at the time
of renewal. 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.
(7) Means of Submitting Applications. Applicants shall submit applications, supporting
information and notices to the City by personal delivery at the City’s designated place of
business, by mail.
(8) Collocation Completion Deadline. Collocation for which a permit is granted shall be
completed within six months after issuance of the permit, unless the City and the
Wireless Provider mutually agree otherwise, or the Wireless Provider notifies the City
that the delay is caused by a lack of commercial power or communications transport
facilities to the site. Otherwise, the permit shall be void unless the City grants an
extension in writing to the applicant.
(9) Removal of abandoned small wireless facilities. The owner of a previously installed
small wireless facility shall remove such facility within ninety (90) days of the facility
becoming non-operational or of the owner ceasing to use such facility. If the owner of
such small wireless facility fails to timely remove the abandoned facility, the City may
remove such facility at the Owner’s expense and without any liability resulting
therefrom.
Section 25-6. – Costs and Scheduling of Make Ready Work:
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(a) The cost of all Make Ready Work necessary to enable the Municipal/City/Utility Pole
to support the requested collocation by a Wireless Provider, as such Cost is identified by the City
in a good faith estimate, shall be paid prior to issuance of any Permit. After receipt of such payment
and issuance of a Permit by the City, the City will cause the Make Ready work to be performed in
accordance with this Section and pursuant to a schedule that avoids conflict or interference with
the City’s prior work commitments and regular business operations. The Make Ready work will
be completed within sixty (60) days of written acceptance of the good faith estimate and advance
payment by the Applicant, unless otherwise mutually agreed to by the Parties.
(b) Wireless Providers shall pay for engineering work performed by the City related to
Municipal/City/Utility Poles, which includes, but is not limited to, analysis, field survey or
inspection of the proposed Wireless Facilities. In addition, Wireless Providers shall pay all actual
and documented costs (to the extent not paid pursuant to subsection (a) above), when incurred and
billed, for the preparation of engineering documentation or work orders and drawings, that may be
necessary to accommodate the Wireless Facilities, whether occurring prior to the placement of any
Wireless Facilities on Municipal/City/Utility Poles, or occurring subsequent to the placement of
any Wireless Facilities on Municipal/City/Utility Poles in connection with any post-construction
inspection(s) to determine whether the Wireless Facilities have been attached properly, in
accordance with the Application and all applicable Permits. The City shall provide the Wireless
Provider with an invoice for all actual and documented costs incurred for such additional work.
(c) Wireless Services Providers shall be responsible for entering into an agreement with
any existing third-party attaching entities to reimburse them for any costs that they incur in
rearranging or transferring their facilities to accommodate the Wireless Provider’s Attachment(s).
(d) Wireless Providers shall pay the actual and documented costs incurred by the City to
upgrade or replace Municipal/City/Utility Poles to which the Wireless Provider’s facilities are
attached if the upgrade or replacement is required solely by the addition or modification of the
Wireless Providers’ facilities or equipment, and to pay its proportionate share of the costs incurred
by City to upgrade or replace Municipal/City/Utility Poles if the upgrades or replacements directly
benefit the Wireless Provider and other users to such Municipal/City/Utility Poles and are made
to meet the City’s service needs, are made at the request of the Wireless Provider or an additional
attaching party, or are made as a result of governmental order or regulation.
Section 25-7. - Collocation Requirements and Conditions:
The following represent requirements and conditions applicable to the placement of small
wireless facilities under this Article I:
(a) City Priority. The City’s use of Municipal/City/Utility Poles for its own business
operations will take precedence over all other uses of such Poles. The City is not required to
maintain any Municipal/City/Utility Poles for a period longer than is necessitated by its own
service requirements. In the event the City determines that it will no longer maintain a
Municipal/City/Utility Pole upon which any Wireless Facilities are attached, the City will send the
relevant Wireless Services Providers sixty (60) days written notice that it will no longer maintain
the Pole. Such notice may be less than sixty (60) days if the City is required by a governing
authority to take action in regard to its Pole and is given less than sixty (60) days to take such
action. In such event, the City may, in its sole discretion, offer the Wireless Services Provider
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alternative space on another Municipal/City/Utility Pole for the provider’s Wireless Facilities,
provided that such alternative space and Pole are available. However, the City is not obligated to
offer such alternative to a provider. The City may interrupt, suspend or stop Wireless Providers’
transmission during any periods in which the City is working on a Municipal/City/Utility Pole in
which a Wireless Provider has a Wireless Attachment or Wireless Facility. Except in an
Emergency, the City will provide the Wireless Providers twenty-four (24) hours’ notice prior to
any such interruption.
(b) Space Reservation. The City may grant access to Municipal/City/Utility Poles subject
to a reservation of space to reclaim such space, when and if needed, to meet the City’s core utility
purpose or documented City plan projected at the time of the application.
(c) Installation and Maintenance. The Wireless Provider shall, at its sole cost and expense,
install, maintain, repair and modify its small wireless facilities in safe condition and good repair
and in compliance with the requirements and conditions of all applicable national, regional, state,
local and municipal laws, statutes, ordinances, rules and regulations. Wireless Providers shall
secure a permit from the City to work within rights-of-way for activities that affect traffic patterns
or require lane closures.
(d) Employees Agents or Contractors. All employees, agents or contractors that perform
work in connection with its small wireless facilities must be approved by the City and shall be
journeymen linemen who are trained and pre-qualified, licensed, certified, bonded, and insured to
provide Communications Worker Contractor Services, in compliance with all applicable national,
regional, state, local and municipal requirements. All such workers shall have successfully
completed the OSHA training programs for working within a ten (10) foot safety working
clearance zone over, under and around the City’s energized primary, secondary and services lines.
In addition, all such technicians shall undergo continuing training to maintain current skills and
certifications in electric line safety methods and equipment and must be certified by the State of
Missouri.
(e) Reimbursement of City Costs. In the event the City provides maintenance, removal
replacement and/or relocation services to any Wireless Services Provider as result of the Wireless
Services Provider failing to perform such services after notice given, then that Provider shall pay
to the City all actual and documented costs incurred as a result of the maintenance, removal
replacement and/or relocation of that Provider’s Attachments, Facilities or ground equipment.
(f) Failure to Comply and Revocation. In the event that notice is provided by a
governmental body that a Wireless Services Provider’s or its carrier’s use of any City Pole
hereunder is in violation of any municipal, state or federal law, statute, ordinance, rule or regulation
over which said governmental entity has jurisdiction, or is not authorized by permit, license or
other approval required from any governmental body, or in the event notice is provided by a
property owner or joint owner of the Pole of such violation or unauthorized use, the City may elect,
in its sole discretion, by written notice to the Wireless Services Provider to revoke any Permit
granted under this Ordinance authorizing the Wireless Services Provider’s use of said Pole, such
revocation to be effective upon the sixtieth (60th ) day following the date of such notice. In the
event the City elects to revoke such Permit, the Wireless Services Provider shall remove its
Wireless Facilities at Wireless Services Provider’s sole cost and expense, within sixty (60) days
form the date of the City’s revocation notice.
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(g) City Property. All Wireless Services Providers, their agents, contractors, and
employees, shall not, under any circumstances whatsoever, touch, handle tamper with or contact,
directly or indirectly, any of the City’s facilities other than the Municipal/City/Utility Pole, without
the express written consent of the City, which consent the City may not unreasonably withhold.
The City shall not be held responsible for, and all Wireless Services Providers shall expressly
relieve the City from all liability by reason of injury, including death, or damage of any nature
whatsoever to the Wireless Services Providers, or to their agents, contractors, subcontractors,
carriers, employees, invitees, customers and other who touch or are on the City Poles, if such
liability results from the negligence of the Wireless Service Provider or its employees, agents, or
contractors. In the event of a casualty or loss which results in the damage or destruction of the
City’s facilities to which a Wireless Services Provider’s Wireless Facilities are attached or located,
the City shall have no obligation hereunder to rebuild or restore the City facilities; provided that
in the event the City elects not to rebuild or restore the City’s facilities, the Permit in question shall
immediately terminate. In such event, the City shall work in good faith to allow the Wireless
Facilities to be Attached on a reasonable alternative Pole or location.
(h) Right to Inspect. The City reserves the right to make periodic inspections of all
Wireless Facilities located on or about Municipal/City/Utility Poles or City support structures, or
a portion of same, as often as conditions warrant. If the City determines that corrections or changes
need to be made to meet the Applicable Standards and Specifications, all Wireless Services
Providers shall cause such corrections or changes to be made at their own expense. In the event
the City requires any corrections or changes:
(1) Wireless Services Providers shall make all corrections or changes that could impact
public safety immediately.
(2) Unless mutually agreed by a Wireless Services Provider and the City, Wireless
Services Providers shall make all other corrections or changes within thirty (30) days of
written notice.
(3) Any corrections or changes not corrected or changed within the specified time will be
deemed an Unauthorized Attachment.
(i) Bucket Truck Accessibility. Due to safety concerns, all poles where antennas are to be
installed must be bucket truck accessible and only on distribution or street light poles. For
Attachments to Municipal/City/Utility Poles, the Wireless Provider shall discuss design and
mounting of all antennas with Nixa City Utility Department prior to installation.
(j) No interference. The Wireless Provider shall maintain its Wireless Facilities in such a
manner so as not to endanger or interfere with the use of Municipal/City/Utility Poles by the City
or others granted a right to attach to said poles. Upon receipt of any notice from the City, Nixa
City Utilities, any court or governmental entity that the Wireless Provider's operation of the small
wireless facilities are failing to comply with FCC standards and regulations, and the Wireless
Provider has been given an opportunity to show that it is in compliance and has exhausted all
available appeals, the Wireless Provider will, at its sole cost and expense, immediately take all
necessary steps to comply with such standards and regulations. A Wireless Provider shall install
small wireless facilities of the type and frequency that will not cause unacceptable interference
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with a public safety agency's communications equipment. Unacceptable interference will be
determined by and measured in accordance with the FCC's regulations addressing unacceptable
interference to public safety spectrum or any other spectrum licensed by a public safety agency. In
the event of interference that violates the FCC’s standards and/or regulations:
(1) If a small wireless facility causes such interference, and the Wireless Provider has been
given written notice of the interference by the City, Nixa City Utilities, any court or
governmental entity including a public safety agency, and the Wireless Provider has
been given an opportunity to show that it is in compliance and has exhausted all
available appeals, then the Wireless Provider, at its own expense, shall remedy the
interference in a manner consistent with the abatement and resolution procedures for
interference with public safety spectrum established by the FCC including 47 CFR
22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675.
(2) The City may terminate a permit for a small wireless facility based on such interference
if the Wireless Provider has been given an opportunity to show that it is in compliance and
has exhausted all available appeals and is not in compliance with the Code of Federal
Regulations cited in the previous paragraph. Failure to remedy the interference as required
herein shall constitute a public nuisance.
(3) The uninterrupted operation of the City’s facilities and the provision of electricity to its
customers are of paramount importance hereunder and, therefore, any mitigating
interference that may be caused to a Wireless Provider’s facilities by the City’s facilities,
existing or future, shall be solely the Wireless Provider’s responsibility and accomplished
solely at the expense of the Wireless Provider. The Wireless Provider shall eliminate such
interference by adjustment to its Wireless Facilities or by termination of the applicable
Permit. Under no circumstances shall the City be required to interrupt, suspend or alter its
uses of the City’s Poles or facilities in order to accommodate the Wireless Provider or its
rights granted hereunder, unless such interruption, suspension or alteration will not
materially affect the City’s operations.
(k) Safety Zones. The Wireless Provider shall not collocate small wireless facilities on
Municipal/City/Utility poles that are part of an electric distribution or transmission system within
the communication worker safety zone of the pole or the electric supply zone of the pole. However,
the antenna and support equipment of the small wireless facility may be located in the
communications space, as defined by the National Electric Safety Code as published by the
Institute of Electrical and Electronics Engineers, on the City utility pole and on the top of the pole,
if not otherwise unavailable, if the Wireless Provider complies with applicable codes for work
involving the top of the pole. No work shall be completed in the electric supply zone, as defined
by the National Electric Safety Code as published by the Institute of Electrical and Electronics
Engineers, without approval of the Nixa City Utility Department or without a properly authorized
permit issued by the City. Likewise, amplifiers and equipment other than wireless devices will not
be permitted in the electric supply zone or communication worker safety zone as these terms are
defined by the National Electric Safety Code as published by the Institute of Electrical and
Electronics Engineers. If pole communications equipment needs to be replaced, written notice will
be used to notify attaching providers to transfer their equipment.
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(l) Code and Law Compliance. The Wireless Provider shall comply with all applicable
codes and local code provisions or regulations that concern public safety. Disconnect, meter, and
antenna equipment must be installed to comply with Nixa Utility Department construction
standards. For Municipal/City/Utility Poles, driven pole grounds shall be required for each antenna
installation and installed per applicable code at a distance of four (4) feet from the pole. The
Wireless Provider shall also comply with all historic district preservation laws or requirements.
(m) Protective Equipment. All Wireless Providers, their carriers, their employees and
contractors shall utilize and install adequate protective equipment as required by the Applicable
Standards and Specifications to ensure the safety of people and facilities. The Wireless Services
Providers shall at their own expense install protective devices designed to handle the voltage and
current impressed on their facilities in the event of a contact with the supply conduct.
(n) Aesthetic Standards. The Wireless Provider shall comply with written aesthetic
standards that are objective, reasonable and published in advance, and are generally applicable for
decorative utility poles, or reasonable stealth, concealment and aesthetic requirements that are set
forth in a City ordinance, written policy adopted by the City, a comprehensive plan or other written
design plan that applies to other occupiers of the rights-of-way, including on a historic landmark
or in a historic district. All installation aesthetics must be mutually agreed to by the Wireless
Provider and the City prior to installation.
(o) Height Limitations. Unless the parties mutually agree otherwise, all wireless facilities
are to be mounted on structures 50 feet or less in height including their Antennas, or mounted on
structures no more than ten (10) percent taller than other adjacent structures, or that do not extend
existing structures on which the wireless facilities is located to a height of more than 50 feet or by
more than 10 percent, whichever is greater. The use of pole top extensions is discouraged.
(p) Height Exceptions or Variances. If an applicant proposes a height for a new or
replacement pole in excess of the above height limitations on which the small wireless facility is
proposed for collocation, the applicant shall apply for a Special Use Permit in conformance with
procedures, terms and conditions set forth in the Ordinances of the City.
(q) Contractual Design Requirements. The Wireless Provider shall comply with
requirements that are imposed by a contract between the City and a private property owner that
concern design or construction standards applicable to utility poles and ground-mounted
equipment located in the right-of-way.
(r) Ground-mounted Equipment Spacing. The Wireless Provider shall comply with
applicable spacing requirements in applicable codes and ordinances concerning the location of
ground-mounted equipment located in the right-of-way if the requirements include a waiver,
zoning or other process that addresses Wireless Provider requests for exception or variance and do
not prohibit granting of such exceptions or variances. Notwithstanding the foregoing all ground-
mounted equipment shall be four (4) feet from the Municipal/City/Utility Pole.
(s) Undergrounding Regulations. The Wireless Provider shall comply with local code
provisions or regulations concerning reasonable and nondiscriminatory undergrounding
requirements contained in local ordinances as of January 1, 2018, or subsequently enacted for new
developments, that require all utility facilities in the area to be placed underground and that prohibit
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the installation of new or the modification of existing utility poles in a right-of-way without prior
approval if the requirements include a waiver, zoning or other process that addresses requests to
install such new utility poles or modify such existing utility poles and do not prohibit the
replacement of utility poles.
(t) Sizing. Unless mutually agreed by the Wireless Provider and the City, no one small cell
wireless device greater than 36x24x12 inches in size (whether a receiver, transmitter or
combination unit) will be permitted per pole and only one Wireless Provider is permitted on a
single pole. Such placement shall be subject to pole loading and wind bearing studies.
(u) Antenna Coax Cable. Antenna coax cable, unless mutually agreed by the Wireless
Provider and the City, shall be installed with a maximum size of two (2) inch diameter schedule
40 PVC conduit. Conduit supports must be installed ever five (5) feet. All such antenna coax cable
shall be installed in accordance with the NESC.
(v) RF Warning Signs. Two RF warning signs must be installed – one near pole top level
where the safe approach level ends (for FCC General Population/uncontrolled power levels) and
one near the base of the pole. These signs shall indicate the safe approach distance. Each sign
shall also indicate the small cell wireless facility’s owner’s name and contact number where a
representative may be reached twenty-four (24) hours per day, seven (7) days per week. All such
signage shall be kept accurate and current.
(w) Disconnects. All small wireless facilities and/or antennas under this Article which
require electrical power shall have disconnects allowing the utility to disconnect power to avoid
RF exposure to its employees when working around any such device. The City and its employees
shall be permitted to cut power to any such facilities as in reasonable when working in or around
any such small cell wireless facility or antenna for purposes of employee safety.
(x) No Logos. All Wireless Providers shall not, and will ensure all its carriers will not,
place any logos, brand name identifiers or illumination on any City Poles or equipment without
the City’s approval documented on the Permit Application.
(y) Notifications of Work. The City shall be notified twenty-four (24) hours prior to when
a contractor will be working in the approved area of the Supply Space. Such notification shall
include the date and time the work is to be performed, the contractor’s company name, the names
of the individuals performing the work, and a description of work to be performed. Once the work
has been completed and before leaving the work site, the Contactor will notify the City that the
work has been completed and they will be leaving the site.
(z) Reports. All Wireless Facilities shall be clearly labeled on each Pole location with the
Wireless Services Provider’s name and a telephone number where a representative of the Provider
can be reached twenty-four (24) hours a day, seven (7) days a week to receive reports of problems
with the facilities. All labels shall be kept accurate and current. The Wireless Services Provider
shall investigate all such reports in a timely manner and perform all necessary repair and
maintenance to remedy such problems. For purposes of this subsection: “Timely Manner” means
a remote response is made within four (4) hours of the initial report and an on-site response is
made within twenty-four (24) hours of the initial report if an Emergency, and within thirty (30)
days if not an Emergency.
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Section 25-8. - Applicable Fees and Charges:
(a) Application Fee. The following application fees are hereby imposed as follows as they
relate to this Article and the placement on Municipal/City/Utility Poles: (1) For
Municipal/City/Utility Poles, Applicant shall pay an application fee of $500 for an application to
place up to five (5) small wireless facilities. Each small wireless facility beyond the initial five (5)
will cause an additional application fee of $100 to be imposed.
(b) Application Fee Due. Applications pursuant to this Article VI shall be accompanied by
the required Application Fee. Application Fees are nonrefundable.
(c) Additional Charges or Fees. The City shall not require any Fees or other charges, from
a communications service provider authorized to occupy the rights-of-way, for: 1) routine
maintenance; 2) the replacement of Wireless Facilities with Wireless Facilities that are
substantially similar, the same size, or smaller if the Wireless Provider includes equipment
specifications for the replacement of equipment consistent with subsections (iv) and (v) under the
Section titled Application Requirements; or 3) the installation, placement, maintenance, operation
or replacement of micro wireless facilities suspended on cables that are strung between existing
utility poles in compliance with applicable safety codes.
(d) Charges for Corrective Actions by City. Wireless Service Providers shall pay to the
City all actual and documented costs incurred by the City for correcting, transferring, removing or
other services rendered within thirty (30) days from the date of receipt of invoice from the City.
(e) Charges for Unauthorized Attachments/Facilities. The attachment of any Wireless
Facility, attached to or installed within four (4) feet of City Poles, or the Modification of any such
Wireless Facility, not listed on Provider’s Inventory and done without the approval of the City
pursuant to the terms of this Ordinance, shall be considered an Unauthorized Attachment of the
Wireless Facility. In the event of unauthorized attachment, the Wireless Services Provider shall
pay the City for each Unauthorized Wireless Facility, the rent for such Unauthorized Attachment
back to the date of the last audit, as well as be guilty of a violation of the City’s ordinances
punishable in accord with Section 1-9. Such fees shall be paid by the Wireless Services Provider
without prejudice to any of the City’s other rights under this Ordinance, including the City’s right
to remove such Unauthorized Facilities.
Section 25-9. – Annual Attachment Rate:
(a) Wireless Providers shall pay $270 annually for each Small Wireless Facility attached
to a Municipal/City/Utility Pole.
(b) For Municipal/City/Utility Poles, the City reserves the right to charge a higher annual
attachment rate and so collect any shortfall upon showing by a reasonable approximation that the
reasonable and nondiscriminatory actual costs incurred by the City as a result of the Small Wireless
Facility exceeds $270 annually for each Small Wireless Facility.
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(c) Non-Functioning Wireless Facilities shall continue to be assessed annual rent for the
Wireless Facilities that are no longer in service or operation until they are removed from the City
Pole or support structure.
(d) The Wireless Service Provider is solely responsible for all fees, rates, rents, and/or
penalties accessed, regardless of whether the Wireless Facilities are leased or sublicensed to a
carrier.
(e) Notwithstanding the foregoing, the City shall not collect any shortfall that was incurred
more than twenty-four (24) months prior to such request.
Section 25-10. – Audits and List of Attachments/Facilities and Locations:
(a) Wireless Services Providers shall install their Wireless Facilities only in the
Municipal/City/Utility Poles authorized and Permitted by the City.
(b) The City may revoke a Wireless Services Provider’s Permit to use a
Municipal/City/Utility Pole for noncompliance with a term or terms of this Article or with the
Small Cell Wireless Agreement, if any, subject to the notice and right to cure procedures for a
default in the Small Cell Wireless Agreement.
(c) Upon request of either party, or every five (5) years, an official audit will be conducted
to determine the number, type and locations of all Wireless Facilities located on or about City
Poles and/or City support structures. The cost of said audit shall be split proportionally between
all the Wireless Services Provider as it relates to Municipal/City/Utility Poles.
(d) All Wireless Services Providers shall maintain a list of their Wireless Facilities with
locations and shall provide said list to the City on December 31st of each year.
Section 25-11. - Exceptions to Applicability:
(a) Unless otherwise mutually agreed, this Article does not authorize the use of the City’s
transmission structures, which are those structures used to support electric circuit of 60,000 volts
and higher
(b) Nothing in this Article authorizes a person to collocate small wireless facilities on:
(1) property owned by a private party or property owned or controlled by the City or
another unit of local government that is not located within rights-of-way, or a privately-
owned utility pole or wireless support structure without the consent of the property owner;
(2) property owned, leased, or controlled by a park district, forest preserve district, or
conservation district for public park, recreation or conservation purposes without the
consent of the affected district.
Section 25-12.- Abandonment:
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(a) A small wireless facility that is not operated for a continuous period of 12 months shall
be considered abandoned. The owner of the facility shall remove the small wireless facility within
90 days after receipt of written notice from the City notifying the Wireless Provider of the
abandonment. The notice shall be sent by certified or registered mail, return receipt requested, by
the City to the owner at the last known address of the Wireless Provider. If the small wireless
facility is not removed within 90 days of such notice, the City may remove or cause the removal
of such facility pursuant to the terms of its pole attachment agreement for municipal utility poles
or through whatever actions are provided for abatement of nuisances or by other law for removal
and cost recovery.
(b) A Wireless Provider shall provide written notice to the City if it sells or transfers small
wireless facilities within the jurisdiction of the City. Such notice shall include the name and contact
information of the new Wireless Provider.
Section 25-13. – Insurance and Bonding:
(a) Insurance Policies Required. Unless a Wireless Provider has more than twenty-five
million ($25,000,000) in assets, at all times a Wireless Provider that has facilities or Attachments
on City/Municipal/Utility Pole, the Wireless Provider shall keep in force and affect all insurance
policies and bonds required by Section 24-2 and Section 24-5.
Section 25-14. – Liability:
(a) As it relates to the attachment to Municipal/City/Utility Poles, to the extent permitted
by Missouri or Federal law, any Wireless Providers who place Attachment(s) on such poles shall
defend and hold harmless the City, its directors, officers, employees, shareholders, agents,
contractors, subcontractors, successors and assigns (the "Indemnitees") from and against any and
all third party claims, including any claims by its carriers, demands, actions, causes of action,
liabilities, judgments, obligations, costs or expenses for any damage to property, or for injury to
or death of any person or persons, or any other costs or expenses, including without limitation
reasonable attorneys' fees and costs, related to, arising out of or connected with the placement, use,
operation, repair, modification or removal of any of the Wireless Provider’s Wireless Facilities
pursuant to this Article; provided, however, that no Wireless Provider shall have any obligation
hereunder to indemnify any Indemnitees for their own negligence or misconduct. The foregoing
indemnification shall include, but not be limited to, claims made under any worker's compensation
law or under any plan for employee's disability and death benefits, including, without limitation,
claims and demands that may be asserted by the Wireless Services Provider, its carriers,
employees, agents, contractors or subcontractors. All Wireless Services Providers shall
immediately notify the City of any such claims, demands, damages, injuries or deaths, and shall
provide a written report, or other pertinent material or information, if requested.
(b) All Wireless Provider who constructs or attaches any device or facility to any
Municipal/City/Utility Pole accepts the use of those city poles and city support structures in their
as-is, where -is condition, with all faults.
(c) Any Wireless Provider with Attachments on Municipal/City/Utility Poles shall be
liable for and promptly reimburse the City, except to the extent of the City's own willful
misconduct, and any authorized Municipal/City/Utility Pole user for expenses incurred in repairing
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or replacing such poles or any facilities damaged or destroyed, if such damage or destruction is
caused by or results from, in whole or in part, the Wireless Provider’s or its carrier's negligence,
recklessness or willful misconduct.
(d) All Wireless Services Providers shall conduct their operations, and insure those of its
carriers, and otherwise use or occupancy of Municipal/City/Utility Poles hereunder in compliance
with all applicable Environmental Laws and shall not cause any hazardous materials to be
introduced to or handled on or about City Poles hereunder. To the extent permitted by Missouri or
Federal Law, Wireless Provider will indemnify and shall defend and hold harmless the City from
and against any suits, damages, injuries, costs and expenses of any kind including, without
limitation, court costs, reasonable attorney and consultant fees, remediation costs, fines and
penalties, whether asserted under Environmental Laws or at common law, arising out of or related
to (a) any violation hereunder by the Wireless Provider, its carriers, its employees, agents, or
contractors of any Environmental Laws; or (b) the presence, release or threatened release of any
hazardous materials at, on or about City Poles hereunder caused by the Wireless Provider, its
carriers, its agents, employees, contractors, subcontractors, or any entity in privity with or
providing a benefit to the Wireless Services Provider; provided, however, that the Wireless
Services Provider shall have no obligation to so indemnify any Indemnitee from such Indemnitee's
own negligence or misconduct. The foregoing indemnification provisions, to the extent permitted
by Missouri and Federal law, shall survive the termination of any Small Cell Wireless Agreement
with any Wireless Provider.
(e) No provision of this Article is intended, or shall be construed, to be a waiver for any
purpose by the City of any applicable immunities or state limits on municipal liability or
governmental immunity.
Section 25-15. – Notification:
(a) The above notwithstanding, all Wireless Providers shall write communications related
to Permit Applications and approval process and necessary transfer or Pole modifications.
(b) All Wireless Providers shall maintain a staffed 24-hour emergency telephone number,
not available to the general public, where the City can contact the Wireless Provider to report
damage to that Wireless Provider’s Wireless Facilities or other situations requiring immediate
communications between the Provider and the City. Such contact person shall be qualified and
able to respond to the City’s concerns and requests regarding its Wireless Facilities. Failure to
maintain an emergency contact shall be a violation of the City’s Ordinances, and shall eliminate
the City's liability to that Wireless Services Provider for any actions that the City deems reasonably
necessary given the specific circumstances
Section 25-16. – Force Majeure:
(a) If either the City or a Wireless Services Provider is prevented or delayed from fulfilling
any provision of this Article by reason of fire, flood, earthquake, or like acts of nature, wars,
revolution, civil commotion, explosion, acts of terrorism, embargo, acts of the government in its
sovereign capacity, material changes of laws or regulations, labor difficulties, including without
limitation, strikes, slowdowns, picketing or boycotts, unavailability of equipment of vendor, or
any other such cause not attributable to the negligence or fault of the City or the Wireless Services
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Provider delayed in performing the acts required by this Article, then performance of such acts
shall be excused for the period of the unavoidable delay, and the entity affected shall endeavor to
remove or overcome such inability as soon as reasonably possible.
Section 25-17 through 25-22. Reserved.
ARTICLE II – Small Wireless Device Standards for Placement on Non-
Municipal/City/Utility Poles
25-23. -- Applicability:
(a) To the extent permitted by law, this Article II shall apply to all Persons desiring to
construct, operate, or maintain Small Wireless Facilities within the City which are not located on
utility poles owned by the municipality.
(d) Chapter 24 concerning the use of city property and right of way is applicable to the
placement of small wireless telecommunications facilities as provided for in this Article. In the
event of any conflict between the provisions of this Article and Chapter 24, this Article shall
govern.
25-24. – Definitions:
(a) Definitions and Usage – General. For the purposes of this Article II, the following terms,
phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly
stated. When not inconsistent with the context, words used in the present tense include the future
tense and vice versa, words in the plural number include the singular number and vice versa, and
masculine gender includes the feminine gender and vice versa. The words ‘shall” and “will” are
mandatory, and “may” is permissive. Unless otherwise expressly stated or contrary to the context,
terms, phrases, words, and abbreviations not defined herein shall be given the meaning set forth in
§ 67.5110-67.5121 RSMo, and if not defined therein, the City Code, and, if not defined therein,
their common and ordinary meaning. For further convenience, the first letter of terms, phrases,
words, and abbreviations defined in this Article have been capitalized, but an inadvertent failure
to capitalize such letter shall not affect its meaning, nor shall the inadvertent capitalization of the
first letter of a term, phrase, word or abbreviation not defined herein affect the meaning thereof.
(b) Defined Terms:
(1) “Antenna”, communications equipment that transmits or receives
electromagnetic radio frequency signals used in the provision of wireless services;
(2) “Applicable Codes” and Applicable Standards, uniform building, fire,
electrical, plumbing, or mechanical codes adopted by a recognized national code
organization or local amendments to such codes enacted to prevent physical
property damage or reasonably foreseeable injury to persons (i.e. National
Electrical Safety Code, National Electrical Code, Occupational Safety and Health
Administration, etc.), and reasonable, non-discriminatory standards and
specifications of the City;
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(3) “Applicable Law,” state and federal law and regulation applicable to the
construction, installation, deployment or Collocation of Wireless Facilities and
Utility Poles, including those laws and regulations of general applicability that do
not apply exclusively to Wireless Facilities or Wireless Providers such as local
ordinances and state law relating to use of Right-of-Way;
(4) “Applicant”, any person who submits an Application and is a Wireless Provider;
(5) “Application”, 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, Substantial Modification, or replacement of a Utility
Pole;
(6) “City Utility Pole”, means a Utility Pole, and electric utility facilities owned,
managed, or operated by or on behalf of the City. City Utility Poles and City
electric utility facilities are expressly excluded from this Article, as well as the
provisions of 67.5111 through 67.5122, RSMo. No provision of this Article shall
apply to City Utility Poles or City electric utility facilities;
(7) “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;
(8) “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); a 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;
(9) “Decorative Pole”, a City Utility Pole that is specially designed and placed for
aesthetic purposes;
(10) “Fee”, a one-time, nonrecurring charge;
(11) "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 a local ordinance or under state law;
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(12) “Make Ready” all work that the City reasonably determines to be required
prior to attachment by the Applicant to accommodate the Small Wireless
Attachment(s) and/or to comply with all Applicable Standards. Such work
includes, but is not limited to, rearrangement and/or transfer of existing attachments
and/or facilities, inspections, engineering work, permitting work, tree trimming
(other than tree trimming performed for normal maintenance purposes), pole
replacement and construction, but does not include routine maintenance.
(13) "Micro Wireless Facility", a small wireless facility that meets the following
qualifications: (i) Is not larger in dimension than twenty-four inches in length,
fifteen inches in width, and twelve inches in height; and (ii) Any exterior antenna
no longer than eleven inches;
(14) “Permit”, a written authorization from a designated City department required
by the City to Collocate Small Wireless Facilities in or outside the Right-of-Way,
or to install, replace, maintain or operate a Utility Pole or other Wireless Support
Structure in or outside the Right-of-Way for any purpose;
(15) “Rate”, a recurring charge;
(16) “Right-of-Way”, 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;
(17) “Small Wireless Facility”, a Wireless Facility that meets both of the following
qualifications: (i) Each Wireless Provider’s Antenna could fit within an enclosure
of no more than six cubic feet in volume; and (ii) All other equipment associated
with the Wireless Facility, whether ground or pole mounted, is cumulatively no
more than twenty-eight cubic feet in volume, provided that no single piece of
equipment on the Utility Pole shall exceed nine cubic feet in volume; and no single
piece of ground mounted equipment shall exceed fifteen 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;
(18) “Substantial Modification”, excludes modifications which are less than those
listed in this definition. Substantial Modification means the mounting of a proposed
Wireless Facility on a Wireless Support Structure which, as applied to the structure
as it was originally constructed:
(i) Increases the existing vertical height of the structure by:
(A) More than ten percent; or
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(B). The height of one additional Antenna array with separation
from the nearest existing Antenna not to exceed twenty feet,
whichever is greater; or
(ii) Involves adding an appurtenance to the body of a Wireless Support
Structure that protrudes horizontally from the edge of the Wireless
Support Structure more than twenty feet or more than the width of the
Wireless Support Structure at the level of the appurtenance, whichever is
greater (except where necessary to shelter the Antenna from inclement
weather or to connect the Antenna to the tower via cable);
(iii) Involves the installation of more than the standard number of new
outdoor equipment cabinets for the technology involved, not to exceed
four new equipment cabinets; or
(iv) Increases the square footage of the existing equipment compound by
more than one thousand two hundred fifty square feet.
(19) "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;
(20) “Utility Pole”, a pole or similar Support 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, but does not include “City Utility Poles”, as defined above, or
City electrical facilities;
(21) “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: (i) The
structure or improvements on, under, or within which the equipment is Collocated;
(ii) Coaxial or fiber-optic cable between Wireless Support Structures or Utility
Poles; (iii) Coaxial or fiber-optic cable not directly associated with a particular
Small Wireless Facility; or (iv) A Wireline Backhaul Facility;
(22) “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;
(23) “Wireless Provider”, a Wireless Infrastructure Provider or a Wireless Services
Provider;
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(24) “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;
(25) “Wireless Services Provider”, a person who provides Wireless Services;
(26) “Wireless Support Structure”, an existing or proposed 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.
(27) "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.
25-25. – General Standards:
(a) Neither the City, nor any person owning, managing, or controlling Utility Poles,
excluding City Utility Poles, shall enter into an exclusive arrangement with any person for use or
management of the Right-of-Way for the Collocation of Small Wireless Facilities or the
installation, operation, marketing, Substantial Modification, maintenance, management, or
replacement of Utility Poles within the Right-of-Way, or for the right to attach to such Utility Poles
within the Right-of-Way.
(b) The City, in applying the provisions of this Article will act in a competitively neutral
manner with regard to other users of the Right-of-Way.
(c) Nothing in this Article limits the ability of the City to require an Applicant to obtain
one or more permits of general applicability that do not apply exclusively to Wireless Facilities in
addition to the Permit required by this Article in order to Collocate a Small Wireless Facility or
install a new, modified, or replacement Utility Pole associated with a Small Wireless Facility.
(d) The City may require a Permit under Applicable Standards and Applicable Codes,
existing City ordinances, or this Article, with reasonable conditions, 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.
(e) A Small Wireless Facility must comply with reasonable, objective, and cost-effective
concealment or safety requirements determined by the City.
(f) Subject to Subsection (h) of Section 11-26 of this Ordinance, and except for facilities
excluded from evaluation for effects on historic properties under 47 C.F.R. 1.1307(a)(4) of the
Federal Communications Commission rules, the City may require reasonable, technically feasible,
nondiscriminatory, and technologically neutral design or concealment measures, which are
published on the City’s webpage, for Small Wireless Facilities or Utility Poles. The City’s
Aesthetic Standards do not have the effect of prohibiting any Wireless Provider's technology, and
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no measures required by the City’s Aesthetic Standards are to be considered a part of the Small
Wireless Facility for purposes of the size restrictions in the definition of Small Wireless Facility.
(g) Right-of-Way users, upon adequate notice and at the Wireless Providers’ own expense,
shall relocate Wireless Facilities, Utility Poles and Wireless Support Structures as may be needed
in the interest of public safety and convenience.
(h) Except as otherwise provided in this Article and Applicable Law, in reviewing
Applications for Small Wireless Facilities, Wireless Support Structures and Utility Poles, the City
will exercise zoning, land use, planning, and permitting authority within its territorial boundaries.
(i) Nothing in this Article shall be interpreted to impose any new requirements on cable
providers for the provision of such service.
(j) Small Wireless Facilities or Utility Poles constructed or operational before the passage
of this Article, which were approved by the City by permit or agreement may remain installed and
be operated under the requirements of this Article.
25-26. – Permitting Provisions
(a) Permit Requirements – Inside the Right-of-Way. Any Applicant desiring to Collocate
Small Wireless Facilities, or to install, replace, maintain or operate a Utility Pole, inside the Right-
of-Way must first apply for and obtain a Permit, in addition to any other required permit, license,
or authorization that is generally applicable and does not apply exclusively to Wireless Facilities.
(1) Subject to the provisions of sections 67.5090 through 67.5103 and 67.5110 through
67.5121, RSMo and applicable federal law, the Collocation of Small Wireless Facilities
and the installation, maintenance, Substantial Modification, operation, and replacement of
Utility Poles along, across, upon, and under the Right-of-Way are subject to zoning, land
use, planning review and Permitting authority, except the City shall not have or exercise
any jurisdiction or authority over the design, engineering, construction, installation, or
operation of any 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 in this Ordinance authorizes the City to require
Wireless Facility deployment or to regulate Wireless Services.
(2) Small Wireless Facilities and Utility Poles shall be installed and maintained so as not
to:
(i) Materially interfere with the safe operation of traffic control equipment or
City-owned communications equipment;
(ii) Materially interfere with sight lines or clear zones for transportation,
pedestrians, or nonmotorized vehicles;
(iii) 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;
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(iv) Materially obstruct or hinder the usual travel or public safety on the Right-Of-
Way;
(v) Materially obstruct the legal use of the Right-Of-Way by the City, a utility, or
other third party.
(3) Small Wireless Facilities and Utility Poles shall be installed and maintained so as to:
(i) 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. Such spacing requirements shall not prevent a
Wireless Provider from serving any location.
(ii) Comply with Applicable Codes and Applicable Standards, including nationally
recognized engineering standards for Utility Poles or Wireless Support Structures;
(iii) Comply with the reasonably objective and documented aesthetics of a
decorative pole and to pay to match the applicable decorative elements; and
(iv) Comply with reasonable and nondiscriminatory undergrounding requirements
established by the City prior to January 1, 2018, or subsequently enacted for new
developments, that require all utility facilities in the area to be placed underground
and prohibit the installation of new or the Substantial Modification of existing
Utility Poles in a Right-Of-Way without prior approval, and the City shall provide
a process for waiver or variance for the installation of such Utility Poles and such
undergrounding requirements will not prohibit the replacement or Substantial
Modification of existing Utility Poles consistent with this section or the provision
of Wireless Services.
(4) A new, replacement, or modified Utility Pole, including any attached Antennas,
installed in the Right-Of-Way shall not exceed 50 feet or be more than 10 percent taller
than other adjacent structures, whichever is greater.
(5) New Small Wireless Facilities in the Right-of-Way are placed on Utility Poles or
Support Structures shall not exceed 50 feet or be more than 10 percent taller than other
adjacent structures, whichever is greater.
(6) 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. The term ‘reasonably
conform’ as used herein, shall mean that the design aesthetics of the replacement pole shall
be as nearly identical to the Decorative Pole replaced as is feasible. The City Planning and
Development Director is authorized to determine if the replacement pole reasonably
conforms, based upon the Aesthetic Standards published in advance by the City.
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(7) The City may require replacement of a Utility Pole that is proposed to be used for a
Collocation on a nondiscriminatory basis for reasons of safety and reliability, including a
demonstration that the Collocation would make the Utility Pole structurally unsound.
(b) Permit Requirements – Outside the Right-of-Way.
(1) The Collocation of Small Wireless Facilities in or on City property shall be subject to
zoning review and permit approval.
(2) The City will allow Collocation of Small Wireless Facilities on City Wireless Support
Structures, excluding City Utility Poles, that are located on City property outside the right-
of-way to the same extent, if any, that it allows access to such structures for other
commercial projects or uses. Any such Collocations shall be subject to an annual rate per
attachment of $150, excluding:
(i) Application/Permitting fees;
(ii) Make Ready costs;
(iii) Applicable personal property and sales taxes or generally applicable fees for
encroachment or electrical permits;
(iv) Applicable fair and reasonable linear foot fees associated with coaxial or fiber-
optic cable in the Right Of Way that is:
(aa) Between Wireless Support Structures or Utility Poles;
(bb) Not directly associated with a particular Small Wireless Facility; or
(cc) A Wireline Backhaul Facility.
(3) The City shall not enter into an exclusive agreement with a Wireless Provider
concerning Utility Poles or City Wireless Support Structures, excluding City Utility Poles,
that are located on City property outside the Right-of-Way, including stadiums and
enclosed arenas, unless the agreement meets the following requirements:
(i) 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,
(ii). The Wireless Provider allows other Wireless Providers to Collocate Small
Wireless Facilities on reasonable and nondiscriminatory rates and terms, as to itself,
an affiliate, or any other entity.
(c) Permit Process for an Applicant seeking to construct Small Wireless Facilities in or
outside the Right-of-Way, or to install, replace, maintain or operate a Utility Pole inside the Right-
of-Way.
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(1) An Applicant seeking to Collocate Small Wireless Facilities in or outside the Right-of-
Way must first submit an Application for a Permit to the City Planning and Development
Director. The City Planning and Development Director shall design and make available to
Applicants a standard Application form, consistent with the provisions of this Article,
which all Applicants must use in order to accomplish the purposes of this Article. Except
for the requirements in Subsection 2 below, an Applicant shall not be required to provide
more information to obtain a Permit under this Article than other communications service
providers that are not Wireless Providers.
(2) An Application for a Permit shall include the following:
(i) Two sets of construction and engineering drawings which demonstrate
compliance with the City’s Applicable Standards, Applicable Codes, along with the
City’s Small Cell Aesthetic Standards and Small Cell Standards and Specifications
that are consistent with this ordinance and state law. The first set of drawings shall
be in an electronic format as the City requests and the second set to be paper copies;
(ii) Specifications of the Small Wireless Facilities consistent with the size and
volumetric limitations in the definition of Small Wireless Facility;
(iii) Information on the height of any new, replacement, or modified Utility Pole;
(iv) Applicable indemnity, insurance, performance bond information required in
Section 11-235;
(v) 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 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.
(vi) 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.
(vii) 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 City Planning and Development Director such dates once they are
determined but no less than 30 days prior to any work commencing at the
designated site of the Permit.
(d) Fees and Rates. Each such Application shall be accompanied by payment of Fees as
designated in this Article.
(1) General. Unless stated otherwise in this ordinance:
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(i) Any Fees collected pursuant to this Subsection will be used only to reimburse
the City for its actual incurred costs and will not be used to generate revenue to the
City above such costs.
(ii) The City may not require or accept in-kind services in lieu of any Fee.
(iii)The rates to Collocate on Utility Poles or City Support Structures shall be
nondiscriminatory regardless of the services provided by the Collocating Applicant.
(2) Application Fee.
(i) The total Fee for an Application for the Collocation of a Small Wireless Facility
on an existing Utility Pole is $100 per Small Wireless Facility.
(ii) An Applicant filing a consolidated Application shall pay $100 per Small
Wireless Facility included in the consolidated Application.
(A) An Applicant seeking to Collocate Small Wireless Facilities on City
owned property will be allowed, at the Applicant’s discretion, to file a
Consolidated Application and receive a single Permit for the Collocation of
multiple Small Wireless Facilities; provided, however, the denial of one or
more Small Wireless Facilities in a consolidated Application shall not delay
processing of any other Small Wireless Facilities in the same batch;
(B) A consolidated Application may include up to twenty 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.
(C) 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 ordinance.
(D) 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;
(iii) The total Fee for an Application for the installation, Substantial Modification,
or replacement of a Utility Pole and the Collocation of an associated Small Wireless
Facility will not exceed $500 per Utility Pole.
(3) Collocation Rate.
(i) The Rate for Collocation of a Small Wireless Facility to a Utility Pole or City
Support Structure is $150 per Utility Pole or City Support Structure per year.
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(4) Right-of-Way Permit Fee.
(i) The total Fee for a Right-of-Way permit associated with the installation of Small
Wireless Facilities in the Right-of-Way is $100.00.
(e) Timing for Processing of an Application.
(1) Within fifteen 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 2 of this Subsection is 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.
(2) The City shall process and approve or deny an Application for Collocation of a Small
Wireless Facility within forty-five (45) days of receipt of the Application. The Application
shall be deemed approved if not approved or denied within this forty-five (45) day period.
(3) The City shall process and approve or deny an Application for installation of a new,
Substantially Modified, or replacement Utility Pole associated with a Small Wireless
Facility within sixty (60) days of receipt of the completed Application. The Application
shall be deemed approved if not approved or denied within this sixty-day (60) day period.
This period may be extended by agreement of the City and the Applicant.
(4) An Applicant may file a consolidated Application as defined in Subdivision (d)(2)(ii)
(bb) of this Subsection and receive a single Permit for the Collocation of multiple Small
Wireless Facilities. 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 (14) day period, whether from
a single Applicant or multiple Applicants, the City may, upon its own request, obtain an
automatic thirty (30) day extension for any additional Collocation, replacement or
installation Application submitted during that fourteen day period or in the fourteen day
period immediately following the prior fourteen (14) day period. The City will promptly
communicate its request to each and any affected Applicant(s).
(5) The City shall provide a good faith estimate for any Make-Ready work necessary to
enable a Utility 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. Make-Ready work, including any pole replacement, shall be completed within
sixty (60) days of written acceptance of the good faith estimate and advance payment, if
required, by the Applicant.
(6) An Application that is not acted on within the specified time period is deemed approved.
(7) For any Application denied:
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(i) The City shall document the complete basis for a denial in writing and send the
documentation to the Applicant on or before the date the City denies the
Application.
(ii) 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.
(iii) The City shall approve or deny the revised Application within thirty (30) days
of receipt of the completed Application. Any subsequent review shall be limited to
the deficiencies cited in the denial.
(8) The City will not institute, either expressly or de facto, a moratorium on filing,
receiving, or processing Applications or issuing Permits or other approvals, if any, for the
Collocation of Small Wireless Facilities or the installation, Substantial Modification, or
replacement of Utility Poles to support Small Wireless Facilities.
(i) Notwithstanding the foregoing, an authority may impose a temporary
moratorium on applications for Small Wireless Facilities and the Collocation
thereof for the duration of a federal or state-declared natural disaster plus a
reasonable recovery period, or
(ii) for no more than 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 Collocation of Small Wireless
Facilities by more than fifty (50) percent.
(f) Denial of an Application. An Application for a proposed Collocation of a Small
Wireless Facility or installation, Substantial Modification, or replacement of a Utility Pole
otherwise meeting the requirements of Subsections (a) or (b) of this Section may be denied 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
non-motorized vehicles;
(3) Materially interfere with compliance with the Americans with Disabilities Act, 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, utility, or other third
party;
(6) Fail to comply with Applicable Codes, including nationally recognized engineering
standards for Utility Poles or Wireless Support Structures;
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(7) 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;
(8) 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 utility facilities in the area to be placed underground and
prohibit the installation of new or the Substantial Modification of existing Utility Poles in
a Right-of-Way without prior approval, and the City shall provide a process for waiver or
variance for the installation of such Utility Poles and such undergrounding requirements
will not prohibit the replacement or Substantial Modification of existing Utility Poles
consistent with the section and the provisions of Wireless Services.
(9) Any other reason not prohibited by Applicable Law.
(g) Approval of an Application.
(1) The City Planning and Development Director shall review each Application for a
Permit and, upon determining that (i) the Applicant has submitted all necessary
information; (ii) there is no lawful basis to deny the Application; and (iii) the Applicant
has paid the appropriate Fees, the City Planning and Development Director shall issue the
Permit.
(2) If the City approves an Application, the Applicant is authorized to:
(i). Undertake the installation or Collocation;
(ii) Operate and maintain the Small Wireless Facilities and any associated Utility
Pole covered by the Permit for a period of not less than ten years, which shall be
renewed for equivalent durations so long as they are in compliance with the criteria
listed in Subsection (f) of this Section and current on payment of all annual rates
due.
(3) In determining whether sufficient capacity exists to accommodate the attachment of a
new Small Wireless Facility, the City will grant access subject to a reservation to reclaim
such space, when and if needed, to meet the pole owner’s core utility purpose or
documented City plan projected at the time of the Application pursuant to a bona fide
development plan, unless such Attachment of the Small Wireless Facility will affect the
safety of the public using the Right Of Way.
(h) No Application Required. No Application is required for the following activities,
operation, modification, maintenance or repair however notification to the City is required for:
(1) Routine maintenance on previously Permitted Small Wireless Facilities;
(2) The replacement or modification of Small Wireless Facilities with Small Wireless
Facilities that are the same or smaller in size, weight, and height; or
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(3) The installation, placement, maintenance, operation, or replacement of Micro Wireless
Facilities that are strung on cables between Utility Poles in compliance with Applicable
Standards and Applicable Codes. Written notice shall be provided thirty (30) days prior to
any such installation, placement, maintenance, operation, or replacement.
(4) A person performing the Permitted acts under this Subsection may be required to
provide the City with a description of any new equipment installed so that the City may
maintain an accurate inventory of the Small Wireless Facilities at a particular location.
25-27. – General Standards.
(a) The construction, operation, Substantial Modification, maintenance, and repair of
Small Wireless Facilities shall be in accordance with federal, state and local Applicable Standards,
Applicable Codes and relevant City ordinances pertaining to construction, operation, Substantial
Modification, maintenance, and repair inside or outside the Right-of-Way.
(b) 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.
(c) 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.
(d) Any and all Rights-of-Way disturbed or damaged during the construction, operation,
Substantial Modification, maintenance or repair of Small Wireless Facilities shall be repaired or
replaced within thirty (30) days by the Applicant to its functional equivalence as existed before
the disturbance or damage after the operation, Substantial Modification, maintenance or repair has
been completed. This time period may be altered upon mutual consent of the City and the
Applicant.
(e) Any Wireless Infrastructure Provider, contractor or subcontractor must be properly
licensed under laws of the State and all applicable local ordinances.
(f) Each Wireless Infrastructure Provider, contractor or subcontractor shall have the same
obligations with respect to its work as 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 the Wireless Services
Provider’s Permits, along with the federal, state and local Applicable Standards, Applicable Codes
and Applicable Law and shall be responsible for promptly correcting any acts or omissions by a
Wireless Infrastructure Provider, contractor or subcontractor.
25-28-. Indemnity, Insurance, Performance Bonds:
(a) Wireless Providers shall indemnify and hold the City, its officers and employees
harmless against any damage or personal injury caused by the negligence of the Wireless Provider
or its employees, agents, or contractors.
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(b) Wireless Providers must maintain insurance to the extent required of others making
use of the right-of-way as provided in Section 24-5.
(c) As part of the Permit process, a Wireless Provider must post a performance bond
of $1,500 per Small Wireless Facility.
(1) The total bond amount may not exceed $75,000 for all facilities, which amount may be
combined into a single bond instrument. The purpose of the performance bond is to:
(i) Provide for the removal of abandoned or improperly maintained Small Wireless
Facilities, including those that the City determines need to be removed to protect
public health, safety, or welfare;
(ii) Restore the Right-of-Way in connection with removals of Small Wireless Facilities
from the Right-of-Way; and
(iii) Recoup Rates or Fees that have not been paid by a Wireless Provider in over twelve
months, provided the Wireless Provider has been provided with reasonable notice
from the City and has been given the opportunity to cure.
(2) Recovery by the City of any amounts under the performance bond or otherwise does
not limit an Applicant’s duty to indemnify the City in any way, nor shall such recovery
relieve an Applicant of its obligations under a Permit or reduce the amounts owed to
the City other than by the amounts recovered by the City under the performance bond,
or in any respect prevent the City from exercising any other right or remedy it may
have.
(d) Applicants that have at least twenty-five million dollars in assets in the State and do
not have a history of permitting noncompliance within the City’s jurisdiction shall be exempt from
the insurance and bonding requirements otherwise required by this Section. However, the
indemnification provisions of this Section remain in full force and effect. The City may require an
Applicant to provide proof by affidavit that its assets meet or exceed this requirement at the time
of filing the Application. The affidavit shall further state that in the event Applicant’s assets cease
to be valued at more than twenty-five million dollars, then Applicant shall comply with the
insurance and bonding requirements of this Section.
25-29-. Miscellaneous Provisions:
(a) Compliance With Laws. Each Applicant shall comply with all applicable City
ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established, to
the extent that they are consistent with state or federal law.
(b) Franchises Not Superseded. Nothing herein shall be deemed to relieve an Applicant of
the provisions of an existing franchise, license or other agreement or Permit.
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(c) Rights and Remedies:
(1) The exercise of one remedy under this Article 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.
(2) The City hereby reserves to itself the right to intervene in any suit, action or proceeding
involving any provisions of this Article.
(3) No Applicant shall be relieved of its obligation to comply with any of the provisions of
this Article by reason of any failure of the City to enforce prompt compliance.
(d) Incorporation by Reference: Any Permit granted pursuant to this Article shall by
implication include a provision that shall incorporate by reference this Article into such Permit as
fully as if copied therein verbatim.
(e) Calculation of Time: Unless otherwise indicated, when the performance or doing of any
act, duty, matter, or payment is required under this Ordinance, or any Permit, and a period of time
is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include
the last day of the prescribed or fixed period of time.
(f) Federal and State Law. This Article, along with any executed Small Cell Wireless
Agreements, may be amended, modified, vacated or terminated at any time to comply with state
and/or federal laws and/or regulations, as well as the ruling of a Court of Law of competent
jurisdiction which addresses issues regarding Small Wireless Facilities and/or any FCC Order or
Ruling.
(g) Severability: If any term, condition, or provision of this Ordinance shall, to any extent,
be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and
continue to be effective. In the event of a subsequent change in Applicable Law so that the
provision that has been held invalid is no longer invalid, said provisions shall there upon return to
full force and effect without further action by the City and shall thereafter be binding on the
Applicant and the City.
25-30-. Annexation:
(a) The provisions hereof shall specifically apply to any lands or property annexed as
of the date of such annexation.
25-31-. Relocation of Facilities:
(a) 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
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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.
25-32.- Standards Applicable To City.
(a) Any standards in this Article relating to Small Wireless Facilities shall be fully
applicable to work performed by the City and its departments.
25-33.- Savings Clause.
(a) This Ordinance shall be in full force and take effect from and after the date of its
final passage by the City Council and approval by the Mayor.
Section II: All ordinances or portions of ordinances in conflict with this ordinance are hereby
repealed.
Section III: This ordinance shall be in full force and effect from and after the date of its passage.
READ TWO (2) TIMES AND PASSED BY THE CITY COUNCIL OF NIXA, MISSOURI
THIS 22nd DAY OF JULY 2019.
PRESIDING OFFICER
ATTEST:
CITY CLERK
APPROVED THIS DAY OF JULY 2019.
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
_______________________________
CITY ATTORNEY
1111 W. Kathryn P.O. Box 395 Nixa, Missouri 65714 Direct 417.724.5670 [email protected]
Nixa Utilities & Public Works Nixa, Missouri 417.725.2352
www.nixa.com
MEMORANDUM
To: Mayor and City Council
Cc: Jimmy Liles, CA
From: Doug Colvin
Date: 07.18.2019
RE: Ordinance for Small Cell Attachments
As discussed at various meetings over the past few months, Tim Ricker, Penny Speak our
consulting attorney with Healy Law, and staff have developed the attached Ordinance
implementing regulations for the permitting, development, siting, installation, design,
operation and maintenance of small wireless telecommunications facilities necessary to
compliance with both State and Federal law. Earlier this year, you passed a related
resolution and an ordinance adopting standards among other things for small cell wireless
devices leading up to this Ordinance. Though required by law, this ordinance will finalize and
provide for a uniform process for Nixa to work with the various communication providers
when they are ready to make improvements discussed by Penney Speak in May regarding to
5G wireless service development. This Ordinance includes the addition of two Articles to
address both City and Non‐City Utility poles. This difference is necessary to distinguish
between poles that are for street lights or for electric distribution service.
Though we still need to complete the finalization of our application forms, we have no
pressing applications or inquiries and have time to be ready when that occurs. Staff is in
support of this ordinance and recommends passage by City Council.