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§ 122.18  LOCATION OF NEW FACILITIES.
   (A)   The wireless provider shall not locate or maintain its wireless communication facilities so as to interfere with the use of the right-of-way by the municipality, by the general public or by other persons authorized to use or be present in or upon the right-of-way.
   (B)   Whenever any existing electric utilities, natural gas, water or sewer lines (or other public improvements) and communications facilities are located underground within a right-of-way, the wireless provider with permission to occupy the same portion of the right-of-way shall locate its wireless communication facilities underground at its own expense where technically feasible. The municipality may, in its sole discretion, approve above-ground placement of equipment cabinets, pedestals and similar equipment. For facilities or equipment such as small wireless facilities that cannot, by their nature, operate unless located above-ground, the wireless provider and municipality shall work to find a suitable location for such facilities or equipment.
   (C)   In performing any work in or affecting the right-of-way, the wireless provider, and any agent or contractor of the provider, shall comply with the provisions of this chapter and all other applicable laws.
   (D)   A wireless provider shall repair all damage to a right-of-way directly caused by the activities of the wireless provider in the right-of-way and return the right-of-way to equal or better condition to that before the damage occurred pursuant to the competitively neutral and reasonable requirements and specifications of the municipality. If the applicant fails to make the repairs that are reasonably required by the municipality within 14 days after written notice, the municipality may undertake such repairs and charge the wireless provider the reasonable, documented costs of such repairs. The municipality shall grant an extension of up to ten days to complete such repairs if the wireless provider requests such extension within the original 14-day period. In the event of immediate threat to life, safety, or to prevent serious injury, the municipality may immediately undertake to restore the site and then notify the applicant and charge the applicant for all reasonable restoration costs.
(Ord. 1096, passed 8-27-2019)
§ 122.19  REMOVAL, RELOCATION AND ABANDONMENT.
   (A)   Within 30 days following written notice from the municipality, the wireless provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any of its wireless communication facilities within the right-of-way, including relocation of above-ground wireless communication facilities underground (consistent with the provisions of this chapter), whenever the municipality has determined, in its sole discretion, that such removal, relocation, change or alteration is necessary for the construction, repair, maintenance, or installation of any municipal improvement, the operations of the municipality on, under or upon the right-of-way, or otherwise is in the public interest. The wireless provider shall be responsible to the municipality for any damages the municipality may incur as a result of the provider's failure to remove or relocate its wireless communication facilities.
   (B)   If the future maintenance or construction of a municipal road requires the moving or relocating of wireless facilities, utility poles, or wireless support structures currently located within a right-of-way, such facilities, poles, or structures shall be removed or relocated by the owner of such small wireless facilities, poles, or structures at the owner's expense and as directed by the municipality.
   (C)   The municipality retains the right and privilege to cut or move any wireless communication facility located within the right-of-way of the municipality, as the municipality may determine, in its sole discretion, to be necessary, appropriate or useful in response to any public emergency. If circumstances permit, the municipality shall notify the wireless provider and give the provider an opportunity to move its own facilities prior to cutting or removing the wireless communication facilities. In all cases the municipality shall notify the wireless provider after cutting or removing the wireless communication facility as promptly as reasonably possible.
   (D)   Any small wireless facility that is not operated for a continuous period of 90 days after completion of initial installation, excluding non-operation due to a natural disaster or other unforeseeable circumstance or temporary equipment failure, shall be considered abandoned. If a small wireless facility is abandoned, the small wireless facility owner shall notify the municipality within 30 days of the abandoned status of such facility, and such owner shall remove the abandoned facility. The related utility pole shall also be removed unless such pole is otherwise being used by another utility or is owned by a party other than the owner of the removed small wireless facility.
   (E)   If the wireless provider fails to timely protect, support, temporarily or permanently disconnect, remove, relocate, change or alter any of its wireless communication facilities or remove any of its abandoned wireless communication facilities as required in this division, the municipality or its contractor may do so and the provider shall pay all costs and expenses related to such work, including any damages the municipality incurs arising from the delay and attorneys' fees and expenses.
(Ord. 1096, passed 8-27-2019)
§ 122.20  INDEMNIFICATION.
   The applicant and wireless provider shall defend, indemnify, and hold harmless the municipality, its agents, officers, officials and employees from any and all damages, liabilities, injuries, losses, attorneys' fees, costs, and expenses, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the applicant or wireless provider. In the event the municipality becomes aware of any actions or claims, the municipality shall promptly notify the applicant and wireless provider and reasonably cooperate in the defense. It is expressly agreed that the municipality shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the municipality's defense, and the applicant and the wireless provider, as applicable, shall reimburse the municipality for any costs, expenses and attorneys' fees directly and necessarily incurred by the municipality in the course of the defense.
(Ord. 1096, passed 8-27-2019)
§ 122.21  INSURANCE.
   No person shall own or operate a small wireless facility within the municipality without having
secured and at all times maintained in place insurance coverage which conforms to the following:
   (A)   Comprehensive general liability, automobile, workers compensation, employer's liability and umbrella insurance in amounts satisfactory to the municipality;
   (B)   For a small wireless facility in the right-of-way, the commercial general liability insurance policy shall specifically include the municipality and its officers, officials, employees, and agents as additional insureds;
   (C)   All insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of Nebraska; and
   (D)   Such policies shall not be modified or cancelled without 30 days prior written notice being given to the Municipality and the insurance must be replaced by the owner of the wireless communication facility up to its original amounts.
(Ord. 1096, passed 8-27-2019)
§ 122.22  INDEPENDENT TECHNICAL AND LEGAL REVIEW.
   (A)   Although the municipality intends for municipal staff to review applications to the extent feasible, the municipality may retain the services of an independent technical consultant and attorney of its choice to provide technical and legal evaluations of permit applications. The technical consultant and attorney shall have recognized qualifications in the field of small wireless facilities. The review may include, but is not limited to:
      (1)   The accuracy and completeness of the items submitted with the application;
      (2)   The applicability of analysis and techniques and methodologies proposed by the applicant;
      (3)   The validity of conclusions reached by the applicant; and
      (4)   Whether the proposed small wireless facilities comply with the applicable approval criteria set forth in this chapter.
   (B)   The applicant shall pay the cost for any independent technical consultant and attorneys' fees through a deposit, estimated by the municipality, within ten business days of the municipality's request. When the municipality requests such payment, the application shall be deemed incomplete for purposes of application processing time lines until the deposit is received. In the event that such costs and fees do not exceed the deposit amount, the municipality shall refund any unused portion within 30 days after the final permit is released or, if no final permit is released, within 30 days after the municipality receives a written request from the applicant. If the costs and fees exceed the deposit amount, then the applicant shall pay the difference to the municipality before the permit is issued. The technical consultant and attorney shall provide an itemized description of the services provided and related fees and costs. The fees shall be limited to a reasonable approximation of costs and the costs shall be reasonable.
(Ord. 1096, passed 8-27-2019)
§ 122.23 FEDERAL AND STATE SHOT CLOCKS.
   (A)   Eligible facilities requests. This division implements Section 6409(a) of the Spectrum Act, 47 U.S.C. Section 1455(a), interpreted by the FCC in its Report and Order No. 14-153, which requires a state or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. Eligible facilities requests shall be governed by the provisions of federal law including, but not limited to, application review, the 60-day shot clock, tolling and the deemed granted remedy. Eligible facilities requests are subject to administrative review by the municipality.
   (B)   Small wireless facilities - collocation on existing structures. This division implements the 60- day shot clock which is contained in the FCC's Declaratory Ruling and Third Report and Order released September 27, 2018, regarding the collocation of small wireless facilities on existing structures. These requests shall be governed by the provisions of federal law and the Act including, but not limited to, application review and incompleteness, restarting of the 60-day shot clock once upon the first finding of incompleteness, tolling (under federal law and the Act) and available remedies. The applicant may resubmit the completed application within 30 days without additional charge. Any subsequent review shall be limited to the specifically identified information subsequently completed except to the extent material changes have been made by the applicant, other than those required by the municipality, in which case a new application and application fee shall be submitted. The application processing deadline also may be tolled by agreement of the applicant and the municipality. The municipality may extend the application processing deadline under the Act for a single period of ten business days if the municipality notifies the applicant in advance before the day on which approval or denial is originally due. Upon mutual agreement between the applicant and the municipality, the municipality may extend the period for consideration of an application for 30 days under the Act. An application shall be processed on a nondiscriminatory basis and deemed approved if the municipality fails to timely approve or deny the application within 90 days after receipt of the application. The municipality may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole only in accordance with Sec. 37 of the Act.
   (C)   Small wireless facilities - construction (new structures). This division implements the 90-day shot clock which is contained in the FCC's Declaratory Ruling and Third Report and Order released September 27, 2018, regarding the construction of small wireless facilities on a new structure. These requests shall be governed by the provisions of federal law and the Act including, but not limited to, application review and incompleteness, restarting of the 90-day shot clock once upon the first finding of incompleteness, tolling (under federal law and the Act) and available remedies. The applicant may resubmit the completed application within thirty days without additional charge. Any subsequent review shall be limited to the specifically identified information subsequently completed except to the extent material changes have been made by the applicant, other than those required by the municipality, in which case a new application and application fee shall be submitted. The application processing deadline also may be tolled by agreement of the applicant and the municipality. The municipality may extend the application processing deadline for a single period of ten business days if the municipality notifies the applicant in advance before the day on which approval or denial is originally due. Upon mutual agreement between the applicant and the municipality, the municipality may extend the period for consideration of an application for 30 days. An application shall be processed on a nondiscriminatory basis and deemed approved if the municipality fails to timely approve or deny the application within 90 days after receipt of the application. The municipality may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole only in accordance with Sec. 37 of the Act.
   (D)   Collocation for other than small wireless facilities. This division implements, in part, 47 U.S.C. Section 332(c)(7) of the Federal Communications Act of 1934, as amended, as interpreted by the FCC regarding collocation applications for other than small wireless facilities including, but not limited to, application review, the 90-day shot clock and tolling.
   (E)   New macro cell towers. This division implements, in part, 47 U.S.C. Section 332(c)(7) of the Federal Communications Act of 1934, as amended, as interpreted by the FCC regarding new macro cell tower applications including, but not limited to, application review, the 150-day shot clock and tolling.
(Ord. 1096, passed 8-27-2019)
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