(a) No person shall install or modify a small cell facility or wireless support structure in a public way in the City without first obtaining the requisite consent of the City pursuant to Section 1339.04 of this Chapter.
(b) Notwithstanding Section 1339.03(a) of this Chapter, no consent of the City is required under this Chapter for either of the following activities conducted in the public way:
(1) Routine maintenance of wireless facilities; or
(2) The replacement of wireless facilities with wireless facilities that are consistent with the City's current design guidelines and that are either of the following:
A. Substantially similar to the existing wireless facilities;
B. The same size or smaller than the existing wireless facilities.
(c) No person, firm or corporation shall conduct the activities described in division (b) of this section without applying for a work permit and without complying with the provisions of this Chapter. An application for a work permit must be completed and submitted to the City's Building Department along with the appropriate fee as described in Section 1339.05 of this Chapter.
(d) All projects proposed in the applications and work permits regarding wireless facilities or wireless support structures in the public way of the City must comply with Chapter 511 of the City's Codified Ordinances.
(e) Engineer's Approval. The operator must obtain and provide to the City by a written affidavit from a registered engineer certifying that there are no conflicts involving any public utility company and that the project complies with all applicable state and federal laws.
(f) Third Party Approval. The operator must obtain and provide to the City written approval for the collocation, replacement, modification and construction of a small cell facility on any existing wireless support structures from any relevant third party(ies) as determined by the City.
(g) Indemnification. The operator or person who owns or operates small cell facilities or wireless support structures in the public way must provide a written statement certifying that said operator or person shall indemnify, protect, defend, and hold the City and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates small cell facilities and wireless service in the public way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in a public way.
(h) Liability Insurance. The operator or person who owns or operates the small cell facilities or wireless support structures in the public way must secure and maintain liability insurance in accordance with division (h) of this section.
(1) Comprehensive general liability insurance policies insuring both the operator and the City as an additional insured are required in amounts not less than”
A. One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, for bodily injury or death to each person;
B. One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, for property damage resulting from any one accident; and
C. One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, for all other types of liability.
(2) The liability insurance policies required by division (h) of this section shall be maintained by the operator throughout the period of time during which the operator is occupying or using the public way as defined in section 1339.02, or is engaged in the removal of its small cell facilities and wireless support structures. Each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice addressed to the Building Commissioner of such intent to cancel or not to renew."
(3) Within thirty (30) days after receipt by the City of said notice, and in no event later than fifteen (15) days prior to said cancellation, the operator shall obtain and furnish to the City replacement insurance policies meeting the requirements of division (h) of this section.
(4) All insurance policies required herein shall be written with an insurance company authorized to do business in the State of Ohio in relation to the specific type of insurance required.
(5) Upon written application to, and written approval by, the Director of Finance of the City, the operator may be self-insured to provide all of the same coverages as listed in division (h) of this section. As part of the review process, the Director of Finance may require, and the self-insurance applicant shall provide, any and all financial documents necessary to make a valid determination of the applicant's ability to meet the needs of this Chapter.
(i) Bond. A performance bond in the amounts and terms hereinafter set forth shall be deposited by the operator with the Building Commissioner to insure to the City that all work shall be properly completed in accordance with the Building Code and at the conclusion of the work, the refuse shall be properly disposed of and any damage to sidewalks, curbing, public utilities or adjoining property caused by such construction or improvements shall be properly repaired or replaced.
(1) The value of said bond shall be equal to 100% of the total value of the work being performed or the structures being constructed for which the permit is being sought.
(2) The term of such bond shall be one and one-half times the entire term of construction or improvement of the project.
(3) When the project for which a bond has been given under this Chapter is completed, the owner or his agent shall notify the Building Commissioner and request a final inspection of the work and release of the bond. If the Building Commissioner finds that the work has been completed in accordance with the Building Code, that no property has been damaged and that all refuse has been properly disposed of, the Building Commissioner shall execute a release of the bond. In the event that the Building Commissioner finds the work incomplete or defective or that property has been damaged or that the premises are left in an unclean condition, the Building Commissioner shall notify the contractor who provided the bond and the release shall be withheld until the matters complained of are corrected satisfactorily and in the event the necessary corrections are not made within a reasonable time after notification by the Building Commissioner, the Commissioner shall cause the same to be made and shall make a claim against the bond for the cost of such corrections.
(4) The bond provided in this section shall be in substantially the following form:
"KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ............................ as principal and ................... as sureties, are hereby held and firmly bound unto the City of Warrensville Heights, Ohio ................... (the "Obligee") in the penal sum of ............. dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.
Signed this ............. day of ................, ....
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above-named principal, on the ................ day of ....................., ...., was granted an application for consent or work permit by the City, which is made a part of this bond the same as though set forth herein;
Now, if the said ....................... shall well and faithfully do and perform the things to be done and performed according to the terms of the Building Code; and shall pay all lawful claims of subcontractors, material suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any material supplier or laborer having a just claim, as well as for the Obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.
The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said application or work permit or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond."
(j) Design Guidelines. Any such guidelines shall be applied in a nondiscriminatory manner. Materials utilized to comply with the appearance and concealment criteria established in the guidelines shall not be considered part of the small cell facility for purposes of facility size restrictions in this chapter.
(1) For a new wireless support structure, the overall height of the wireless support structure and any collocated antennas shall not be more than forty feet in height above ground level.
(2) Notwithstanding division (j) of this section, and except that the cap shall not be below thirty-five feet in height above ground level, the City may adopt design guidelines to cap the permissible height of small cell facilities in areas meeting the following criteria:
A. The area is within three hundred feet of the proposed site for a new wireless support structure in the same public way or a connecting public way, and there are no wireless support structures or utility poles taller than thirty feet in height above ground level;
B. The maximum allowable height for building construction in the underlying zoning district is thirty-five feet in height above ground level or less.
(3) For an existing wireless support structure, the antenna and any associated shroud or concealment material are permitted to be collocated at the top of the existing wireless support structure and shall not increase the height of the existing wireless support structure by more than five feet.
(4) The Building Commissioner, or his or her designee, may establish additional detailed design guidelines with objective, technically feasible criteria applied in a non-discriminatory manner that reasonably match the aesthetics and character of the immediate area regarding all of the following, which the City shall consider in reviewing an application:
A. The location of any ground-mounted small cell facilities;
B. The location of a small cell facility on a wireless support structure;
C. The appearance and concealment of small cell facilities, including those relating to materials used for arranging, screening, and landscaping;
D. The design and appearance of a wireless support structure including any height requirements adopted in accordance with this Chapter.
(k) A person seeking to construct, modify, collocate or replace a small cell facility or wireless support structure in the City may submit the following information along with the application for consent pursuant to Section 1339.04 or work permit under division (c) of this section:
(1) The operator's business decisions with respect to, the operator's service, customer demand, and quality of service to or from a particular area or site,
(2) The need for the small cell facility or the associated wireless support structure, including additional wireless coverage, capacity, or increased speeds,
(3) Any additional information that describes the need for the new small cell facility or associated wireless support structure, including strategy documents, propagation maps, or telecommunications traffic studies.
(l) Current Contact Information. A person submitting an application for consent pursuant to Section 1339.04 or work permit under division (c) of this section shall at all times maintain accurate contact information, with the City's Building Department, for all parties responsible for the small cell facility and/or wireless support structure, which shall include a phone number, street mailing address, and email address for at least one natural person.
(m) Removal. The operator or other person responsible for the installation of a small cell facility or wireless support structure must remove such abandoned facility and/or structure within 15 days of abandonment at its own expense and in a manner prescribed by the Building Commissioner.
(n) Placement Requirements.
(1) City may propose an alternate location for the proposed new wireless support structure within 100 feet of the proposed location or within a distance that is equivalent to the width of the public way in or on which the new wireless support structure is proposed, whichever is greater, which the operator or other person responsible for the installation of the small cell facility or wireless support structure shall use if it has the right to use the alternate location on reasonable terms and conditions and the alternate location does not impose technical limits or additional costs.
(2) With respect to the placement of any small cell facility or wireless support structure in a public way, the City may do any of the following:
A. Reserve space for future public safety or transportation uses in the public way or on a wireless support structure or pole owned by a municipal corporation in a documented and approved plan in place at the time an application is filed. A reservation of space shall not preclude placement of a pole or collocation of a small cell facility. If replacement of the City's pole or wireless support structure is necessary to accommodate the collocation of the small cell facility and the future use, the Operator shall pay for the replacement of the pole or wireless support structure, and the replaced pole or wireless support structure must accommodate the future use.
B. Require reasonable and nondiscriminatory spacing requirements for the location of new wireless support structures set forth in an ordinance, local rule, or design guidelines. Such spacing requirements shall not prohibit, or have the effect of prohibiting, the provision of wireless service to any location.
C. Require an operator to relocate or adjust its facilities within the public way at no cost to the City if:
(i) The relocation or adjustment is needed in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, and
(ii) Such request similarly binds all users in or on such public way.
(Ord. 2018-049. Passed 5-15-18.)