(A) Agreement. Prior to installing in the right-of-way any small wireless facility, or any pole built for the sole or primary purpose of supporting a small wireless facility, or any tower, a person shall enter into an agreement with the city expressly authorizing use of the right-of-way for the small wireless facility, pole, or tower proposed to be installed. The agreement shall provide for the attachment to city poles or structures in the right-of-way in addition to poles or structures owned by unrelated third parties; provided, that the applicant secures the written consent of the third party for such attachment.
(B) General terms.
(1) The term of an agreement shall be for up to three years. The agreement may be renewed for an additional term of three years subject to the mutual written agreement of the city and provider.
(2) The agreement authorizes the provider’s non-exclusive use of the right-of-way for the sole purpose of installing, maintaining, and operating wireless communication facilities, including any pole built for the sole or primary purpose of supporting the wireless communication facilities and any tower, to provide the services expressly authorized in the agreement, subject to applicable laws, this chapter and the terms and conditions of the agreement. The agreement authorizes use only of the right-of-way in which the city has an actual interest. It is not a warranty of title or interest in any right-of-way and it does not confer on the provider any interest in any particular location or to a superior or preferred location within the right-of-way. Nothing herein shall authorize the use of the city’s poles, towers, support structures, or other structures outside of the right-of-way. All use of city poles, towers, support structures, and other structures in the right-of-way shall require a separate attachment agreement or be specifically provided for in the agreement and shall include the payment of fees for such use.
(3) The provider shall, at its sole cost and expense, keep and maintain its wireless communication facilities, poles, support structures, and towers in the right-of-way in a safe condition, and in good order and repair.
(4) In the event of an emergency regarding the provider’s small wireless facilities, or related poles, support structures, or towers, the provider shall immediately notify the city of the nature of the emergency and planned response to the emergency.
(C) Permit required. No person may construct, install, or maintain in the right-of-way any wireless facilities without first receiving a permit from the city. Notwithstanding the foregoing, in the event of an emergency, a wireless provider or its duly authorized representative may work in the right-of-way prior to obtaining a permit; provided, that the provider shall contact the city prior to commencing the work and shall apply for a permit as soon as reasonably possible, but not later than 24 hours after commencing the emergency work. For purposes of this division (C), an EMERGENCY means a circumstance in which immediate repair to damaged or malfunctioning facilities is necessary to restore lost service or prevent immediate harm to persons or property.
(D) Permit application requirements.
(1) The application shall be submitted by the wireless provider or its duly authorized representative and shall contain the following:
(a) The applicant’s name, address, telephone number, and email address, including emergency contact information for the applicant;
(b) The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant or provider with respect to the filing of the application;
(c) A description of the proposed work and wireless communication facility sufficient to demonstrate compliance with the provisions of this chapter;
(d) If applicable, a copy of the authorization from the owner of the pole, tower, or support structure on or in which the wireless communication facility will be placed or attached;
(e) Detailed construction drawings and photo simulations regarding the proposed wireless communication facility;
(f) To the extent the proposed wireless communication facility involves collocation on a pole, tower, or support structure, a structural report prepared by a state-licensed professional engineer evidencing that the pole, tower, or support structure will support the collocation (or that the pole, tower, or support structure will be modified to meet structural requirements) in accordance with applicable codes;
(g) For any new above-ground wireless communication facilities, accurate visual depictions or representations, if not included in the construction drawings or photo simulations; and
(h) Any other submission requirements per published city policies or regulations.
(2) All applications for small wireless facility installations in the right-of-way shall be made to the City Clerk.
(E) Proprietary or confidential information in application. Applications are public records that may be made publicly available pursuant to the State Public Records Law. Notwithstanding the foregoing, the applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as “proprietary” or “confidential” by clearly marking each portion of such materials accordingly, and the city shall treat the information as proprietary and confidential, subject to the State Public Records Law and the city’s determination that the applicant’s request for confidential or proprietary treatment of application materials is reasonable and in compliance with such law. The city shall not be required to incur any costs to protect the application materials from disclosure, other than the city’s routine procedures for complying with the State Public Records Law.
(F) Routine maintenance and repair. A permit shall not be required for routine maintenance and repair. The provider or other person performing the routine maintenance and repair shall obtain any other permits required by applicable laws and shall notify the city in writing at least 48 hours before performing the routine maintenance and repair.
(G) Application fees and bonds. All applications pursuant to this chapter shall be accompanied by the requisite fees required by the city. Unless otherwise provided in an agreement or agreed to in writing by the city, a performance or construction bond or other form of surety acceptable to the city equal to at least 100% of the estimated cost of the work within the right-of-way shall be provided before the applicant commences work.
(H) Effect of permit. A permit from the city authorizes an applicant to undertake only the activities in the right-of-way specified in the application and permit, and in accordance with this chapter and any conditions included in the permit. A permit does not authorize attachment to or use of existing poles, towers, support structures, or other structures in the right-of-way. A permittee or wireless provider must obtain all necessary approvals from the owner of any pole, tower, support structure, or other structure prior to any attachment or use. A permit does not create a property right for the applicant. The applicant shall not interfere with other uses or users of the right-of-way.
(I) Duration. Any permit for construction issued under this chapter shall be valid for a period of one year, provided that the one-year period may be extended for up to an additional one year upon approval by the City Council or its designee upon the written request of the applicant (made prior to the end of the initial one-year period) if the failure to complete construction is as a result of circumstances beyond the reasonable control of the applicant.
(J) Multiple sites. An applicant may submit not more than ten sites in a consolidated application for small wireless facilities, provided that the proposed wireless communication facilities are to be deployed on the same type of structure using similar equipment within the city.
(Ord. 736, passed 9-3-2019)
Statutory reference:
Nebraska public records law, see Neb. RS 84-712 et seq.