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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  dcolvin@nixa.com  

 

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.