HomeMy WebLinkAboutORDINANCE 6220113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Ordinance: 6220
File Number: 2019-0483
AMEND § 110.03 SMALL CELL FACILITIES AND NETWORKS:
AN ORDINANCE TO AMEND § 110.03 SMALL CELL FACILITIES AND NETWORKS, AND TO
DECLARE AN EMERGENCY
WHEREAS, on November 21, 2017, after months of study and revisions, the City Council enacted §
110.03 Small Cell Facilities and Networks; and
WHEREAS, in September of 2018, the Federal Communications Commission issued an industry -backed
declaratory ruling that included several local preemption provisions; and
WHEREAS, the Arkansas General Assembly enacted the Small Wireless Facility Deployment Act, which
added Arkansas to the list of more than 20 states that have enacted state legislation further preempting
local authority, and which expanded the definition of "right-of-way" to include public utility easements
located on private property; and
WHEREAS, the Arkansas Small Wireless Facility Deployment Act will take effect on September 1, 2019,
and without substantially amending § 110.03 of the Fayetteville City Code before that effective date,
providers could have a window of opportunity to deploy poles and small cell facilities without any of the
safety provisions or aesthetic standards the City Council previously approved; and
WHEREAS, City staff members have worked with the Arkansas Municipal League's small cell and
telecommunications consultant to review the City's existing ordinance and make modifications to ensure
that the new ordinance substantially implements the provisions of the state Small Wireless Facility
Deployment Act.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
Page 1 Printed on 8122119
File Number.' 2019-0483
Ordinance 6220
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals § 110.03 Small
Cell Facilities and Networks and enacts a replacement § 110.03 Small Cell Facilities and Networks in
Chapter 110: Telecommunication Franchise, Billposting, and Small Cell Facilities and Networks of
the Fayetteville Code as shown in Exhibit "A" attached hereto and made a part hereof.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby determines that this
ordinance should become effective without delay for the following reasons: 1) the City anticipates the
deployment of hundreds of new or replacement poles, support structures, antennas and other equipment
across the City by several different providers primarily along and within the public rights of way and it
is crucial that reasonable regulations that comply with state law are in place before September 1, 2019
to ensure that providers are deploying this important new technology safely along our streets and sidewalks;
and 2) by expanding the definition of "right-of-way" providers will have the authority to enter onto and
install poles and small cell facilities within public utility easements, including those on private property,
and the City should do everything possible to protect the property rights, including the viewsheds, of
Fayetteville residents. For the foregoing reasons, the City Council finds that it is necessary for the
public peace as well as the health and safety of Fayetteville residents to immediately implement the
provisions set forth in the Exhibit to this Ordinance. Therefore, the City Council hereby declares an
emergency exists such that this ordinance shall become effective immediately upon its passage and
approval.
PASSED and APPROVED on 8/20/2019
Attest:
Sondra E. Smith, City Clerk Trel. • • • •. TA
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Page 2 Printed on 8122119
EXHIBIT A FINAL
110.03 Small Cell Facilities and Networks
(A) Definitions: Unless otherwise defined below, the terms used in § 110.03 shall have
the meanings set forth in the Arkansas Small Wireless Facility Deployment Act, Ark.
Code Ann. § 23-17-501, et seq:
(1) Administrative Review means non -discretionary evaluation of an Application
by the Zoning and Development Administrator. This process is not subject to
a public hearing or conditional or special review process.
(2) Stealth technology means systems, components and materials used in the
construction of wireless communications facilities to make it compatible with
the surrounding property.
(B) Compliance with Local, State and Federal Regulations. Applicant shall comply with
all applicable state and federal regulations. Proof of compliance shall be provided
upon request of the Zoning and Development Administrator. Applicant shall not be
required to enter into any franchise agreement with the City. No person shall attach,
install, or maintain a small cell facility in the right-of-way without a permit issued by
the City or in violation thereof.
(C) Applications. The form of the permit application is located on the City's website
under Small Cell Facilities and Networks.
(D)An applicant shall submit with the application all documentation or other evidence
required by the Zoning and Development Administrator to sufficiently establish the
structural soundness of proposed facilities.
(E) Micro -wireless facilities. No permit shall be required for any person to install,
maintain or operate a micro -wireless facility that is suspended on cables that are
strung between existing poles and comply with applicable codes, provided that a
permit may be required for work requiring lane closure or excavation.
(F) Permits.
(1) City right of way Permit. Upon proper application, City shall timely grant a
wireless provider a revocable, nonexclusive permit authorizing the installation
and maintenance of a small wireless facility and, if applicable, a pole that will
be used to support a small wireless facility, within the City's public rights-of-
way, as provided in this regulation.
(a) ARDOT right of way. Applications to install small wireless facilities
and/or poles used to support small wireless facilities in a right-of-way
controlled by the Arkansas Department of Transportation must be
approved by the Arkansas Department of Transportation prior to
submission to the City.
(b) Outside the right of way. Applications to install small wireless
facilities and/or poles used to support small wireless facilities outside
of the right-of-way will be evaluated and processed according to City
ordinances governing the zoning and development of property.
(c) Special Locations. No application or permit shall be required under
this regulation to install a small wireless facility that is located within
an interior structure or upon the site of a campus, stadium, or athletic
facility that is not controlled by the City.
(d) Maintenance. No permit shall be required for any person to perform
routine maintenance on a previously permitted small wireless facility
or to replace a previously permitted small wireless facility with one
that is substantially similar or smaller, provided that a permit may be
required for work requiring lane closure or excavation.
(2) City Collocation Permit. Upon proper application, City shall timely grant a
wireless provider a revocable, nonexclusive permit authorizing the attachment
of a small wireless facility to a City pole, as provided in this regulation. A
single permit form may be used to issue permits for the installation of small
wireless facilities in the right-of-way and collocation on City poles.
(3) Installation on Other City Property. Upon proper application, City may grant
a wireless provider a revocable, nonexclusive permit authorizing the
installation and maintenance of a small wireless facility on property owned by
the City upon such terms and conditions as may be approved by City in
accordance with state law.
(4) Duration of Permits. Permits issued pursuant to this regulation shall terminate
ten (10) years after the date the permit was issued. The holder of any permit
so terminated shall be entitled to:
(a) Renew the permit for a successive ten (10) year term, provided that the
permitted facilities and/or poles conform to all safety and appearance
requirements at the time the permit terminated;
(b) Replace the permitted facilities and/or poles at the previously
permitted location with facilities and/or poles that conform to all safety
and appearance requirements at the time of renewal; or
(c) Remove the small wireless facilities and/or poles used to the support
small wireless facilities within one year of the date that the permit
lapsed.
(G) Administrative Approval of Co -Located Facilities Within the Right -of -Way. The
Zoning and Development Administrator, following an Administrative Review, may
approve the following facility installations:
(1) Locating on Existing Structures. Installation of facilities on an existing
structure other than a tower regulated under § 163.13 of the Unified
Development Code (such as a building, light pole, electric transmission tower,
water tank, or other free-standing non-residential structure) provided that the
facilities do not extend any higher than 10 percent (10%) above the existing
structure on which it is located or fifty (50) feet above the ground, whichever
is greater.
(2) Locating on Existing Tower Not Previously Approved Through § 163.13 of
the U.D.C. Existing towers that do not have facilities may not add such
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capability without securing a conditional use permit, except as otherwise
allowed by 47 U.S.C. § 1455.
(3) Locating on Existing Towers Previously Approved Through § 163.13.
Additional facilities may be placed upon any tower already approved through
§ 163.14 of the U.D.C. so long as such additional facilities would not violate
any requirements of the conditional use permit or other provisions of § 163.13.
(4) The applicant must submit a letter of intent indicating the intent and
agreement to allow co -location of facilities or installation of facilities on an
existing structure.
(5) If proposed facilities are not or cannot be adequately camouflaged, the City
may require the installation of new stealth facilities.
(6) Any disturbance of City infrastructure (such as, but not limited to, streets,
sidewalks, and utilities) shall be repaired and restored by the applicant at its
expense and to a condition at least as good as that existing before the work
causing such disturbance was commenced.
(7) Historic Districts. No person shall install a small wireless facility in any historic
district unless and until issued a certificate of appropriateness by the historic
district commission.
(8) Additional requirements for collocation on City poles.
(a) Bucket -truck access. No person shall install a small wireless facility on
any City pole or structure that is inaccessible from a street with a
bucket truck. The purpose of this rule is to protect the safety of City
workers.
(b) Streetlight and traffic poles. No person shall install a small wireless
facility on or within a streetlight or traffic pole that, when combined
with the existing lighting equipment and other existing facilities, shall
require more electricity than can be safely provided by the existing
service line.
(c) Reserved space. City may reserve space on poles for future public safety
or transportation use according to a plan that has been documented and
approved by the Mayor prior to the submission of application to occupy
the space reserved.
i. Notice of reserved space. An applicant will be notified at the
time an application is filed, or as soon thereafter as possible, that
space on one or more poles within an application has been
reserved for future use. A reservation of space shall not preclude
placement of a pole or collocation of a small wireless facility. If
replacement of the City's pole is necessary to accommodate the
collocation of the small wireless facility and the future use, the
wireless provider shall pay for the replacement of the authority
pole and the replaced pole shall accommodate future use.
ii. Reclaiming reserved space. When notice was provided in
accordance with this subsection, City may reclaim reserved
space by giving the wireless provider at least ninety (90)
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calendar days prior notice. City shall give the wireless provider
the option to remove its attachment(s) from the affected poles or
pay for the cost of any make-ready work needed to expand
capacity for City service requirements, so that the wireless
provider can maintain its attachment(s) on the affected poles.
The allocation of the cost of any such make-ready work
(including the transfer, rearrangement, or relocation of third-
party attachments) shall be determined in accordance with this
section.
iii. Third-party attachers. Wireless provider shall not be required
to bear any of the costs of rearranging or replacing its
attachment(s), if such rearrangement or replacement is required
as a result of an additional attachment or the modification of an
existing attachment sought by any entity other than City.
(H) Administrative Approval of New Facilities in Public Rights of Way. Providers
proposing the construction or installation of new facilities in the public rights of way
(including the replacement of existing structures) shall comply with following
requirements:
(1) Construction Maintenance. The provisions of § 110.02(E), with the exception
of §§ I I0.02(E)(3) and (E)(10), shall govern the process of approval for the
construction or installation of any new facilities within the public rights of
way.
(2) Height Limitations. New poles placed by the provider in public rights of way
are permitted to be a maximum height of no more than fifty (50) feet or 10%
taller than the tallest pole in place within three hundred (300) feet in the same
right of way as of September 1, 2019. Facilities may be installed on the new
poles provided that the facilities do not extend any higher than fifty (50) feet
above the ground or more than ten percent (10%) above the pole on which it is
located.
(3) Replacement of Existing Structures. If installation of facilities requires the
removal and replacement of an existing structure, such as a pole, the new
structure shall be no more than fifty (50) feet in height or no more than 10%
higher than the same height as the existing structure, is constructed of
substantially similar material or is a camouflaged/stealth structure, and the
replacement structure is located within five (5) feet of the location of the
original structure. The provisions of § I I0.02(E) shall govern the standards of
and procedures for construction or installation of replacement facilities within
the public rights of way.
(4) Camouflaging or Stealth Technology Required. New facilities shall be
designed to be camouflaged to the greatest extent reasonably possible
including, but not limited to, use of compatible building materials and colors,
incorporation within street lights, screening, landscaping, and placement
within trees. All antenna arrays, cables, and other accessories used for
providing the services shall not be obtrusive or noticeably visible. The
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Zoning and Development Administrator may approve the installation of a
standard utility pole in areas where such installation will not degrade the
streetscape but any facilities shall be camouflaged to the greatest extent
reasonably possible. Camouflaging and stealth technology shall be required
in all residential areas, improvement districts (including, but not limited to, the
Dickson Street area and College Avenue improvement corridor), and any area
in which utilities have been installed or relocated underground.
Understanding that new technologies are anticipated to change the
components of telecommunications facilities, the Administrator may
determine if a telecommunications facility or component of a
telecommunications facility is designed to be stealth. If an applicant
establishes that it is not technically feasible to meet this requirement, the
Administrator may grant a variance in the minimum amount necessary.
(5) Fall Zone. The minimum distance from the base of any facility to any
residential dwelling unit shall be the lower height or required setback,
whichever is greater, unless all persons owning said residence or the land on
which said residences are located consent in a signed writing to the
construction of said facility. This setback is considered a "fall zone." In the
event that an existing facility is proposed as a mount for the provider's
equipment, a fall zone shall not be required.
(6) Distance between new poles.
(a) New non -camouflaged or non -stealth poles shall be spaced a minimum
of five hundred feet (500') from any other new or replacement non -
camouflaged or non -stealth pole approved in accordance with this
section.
(b) New camouflaged facilities or poles or new facilities utilizing stealth
technology to fit within the streetscape (e.g., incorporated within a
street light pole) shall be subject to the following distance requirement
i. Where streetlights are present, no person shall install a new
pole in the right of way when there is an existing pole located in
the right-of-way within one hundred feet (100') of the proposed
location that is reasonably suitable for collocation, unless
collocation on the existing pole will impose technical limits on
the small wireless facilities to be installed or significant
additional costs. A pole is deemed reasonably suitable if it will
structurally support the attachment and the owner will permit
attachment at a rate that is equal to or less than the rate provided
by this section. The purpose of this rule is to reduce the number
of poles within the right-of-way in areas with heightened
aesthetic concern.
ii. Where streetlight poles are not present, new poles will be
aligned with, and generally match the appearance of existing
poles within the right-of-way that are within three hundred feet
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(300') of the proposed location; however, if such alignment or
appearance will impose technical limits on the small wireless
facilities to be installed or impose significant additional costs,
new poles will be constructed using a stealth design that fully
conceals all small wireless facilities and associated equipment
within the pole. New poles will not vary from the height of
existing poles by more than ten percent (10%). Where poles of
different heights are present, new poles shall match the height of
existing poles that are closest to the new pole. The purpose of
this rule is to ensure uniformity in the appearance and height of
poles of poles within the right-of-way in areas with heightened
aesthetic concern.
(7) Placement. No person shall install a new pole within a right-of-way unless the
pole is within ten feet (10') of a side lot line and at least eighteen inches (18")
from the road surface. When compliance with this rule is not technically
feasible, the new pole will be installed in a location that avoids obstructing the
view of occupiable structures and as close to the lot line as possible. This rule
shall not apply when installing new poles in a median between roadways or
within a right-of-way controlled by the Arkansas Department of Transportation.
The purpose of this rule is to avoid obstructing views from the right-of-way and
occupied structures
(8) Information Required to Process Requests for New Facilities.
(a) Identification of the applicant.
(b) A map or description of the location of the facilities.
(c) An illustration that shows the final appearance of the facilities.
(d) Engineered drawings of the facilities to be installed, including required
make-ready work.
(e) Worker safety information related to small wireless facility
installation.
(f) Evidence of bonding as required by § 158.02 of the Unified
Development Code.
(g) Evidence of insurance as required by this section.
(h) Required application fees.
(i) Describe your efforts to collocate your facility on existing structures or
poles. The applicant should demonstrate a good faith effort to locate
facilities on existing structures and/or co -locate with other carriers.
(j) Describe whether you will or will not accommodate equipment of
other telecommunications providers that could co -locate on your
facility. Describe how such accommodation will impact both your pole
and your ground mounted facilities. Provide documentation of your
provider's willingness or unwillingness to accommodate other
providers who may be able to co -locate on your facility.
(9) Historic Districts. No person shall install a small wireless facility in any historic
district unless and until issued a certificate of appropriateness by the historic
district commission.
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(I) Application Time Frame. A final decision shall be issued for applications for
facilities under subsections (G) and (H) subject to the following:
(1) The City shall supply written notice to the Applicant within ten days of receipt
of an Application whether the application is complete. If an application is
incomplete, the City shall clearly and specifically delineate any missing
documents or information. The processing deadline shall restart at zero (0) on
the date the applicant provides the missing information identified by the City
to complete the application.
(2) Applications shall be processed within:
(a) Sixty (60) days of receipt of a completed application for the
collocation of a small wireless facility; and
(b) Ninety (90) days of receipt of an application to install, modify, or
replace a pole on which a small wireless facility is or will be
collocated.
(3) The processing deadline may be tolled by agreement of the applicant and the
City.
(4) Denial of Permits.
(a) If a permit is denied, the City shall document the basis for the denial
and send the documentation to the applicant on or before the day the
City denies the application.
(b) The applicant may cure the deficiencies identified by the City and
resubmit its application within thirty (30) days of the denial without
paying an additional fee.
(c) The City shall approve or deny the revised application within thirty
(30) days of resubmission and shall limit a review of the resubmitted
application to the deficiencies cited in the denial.
(5) Abandoned applications. After notice is provided to an applicant that an
application is incomplete as described above, the applicant will be afforded
thirty (30) days to provide missing information without submitting a new
application or application fee. If incomplete for more than thirty (3 0) days,
the application will be deemed abandoned and the City will return all forms
and information to the applicant. The application fee will not be refunded.
The applicant may later resubmit the forms and information as a new
application with an appropriate application fee.
(6) Professional Engineer. Unless otherwise waived in writing by City, as part of the
permit application process, and at the wireless provider's sole expense, a
qualified and experienced professional engineer, or an employee or contractor of
the wireless provider who has been approved by City, must undertake and
complete the engineering design and pole loading analyses calculations required
in completing a permit application, participate in the pre-construction survey, and
certify that the wireless provider's small wireless facilities can be and were
installed on the identified poles in compliance with the applicable codes and in
accordance with the permit. The professional engineer's qualifications must
include experience performing such work, or substantially similar work, as
reflected in the application and unless otherwise waived by City, such engineer
must be licensed in the State of Arkansas. The City may allow a wireless
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provider's professional engineer, employee or contractor to conduct a post -
construction inspection that the City will verify by means that it deems to be
reasonable
(J) Application Fees and Annual Rates.
(1) Applicants shall submit a fee in the amount of $100.00 for each small wireless
facility proposed to be installed on an existing wireless support structure or
pole.
(2) Applicants shall submit a fee in the amount of $250.00 for the installation,
modification, or replacement of a pole together with the collocation of an
associated small wireless facility in the right-of-way.
(3) Providers shall pay an annual rate of $30.00 per small wireless facility for use
of the public right-of-way.
(4) Providers shall pay an annual rate of $240.00 per small wireless facility that is
collocated on a City -owned pole.
(5) Applicants shall pay a fee of $150.00 for each small wireless facility that does
not pass an initial inspection and requires re -inspection. This fee ensures the
City shall recover its costs associated with administering and conducting a
reinspection.
(6) A provider who attaches a small wireless facility to a City pole or other
structure without proper authority shall pay a fee of $480.00 per year. This fee
is in addition to any penalty that may be assigned or adjudicated for violation
of a City ordinance. This fee ensures that the City shall recover its costs
associated with locating and remediating unauthorized attachments.
(7) A provider shall pay $10.00 per day for each small wireless facility that is
attached to a City facility in violation of a permit or an applicable code for
more than thirty (30) days after notice of the violation. This fee ensures that
the City shall recover its costs associated with locating and remediating
specific permit violations.
(8) Refunds. No fees and charges specified in this section shall be refunded on
account of any relinquishment or abandonment of a permit granted under this
regulation.
(9) Late Charges. If City does not receive payment for any amount owed within
sixty (60) calendar days after it becomes due, wireless providers shall pay a
late processing charge equal to five percent (5%) of the amount owed. In
addition to assessing a late processing charge, if any fees or charges remain
unpaid for a period exceeding ninety (90) days: (1) wireless providers shall be
charged interest at the rate of ten percent (10%) per year on the amount owed;
(2) City may discontinue the processing of applications for new small wireless
facilities and/or poles until such fees or charges are paid: and (3) City may
cause the disconnection of electric service from wireless provider's small
wireless facilities at wireless provider's expense
(K)New Structures on Private Property. Telecommunications providers proposing the
construction or installation of new poles or towers on privately owned property in the
City, but not within any right-of-way as defined by Ark. Code Ann. § 23-17-
503(24)(A), shall comply with the provisions of § 163.13 Wireless Communications
Facilities and shall obtain a conditional use permit.
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(L) New Facilities on Public Property. The City of Fayetteville will actively market its
own property and existing facilities as suitable co -location sites. Applications for
new facilities on public property shall be subject to the Administrative Review
process. An annual lease amount should be charged according to the fair market value
of the location. In cases in which the company no longer needs the facility, the city
may require it to be removed. Applicants may be required to provide co -location
space for city -owned facilities. For purposes of this subsection, public property shall
not include any public right of way or structures in any public right of way. Small cell
facilities installed in the public right of way or on structures in the public right of way
shall pay only the fees set forth in subsection (H) and shall not be charged additional
fees under this subsection.
(M) Specifications
(1) Installation. Every small wireless facility, pole and other structures in the
right-of-way shall be erected and maintained in accordance with the
requirements and specifications found in applicable codes, including the
latest revision of the National Electric Code (NEC) and National Electrical
Safety Code (NESC), as may be amended from time to time, and in
compliance with any construction standards now in effect or that may
hereafter be issued by City (provided such construction standards are not
inconsistent with this regulation and are applied on a non-discriminatory
basis) or any rules or orders of a governmental authority having jurisdiction.
The location of any small wireless facility may be reasonably re -designated
from time to time to accommodate other pole attachments, for reasons of
electrical service safety or reliability, with costs allocated in accordance with
subsection (N) below. Notwithstanding the foregoing, with respect to any
small wireless facility that was in compliance with applicable codes at the
time such small wireless facility was installed but has become noncompliant
because of revisions to the NESC, wireless providers shall be required to bring
their small wireless facilities into compliance with then -current standards only
in connection with relocation, pole replacement, or rebuild affecting such
attachment or in the event such noncompliance creates an imminent threat to
public safety. When maintenance or repair work is needed with respect to
noncompliance with applicable codes as set forth in this Section, the actual
costs of maintenance, repair, and inspection shall be borne by wireless
providers.
(2) Maintenance of Facilities. Wireless providers shall, at their own expense,
make and maintain their small wireless facilities and any associated poles in
safe condition and good repair, in accordance with all applicable codes. All
maintenance work on small wireless facilities shall only be performed by
qualified personnel. During the period described in subsection (17)(4), wireless
providers shall not be required to update or upgrade its small wireless facilities
if they complied with applicable codes at the time they were made; provided,
however, wireless providers shall update or upgrade their small wireless
facilities in connection with relocation, pole replacement or rebuild affecting
such small wireless facilities or in the event such update or upgrade is
required or necessary in order to resolve an imminent threat to public safety.
(3) Tagging. Upon installation, wireless providers shall affix a tag to any pole or
structure upon which the wireless provider's small wireless facilities have
been installed and to the exterior of any underground or ground -mounted
small wireless facility equipment. The tag will be constructed of aluminum,
plastic or other material of extended durability. Tags will be installed on any
pole or structure to which a small wireless facility has been installed.
(4) Interference. Wireless providers will not allow their small wireless facilities to
interfere with the operation of any pre-existing City or third -party facilities.
(a) RF Responsibility. Wireless providers are solely responsible for the
radio frequency ("RF") emissions emitted by its small wireless
facilities and associated equipment, ensuring that the RF exposure
from its emissions are within the limits permitted under all applicable
rules of the FCC. City is solely responsible for the RF emissions
emitted by its equipment or facilities and ensuring that the RF
exposure from its emissions are within the limits permitted under all
applicable rules of the FCC.
(b) Signage. To the extent required by FCC rules and/or applicable local,
state or federal law, wireless providers shall install appropriate signage
to notify workers and third parties of the potential for exposure to RF
emissions. The signage will be placed so that it is clearly visible to
workers who climb the pole or ascend by mechanical means.
(c) Duty to Others. Wireless providers shall be under a duty and
obligation in connection with the operation of its facilities to protect
against RF interference to the RF signals of City, all other wireless
providers, and any other entities with attachments on poles with the
wireless provider. City shall be under no obligation to remedy or
resolve RF interference among wireless providers or other attaching
entities and shall not be liable for any such RF interference among
wireless providers or other attaching entities. City will, however,
endeavor to have all attaching entities coordinate and cooperate with
each other relating to the resolution of interference. Notwithstanding
the foregoing, in the event City's operations create RF interference to
wireless providers or other attaching entities, City will endeavor to
correct such RF interference promptly and shall cooperate with the
other parties relating to the correction.
(5) Protective Equipment. Each wireless provider and its employees and contractors
shall utilize and install adequate protective equipment to ensure the safety of
people and facilities pursuant to FCC rules and requirements. Every permit issued
by City pursuant to this regulation shall bear the warning and condition that CITY
SHALL NOT BE LIABLE FOR ANY ACTUAL OR CONSEQUENTIAL
DAMAGES TO SMALL WIRELESS FACILITIES, WIRELESS PROVIDER'S
CUSTOMERS' FACILITIES, OR TO ANY OF WIRELESS PROVIDER'S
EMPLOYEES, CONTRACTORS, CUSTOMERS, OR OTHER PERSONS.
(6) Safety Briefing. Wireless providers shall prepare a written "Safety Briefing"
suitable for City employees and contractors who may be required to work near
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and/or around small wireless facilities. This safety briefing will be submitted
as part of each permit application.
(7) Cut -Off Switch. Each wireless provider shall install a lockable power cut-off
switch as directed by City and consistent with applicable codes for every pole
to which the wireless provider has attached facilities that can emit RF energy.
The cut-off switch will allow for the power source and any back-up power
sources to be disconnected. If required by City, the power source must also be
equipped with an external indicator light to provide certainty that the power has
been disconnected. Wireless providers shall provide City with access to
disconnect switch by providing keys or combinations to the locks.
(8) Cut -Off Procedure. In ordinary circumstances, City's authorized field
personnel will contact the applicable wireless provider's designated point of
contact to inform a wireless provider of the need for a temporary power shut
down. Upon receipt of the call, the wireless provider will power down its
antenna remotely, the power -down will occur during normal business hours and
City will endeavor to provide 24 hours' advance notice. In the event an
emergency or unplanned cut-off is required, advance notice will only be
provided at City's sole discretion and, if circumstances warrant, employees and
contractors of City may accomplish the power -down by operation of the power
disconnect switch without advance notice to the wireless provider and shall
notify the wireless provider as soon as possible. In all such instances, once the
work has been completed and the worker(s) have departed the exposure area,
the party who accomplished the power -down shall restore power and inform the
other party as soon as possible that power has been restored.
(9) Emergency Contact Information. Each wireless provider shall provide
emergency after hours contact information to City to ensure proper notification
in case of an emergency. Information will include 24/7 telephone, cell phone
and/or pager information, a list of duty managers by district and escalation
procedures. Wireless providers shall provide City with updated emergency
contact information on an annual basis and whenever changes are made.
(10) Removal of Nonfunctional Attachments. At its sole expense, each wireless
provider shall remove any of its small wireless facilities, or any part thereof,
that becomes nonfunctional and no longer fit for service ("nonfunctional
attachment"). Except as otherwise provided in this regulation, each wireless
provider shall remove nonfunctional attachments within one (1) year of the date
that it became nonfunctional, unless the wireless provider receives written notice
from City that removal is necessary to accommodate City's or another attaching
entity's use of the affected pole(s), in which case the wireless provider shall
remove the nonfunctional attachment within ninety (90) days of receiving the
notice. After the time designated for removal, City may, in its sole discretion,
remove and dispose of the nonfunctional attachment and the wireless provider
shall be responsible for the costs therefor
(N) Make -Ready Work/Installation
(1) Who May Perform Make -Ready. Make-ready work on City poles shall only be
performed by the City or a qualified contractor authorized by City to perform
such work.
11
(2) Time Frame for Completion of Make -Ready. If City, or its contractor, is
performing make-ready work it will complete the make-ready work within sixty
(60) days of receipt of the wireless provider's acceptance of the make-ready
estimate and advance payment, if required. Completion time may be extended
by agreement between the City and the wireless provider. If City does not
complete the make-ready work within the time allotted, the wireless provider
may demand a return of deposited funds and proceed with required make-ready
work using authorized and qualified contractors who are approved by the City.
The City shall not unreasonably withhold or delay approval of a contractor to
perform required make-ready.
(3) Payment for Make -Ready Work. Upon completion of the make-ready work
performed by City, City shall invoice the wireless provider for City's actual and
documented cost of such make-ready work. The costs of the work shall be
itemized, and if City received advance payment, the costs shall be trued up.
Each wireless provider shall be responsible for entering into an agreement with
other existing attaching entities to reimburse them for any costs that they incur
in rearranging or transferring their facilities to accommodate the wireless
provider's attachments.
(4) Wireless Provider's Installation/Removal/Maintenance Work.
(a) Quality workmanship required. All of the wireless provider's
installation, removal, and maintenance work, by either the wireless
provider's employees or authorized contractors, shall be performed at
the wireless provider's sole cost and expense, in a good and
workmanlike manner, and must not adversely affect the structural
integrity of City's poles or other facilities or other attaching entity's
facilities or equipment. All such work is subject to the insurance
requirements of this section.
(b) Qualified workers required. All of a wireless provider's installation,
removal, and maintenance work, either by its employees or authorized
contractors, shall comply with all applicable regulations specified in
this section. Wireless providers shall assure that any person installing,
maintaining, or removing its small wireless facilities is fully qualified
and familiar with all applicable codes, and the design specifications
established by City.
(c) Authorization not required for maintenance. Notwithstanding
anything to the contrary in this regulation, subsequent to the original
installation of a wireless provider's small wireless facilities, the
wireless provider may modify or replace the small wireless facilities
without obtaining prior written consent of City so long as such
modification or replacement does not substantially: (i) modify the
external appearance of the small wireless facility; (ii) increase the
electric consumption of the small wireless facility; (iii) increase the
load on the applicable pole beyond the loading, if any, that was
established in the approved permit application; or (iv) involve
placement of equipment outside the area designated in the approved
permit application. A wireless provider may request, and City shall
12
timely provide, a determination as to whether a modification or
replacement made subsequent to original installation deviates from the
original permit sufficiently to require the issuance of a permit.
(5) Allocation of Costs. The costs for any rearrangement or transfer of any small
wireless facilities or the replacement of a pole (including, without limitation,
any related costs for tree cutting or trimming) shall be allocated on the
following basis:
(a) Pole replacement for City. If City intends to modify or replace a pole
solely for its own requirements, it shall be responsible for the City's
costs related to the modification or replacement of the pole. The
wireless provider shall be responsible for costs associated with the
rearrangement or transfer of the wireless provider's small wireless
facilities.
(b) Replacement for wireless provider. If the modification or replacement
of a pole is necessitated by the requirements of a wireless provider, the
wireless provider shall be responsible for all costs caused by the
modification or replacement of the pole as well as the costs associated
with the transfer or rearrangement of any other attaching entity's
facilities. At the time the wireless provider submits a permit
application to City, the wireless provider shall submit evidence in
writing that it has arranged to reimburse all affected attaching entities
for their costs caused by the transfer or rearrangement of their
facilities. City shall not be obligated in any way to enforce or
administer the wireless provider's responsibility for the costs
associated with the transfer or rearrangement of another attaching
entity's facilities pursuant to this Section.
(c) Replacement for additional attachment. If the modification or
replacement of a pole is the result of an additional attachment or the
modification of an existing attachment sought by an attaching entity
other than City or a wireless provider, the entity requesting the
additional or modified attachment shall bear the entire cost of the
modification or replacement, as well as the costs for rearranging or
transferring the wireless provider's small wireless facilities. The
wireless provider shall cooperate with such third -party attaching entity
to determine the costs of moving the wireless provider's facilities
(0) Permit Expiration. Permits issued for the construction or installation of any
telecommunication facilities under this chapter shall expire after a period of one (1)
year unless construction or installation of the permitted facility has been initiated.
(P) Variances and Appeals.
(1) An Applicant may request a variance of any requirement in this section
through the Board of Adjustment by complying with the procedures set forth
in Chapter 156 of the Unified Development Code. Requests to vary from any
City aesthetic requirements applicable to a new small wireless facility must be
made in writing by a wireless provider to the City's Planning Division for
submission to the Board of Adjustment. The request must specifically identify
the provision requested to be varied, justification for requesting the variance,
13
and the proposed solution as a result of the variance. A request for variance or
waiver shall be heard expeditiously by the Board of Adjustment at the first
available regular meeting after the request is received. The request will be
considered according to the normal rules and procedures of the Board of
Zoning Adjustments and shall afford the requestor the right to present
evidence and testimony that shall be considered in any final determination.
(2) An applicant may appeal to the Board of Adjustment a decision or
interpretation made in the Administrative Review process by the Zoning and
Development Administrator. Appeals shall follow the procedure set forth in
Section 155.02 of the Unified Development Code.
(3) Findings and Determinations. The Board of Zoning Adjustment shall make
findings of fact and determinations as are necessary to: (1) fulfill the intent of
this regulation; (2) prevent the prohibition of wireless service; and (3)
otherwise comply with the law; provided that, the Board of Zoning
Adjustment shall not make any finding or determination contrary to applicable
codes
(Q)Pedestrian access and safety. All facilities shall be installed in such a manner not to
impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or
violate any provision of the Americans with Disabilities Act.
(R) Emergency removal or relocation of facilities. The City retains the right to cut or
move any facility located within its rights-of-way as the City, in its sole discretion,
may determine to be necessary, appropriate, or useful in response to any public health
or safety emergency. City shall notify the provider after cutting or removing any
facility within its rights-of-way. If circumstances permit, the City shall notify the
provider in advance of any cutting or removal and give the provider an opportunity to
move its own facilities.
(S) Violations.
(1) Notice. If a pole, wireless support structure, or small wireless facility is installed,
used, or maintained in violation of this regulation and such violation does not
pose a potential emergency, City shall provide notice of the violation to the
owner. Notice may be provided by any written or electronic form, so long as
notice is documented and received. If the owner is unknown (such as, an
unauthorized installation), notice shall be made by conspicuously posting the
same on the pole, wireless support structure, small wireless facility or other
suitable place in proximity to the pole, wireless support structure or small
wireless facility for a period of thirty (30) days.
(2) Remedies. If the owner of a pole, wireless support structure, or small wireless
facility neglects, refuses, or otherwise fails to cure a violation within thirty (30)
days from receipt of notice of the violation from the City, the following remedies
shall apply:
(a) Continuing violation fees. Any person who installs, uses or maintains a
pole, wireless support structure, or small wireless facility in violation of
this regulation after having received notice thereof for a period of more
than thirty (30) days shall be subject to assessment of a continuing
violation fee as shown in this section to recover the City's costs associated
investigating, monitoring, and resolving the violation.
14
(b) Self-help. After sixty (60) days has elapsed after providing notice of a
violation to the owner of a pole, wireless support structure, or small
wireless facility, City may take such corrective measures as are
reasonably warranted to resolve the violation and the owner shall be
responsible for the actual and documented costs incurred by the City,
including overhead.
(c) Remedies not exclusive. The remedies provided in this section are in
addition to every other legal and equitable remedy available to the City.
(3) Exceptions. In the event City or another attaching entity prevents the owner of a
pole, wireless support structure, or small wireless facility from correcting a non-
emergency violation, the timeframe for correcting such violation shall be
extended one day for each day the owner was so delayed. No wireless provider
will be responsible for any fee or cost associated with violations caused by other
entities that are not affiliated with them or acting under their direction. In all
circumstances, attaching entities and City will work together to maximize safety
while minimizing the cost of correcting deficiencies, but the entity responsible
for the violation will be responsible for the actual and documented cost of any
necessary or appropriate corrective measures, including without limitation,
removal and replacement of a pole, transfers or other such work.
(4) Notice of Completion. Wireless providers shall provide timely written
notification to City upon completion of work necessary to correct a violation or
deficiency. All applicable daily penalties and fees will continue to accrue until
City's receipt of such notice of completion. Notice of completion shall be
delivered by the same means as the notice of violation was received from City.
(T) Liability and Indemnification
(1) Liability. City reserves to itself the right to maintain and operate its poles
and facilities in the manner that will best enable City to fulfill its service
requirements. As a condition of every permit, wireless providers must agree
that its use of City's poles and facilities is at the sole risk of the wireless
provider. Notwithstanding the foregoing, City shall seek to exercise
reasonable precaution to avoid damaging small wireless facilities and report
to wireless providers the occurrence of any such damage caused by its
employees, agents or contractors
(2) Indemnification. As a condition of every permit, wireless providers, as well as
their agents, contractors, and subcontractors, ("wireless provider indemnitors")
shall be required to defend, indemnify, and hold harmless City and its respective
officers, board members, council members, representatives, employees, and
agents against any and all claims, demands, damages, lawsuits, judgments,
costs, liens, losses, expenses, fines, taxes, special charges by others, penalties,
payments (including payments made by City under any workers' compensation
laws or under any plan for employees' disability and death benefits), and
expenses (including reasonable attorney's fees of City and all other costs and
expenses of litigation) ("covered claims") arising in any way or in connection
with the negligence of the wireless provider or their officers, directors,
employees, agents, contractors, or subcontractors, except when caused by the
sole negligence of City, or their respective officers, board members, council
15
members, representatives, employees, and agents. Covered claims shall
include, but are not limited to, the following:
(a) Communication -based torts. Intellectual property infringement, libel
and slander, trespass, unauthorized use of television or radio broadcast
programs and other program material, and infringement of patents;
(b) Local compliance. Cost of work performed by City that was
necessitated by a wireless provider's failure, or the failure of a wireless
provider's officers, directors, employees, agents, contractors, or
subcontractors to install, maintain, use, transfer, or remove their small
wireless facilities in accordance with the requirements and
specifications of this regulation, or from any other work this regulation
authorizes City to perform on behalf of a wireless provider;
(c) Harm to persons or property. Damage to property, injury to or death of
any person arising out of the performance or nonperformance of any
work or obligation undertaken by a wireless provider, or its agents,
contractors, or subcontractors, pursuant to this regulation;
(d) Regulatory violations. Liabilities incurred as a result of a wireless
provider's violation, or a violation by a wireless provider's officers,
directors, employees, agents, contractors, or subcontractors of any law,
rule, or regulation of the United States, any state, or any other
governmental entity or administrative agency.
(e) Environmental harm. Environmental harm arising from or due to the
release, threatened release or storage of hazardous substances on, under,
or around City's rights-of-way, poles or facilities attributable to a
wireless provider indemnitor.
(U) Insurance. All providers receiving permits pursuant to this chapter shall have in effect
at all times the following minimum insurance coverage:
(a) Commercial general liability insurance coverage with a limit of no less
than one million dollars ($1,000,000) for each occurrence and five
million dollars ($5,000,000) aggregate;
(b) Umbrella or excess liability coverage with a limit of no less than five
million dollars ($5,000,000) for each occurrence and five 35 million
dollars ($5,000,000) aggregate; and
(c) Workers' compensation coverage as required by law.
(d) A provider shall not be self-insured unless it provides evidence,
according to an independent audit or report of net assets of at least five
hundred million dollars ($500,000,000.00), including the assets of its
affiliates. In the event a wireless provider elects to self -insure one or
more obligations under this regulation, the following conditions apply: (i)
City shall promptly and no later than thirty (30) days after notice thereof
provide wireless provider with written notice of any claim, demand,
lawsuit, or the like for which it seeks coverage pursuant to this Section
and provide wireless provider with copies of any demands, notices,
summonses, or legal papers received in connection with such claim,
demand, lawsuit, or the like; (ii) City shall not settle any such claim,
demand, lawsuit, or the like without the prior written consent of wireless
16
provider; and (iii) City shall fully cooperate with wireless provider in the
defense of the claim, demand, lawsuit, or the like. A wireless provider
that self -insures shall immediately notify City of any change in its self-
insured status as to any required coverage and of any change in the ability
of the wireless provider to cover the risk of loss under this regulation.
(e) Qualification; Priority; Contractors' Coverage. Insurance required by
this subsection must be provided by an insurer that is eligible to do
business in Arkansas and have an "A minus" or better rating in Best's
Guide. Such required insurance will be primary. All contractors and all
of their subcontractors who perform work on behalf of a wireless
provider shall carry workers' compensation and employers' liability,
commercial general liability, and automobile liability insurance
coverages of the type that wireless providers are required to obtain
under this subsection with reasonable and prudent limits.
(f) Certificate of Insurance; Other Requirements. As a condition of every
permit, wireless providers will furnish City with a certificate of
insurance ("certificate"). City shall be given thirty (30) calendar days
advance notice of cancellation or nonrenewal of required insurance if
not replaced during the term of this regulation. All policies, other than
workers' compensation, shall be written on an occurrence and not on
a claims -made basis. Policies may be written with deductibles or self-
insured retentions. Upon request, wireless service providers shall
obtain certificates from its agents, contractors, and their
subcontractors working hereunder and provide a copy of such
certificates to City.
(g) Prohibited Exclusions. No policies of insurance required to be
obtained by a wireless provider or its contractors or subcontractors
shall contain provisions that: (1) exclude coverage of liability assumed
by this regulation with City except as to infringement of patents or
copyrights or for libel and slander in program material, (2) exclude
coverage of liability arising from excavating, collapse, or underground
work, (3) exclude coverage for injuries to City's employees or agents,
or (4) exclude coverage of liability for injuries or damages caused by
the wireless provider's contractors or the contractors' employees, or
agents.
(h) Deductible/Self-insurance Retention Amounts. Wireless providers
shall be responsible for any deductible or self-insured retention amounts
contained in their insurance or for any deficiencies in the amounts of
insurance maintained.
(V)Bonding. All providers shall comply with the bonding requirements set forth in §
158.02 of the Unified Development Code as applicable.
(W) Assignment.
(1) Limitations on Assignment. Wireless providers shall not assign any permits
granted under this regulation, nor any part of such permits, without the prior
written consent of City, which consent shall not be unreasonably withheld;
17
provided, however, a wireless provider may assign its rights and obligations
to an affiliate without consent upon prior written notice to City.
(2) Obligations of Assignee/Transferee and Permittee. No assignment or transfer
under this subsection shall be allowed until the assignee or transferee becomes
a signatory to the permit issued under this regulation and assumes all
associated obligations arising under this regulation. Wireless providers who
seek to assign or transfer a permit shall furnish City with prior written notice of
the transfer or assignment, together with the name and address of the transferee
or assignee.
(3) Sub -permitting. Permit holders shall not sub -permit, sub -license, lease, or
otherwise allow a third party to place attachments on City's poles or structures,
except the authorized use of small wireless facilities by third parties that
involves no additional attachment.
(X) Severability. If any provision or portion thereof of this regulation is or becomes invalid
under any applicable statute or rule of law, and such invalidity does not materially alter
the essence of this regulation to either party, such provision shall not render
unenforceable this entire regulation. Rather, the parties intend that the remaining
provisions shall be administered as if the regulation did not include the invalid
provision.
(Y)Any provision or portion of this ordinance which a court of competent jurisdiction
determines conflicts with state law or is ambiguous shall be resolved in favor of the
provisions set forth in the Arkansas Small Wireless Facility Deployment Act.
18
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Text File
File Number: 2019-0483
Agenda Date: 8/20/2019 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Ordinance
Agenda Number: C. 9
AMEND § 110.03 SMALL CELL FACILITIES AND NETWORKS:
AN ORDINANCE TO AMEND § 110.03 SMALL CELL FACILITIES AND NETWORKS, AND TO
DECLARE AN EMERGENCY
WHEREAS, on November 21, 2017, after months of study and revisions, the City Council enacted § 110.03
Small Cell Facilities and Networks; and
WHEREAS, in September of 2018, the Federal Communications Commission issued an industry -backed
declaratory ruling that included several local preemption provisions; and
WHEREAS, the Arkansas General Assembly enacted the Small Wireless Facility Deployment Act, which
added Arkansas to the list of more than 20 states that have enacted state legislation further preempting local
authority, and which expanded the definition of "right-of-way" to include public utility easements located on
private property; and
WHEREAS, the Arkansas Small Wireless Facility Deployment Act will take effect on September 1, 2019,
and without substantially amending § 110.03 of the Fayetteville City Code before that effective date, providers
could have a window of opportunity to deploy poles and small cell facilities without any of the safety provisions
or aesthetic standards the City Council previously approved; and
WHEREAS, City staff members have worked with the Arkansas Municipal League's small cell and
telecommunications consultant to review the City's existing ordinance and make modifications to ensure that the
new ordinance substantially implements the provisions of the state Small Wireless Facility Deployment Act.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals § 110.03 Small Cell
Facilities and Networks and enacts a replacement § 110.03 Small Cell Facilities and Networks in
Chapter 110: Telecommunication Franchise, Billposting, and Small Cell Facilities and Networks of the
Fayetteville Code as shown in Exhibit "A" attached hereto and made a part hereof.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby determines that this ordinance
ChyofFayeBeville, Arkansas Page 1 Printed on 812212019
File Number: 2019-0483
should become effective without delay for the following reasons: 1) the City anticipates the deployment of
hundreds of new or replacement poles, support structures, antennas and other equipment across the City by
several different providers primarily along and within the public rights of way and it is crucial that reasonable
regulations that comply with state law are in place before September 1, 2019 to ensure that providers are
deploying this important new technology safely along our streets and sidewalks; and 2) by expanding the
definition of "right-of-way" providers will have the authority to enter onto and install poles and small cell
facilities within public utility easements, including those on private property, and the City should do everything
possible to protect the property rights, including the viewsheds, of Fayetteville residents. For the foregoing
reasons, the City Council finds that it is necessary for the public peace as well as the health and safety of
Fayetteville residents to immediately implement the provisions set forth in the Exhibit to this Ordinance.
Therefore, the City Council hereby declares an emergency exists such that this ordinance shall become effective
immediately upon its passage and approval.
City of Fayetteville, Arkansas Page 2 Printed on 812212019
Agenda Session Walk On 8/13/19
City of Fayetteville Staff Review Form
2019-0483
Legistar File ID
8/20/2019
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Susan Norton 8/9/2019 COMMUNICATIONS/MARKETING (055)
Submitted By Submitted Date Division / Department
Action Recommendation:
Revision of Small Cell Facilities Ordinance
Budget Impact:
Account Number
Project Number
Budgeted Item? NA Current Budget
Funds Obligated
Current Balance
Does item have a cost? No Item Cost
Budget Adjustment Attached? No Budget Adjustment
Remaining Budget
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
Fund
Project Title
0
Previous Ordinance or Resolution #
Approval Date:
V20180321
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF AUGUST 20,2019
TO: Mayor and City Council
THRU: Don Marr, Chief of Staff
FROM: Susan Norton, Communications Director
Blake Pennington, Assistant City Attorney
DATE: 8/8/19
CITY COUNCIL MEMO
SUBJECT: Revision of City Small Cell Facilities and Networks Ordinance
RECOMMENDATION:
City staff recommends revision of the Small Cell Facilities and Networks ordinance in response
to recent federal and state actions.
BACKGROUND:
On November 21, 2017, the City enacted an ordinance to provide for the permitting of small cell
(potential 5G) structures in accordance with FCC rules and with guidance from the National
League of Cities. In developing the City's ordinance, an internal team made up of
Administration, Development Services, Information Technology staff, and the City Attorney's
office spent several months reviewing similar ordinances and statutes from a number of cities
and states across the region, looking for what would be the best fit for Fayetteville. The team
also met with small-cell providers who reviewed draft language for the ordinance.
Subsequently, in September of 2019, the Federal Communications Commission issued an
industry -backed declaratory ruling that included several preemption provisions, including a "shot
clock" for time limits for processing applications and limiting fees that local governments can
charge providers to use the city's right of way. The FCC ruling is currently being challenged and
legislation has been introduced in Congress to reverse the order. Additionally, the Arkansas
State Legislature in the 2019 session enacted Act 999, "To Establish the Small Wireless Facility
Deployment Act," which added Arkansas to over 20 states that had previously enacted
legislation to pre-empt local authority in this same manner. Act 999 is set to take effect
September 1, 2019.
DISCUSSION:
City staff and Assistant City Attorney worked together with assistance from the Arkansas
Municipal League's consultant to review the City's existing ordinance and suggest modifications
in order to be in compliance with the state legislation.
BUDGET/STAFF IMPACT: None
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
EXHIBIT A
110.03 Small Cell Facilities and Networks
(A) Definitions: Unless otherwise defined below, the terms used in § 110.03 shall have
the meanings set forth in the Arkansas Small Wireless Facility Deployment Act, Ark.
Code Ann. § 23-17-501, et seq:
(1) Administrative Review means non -discretionary evaluation of an Application
by the Zoning and Development Administrator. This process is not subject to
a public hearing or conditional or special review process.
(2) Stealth technology means systems, components and materials used in the
construction of wireless communications facilities to make it compatible with
the surrounding property.
(13) Compliance with Local, State and Federal Regulations. Applicant shall comply with
all applicable state and federal regulations. Proof of compliance shall be provided
upon request of the Zoning and Development Administrator. Applicant shall not be
required to enter into any franchise agreement with the City. No person shall attach,
install, or maintain a small cell facility in the right-of-way without a permit issued by
the City or in violation thereof.
(C) Applications. The form of the permit application is located on the City's website
under Small Cell Facilities and Networks.
(D)An applicant shall submit with the application all documentation or other evidence
required by the Zoning and Development Administrator to sufficiently establish the
structural soundness of proposed facilities.
(E) Micro -wireless facilities. No permit shall be required for any person to install,
maintain or operate a micro -wireless facility that is suspended on cables that are
strung between existing poles and comply with applicable codes, provided that a
permit may be required for work requiring lane closure or excavation.
(F) Permits.
(1) City right of way Permit. Upon proper application, City shall timely grant a
wireless provider a revocable, nonexclusive permit authorizing the installation
and maintenance of a small wireless facility and, if applicable, a pole that will
be used to support a small wireless facility, within the City's public rights-of-
way, as provided in this regulation.
(a) ARDOT right of way. Applications to install small wireless facilities
and/or poles used to support small wireless facilities in a right-of-way
controlled by the Arkansas Department of Transportation must be
approved by the Arkansas Department of Transportation prior to
submission to the City.
(b) Outside the right of way. Applications to install small wireless
facilities and/or poles used to support small wireless facilities outside
of the right-of-way will be evaluated and processed according to City
ordinances governing the zoning and development of property.
(c) Special Locations. No application or permit shall be required under
this regulation to install a small wireless facility that is located within
an interior structure or upon the site of a campus, stadium, or athletic
facility that is not controlled by the City.
(d) Maintenance. No permit shall be required for any person to perform
routine maintenance on a previously permitted small wireless facility
or to replace a previously permitted small wireless facility with one
that is substantially similar or smaller, provided that a permit may be
required for work requiring lane closure or excavation.
(2) City Collocation Permit. Upon proper application, City shall timely grant a
wireless provider a revocable, nonexclusive permit authorizing the attachment
of a small wireless facility to a City pole, as provided in this regulation. A
single permit form may be used to issue permits for the installation of small
wireless facilities in the right-of-way and collocation on City poles.
(3) Installation on Other City Property. Upon proper application, City may grant
a wireless provider a revocable, nonexclusive permit authorizing the
installation and maintenance of a small wireless facility on property owned by
the City upon such terms and conditions as may be approved by City in
accordance with state law.
(4) Duration of Permits. Permits issued pursuant to this regulation shall terminate
ten (10) years after the date the permit was issued. The holder of any permit
so terminated shall be entitled to:
(a) Renew the permit for a successive ten (10) year term, provided that the
permitted facilities and/or poles conform to all safety and appearance
requirements at the time the permit terminated;
(b) Replace the permitted facilities and/or poles at the previously
permitted location with facilities and/or poles that conform to all safety
and appearance requirements at the time of renewal; or
(c) Remove the small wireless facilities and/or poles used to the support
small wireless facilities within one year of the date that the permit
lapsed.
(G) Administrative Approval of Co -Located Facilities Within the Right -of -Way. The
Zoning and Development Administrator, following an Administrative Review, may
approve the following facility installations:
(1) Locating on Existing Structures. Installation of facilities on an existing
structure other than a tower regulated under § 163.13 of the Unified
Development Code (such as a building, light pole, electric transmission tower,
water tank, or other free-standing non-residential structure) provided that the
facilities do not extend any higher than 10 percent (10%) above the existing
structure on which it is located or fifty (50) feet above the ground, whichever
is greater.
(2) Locating on Existing Tower Not Previously Approved Through § 163.13 of
the U.D.C. Existing towers that do not have facilities may not add such
4
capability without securing a conditional use permit, except as otherwise
allowed by 47 U.S.C. § 1455.
(3) Locating on Existing Towers Previously Approved Through §163.13.
Additional facilities may be placed upon any tower already approved through
§163.14 of the U.D.C. so long as such additional facilities would not violate
any requirements of the conditional use permit or other provisions of§163.13.
(4) The applicant must submit a letter of intent indicating the intent and
agreement to allow co-location of facilities or installation of facilities on an
existing structure.
(5) If proposed facilities are not or cannot be adequately camouflaged, the City
may require the installation of new stealth facilities.
(6) Any disturbance of City infrastructure(such as, but not limited to, streets,
sidewalks, and utilities) shall be repaired and restored by the applicant at its
expense and to a condition at least as good as that existing before the work
causing such disturbance was commenced.
(7) Historic Districts.No person shall install a small wireless facility in any historic
district unless and until issued a certificate of appropriateness by the historic
district commission.
(8) Additional requirements for collocation on City poles.
(a) Bucket-truck access. No person shall install a small wireless facility on
any City pole or structure that is inaccessible from a street with a
bucket truck. The purpose of this rule is to protect the safety of City
workers.
(b) Streetlight and traffic poles.No person shall install a small wireless
facility on or within a streetlight or traffic pole that, when combined
with the existing lighting equipment and other existing facilities, shall
require more electricity than can be safely provided by the existing
service line.
(c) Reserved space.City may reserve space on poles for future public safety
or transportation use according to a plan that has been documented and
approved by the Mayor prior to the submission of application to occupy
the space reserved.
i. Notice of reserved space. An applicant will be notified at the
time an application is filed,or as soon thereafter as possible,that
space on one or more poles within an application has been
reserved for future use. A reservation of space shall not preclude
placement of a pole or collocation of a small wireless facility. If
replacement of the City's pole is necessary to accommodate the
collocation of the small wireless facility and the future use, the
wireless provider shall pay for the replacement of the authority
pole and the replaced pole shall accommodate future use.
ii. Reclaiming reserved space. When notice was provided in
accordance with this subsection, City may reclaim reserved
space by giving the wireless provider at least ninety (90)
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calendar days prior notice. City shall give the wireless provider
the option to remove its attachment(s)from the affected poles or
pay for the cost of any make-ready work needed to expand
capacity for City service requirements, so that the wireless
provider can maintain its attachment(s) on the affected poles.
The allocation of the cost of any such make-ready work
(including the transfer, rearrangement, or relocation of third-
party attachments) shall be determined in accordance with this
section.
iii. Third-party attachers. Wireless provider shall not be required
to bear any of the costs of rearranging or replacing its
attachment(s), if such rearrangement or replacement is required
as a result of an additional attachment or the modification of an
existing attachment sought by any entity other than City.
(H)Administrative Approval of New Facilities in Public Rights of Way. Providers
proposing the construction or installation of new facilities in the public rights of way
(including the replacement of existing structures) shall comply with following
requirements:
(1) Construction Maintenance. The provisions of§ 110.02(E),with the exception
of§§ 110.02(E)(3) and (E)(10), shall govern the process of approval for the
construction or installation of any new facilities within the public rights of
way.
(2) Height Limitations.New poles placed by the provider in public rights of way
are permitted to be a maximum height of no more than fifty(50) feet or 10%
taller than the tallest pole within three hundred (300) feet in the right of way.
Facilities may be installed on the new poles provided that the facilities do not
extend any higher than fifty(5) feet above the ground or more than ten percent
(10%)above the pole on which it is located.
(3) Replacement of Existing Structures. If installation of facilities requires the
removal and replacement of an existing structure, such as a pole, the new
structure shall be no more than fifty(50) feet in height or no more than 10%
higher than the same height as the existing structure, is constructed of
substantially similar material or is a camouflaged/stealth structure, and the
replacement structure is located within five (5) feet of the location of the
original structure. The provisions of§ 110.02(E) shall govern the standards of
and procedures for construction or installation of replacement facilities within
the public rights of way.
(4) Camouflaging or Stealth Technology Required.New facilities shall be
designed to be camouflaged to the greatest extent reasonably possible
including, but not limited to, use of compatible building materials and colors,
incorporation within street lights, screening, landscaping, and placement
within trees.All antenna arrays, cables, and other accessories used for
providing the services shall not be obtrusive or noticeably visible. The
Zoning and Development Administrator may approve the installation of a
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standard utility pole in areas where such installation will not degrade the
streetscape but any facilities shall be camouflaged to the greatest extent
reasonably possible. Camouflaging and stealth technology shall be required
in all residential areas, improvement districts(including, but not limited to, the
Dickson Street area and College Avenue improvement corridor), and any area
in which utilities have been installed or relocated underground.
Understanding that new technologies are anticipated to change the
components of telecommunications facilities, the Administrator may
determine if a telecommunications facility or component of a
telecommunications facility is designed to be stealth. If an applicant
establishes that it is not technically feasible to meet this requirement,the
Administrator may grant a variance in the minimum amount necessary.
(5) Fall Zone. The minimum distance from the base of any facility to any
residential dwelling unit shall be the lower height or required setback,
whichever is greater, unless all persons owning said residence or the land on
which said residences are located consent in a signed writing to the
construction of said facility. This setback is considered a "fall zone." In the
event that an existing facility is proposed as a mount for the provider's
equipment, a fall zone shall not be required.
(6) Distance between new poles.
(a) New non-camouflaged or non-stealth poles shall be spaced a minimum
of five hundred feet(500')from any other new or replacement non-
camouflaged or non-stealth pole approved in accordance with this
section.
(b) New camouflaged facilities or poles or new facilities utilizing stealth
technology to fit within the streetscape (e.g., incorporated within a
street light pole) shall be subject to the following distance requirement
i. Where streetlights are present, no person shall install a new
pole in the right of way when there is an existing pole located in
the right-of-way within one hundred feet(100')of the proposed
location that is reasonably suitable for collocation, unless
collocation on the existing pole will impose technical limits on
the small wireless facilities to be installed or significant
additional costs. A pole is deemed reasonably suitable if it will
structurally support the attachment and the owner will permit
attachment at a rate that is equal to or less than the rate provided
by this section. The purpose of this rule is to reduce the number
of poles within the right-of-way in areas with heightened
aesthetic concern.
ii. Where streetlight poles are not present, new poles will be
aligned with, and generally match the appearance of existing
poles within the right-of-way that are within three hundred feet
(300')of the proposed location; however, if such alignment or
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appearance will impose technical limits on the small wireless
facilities to be installed or impose significant additional costs,
new poles will be constructed using a stealth design that fully
conceals all small wireless facilities and associated equipment
within the pole. New poles will not vary from the height of
existing poles by more than ten percent(10%). Where poles of
different heights are present, new poles shall match the height of
existing poles that are closest to the new pole. The purpose of
this rule is to ensure uniformity in the appearance and height of
poles within the right-of-way in areas with heightened aesthetic
concern.
(7) Placement. No person shall install a new pole within a right-of-way unless the
pole is within ten feet(10')of a side lot line and at least eighteen inches (18")
from the road surface. When compliance with this rule is not technically
feasible,the new pole will be installed in a location that avoids obstructing the
view of occupiable structures and as close to the lot line as possible. This rule
shall not apply when installing new poles in a median between roadways or
within a right-of-way controlled by the Arkansas Department of Transportation.
The purpose of this rule is to avoid obstructing views from the right-of-way and
occupied structures.
(8) Information Required to Process Requests for New Facilities.
(a) Identification of the applicant.
(b) A map or description of the location of the facilities.
(c) An illustration that shows the final appearance of the facilities.
(d) Engineered drawings of the facilities to be installed, including required
make-ready work.
(e) Worker safety information related to small wireless facility
installation.
(f) Evidence of bonding as required by § 158.02 of the Unified
Development Code.
(g) Evidence of insurance as required by this section.
(h) Required application fees.
(i) Describe your efforts to collocate your facility on existing structures or
poles. The applicant should demonstrate a good faith effort to locate
facilities on existing structures and/or co-locate with other carriers.
(j) Describe whether you will or will not accommodate equipment of
other telecommunications providers that could co-locate on your
facility. Describe how such accommodation will impact both your pole
and your ground mounted facilities. Provide documentation of your
provider's willingness or unwillingness to accommodate other
providers who may be able to co-locate on your facility.
(9) Historic Districts.No person shall install a small wireless facility in any historic
district unless and until issued a certificate of appropriateness by the historic
district commission.
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(I) Application Time Frame. A final decision shall be issued for applications for
facilities under subsections (G)and (H) subject to the following:
(1) The City shall supply written notice to the Applicant within ten days of receipt
of an Application whether the application is complete. If an application is
incomplete, the City shall clearly and specifically delineate any missing
documents or information. The processing deadline shall restart at zero (0)on
the date the applicant provides the missing information identified by the City
to complete the application.
(2) Applications shall be processed within:
(a) Sixty(60)days of receipt of a completed application for the
collocation of a small wireless facility; and
(b) Ninety(90)days of receipt of an application to install, modify, or
replace a pole on which a small wireless facility is or will be
collocated.
(3) The processing deadline may be tolled by agreement of the applicant and the
City.
(4) Denial of Permits.
(a) If a permit is denied,the City shall document the basis for the denial
and send the documentation to the applicant on or before the day the
City denies the application.
(b) The applicant may cure the deficiencies identified by the City and
resubmit its application within thirty(30)days of the denial without
paying an additional fee.
(c) The City shall approve or deny the revised application within thirty
(30)days of resubmission and shall limit a review of the resubmitted
application to the deficiencies cited in the denial.
(5) Abandoned applications. After notice is provided to an applicant that an
application is incomplete as described above, the applicant will be afforded
thirty(30) days to provide missing information without submitting a new
application or application fee. If incomplete for more than thirty(30) days,
the application will be deemed abandoned and the City will return all forms
and information to the applicant. The application fee will not be refunded.
The applicant may later resubmit the forms and information as a new
application with an appropriate application fee.
(6) Professional Engineer.Unless otherwise waived in writing by City,as part of the
permit application process,and at the wireless provider's sole expense, a
qualified and experienced professional engineer,or an employee or contractor of
the wireless provider who has been approved by City,must undertake and
complete the engineering design and pole loading analyses calculations required
in completing a permit application,participate in the pre-construction survey,and
certify that the wireless provider's small wireless facilities can be and were
installed on the identified poles in compliance with the applicable codes and in
accordance with the permit.The professional engineer's qualifications must
include experience performing such work,or substantially similar work,as
reflected in the application and unless otherwise waived by City, such engineer
must be licensed in the State of Arkansas.The City may allow a wireless
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provider's professional engineer,employee or contractor to conduct a post-
construction inspection that the City will verify by means that it deems to be
reasonable.
(J) Application Fees and Annual Rates.
(1) Applicants shall submit a fee in the amount of$100.00 for each small wireless
facility proposed to be installed on an existing wireless support structure or
pole.
(2) Applicants shall submit a fee in the amount of$250.00 for the installation,
modification, or replacement of a pole together with the collocation of an
associated small wireless facility in the right-of-way.
(3) Providers shall pay an annual rate of$30.00 per small wireless facility for use
of the public right-of-way.
(4) Providers shall pay an annual rate of$240.00 per small wireless facility that is
collocated on a City-owned pole.
(5) Applicants shall pay a fee of$150.00 for each small wireless facility that does
not pass an initial inspection and requires re-inspection. This fee ensures the
City shall recover its costs associated with administering and conducting a
reinspection.
(6) A provider who attaches a small wireless facility to a City pole or other
structure without proper authority shall pay a fee of$480.00 per year. This fee
is in addition to any penalty that may be assigned or adjudicated for violation
of a City ordinance. This fee ensures that the City shall recover its costs
associated with locating and remediating unauthorized attachments.
(7) A provider shall pay$10.00 per day for each small wireless facility that is
attached to a City facility in violation of a permit or an applicable code for
more than thirty(30)days after notice of the violation. This fee ensures that
the City shall recover its costs associated with locating and remediating
specific permit violations.
(8) Refunds. No fees and charges specified in Appendix A shall be refunded on
account of any relinquishment or abandonment of a permit granted under this
regulation.
(9) Late Charges. If City does not receive payment for any amount owed within
sixty(60)calendar days after it becomes due,wireless providers shall pay a
late processing charge equal to five percent(5%)of the amount owed. In
addition to assessing a late processing charge, if any fees or charges remain
unpaid for a period exceeding ninety(90)days: (1)wireless providers shall be
charged interest at the rate of ten percent(10%)per year on the amount owed;
(2)City may discontinue the processing of applications for new small wireless
facilities and/or poles until such fees or charges are paid: and (3)City may
cause the disconnection of electric service from wireless provider's small
wireless facilities at wireless provider's expense.
(K)New Structures on Private Property. Telecommunications providers proposing the
construction or installation of new poles or towers on privately owned property in the
City, but not within any right-of-way as defined by Ark. Code Ann. § 23-17-
503(24)(A), shall comply with the provisions of§ 163.13 Wireless Communications
Facilities and shall obtain a conditional use permit.
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(L)New Facilities on Public Property. The City of Fayetteville will actively market its
own property and existing facilities as suitable co-location sites. Applications for
new facilities on public property shall be subject to the Administrative Review
process.An annual lease amount should be charged according to the fair market value
of the location. In cases in which the company no longer needs the facility,the city
may require it to be removed.Applicants may be required to provide co-location
space for city-owned facilities. For purposes of this subsection, public property shall
not include any public right of way or structures in any public right of way. Small cell
facilities installed in the public right of way or on structures in the public right of way
shall pay only the fees set forth in subsection (H) and shall not be charged additional
fees under this subsection.
(M) Specifications
(1) Installation.Every small wireless facility, pole and other structures in the
right-of-way shall be erected and maintained in accordance with the
requirements and specifications found in applicable codes, including the
latest revision of the National Electric Code(NEC)and National Electrical
Safety Code(NESC), as may be amended from time to time, and in
compliance with any construction standards now in effect or that may
hereafter be issued by City(provided such construction standards are not
inconsistent with this regulation and are applied on a non-discriminatory
basis)or any rules or orders of a governmental authority having jurisdiction.
The location of any small wireless facility may be reasonably re-designated
from time to time to accommodate other pole attachments, for reasons of
electrical service safety or reliability,with costs allocated in accordance with
subsection (N)below. Notwithstanding the foregoing,with respect to any
small wireless facility that was in compliance with applicable codes at the
time such small wireless facility was installed but has become noncompliant
because of revisions to the NESC, wireless providers shall be required to bring
their small wireless facilities into compliance with then-current standards only
in connection with relocation, pole replacement, or rebuild affecting such
attachment or in the event such noncompliance creates an imminent threat to
public safety. When maintenance or repair work is needed with respect to
noncompliance with applicable codes as set forth in this Section, the actual
costs of maintenance, repair, and inspection shall be borne by wireless
providers.
(2) Maintenance of Facilities. Wireless providers shall, at their own expense,
make and maintain their small wireless facilities and any associated poles in
safe condition and good repair, in accordance with all applicable codes. All
maintenance work on small wireless facilities shall only be performed by
qualified personnel. During the period described in subsection (F)(4), wireless
providers shall not be required to update or upgrade its small wireless facilities
if they complied with applicable codes at the time they were made; provided,
however, wireless providers shall update or upgrade their small wireless
facilities in connection with relocation, pole replacement or rebuild affecting
such small wireless facilities or in the event such update or upgrade is
required or necessary in order to resolve an imminent threat to public safety.
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(3) Tagging. Upon installation,wireless providers shall affix a tag to any pole or
structure upon which the wireless provider's small wireless facilities have
been installed and to the exterior of any underground or ground-mounted
small wireless facility equipment. The tag will be constructed of aluminum,
plastic or other material of extended durability. Tags will be installed on any
pole or structure to which a small wireless facility has been installed.
(4) Interference. Wireless providers will not allow their small wireless facilities to
interfere with the operation of any pre-existing City or third-party facilities.
(a) RF Responsibility. Wireless providers are solely responsible for the
radio frequency("RF")emissions emitted by its small wireless
facilities and associated equipment, ensuring that the RF exposure
from its emissions are within the limits permitted under all applicable
rules of the FCC. City is solely responsible for the RF emissions
emitted by its equipment or facilities and ensuring that the RF
exposure from its emissions are within the limits permitted under all
applicable rules of the FCC.
(b) Signage. To the extent required by FCC rules and/or applicable local,
state or federal law, wireless providers shall install appropriate signage
to notify workers and third parties of the potential for exposure to RF
emissions. The signage will be placed so that it is clearly visible to
workers who climb the pole or ascend by mechanical means.
(c) Duty to Others. Wireless providers shall be under a duty and
obligation in connection with the operation of its facilities to protect
against RF interference to the RF signals of City, all other wireless
providers, and any other entities with attachments on poles with the
wireless provider. City shall be under no obligation to remedy or
resolve RF interference among wireless providers or other attaching
entities and shall not be liable for any such RF interference among
wireless providers or other attaching entities. City will, however,
endeavor to have all attaching entities coordinate and cooperate with
each other relating to the resolution of interference. Notwithstanding
the foregoing, in the event City's operations create RF interference to
wireless providers or other attaching entities, City will endeavor to
correct such RF interference promptly and shall cooperate with the
other parties relating to the correction.
(5) Protective Equipment.Each wireless provider and its employees and contractors
shall utilize and install adequate protective equipment to ensure the safety of
people and facilities pursuant to FCC rules and requirements.Every permit issued
by City pursuant to this regulation shall bear the warning and condition that CITY
SHALL NOT BE LIABLE FOR ANY ACTUAL OR CONSEQUENTIAL
DAMAGES TO SMALL WIRELESS FACILITIES,WIRELESS PROVIDER'S
CUSTOMERS' FACILII'ihS, OR TO ANY OF WIRELESS PROVIDER'S
EMPLOYEES,CONTRACTORS,CUSTOMERS, OR OTHER PERSONS.
(6) Safety Briefing. Wireless providers shall prepare a written "Safety Briefing"
suitable for City employees and contractors who may be required to work near
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and/or around small wireless facilities. This safety briefing will be submitted
as part of each permit application.
(7) Cut-Off Switch. Each wireless provider shall install a lockable power cut-off
switch as directed by City and consistent with applicable codes for every pole
to which the wireless provider has attached facilities that can emit RF energy.
The cut-off switch will allow for the power source and any back-up power
sources to be disconnected. If required by City, the power source must also be
equipped with an external indicator light to provide certainty that the power has
been disconnected. Wireless providers shall provide City with access to
disconnect switch by providing keys or combinations to the locks.
(8) Cut-Off Procedure. In ordinary circumstances, City's authorized field
personnel will contact the applicable wireless provider's designated point of
contact to inform a wireless provider of the need for a temporary power shut
down. Upon receipt of the call, the wireless provider will power down its
antenna remotely,the power-down will occur during normal business hours and
City will endeavor to provide 24 hours' advance notice. In the event an
emergency or unplanned cut-off is required, advance notice will only be
provided at City's sole discretion and, if circumstances warrant,employees and
contractors of City may accomplish the power-down by operation of the power
disconnect switch without advance notice to the wireless provider and shall
notify the wireless provider as soon as possible. In all such instances, once the
work has been completed and the worker(s) have departed the exposure area,
the party who accomplished the power-down shall restore power and inform the
other party as soon as possible that power has been restored.
(9) Emergency Contact Information. Each wireless provider shall provide
emergency after hours contact information to City to ensure proper notification
in case of an emergency. Information will include 24/7 telephone, cell phone
and/or pager information, a list of duty managers by district and escalation
procedures. Wireless providers shall provide City with updated emergency
contact information on an annual basis and whenever changes are made.
(10) Removal of Nonfunctional Attachments. At its sole expense, each wireless
provider shall remove any of its small wireless facilities, or any part thereof,
that becomes nonfunctional and no longer fit for service ("nonfunctional
attachment"). Except as otherwise provided in this regulation, each wireless
provider shall remove nonfunctional attachments within one (1)year of the date
that it became nonfunctional, unless the wireless provider receives written notice
from City that removal is necessary to accommodate City's or another attaching
entity's use of the affected pole(s), in which case the wireless provider shall
remove the nonfunctional attachment within ninety (90) days of receiving the
notice. After the time designated for removal, City may, in its sole discretion,
remove and dispose of the nonfunctional attachment and the wireless provider
shall be responsible for the costs therefor.
(N)Make-Ready Work/Installation
(1) Who May Perform Make-Ready. Make-ready work on City poles shall only be
performed by the City or a qualified contractor authorized by City to perform
such work.
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(2) Time Frame for Completion of Make-Ready. If City, or its contractor, is
performing make-ready work it will complete the make-ready work within sixty
(60) days of receipt of the wireless provider's acceptance of the make-ready
estimate and advance payment, if required. Completion time may be extended
by agreement between the City and the wireless provider. If City does not
complete the make-ready work within the time allotted,the wireless provider
may demand a return of deposited funds and proceed with required make-ready
work using authorized and qualified contractors who are approved by the City.
The City shall not unreasonably withhold or delay approval of a contractor to
perform required make-ready.
(3) Payment for Make-Ready Work. Upon completion of the make-ready work
performed by City, City shall invoice the wireless provider for City's actual and
documented cost of such make-ready work.The costs of the work shall be
itemized, and if City received advance payment,the costs shall be trued up.
Each wireless provider shall be responsible for entering into an agreement with
other existing attaching entities to reimburse them for any costs that they incur
in rearranging or transferring their facilities to accommodate the wireless
provider's attachments.
(4) Wireless Provider's Installation/Removal/Maintenance Work.
(a) Quality workmanship required. All of the wireless provider's
installation, removal, and maintenance work, by either the wireless
provider's employees or authorized contractors, shall be performed at
the wireless provider's sole cost and expense, in a good and
workmanlike manner, and must not adversely affect the structural
integrity of City's poles or other facilities or other attaching entity's
facilities or equipment. All such work is subject to the insurance
requirements of this section.
(b) Qualified workers required. All of a wireless provider's installation,
removal, and maintenance work, either by its employees or authorized
contractors, shall comply with all applicable regulations specified in
this section. Wireless providers shall assure that any person installing,
maintaining, or removing its small wireless facilities is fully qualified
and familiar with all applicable codes, and the design specifications
established by City.
(c) Authorization not required for maintenance. Notwithstanding
anything to the contrary in this regulation, subsequent to the original
installation of a wireless provider's small wireless facilities, the
wireless provider may modify or replace the small wireless facilities
without obtaining prior written consent of City so long as such
modification or replacement does not substantially: (i)modify the
external appearance of the small wireless facility; (ii) increase the
electric consumption of the small wireless facility; (iii) increase the
load on the applicable pole beyond the loading, if any, that was
established in the approved permit application; or(iv) involve
placement of equipment outside the area designated in the approved
permit application. A wireless provider may request, and City shall
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timely provide, a determination as to whether a modification or
replacement made subsequent to original installation deviates from the
original permit sufficiently to require the issuance of a permit.
(5) Allocation of Costs. The costs for any rearrangement or transfer of any small
wireless facilities or the replacement of a pole (including, without limitation,
any related costs for tree cutting or trimming) shall be allocated on the
following basis:
(a) Pole replacement for City. If City intends to modify or replace a pole
solely for its own requirements, it shall be responsible for the City's
costs related to the modification or replacement of the pole. The
wireless provider shall be responsible for costs associated with the
rearrangement or transfer of the wireless provider's small wireless
facilities.
(b) Replacement for wireless provider. If the modification or replacement
of a pole is necessitated by the requirements of a wireless provider,the
wireless provider shall be responsible for all costs caused by the
modification or replacement of the pole as well as the costs associated
with the transfer or rearrangement of any other attaching entity's
facilities. At the time the wireless provider submits a permit
application to City, the wireless provider shall submit evidence in
writing that it has arranged to reimburse all affected attaching entities
for their costs caused by the transfer or rearrangement of their
facilities. City shall not be obligated in any way to enforce or
administer the wireless provider's responsibility for the costs
associated with the transfer or rearrangement of another attaching
entity's facilities pursuant to this Section.
(c) Replacement for additional attachment. If the modification or
replacement of a pole is the result of an additional attachment or the
modification of an existing attachment sought by an attaching entity
other than City or a wireless provider,the entity requesting the
additional or modified attachment shall bear the entire cost of the
modification or replacement, as well as the costs for rearranging or
transferring the wireless provider's small wireless facilities. The
wireless provider shall cooperate with such third-party attaching entity
to determine the costs of moving the wireless provider's facilities.
(0)Permit Expiration. Permits issued for the construction or installation of any
telecommunication facilities under this chapter shall expire after a period of one (1)
year unless construction or installation of the permitted facility has been initiated.
(P) Variances and Appeals.
(1) An Applicant may request a variance of any requirement in this section
through the Board of Adjustment by complying with the procedures set forth
in Chapter 156 of the Unified Development Code. Requests to vary from any
City aesthetic requirements applicable to a new small wireless facility must be
made in writing by a wireless provider to the City's Planning Division for
submission to the Board of Adjustment. The request must specifically identify
the provision requested to be varied,justification for requesting the variance,
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and the proposed solution as a result of the variance. A request for variance or
waiver shall be heard expeditiously by the Board of Adjustment at the first
available regular meeting after the request is received. The request will be
considered according to the normal rules and procedures of the Board of
Zoning Adjustments and shall afford the requestor the right to present
evidence and testimony that shall be considered in any final determination.
(2) An applicant may appeal to the Board of Adjustment a decision or
interpretation made in the Administrative Review process by the Zoning and
Development Administrator. Appeals shall follow the procedure set forth in
Section 155.02 of the Unified Development Code.
(3) Findings and Determinations. The Board of Zoning Adjustment shall make
findings of fact and determinations as are necessary to: (1) fulfill the intent of
this regulation; (2)prevent the prohibition of wireless service; and (3)
otherwise comply with the law; provided that, the Board of Zoning
Adjustment shall not make any finding or determination contrary to applicable
codes.
(Q)Pedestrian access and safety. All facilities shall be installed in such a manner not to
impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or
violate any provision of the Americans with Disabilities Act.
(R)Emergency removal or relocation of facilities. The City retains the right to cut or
move any facility located within its rights-of-way as the City, in its sole discretion,
may determine to be necessary, appropriate, or useful in response to any public health
or safety emergency. City shall notify the provider after cutting or removing any
facility within its rights-of-way. If circumstances permit, the City shall notify the
provider in advance of any cutting or removal and give the provider an opportunity to
move its own facilities.
(S) Violations.
(1) Notice. If a pole,wireless support structure,or small wireless facility is installed,
used, or maintained in violation of this regulation and such violation does not
pose a potential emergency, City shall provide notice of the violation to the
owner. Notice may be provided by any written or electronic form, so long as
notice is documented and received. If the owner is unknown (such as, an
unauthorized installation), notice shall be made by conspicuously posting the
same on the pole, wireless support structure, small wireless facility or other
suitable place in proximity to the pole, wireless support structure or small
wireless facility for a period of thirty(30) days.
(2) Remedies. If the owner of a pole, wireless support structure, or small wireless
facility neglects, refuses, or otherwise fails to cure a violation within thirty(30)
days from receipt of notice of the violation from the City,the following remedies
shall apply:
(a) Continuing violation fees. Any person who installs, uses or maintains a
pole, wireless support structure, or small wireless facility in violation of
this regulation after having received notice thereof for a period of more
than thirty (30) days shall be subject to assessment of a continuing
violation fee as shown in Appendix A to recover the City's costs
associated investigating, monitoring, and resolving the violation.
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(b) Self-help. After sixty (60) days has elapsed after providing notice of a
violation to the owner of a pole, wireless support structure, or small
wireless facility, City may take such corrective measures as are
reasonably warranted to resolve the violation and the owner shall be
responsible for the actual and documented costs incurred by the City,
including overhead.
(c) Remedies not exclusive. The remedies provided in this section are in
addition to every other legal and equitable remedy available to the City.
(3) Exceptions. In the event City or another attaching entity prevents the owner of a
pole,wireless support structure, or small wireless facility from correcting a non-
emergency violation, the timeframe for correcting such violation shall be
extended one day for each day the owner was so delayed. No wireless provider
will be responsible for any fee or cost associated with violations caused by other
entities that are not affiliated with them or acting under their direction. In all
circumstances, attaching entities and City will work together to maximize safety
while minimizing the cost of correcting deficiencies, but the entity responsible
for the violation will be responsible for the actual and documented cost of any
necessary or appropriate corrective measures, including without limitation,
removal and replacement of a pole,transfers or other such work.
(4) Notice of Completion. Wireless providers shall provide timely written
notification to City upon completion of work necessary to correct a violation or
deficiency. All applicable daily penalties and fees will continue to accrue until
City's receipt of such notice of completion. Notice of completion shall be
delivered by the same means as the notice of violation was received from City.
(T)Liability and Indemnification
(1) Liability. City reserves to itself the right to maintain and operate its poles
and facilities in the manner that will best enable City to fulfill its service
requirements. As a condition of every permit, wireless providers must agree
that its use of City's poles and facilities is at the sole risk of the wireless
provider.Notwithstanding the foregoing, City shall seek to exercise
reasonable precaution to avoid damaging small wireless facilities and report
to wireless providers the occurrence of any such damage caused by its
employees, agents or contractors
(2) Indemnification. As a condition of every permit, wireless providers, as well as
their agents, contractors, and subcontractors, ("wireless provider indemnitors")
shall be required to defend,indemnify,and hold harmless City and its respective
officers, board members, council members, representatives, employees, and
agents against any and all claims, demands, damages, lawsuits, judgments,
costs, liens, losses, expenses, fines, taxes, special charges by others, penalties,
payments(including payments made by City under any workers' compensation
laws or under any plan for employees' disability and death benefits), and
expenses (including reasonable attorney's fees of City and all other costs and
expenses of litigation) ("covered claims") arising in any way or in connection
with the negligence of the wireless provider or their officers, directors,
employees, agents, contractors, or subcontractors, except when caused by the
sole negligence of City, or their respective officers, board members, council
15
members, representatives, employees, and agents. Covered claims shall
include, but are not limited to, the following:
(a) Communication-based torts. Intellectual property infringement, libel
and slander, trespass, unauthorized use of television or radio broadcast
programs and other program material, and infringement of patents;
(b) Local compliance. Cost of work performed by City that was
necessitated by a wireless provider's failure, or the failure of a wireless
provider's officers, directors, employees, agents, contractors, or
subcontractors to install, maintain, use, transfer, or remove their small
wireless facilities in accordance with the requirements and
specifications of this regulation, or from any other work this regulation
authorizes City to perform on behalf of a wireless provider;
(c) Harm to persons or property. Damage to property, injury to or death of
any person arising out of the performance or nonperformance of any
work or obligation undertaken by a wireless provider, or its agents,
contractors, or subcontractors, pursuant to this regulation;
(d) Regulatory violations. Liabilities incurred as a result of a wireless
provider's violation, or a violation by a wireless provider's officers,
directors, employees, agents, contractors, or subcontractors of any law,
rule, or regulation of the United States, any state, or any other
governmental entity or administrative agency.
(e) Environmental harm. Environmental harm arising from or due to the
release,threatened release or storage of hazardous substances on,under,
or around City's rights-of-way, poles or facilities attributable to a
wireless provider indemnitor.
(U)Insurance.All providers receiving permits pursuant to this chapter shall have in effect
at all times the following minimum insurance coverage:
(a) Commercial general liability insurance coverage with a limit of no less
than one million dollars ($1,000,000) for each occurrence and five
million dollars($5,000,000) aggregate;
(b) Umbrella or excess liability coverage with a limit of no less than five
million dollars ($5,000,000) for each occurrence and five 35 million
dollars ($5,000,000) aggregate; and
(c) Workers'compensation coverage as required by law.
(d) A provider shall not be self-insured unless it provides evidence,
according to an independent audit or report of net assets of at least five
hundred million dollars($500,000,000.00), including the assets of its
affiliates. In the event a wireless provider elects to self-insure one or
more obligations under this regulation,the following conditions apply: (i)
City shall promptly and no later than thirty(30)days after notice thereof
provide wireless provider with written notice of any claim, demand,
lawsuit,or the like for which it seeks coverage pursuant to this Section
and provide wireless provider with copies of any demands, notices,
summonses, or legal papers received in connection with such claim,
demand, lawsuit,or the like; (ii)City shall not settle any such claim,
demand, lawsuit,or the like without the prior written consent of wireless
16
provider;and(iii)City shall fully cooperate with wireless provider in the
defense of the claim,demand, lawsuit,or the like. A wireless provider
that self-insures shall immediately notify City of any change in its self-
insured status as to any required coverage and of any change in the ability
of the wireless provider to cover the risk of loss under this regulation.
(e) Qualification;Priority; Contractors' Coverage. Insurance required by
this subsection must be provided by an insurer that is eligible to do
business in Arkansas and have an "A minus" or better rating in Best's
Guide. Such required insurance will be primary. All contractors and all
of their subcontractors who perform work on behalf of a wireless
provider shall carry workers' compensation and employers' liability,
commercial general liability, and automobile liability insurance
coverages of the type that wireless providers are required to obtain
under this subsection with reasonable and prudent limits.
(f) Certificate of Insurance; Other Requirements.As a condition of every
permit,wireless providers will furnish City with a certificate of
insurance ("certificate"). City shall be given thirty(30) calendar days
advance notice of cancellation or nonrenewal of required insurance if
not replaced during the term of this regulation. All policies, other than
workers' compensation, shall be written on an occurrence and not on
a claims-made basis. Policies may be written with deductibles or self-
insured retentions. Upon request, wireless service providers shall
obtain certificates from its agents, contractors, and their
subcontractors working hereunder and provide a copy of such
certificates to City.
(g) Prohibited Exclusions.No policies of insurance required to be
obtained by a wireless provider or its contractors or subcontractors
shall contain provisions that: (1)exclude coverage of liability assumed
by this regulation with City except as to infringement of patents or
copyrights or for libel and slander in program material, (2)exclude
coverage of liability arising from excavating, collapse, or underground
work, (3)exclude coverage for injuries to City's employees or agents,
or(4)exclude coverage of liability for injuries or damages caused by
the wireless provider's contractors or the contractors' employees, or
agents.
(h) Deductible/Self-insurance Retention Amounts. Wireless providers
shall be responsible for any deductible or self-insured retention amounts
contained in their insurance or for any deficiencies in the amounts of
insurance maintained.
(V)Bonding. All providers shall comply with the bonding requirements set forth in §
158.02 of the Unified Development Code as applicable.
(W) Assignment.
(1) Limitations on Assignment. Wireless providers shall not assign any permits
granted under this regulation, nor any part of such permits, without the prior
written consent of City, which consent shall not be unreasonably withheld;
17
provided, however, a wireless provider may assign its rights and obligations
to an affiliate without consent upon prior written notice to City.
(2) Obligations of Assignee/Transferee and Permittee. No assignment or transfer
under this subsection shall be allowed until the assignee or transferee becomes
a signatory to the permit issued under this regulation and assumes all
associated obligations arising under this regulation. Wireless providers who
seek to assign or transfer a permit shall furnish City with prior written notice of
the transfer or assignment,together with the name and address of the transferee
or assignee.
(3) Sub-permitting. Permit holders shall not sub-permit, sub-license, lease, or
otherwise allow a third party to place attachments on City's poles or structures,
except the authorized use of small wireless facilities by third parties that
involves no additional attachment.
(X)Severability. If any provision or portion thereof of this regulation is or becomes invalid
under any applicable statute or rule of law, and such invalidity does not materially alter
the essence of this regulation to either party, such provision shall not render
unenforceable this entire regulation. Rather, the parties intend that the remaining
provisions shall be administered as if the regulation did not include the invalid
provision.
18
Small Cell Ordinance Substantive Changes
Even though the federal and state regulations substantially weakened our own ability to regulate the
deployment of this technology we believe these amendments accomplish the following things:
1. We are protecting our residents' private property rights to the extent permitted by the federal and
state regulations.
2. We are preserving to the extent possible our previously established aesthetic standards through
an emphasis on collocation and camouflaging/stealthing.
3. We are strengthening the safety and construction requirements to ensure that the way these
providers are deploying this technology provides a safe environment for residents, users of the
public rights of way, City employees, and utilities operating within these rights of way.
4. We are giving providers robust variance and appeal processes:
a. Layer 1 - significant discretion by the Administrator primarily considering technical
issues and granting administrative variances based on technical infeasibility and undue
hardship with respect to costs.
b. Layer 2 -Variances not heard or granted by the Administrator and appeals of
Administrator's decisions will be heard by the Board of Adjustment.
• 110.03(A)-Amendment deletes nearly all definitions, with the exception of"Administrative
Review" and"Stealth technology"and defers to the definitions set forth in the Arkansas Small
Wireless Facility Deployment Act. State law now defines"right of way" as including public
utility easements.
• 110.03(C)-Removed the batching requirement—state law allows providers to apply for as many
facilities and poles as they want at any time.
• 110.03(D)—Requires an applicant to provide documentation to the administrator to establish the
structural soundness of the poles and facilities proposed.
• 110.03(E)—Recognizes that micro-wireless facilities are exempt. These are small cell facilities
attached to existing cables that are strung between existing poles.
• 110.03(F)—Addresses types of permits and the permit duration. Authorizes a 10-year permit
with 10-year renewals as long as the provider is in compliance.
• 110.03(G)—this used to be subsection (E) and regulates the administrative approval process for
collocated facilities within the public rights of way.
o Significant change of the height regulations—current ordinance allows facilities to extend
5 feet above a current support structure (pole, building, etc.)with a variance of an
additional 10 feet;the amendment complies with state law and allows 10%above the
existing pole or structure or 50 feet above the ground, whichever is greater.
o Previously we treated a replacement pole as an "existing structure"but state law treats
them as new structures; all replacement pole language has been moved to subsection (H).
o Additional requirements for collocation on City poles
• Ensure access by City employees, no excessive power requirements, allow City to
reserve space on poles.
• 110.03(H)—this used to be section (F)and regulates the administrative approval process for new
facilities in right of ways now including replacement poles.
o Height limitations for new poles and facilities have been changed to fifty feet or 10%
taller than the tallest pole within 300 feet in the right of way. Replacement poles are
1
treated exactly the same and must be within 5 feet of the location of the original
structures.
o Camouflaging and stealth technology requirements are still the same but the applicant
may request a variance because of technical infeasibility.
o Retained our distance requirement for non-camo or non-stealth poles.
o Added distance requirements for stealth and camo poles where streetlights are present
(100 feet)and on streets where no streetlights are present the provider must align the new
poles with other poles in that area.
o Added setback and placement requirements to avoid obstructing the view of drivers and
blocking occupied structures.
o Changed the required information on applications to match the statutory requirements.
o State law allows us to propose alternative locations in residential zoned areas within 100
feet of the applicant's proposed location;the City's alternative must be used unless it
imposes technical limits or significant additional costs.
• 110.03(I)—Governs application processing time frames which comply with the FCC order and
state law regarding the permit review shot clock, denial of permits, and abandoned applications.
o Current: 60 days processing time for all applications.
o Proposed: 60 days for collocation; 90 days for new/replacement poles.
• 110.03(J)—Adopted the application fees and annual rates set forth by Arkansas law.
o Current: Application fee of$200+$25/facility; annual fees of$250 for collocation and
$50 for new poles/structures.
o Proposed: Application fees of$100 for attachments to existing poles and $250 for
new/replacement poles; annual fees of$30 for facilities in public right of way but$240
for facilities collocated on City poles.
o Also provides for penalties for unauthorized attachments; re-inspection fees in the event
of a failed initial inspection requiring another review; and late charges for late payments.
• 110.03(M)—Establishes specifications for poles and facilities constructed or installed pursuant
to this ordinance.
o Installation,maintenance, tagging, interference, safety requirements, cut-off procedures,
emergency contact information, and removal of nonfunctional attachments.
• 110.03(N)—New provisions for make-ready work in the event a provider wants to attach to a
City pole.
• 110.03(0)—Establishes the permit expiration of one year unless construction or installation has
been initiated.
• 110.03(P)—Revisions to the appeals process and a new variance procedure.
o Current ordinance provides for appeals to the City Council.
o Amendment complies with state law and provides for both variance requests and appeals
to be heard by the Board of Adjustment.
• 110.03(S)—Broadens and strengthens the City's ability to remedy and penalize violations of the
ordinance.
• 110.03(T)—New liability and indemnification provisions
• 110.03(U)—New and substantial insurance requirements
• 110.03(V)—Providers must comply with the bonding requirements of the Unified Development
Code.
2
/ .:e- tri ,,
•
•
Small Cell �j/,,
t,..,
i Submittals Exhibit
�_ c 'Uoyce Blvd. � Fayetteville,AR
7Stes `}
4 14 Submitted,but riot approved
I
1 "\r '; ! —^"'Y - Submitted,and approved
'� \ --P NUMBER OF LOCATIONS
ir,
"• d_� 44 Locations Submitted
J L ocaions
-- i � � "."2",___,
26- Locations Approved
REVIEW TIMES{ � gevief Average review time to
( 84- approval-Total
/' t On days)
_ 7 ... -y, JDickson St Average time in staff
31- review
awn x ....,....„—.....r ='' _ NUMBER OF)REVISIONS
I - ua� -04
15% Percent requiring no
3 t+a, ,^—_ r r ,t A N ' revision
1'. ' - -�" 31% Percent requiring one
i revision
. - --
j G 54% Percent requiring two
� _ _ __ _ revisions
34
44,'n j 1 L,
41 ;g:
740 W.Taylor 7J0 N. ,Ind,.v,.iy-r
CityClerk
-
From: Jackson, Sean M <sean.jacksonl@verizon.com>
Sent: Tuesday, August 20, 2019 4:59 PM
To: Pennington, Blake
Cc: CityClerk; Norton, Susan
Subject: Re: Fayetteville Fwd: [E] FW: Agenda Session Walk On
Attachments: Agenda Session Walk On AMEND § 110.03 SMALL CELL FACILITIES AND NETWORKS VZW
comments.docx
Blake,
Thank you for replying and thank you for being agreeable to consider Verizon's input, even if that might not occur until a
later date.
I am attaching a redlined copy of your draft, but I would like to make note of a couple key points in this message.
1. Section H(1)states that, "The provisions of§ 110.02(E), with the exception of§§ 110.02(E)(3) and (E)(10), shall
govern the process of approval for the construction or installation of any new facilities within the public rights of
way." This process should be governed by Ark. Code Ann. 23-17-510.
2. Section H, subsections (4)-(7) are all discriminatory against wireless providers to the extent that they don't apply
to other utilities in the right-of-way. Ark. Code Ann. 23-17-508(b) states that, "Aesthetic standards adopted by
an authority for small wireless facilities and associated poles shall meet the following requirements: (1)The
aesthetic standards shall be: (A) Reasonable, in that they are technically feasible and reasonably directed to
avoiding or remedying unsightly or out-of-character deployments; (B) No more burdensome than those applied
to other types of utility and communications infrastructure deployments.
3. Section H, subsections (8)(i) and (j) require Applicants to provide information not authorized by Ark. Code Ann.
23-17-510(d)(2) which details the information an authority may request in an application.
4. Section G(5) is not consistent with Ark. Code Ann. 23-17-510(d)(3)(B), "An authority shall not require: (B)The use
of specific pole types or configurations when installing new or replacement poles." In addition,the word
"camouflaged", as used without definition is vague.
5. The fees in Section J, subsections (5)-(7)are not authorized by statute. Ark. Code Ann. 23-17-511(b) reads, "An
authority shall not require a wireless provider to pay any rates,fees, or compensation to the authority or other
person other than what is expressly authorized by this subchapter for the right to use or occupy a right-of-way,
for collocation of small wireless facilities on or in structures in the right-of-way, or for the installation,
maintenance, modification, and replacement of associated poles in the right-of-way."
6. Sections H(8)(f) and V have bonding requirements not consistent with Ark. Code Ann. 23-17-516(d)(3).
It is our wish that the City would delay enacting this ordinance until after we have had a chance to discuss, but we look
forward to discussing our concerns whenever you deem it appropriate.
Sondra,thank you for forwarding these comments to the Council members.
Thank you,
Sean
Sean M.Jackson
Staff Counsel
6011 I Iidden Ridge IlQI'11-IG1-4
Irving,Texas-503i
(0 9-2.45-.-010 ( NI 682.220.402
1
On Tue,Aug 20, 2019 at 2:05 PM Pennington, Blake<bpennington@fayetteville-ar.Bov>wrote:
Good afternoon, Sean. We are asking the City Council to pass the ordinance tonight so any comments will need to be
submitted to the City Clerk this afternoon if you would like those distributed to the City Council. We believe our
ordinance substantially implements the provisions of the state statute so we are standing on what we have proposed at
this time. We are willing to discuss amendments to the ordinance in the future so we certainly welcome all comments
and suggestions.
Thanks,
Blake
Blake E. Pennington
Assistant City Attorney
Tele: (479) 575-8313
bpennington c lavetteville-ar.gov
From:Jackson, Sean M <sean.jacksonl@verizon.com>
Sent:Tuesday,August 20, 2019 9:47 AM
To: Pennington, Blake<bpennington@fayetteville-ar.gov>;CityClerk<cityclerk@fayetteville-ar.gov>; Norton, Susan
<snorton@fayetteville-ar.gov>
Subject: Fwd: Fayetteville Fwd: [E] FW: Agenda Session Walk On
Blake, Sondra,
I did not see your email below until yesterday. Do you have a deadline for accepting comments? I have redlined the
draft, but I would like to review before forwarding to you.
Also, I imagine the requested edits are more substantial than can be comfortably incorporated before a vote tonight (as
AT&T's appear to be as well). Is there any possibility the City would consider delaying the vote to allow for better
collaboration?
Verizon's Legal and Government Affairs teams were unaware of the meeting last week.
2
Please call my mobile or reply via email if you are available to discuss.
Thank you,
Sean
Sean M.Jackson
Staff Counsel
600 Hidden Ridge/HQE04G14
Irving,Texas 75038
0 972.457.7010 M 682.220.4082
Forwarded message
From: McKay, Shana Louise<shana.mckay@verizonwireless.com>
Date: Fri, Aug 16, 2019 at 12:04 PM
Subject: Fayetteville Fwd: [E] FW: Agenda Session Walk On
To: Sean M Jackson <sean.jacksonl@verizon.com>
Cc: Cierra Merino <cierra.merino@verizonwireless.com>, Loughridge, Sandra K
<sandra.loughridge@verizonwireless.com>
Hi Sean,
I hope all is well!
Per our conversation a few weeks ago regarding Fayetteville ordinance, I wanted to forward an email I received
regarding the amendment to the existing ordinance. It looks like to session next week, but I thought we could take a
look at this together if you have time.
I'll look at your calendar and put a quick call together.
3
Talk to you soon!
Kind regards,
Shana McKay
Mgr, Network Business Development
Network Engineering/ RE
M 918 504 9035
12223 State Farm Blvd
Tulsa, OK 74146
191 -M-E-t9f
------ Forwarded message ---------
From: Pennington, Blake <bpennington@fayetteville-ar.gov>
Date: Mon, Aug 12, 2019 at 10:23 AM
Subject: [E] FW: Agenda Session Walk On
To: DeLille, Angela (CCI -Central Region) <Angela.DeLille@cox.com>, FORAKER, CATHY <cf9399@att.com>
Cc: shana.mckav@verizonwireless.com <shana.mckay@verizonwireless.com>, jbrichey@garverusa.com
<jbrichey@garverusa.com>, curt.stamp@cox.com <curt.stamp@cox.com>, nbora@mobilitie.com
<nbora@mobilitie.com>, jmilone@extenetsystems.com <[milone@extenetsystems.com>, edward.roche@gmail.com
<edward.roche@gmail.com>, Norton, Susan <snorton@fayetteville-ar.gov>
Dear all,
Attached are the proposed ordinance and supporting documentation to amend our small cell ordinance. The full text of
the amendment is attached to the packet. Staff will make a presentation to the City Council tomorrow, Tuesday, August
13, 2019, at 4:30 in Room 326 during the regularly scheduled agenda session. The City Council will have an opportunity
to ask staff questions but there will be no public comment at that meeting.
The public will have an opportunity to comment on the proposed amendment at the City Council meeting next
Tuesday, August 20, 2019, at 5:30 pm in Room 219.
Please feel free to contact me or Communications Director Susan Norton with any questions. If you would like to send
comments to the City Council please send an email to City Clerk Sondra Smith at cityclerk@favetteville-ar.gov and she
will forward them to the entire City Council.
Thank you,
Blake
Blake E. Pennington
Assistant City Attorney
Tele: (479) 575-8313
bpennington2fayetteville-ar.�gov
From: CityClerk
Sent: Monday, August 12, 2019 8:13 AM
To: Bolinger, Bonnie <bbolinger@favetteville-ar.gov>; Pennington, Blake <bpennington@favetteville-ar.gov>; CityClerk
<cityclerk@favetteville-ar.gov>; citycouncil@matthewpetty.org; Marr, Don <dmarr@fayetteville-ar.gov>; Eads, Gail
<geads@favetteville-ar.gov>; Roberts, Gina <groberts@favetteville-ar.gov>; Batker, Jodi <ibatker@favetteville-ar.gov>;
Johnson, Kimberly <kiohnson@favetteville-ar.gov>; Rogers, Kristin <krogers@favetteville-ar.gov>; Williams, Kit
<kwilliams@favetteville-ar.gov>; Branson, Lisa <Ibranson@favetteville-ar.gov>; Jordan, Lioneld <liordan@fayetteville-
ar.gov>; Henson, Pam <phenson@favetteville-ar.gov>; Mulford, Patti <pmulford@fayetteville-ar.gov>; Norton, Susan
<snorton@favetteville-ar.gov>; Smith, Sondra <ssmith@favetteville-ar.gov>; Gutierrez, Sonia
<wardl posl@favetteville-ar.gov>; Marsh, Sarah <wardl post@favetteville-ar.gov>; Kinion, Mark
<ward2 posl@favetteville-ar.gov>; Scroggin, Sloan <ward3 posl@favetteville-ar.gov>; Bunch, Sarah
<ward3 pos2@fayetteville-ar.gov>; Turk, Teresa <ward4 posl@favetteville-ar.gov>; Smith, Kyle
<ward4 pos2@favetteville-ar.gov>
Cc: Norton, Susan <snorton@favetteville-ar.gov>
Subject: Agenda Session Walk On
Please see attached an agenda item that will be walked on at Agenda Session.
Have a nice day!
Lisa
Office of the City Clerk Treasurer
113 W. Mountain Street, Suite 308
Fayetteville, AR 72701
479.575.8323
cityclerk .fayetteville-ar.gov
Website I Facebook I Twitter I Instagram I YouTube
Aft CITY OF
FAVITTIVILLN
ARNANDAI
Verizon Wireless
Shana McKay - Network Business Development Negotiator
(918) 504-9035
shana.mckay@vzw.com
City of Fayetteville Staff Review Form
2019-0483
Legistar File ID
8/20/2019
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Susan Norton 8/9/2019 COMMUNICATIONS/MARKETING (055)
Submitted By Submitted Date Division / Department
Action Recommendation:
Revision of Small Cell Facilities Ordinance
Budget Impact:
Account Number
Project Number
Budgeted Item? NA Current Budget
Funds Obligated
Current Balance
Does item hav a a cost? No Item Cost
Budget Adjustment Attached? No Budget Adjustment
Fund
Project Title
Remaining Budget r$ —�
V20160321
Purchase Order Number: Previous Ordinance or Resolution#
Change Order Number:
Original Contract Number:
Comments:
Approval Date:
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF AUGUST 20,2019
TO: Mayor and City Council
THRU: Don Marr, Chief of Staff
FROM: Susan Norton, Communications Director
Blake Pennington, Assistant City Attorney
DATE: 8/8/19
CITY COUNCIL MEMO
SUBJECT: Revision of City Small Cell Facilities and Networks Ordinance
RECOMMENDATION:
City staff recommends revision of the Small Cell Facilities and Networks ordinance in response
to recent federal and state actions.
BACKGROUND:
On November 21, 2017, the City enacted an ordinance to provide for the permitting of small cell
(potential 5G) structures in accordance with FCC rules and with guidance from the National
League of Cities. In developing the City's ordinance, an internal team made up of
Administration, Development Services, Information Technology staff, and the City Attorney's
office spent several months reviewing similar ordinances and statutes from a number of cities
and states across the region, looking for what would be the best fit for Fayetteville. The team
also met with small-cell providers who reviewed draft language for the ordinance.
Subsequently, in September of 20198, the Federal Communications Commission issued an
industry -backed declaratory ruling that included several preemption provisions, including a "shot
clock" for time limits for processing applications and limiting fees that local governments can
charge providers to use the city's right of way. The FCC ruling is currently being challenged and
legislation has been introduced in Congress to reverse the order. Additionally, the Arkansas
State Legislature in the 2019 session enacted Act 999, "To Establish the Small Wireless Facility
Deployment Act," which added Arkansas to over 20 states that had previously enacted
legislation to pre-empt local authority in this same manner. Act 999 is set to take effect
September 1, 2019.
DISCUSSION:
City staff and Assistant City Attorney worked together with assistance from the Arkansas
Municipal League's consultant to review the City's existing ordinance and suggest modifications
in order to be in compliance with the state legislation.
BUDGET/STAFF IMPACT: None
Mailing Address: -
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
EXHIBIT A
110.3 Small Cell Facilities and Networks
(A) Definitions: Unless otherwise defined below, the terms used in § 110.03 shall have
the meanings set forth in the Arkansas Small Wireless Facility Deployment Act, Ark.
Code Ann. § 23-17-501, et seq:
(1) Administrative Review means non -discretionary evaluation of an Application
by the Zoning and Development Administrator. This process is not subject to
a public hearing or conditional or special review process.
(2) Stealth technology means systems, components and materials used in the
construction of wireless communications facilities to make it compatible with
the surrounding property.
(13) Compliance with Local, State and Federal Regulations. Applicant shall comply with
all applicable state and federal regulations. ,4eef of eopiphaaee sW1 be provided Commented [J511: what type of proof might the City
UPON Fequest sthe Zoni.... and Delvel, p file fit n,r...:..:...... ter. Applicant shall not be rcqucst7 --- —
required to enter into any franchise agreement with the City. No person shall attach,
install, or maintain a small cell facility in the right-of-way without a permit issued by
the City or in violation thereof.
(C) Applications. The form of the permit application is located on the City's website_
under Small Cell Facilities and Networks Commented [JS2]: The permit application needs to be
(D) An applicant shall submit with the application all documentation or other evidence revised to show fees consistent with this ordinance
required by the "Zoning and Development Administrator to sufficiently establish the
structural soundness of proposed facilities.
(E) Micro -wireless facilities. No permit shall be required for any person to install,
maintain or operate a micro -wireless facility that is suspended on cables that are
strung between existing poles and comply with applicable codes, provided that a
permit may be required for work requiring lane closure or excavation.
(F) Permits.
(1) City right of way Permit. Upon proper application, City shall timely grant a
wireless provider a revoea4lr, nonexclusive permit authorizing the installation
and maintenance of a small wireless facility and, if applicable, a pole that will
be used to support a small wireless facility, within the City's public rights-of-
way, as provided in this regulation.
(a) ARDOT right of way. A pplieat o:;TPermits to install small wireless
facilities and/or poles used to support small wireless facilities in a
right-of-way controlled by the Arkansas Department of
Transportation Hiust be appreved*remain subiect to the rules of the
Arkansas Department of Transportation prie- to :.ubliiission to t',„
City.
(b) Outside the right of way. Applications to install small wireless
facilities and/or poles used to support small wireless facilities outside
of the right-of-way will be evaluated and processed according to City
ordinances governing the zoning and development of property.
ICommented [JS3]: 2_ -17-510(a)(2) I
(c) Special Locations. No application or permit shall be required under
this regulation to install a small wireless facility that is located within
an interior structure or upon the site of a campus, stadium, or athletic
facility that is not controlled by the City.
(d) Maintenance. No permit shall be required for any person to perform
routine maintenance on a previously permitted small wireless facility
or to replace a previously permitted small wireless facility with one
that is substantially similar or smaller, provided that a permit may be
required for work requiring lane closure or excavation.
(2) City Collocation Permit. Upon proper application, City shall timely grant a
wireless provider a reN,�able, nonexclusive permit authorizing the attachment
of a small wireless facility to a City pole, as provided in this regulation. A
single permit form may be used to issue permits for the installation of small
wireless facilities in the right-of-way and collocation on City poles.
(3) Installation on Other City Property. Upon proper application, City may grant
a wireless provider a Fevoeable. nonexclusive permit authorizing the
installation and maintenance of a small wireless facility on property owned by
the City upon such terms and conditions as may be approved by City in
accordance with state and federal law.
(ALDuration of Permits. Permits issued pursuant to this regulation shall temii„,„^^*^*e
remain in effect for not Tess than ten (10) years after the date the permit was
issued and shall be renewed for equivalent durations so long as the Small
Wireless Facilities comply with the criteria in Arkansas Code § 23-17-
51 0(d)(8 Formatted: Formatted: Font: 12 pt
--��. nr1, . holder Of ,,.,, Pemlit so t,....,,:..,t,,,r ..r,,,n he .•tr„a t,,. .. _ Formatted: Left --
(a) Renew the permit ft�i- a successive tefl ( 10) year tei-in, that the
Formatted: Font: 12 pt
mii .6 Used k) e..aaF'Porr
sinall kvirele% t4ilitieti with"n -n,- .-R.-ar oPth , El"te that the Permit !arse
(G) Administrative Approval of Co -Located facilities Within the Right -of -Way. The
Zoning and Development Administrator, following an Administrative Review, may
approve the following facility installations:
(1) Locating on Existing Structures. Installation of facilities on an existing
structure other than a tower regulated under § 163.13 of the Unified
Development Code (such as a building. light pole, electric transmission tower,
water tank, or other free-standing non-residential structure) provided that the
facilities do not extend any higher than 10 percent (10%) above the existing
structure on which it is located or fifty (50) feet above the ground, whichever
1s greater.
(2) Locating on Existing Tower Not Previously Approved Through § 163.13 of
Formatted: Normal, Left, No bullets or numbering
Commented IJ541:23-17-510(d)(14)
Formatted: Font: 12 pt
Formatted: Font: 12 pt
the U.D.C. Existing towers that do not have facilities may not add such
3
capability without securing a conditional use permit, except as otherwise
allowed by 47 U.S.C. § 1455.
(3) Locating on Existing Towers Previously Approved Through § 163.13.
Additional facilities may be placed upon any tower already approved through
§ 163.44-13 of the U.D.C. so long as such additional facilities would not
violate any requirements of the conditional use permit or other provisions of
§163.13.
(4) The applicant must submit a letter 44 to^'provide documentation
indicating the i;,tent and agreement of a third party structure owner to
allow co -location of facilities or installation of facilities on an existing
structure.
(-6)LQ Any disturbance of City infrastructure (such as, but not limited to,
streets, sidewalks, and utilities) directly caused by the activities of the
wireless provider in the right -of way shall be repaired and restored by the
applicant at its expense and to a condition at least as good as that existing
before the work causing such disturbance was commenced.
(74(6) Historic Districts. No person shall install a small wireless facility in any
historic district NNithout complying with the requirements of general
application for structures within the historic district. a.,1ess and until :..°.ued a
eefaiti ol'appFefiliateness by the 1,; .t,,.;,, di t..:,,t-
(£;4(7) Additional requirements for collocation on City poles.
(a) 44. ket imel, hiq ref: e;l ..hall :.,.tall a .A.,,,11y. ir-ele 1'awil't,- ,.,
h -0 -pt t......1- Th.,Purpose 4th:,. Rile is to .,..,,t ,,.r tl,,, C.t,. „r f "t.
i,,'AFkeFS:. _
Ola) Streetlight and traffic poles. No person shall install a small
wireless facility on or within a streetlight or traffic pole that, when
combined with the existing lighting equipment and other existing
facilities, shall require more electricity than can be safely provided
by the existing service line without adding an additional service line,
or replacing the existing line with one of higher capacity. such that the
existing tacilities and newly installed small wireless facility can safely
receive the required amounts of electricity.
(e)3_____Reserved space. City may reserve space on poles for future
public safety or transportation use according to a plan that has been
documented and approved by the Mayor prior to the submission of
application to occupy the space reserved.
i Notice of reserved space. An applicant will be notified at the
time an application is filed, or as soon thereafter as possible, that
space on one or more poles within an application has been
reserved for future use. A reservation of space shall not preclude
placement of a pole or collocation of a small wireless facility. If
replacement of the City's pole is necessary to accommodate the
Commented [JS51: Camouflaged is not defined in this
ordinance or the Small Wireless Facility Deployment Act
The term is subjective and this provision is not consistent
with 23-17.503(bx I xC)
Commented [JS6]:23-17-507(ayl)
Commented 23-17-506(d)
Commented [JS8]: City workers have no reason to access
small wireless facilities
collocation of the small wireless facility and the future use, the
wireless provider shall pay for the replacement of the authority
pole and the replaced pole shall accommodate future use.
u. Reclaiming reserved space. When notice was provided in
accordance with this subsection, City may reclaim reserved
space by giving the wireless provider at least ninety (90)
5
calendar days prior notice. City shall give the wireless provider
the option to remove its attachment(s) from the affected poles or
pay for the cost of any make-ready work needed to expand
capacity for City service requirements, so that the wireless
provider can maintain its attachment(s) on the affected poles.
The allocation of the cost of any such make-ready work
(including the transfer, rearrangement, or relocation of third -
party attachments) shall be determined in accordance with this
section.
iii. Third -party attachers. Wireless provider shall not be required
to bear any of the costs of rearranging or replacing its
attachment(s), if such rearrangement or replacement is required
as a result of an additional attachment or the modification of an
existing attachment sought by any entity other than City.
(H) Administrative Approval of New Facilities in Public Rights of Way. Providers
proposing the construction or installation of new facilities in the public rights of way
(including the replacement of existing strictures) shall comply with following
requirements:
(1) Construction Maintenance. The provisions of § I I0.02(E), with the exception
of §§ 110.02(E)(3) and (E)(10), shall govern the process of approval for the
construction or installation of any new facilities within the public rights of
way.
(2) height Limitations. New poles placed by the provider in public rights of way
are permitted to be a maximum height of no more than fifty (50) feet or 10%
taller than the tallest pole within three hundred (300) legit in the rightof way_
whichever is ereater. Facilities may be installed on the new poles provided
that the facilities do not extend any higher than fifty (59) feet above the
ground or more than ten percent (10%) above the pole on which it is located_
whichever is Greater:
(3) Replacement of Existing Structures. If installation of facilities requires the
removal and replacement of an existing structure, sac-li asother than a pole, the
new structure shall be no more than fifty (50) feet in height or no more than
10% higher than the same height as the existing structure.-. The replacement
structure should be -is --constructed of substantially similar material or is a
camouflaged/stealth structure, and the replacement structure is located within
f••�etreasonable proximity of the location of the original structure. The
provisions of § I I0.02(E) shall govern the standards of and procedures for
construction or installation of replacement facilities within the public rights of
way.
(4) Camouflaging or Stealth Technology Required. New facilities shall be
designed to be camouflaged to the g;-eatast extent reasonably possible
including, but not limited to, use of compatible building materials and colors,
incorporation within street lights, screening. landscaping, and placement
within trees. All antenna arrays, cables, and other accessories used for
Commented 1JS91: 23-17-506(x) and (b)
providing the services shall not be obtrusive of notieeably visime. The
Zoning and Development Administrator may approve the installation of
standard utilit} pole in areas where such installation will not degrade the,
streetscape but any facilities shall be camouflaged to the ggi-eatestextent
reasonably possible. Camouflaging and stealth technology shall be required
in all residential areas, improvement districts (including. but not limited to, the
Dickson Street area and College Avenue improvement corridor), and any area
in which utilities have been installed or relocated underground.
Understanding that new technologies are anticipated to change the
components of telecommunications facilities, the Administrator may
determine if a telecommunications facility or component of a
telecommunications facility is designed to be stealth. if an applicant
establishes that it is not technically feasible to meet this requirement, the
Administrator may grant a variance iH the
(5)
fesidential dwelling an it ..h. II be the 1.,.. ,.. height r,�,,uifed seibael.
r:
Nkhiehevei- is greater, unless aR persons ov ning said residence or the laild 0"
eefistttt tion of said l4ility. I his setbaek is-eonsidered a "till i -on . " in the
event eha fiaeilit ,d as a mount t',,. the p ide
existing
equip"ient; a fall zone shall not be fequiFed.
(6) Distance between new poles_
(a) New non -camouflaged or non -stealth poles shall be spaced a minimum
of five hundred feet (500') from any other new or replacement non -
camouflaged or non -stealth pole approved in accordance with this
section.
(b) New camouflaged facilities or poles or new facilities utilizing stealth
technology to fit within the streetscape (e.g., incorporated within a
street light pole) shall be subject to the following distance requirement
i. Where streetlights are present, no person shall install a new
pole in the right of way when there is an existing pole located in
the right-of-way within one hundred feet (100') of the proposed
location that is reasonably suitable for collocation, unless
collocation on the existing pole will impose technical limits on
the small wireless facilities to be installed or significant
additional costs. A pole is deemed reasonably suitable if it will
structurally support the attachment and the owner will permit
attachment at a rate that is equal to or less than the rate provided
by this section. The purpose of this rule is to reduce the number
of poles within the right-of-way in areas with heightened
aesthetic concern.
i. *here streLOght pales are not present, new poles ;A01 he
0
.,.,les 3 ithin the i -i ,bht .,t' way that EtFe .,:th:...�,,,
. thhundred feet
proposed
offlent E)
b
Commented [JS101: This could prohibit the provision of
services in areas with minimal setback requirements
appeaFanee will impose teehnieal limits on (lie sinall wifeless
r ,.hies to be ;. area oi. impose signifieant additional cosi,.,
.,.. polos will be ,,enstfueted ..sing, a stealth design ;int 4ills
.,,,HU'alS „11 SMall ..,1,.. le% f eijifieS Mid nnn.,..iated ,,,,..'.,.,,. ..t
Vii+?the pole NOW .,.,1.,,S Will .,.,t Val.' 4:.0111 th., hO'„ I,t „4'
0
dal) se ni heights are s new ., ..P
heightsshall eh flie Wight
Commented [15111: 23-17-5 1 0(d)(3)(B)
poles C
existinL poles that are elosest to the new pole. The pull)ose 4
this >ale is, to ensure ,;{:,. oiity i (lie n ,d height .41'
.,.44. 'N';tllin the ..:nht our w....:.. afeas with hei ht,.. d fiesfiletie
e6fieeffl.
Commented [JS12]: 23-17-506(a)
(7) Placement. No person shall install a new pole within a right-of-way unless the
pole is within ten feet (10') of a side lot line and at least eighteen inches (18")
from the road surface. When compliance with this rule is not technically
feasible, the new pole will be installed in a location that reasonably avoids
obstructing the view of occupiable structures and as elose to the lot lire as
possible. This rule shall not apply when installing new poles in a median
between roadways or within a right-of-way controlled by the Arkansas
Department of Transportation. The purpose of this rule is to avoid obstructing
views from the right-of-way and occupied structures.
commented [JS13]: sections H (4)(5)(6x7) all
(8) Information Required to Process Requests for New Facilities.
discriminate against wireless providers. 23-17-508(b)(1)(B)
(a) Identification of the applicant.
(b) A map or description of the location of the facilities.
(c) An illustration that shows the final appearance of the facilities.
(d) Engineered drawings of the facilities to be installed, including required
make-ready work.
(e) Worker safety information related to small wireless facility
installation.
(f) Evidence of bonding _ed h-' . 1-49.0-3 41141. nl,:tzo,t
Development Codein accordance with Ark. Code Ann.
$23-17-5160)(3).
(g) Evidence of insurance as required by this section.
(h) Required application tees.
� PeSeFih,..,,..._ .&Fts to eali cote ;.ow- a,.:la existing ,.t....; tares ,..
Formatted: Right: 0.09.,
c
lle.•e fife ., i;.,a.er old ...al o. ...:n not .,.,.....,1„ L.t . equipment of, :.n, ..
Formatted: Justified, Right: 0.08", Tab stops: 1.06",
c
Left
on-yotif-faeiliiy- _ _ _ _ _
Commented [J514]: These requirements are not
f N-)(9) 1-listoric Districts. No person shall install a small wireless facility in any
authorized by statute- 23-17.510(dx2)
historic district without complying with the requirements of genera)
Formatted: Tab stops: 1.56", Left
application for structures within the historic district.issued
. _
.ei4ilieat., ..v,..,.,..,,.,,.:..tejiess h,. n,,, 1,:..t,..:, 44.4.:61 ,.-.,,,,,,ission
..
Commented IJS15]: 23-17-506(d)
t),
(1) Application Time Frame. A final decision shall be issued for applications for
facilities under subsections (G) and (H) subject to the following:
(1) The City shall supply written notice to the Applicant within ten days of receipt
of an Application whether the application is complete. If an application is
incomplete, the City shall clearly and specifically delineate any missing
documents or information in writing. The processing deadline shall restart at
zero (0) on the date the applicant provides the missing information identified
by the City to complete the application.
(2) Applications shall be processed within:
(a) Sixty (60) days of receipt of a completed application for the
collocation of a small wireless facility; and
(b) Ninety (90) days of receipt of an application to install, modify, or
replace a pole on which a small wireless facility is or will be
collocated.
(3) The processing deadline may be tolled by agreement of the applicant and the
City.
(4) Denial of Permits.
(a) If a permit is denied, the City shall document the basis for the denial
and send the documentation to the applicant on or before the day the
City denies the application.
(b) The applicant may cure the deficiencies identified by the City and
resubmit its application within thirty (30) days of the denial without
paying an additional fee.
(c) The City shall approve or deny the revised application within thirty
(30) days of resubmission and shall limit a review of the resubmitted
application to the deficiencies cited in the denial.
(5) Abandoned applications. After written notice is provided to an applicant that
an application is incomplete as described above, the applicant will be
afforded thirty (30) days to provide missing information without submitting
a new application or application fee. If incomplete for more than thirty (30)
days, the application will be deemed abandoned and the City will return all
forms and information to the applicant. The application fee will not be
refunded. The applicant may later resubmit the forms and information as a
new application with an appropriate application -fee.
(6) Professional Engineer. Unless otherwise waived in writing by City, as part of the
permit application process, and at the wireless provider's sole expense, a
qualified and experienced professional engineer, or an employee or contractor of
the wireless provider who has been appFak,ed hN City. must undertake and
complete the engineering design and pole loading analyses calculations required
in completing a permit application, participate in the pre -construction survey, and
certify that the wireless provider's small wireless facilities can be and were
installed on the identified poles in compliance with the applicable codes and in
accordance with the permit.
Fefl
eeted in the appideatie!i and usiless otliel:�Nise %Naik ed by Gity. sueli enginee-
mitst he lieensed the f' ' ^ ' The City may allow a wireless
10
provider's professional engineer, employee or contractor to conduct a post -
construction inspection that the City will verify by objectively reasonable
mean .
(.1) Application Fees and Annual Rates.
(1) Applicants shall submit a fee in the amount of $100.00 for each small wireless
facility proposed to be installed on an existing wireless support structure or
pole.
(2) Applicants shall submit a fee in the amount of $250.00 for the installation,
modification, or replacement of a pole together with the collocation of an
associated small wireless facility in the right-of-way.
(3) Providers shall pay an annual rate of $30.00 per small wireless facility for use
of the public right-of-way.
(4) Providers shall pay an annual rate of $240.00 per small wireless facility that is
collocated on a Cite-oxvned pole.
y
i) n :,I.,..., he „ ,ehes a all . ifeless facila..to a City ole other
is in addiiien to an), peiialty that may be assigned or- adjkidieated f;3i- vialation
of a Cit. ordinance. This Cao ensures that the Cit. shall . r its costs-
asseeiated
more flian th:,.ty (30) days after natiee o f ih. violation This fee ,,nsLl es th..:
04LL_Refunds. No fees and charges specified in Appendix A shall be
refunded on account of any relinquishment or abandonment of a permit
granted under this regulation.
(9)ffi_Late Charges. If City does not receive payment for any amount owed
within sixty (60) calendar days after it becomes due, wireless providers shall
pay a late processing charge equal to five percent (5%) of the amount owed.
In addition to assessing a late processing charge, if any fees or charges remain
unpaid for a period exceeding ninety (90) days: (1) wireless providers shall be
charged interest at the rate of ten percent (10%) per year on the amount owed;
(2) City may discontinue the processing of applications for new small wireless
facilities and/or poles until such fees or charges are paid: and (3) G:ty ma
.oleSS F .,!hies a WiFeless p .ider's expense.
(K) New Structures on Private Property. Telecommunications providers proposing the
construction or installation of new poles or towers on privately owned property in the
City, but not within any right-of-way as defined by Ark. Code Ann. § 23-17-
503(24)(A), shall comply with the provisions of § 163.13 Wireless Communications
Facilities and shall obtain a conditional use permit.
Commented [JS16]: These fees arc not authorized try
statute
(L) New Facilities on Public Property. The City of Fayetteville will actively market its
own property and existing facilities as suitable co-location sites. Applications for
new facilities on public property shall be subject to the Administrative Review
process. An annual lease amount should be charged according to the fair market value
of the location. In cases in which the company no longer needs the facility, the city
may require it to be removed. Applicants may be required to provide co-location
space for city-owned facilities. For purposes of this subsection, public property shall
not include any public right of way or structures in any public right of way. Small cell
facilities installed in the public right of way or on structures in the public right of way
shall pay only the fees set forth in subsection (H) and shall not be charged additional
fees under this subsection.
(M) Specifications
(1) Installation. Every small wireless facility, pole and other structures in the
right-of-way shall be erected and maintained in accordance with the
requirements and specifications found in applicable codes, including the
latest revision of the National Electric Code (NEC) and National Electrical
Safety Code (NESC), as may be amended from time to time, and in
compliance with any construction standards now in effect or that may
hereafter be issued by City (provided such construction standards are not
inconsistent with this regulation and are applied on a non-discriminatory
basis) or any rules or orders of a governmental authority having jurisdiction.
The location of any small wireless facility may be reasonably re-designated
from time to time to accommodate other pole attachments, for reasons of
electrical service safety or reliability, with costs allocated in accordance with
subsection (N) below. Notwithstanding the foregoing, with respect to any
small wireless facility that was in compliance with applicable codes at the
time such small wireless facility was installed but has become noncompliant
because of revisions to the NESC, wireless providers shall be required to bring
their small wireless facilities into compliance with then-current standards only
in connection with relocation, pole replacement, or rebuild affecting such
attachment or in the event such noncompliance creates an imminent threat to
public safety. When maintenance or repair work is needed with respect to
noncompliance with applicable codes as set forth in this Section, the actual
costs of maintenance, repair, and inspection shall be borne by wireless
providers.
(2) Maintenance of Facilities. Wireless providers shall, at their own expense,
make and maintain their small wireless facilities and any associated poles in
safe condition and good repair, in accordance with all applicable codes. All
maintenance work on small wireless facilities shall only be performed by
qualified personnel. During the period described in subsection (17)(4), wireless
providers shall not be required to update or upgrade its small wireless facilities
if they complied with applicable codes at the time they were made; provided,
however, wireless providers shall update or upgrade their small wireless
facilities in connection with relocation. pole replacement or rebuild affecting
such small wireless facilities or in the event such update or upgrade is
required or necessary in order to resolve an imminent threat to public safety.
12
(3) Tagging. Upon installation, wireless providers shall affix a tag to any pole or
structure upon which the wireless provider's small wireless facilities have
been installed and to the exterior of any underground or ground-mounted
small wireless facility equipment. The tag will be constructed of aluminum,
plastic or other material of extended durability. Tags will be installed on any
pole or structure to which a small wireless facility has been installed.
(4) Interference. Wireless providers will not allow their small wireless facilities to
interfere with the operation of any pre-existing City or third-party facilities.
(a) RF Responsibility. Wireless providers are solely responsible for the
radio frequency ("RF") emissions emitted by its small wireless
facilities and associated equipment, ensuring that the RF exposure
from its emissions are within the limits permitted under all applicable
rules of the FCC. City is solely responsible for the RF emissions
emitted by its equipment or facilities and ensuring that the RF
exposure from its emissions are within the limits permitted under all
applicable rules of the FCC.
(b) Signage. To the extent required by FCC rules and/or applicable local,
state or federal law, wireless providers shall install appropriate signage
to notify workers and third parties of the potential for exposure to RF
emissions. The signage will be placed so that it is clearly visible to
workers who climb the pole or ascend by mechanical means.
(c) Duty to Others. Wireless providers shall be under a duty and
obligation in connection with the operation of its facilities to protect
against RF interference to the RF signals of City, all other wireless
providers, and any other entities with attachments on poles with the
wireless provider. City shall be under no obligation to remedy or
resolve RF interference among wireless providers or other attaching
entities and shall not be liable for any such RF interference among
wireless providers or other attaching entities. City will, however,
endeavor to have all attaching entities coordinate and cooperate with
each other relating to the resolution of interference. Notwithstanding
the foregoing, in the event City's operations create RF interference to
wireless providers or other attaching entities, City will endeavor to
correct such RF interference promptly and shall cooperate with the
other parties relating to the correction.
(5) Protective Equipment. Each wireless provider and its employees and contractors
shall utilize and install adequate protective equipment to ensure the safety of
people and facilities pursuant to FCC rules and requirements. Every permit issued
by City pursuant to this regulation shall bear the warning and condition that CITY
SHALL NOT BE LIABLE FOR ANY ACTUAL OR CONSEQUENTIAL
DAMAGES TO SMALL WIRELESS FACILITIES, WIRELESS PROVIDER'S
CUSTOMERS' FACILITIES. OR TO ANY OF WIRELESS PROVIDER'S
EMPLOYEES, CONTRACTORS, CUSTOMERS, OR OTHER PERSONS.
(6) Saletr Briefing Wifeless -oviders shall prepaiv awrite • Sa€etr 14iePiig=.
13
Commented 115171: Not authorized by statute
and"ar- al-ound small N%ireless faeilities. This safefy briefing NS ill be Submitted
(7-)(QCut-Off Switch. Each wireless provider shall install a lockable power
cut-off switch as directed by City and consistent with applicable codes for
every pole to which the wireless provider has attached facilities that can emit
RF energy. The cut-off switch will allow for the power source and any back-
up power sources to be disconnected. If required by City, the power source
must also be equipped with an external indicator light to provide certainty that
the power has been disconnected. Wireless providers shall provide City with
access to disconnect switch by providing keys or combinations to the locks.
(84(71 Cut-Off Procedure. In ordinary circumstances, City's authorized field
personnel will contact the applicable wireless provider's designated point of
contact to inform a wireless provider of the need for a temporary power shut
down. Upon receipt of the call, the wireless provider will power down its
antenna remotely, the power-down will occur during normal business hours and
City will endeavor to provide ?4--48 hours' advance notice. In the event an
emergency or unplanned cut-off is required, advance notice will only be
provided at City's sole discretion and, if circumstances warrant, employees and
contractors of City may accomplish the power-down by operation of the power
disconnect switch without advance notice to the wireless provider and shall
notify the wireless provider as soon as possible. In all such instances, once the
work has been completed and the worker(s) have departed the exposure area,
the party who accomplished the power-down shall restore power and inform the
other party as soon as possible that power has been restored.
MLS ) Emergency Contact Information. Each wireless provider shall provide
emergency after hours contact information to City to ensure proper notification
in case of an emergency. Information will include 24/7 telephone, cell phone
and/or pager information, a list of duty managers by district and escalation
procedures. Wireless providers shall provide City with updated emergency
contact information on an annual basis and whenever changes are made.
(18)(91Removal of Nonfunctional Attachments. At its sole expense, each wireless
provider shall remove any of its small wireless facilities, or any part thereof,
that becomes nonfunctional and no longer fit for service ("nonfunctional
attachment"). Except as otherwise provided in this regulation, each wireless
provider shall remove nonfunctional attachments within one (1) year of the date
that it became nonfunctional, unless the wireless provider receives written notice
from City that removal is necessary to accommodate City's or another attaching
entity's use of the affected pole(s). in which case the wireless provider shall
remove the nonfunctional attachment within ninety (90) days of receiving the
notice. After the time designated for removal. City may, in its sole discretion,
remove and dispose of the nonfunctional attachment and the wireless provider
shall be responsible for the costs therefor.
(N) Make-Ready Work/installation
(1) Who May Perform Make-Ready. Make-ready work on City poles shall only be
performed by the City or a qualified contractor authorized by City to perform
such work.
14
(2) Time Frame for Completion of Make -Ready. If City, or its contractor, is
performing make-ready work it will complete the make-ready work within sixty
(60) days of receipt of the wireless provider's acceptance of the make-ready
estimate and advance payment, if required. Completion time may be extended
by agreement between the City and the wireless provider. If City does not
complete the make-ready work within the time allotted, the wireless provider
may demand a return of deposited funds and proceed with required make-ready
work using authorized and qualified contractors who are approved by the City.
The City shall not unreasonably withhold or delay approval of a contractor to
perform required make-ready.
(3) Payment for Make -Ready Work. Upon completion of the make-ready work
performed by City, City shall invoice the wireless provider for City's actual and
documented cost of such make-ready work. The costs of the work shall be
itemized, and if City received advance payment, the costs shall be trued up.
Each wireless provider shall be responsible for entering into an agreement with
other existing attaching entities to reimburse them for any costs that they incur
in rearranging or transferring their facilities to accommodate the wireless
provider's attachments.
(4) Wireless Provider's Installation/Removal/Maintenance Work.
(a) Quality workmanship required. All of the wireless provider's
installation, removal, and maintenance work, by either the wireless
provider's employees or authorized contractors, shall be performed at
the wireless provider's sole cost and expense, in a good and
workmanlike manner, and must not adversely affect the structural
integrity of City's poles or other facilities or other attaching entity's
facilities or equipment. All such work is subject to the insurance
requirements of this section.
(b) Qualified workers required. All of a wireless provider's installation,
removal, and maintenance work, either by its employees or authorized
contractors, shall comply with all applicable regulations specified in
this section. Wireless providers shall assure that any person installing,
maintaining, or removing its small wireless facilities is fully qualified
and familiar with all applicable codes, and the design specifications
established by City.
(c) Authorization not required for maintenance. Notwithstanding
anything to the contrary in this regulation, subsequent to the original
installation of a wireless provider's small wireless facilities, the
wireless provider may modify or replace the small wireless facilities
without obtaining prior written consent of City so long as such
modification or replacement does not substantially: (i) modify the
external appearance of the small wireless facility; (ii) increase the
electric consumption of the small wireless facility beyond that
which can be provided; (iii) increase the load on the applicable pole
beyond the loading. if any, that was established in the approved
permit application: or (iv) involve placement of equipment outside
the area designated in the approved permit application. A wireless
provider may request. and City shall
15
timely provide, a determination as to whether a modification or
replacement made subsequent to original installation deviates from the
original permit sufficiently to require the issuance of a permit.
(5) Allocation of Costs. The costs for any rearrangement or transfer of any small
wireless facilities or the replacement of a pole (including, without limitation,
any related costs for tree cutting or trimming) shall be allocated on the
following basis:
(a) Pole replacement for City. If City intends to modify or replace a pole
solely for its own requirements, it shall be responsible for the City's
costs related to the modification or replacement of the pole. The
wireless provider shall be responsible for costs associated with the
rearrangement or transfer of the wireless provider's small wireless
facilities.
(b) Replacement for wireless provider. If the modification or replacement
of a pole is necessitated by the requirements of a wireless provider, the
wireless provider shall be responsible for all costs caused by the
modification or replacement of the pole as well as the costs associated
with the transfer or rearrangement of any other attaching entity's
facilities. At the time the wireless provider submits a permit
application to City, the wireless provider shall submit evidence in
writing that it has arranged to reimburse all affected attaching entities
for their costs caused by the transfer or rearrangement of their
facilities. City shall not be obligated in any way to enforce or
administer the wireless provider's responsibility for the costs
associated with the transfer or rearrangement of another attaching
entity's facilities pursuant to this Section.
(c) Replacement for additional attachment. If the modification or
replacement of a pole is the result of an additional attachment or the
modification of an existing attachment sought by an attaching entity
other than City or a wireless provider, the entity requesting the
additional or modified attachment shall bear the entire cost of the
modification or replacement, as well as the costs for rearranging or
transferring the wireless provider's small wireless facilities. The
wireless provider shall cooperate with such third -party attaching entity
to determine the costs of moving the wireless provider's facilities.
(0) Permit Expiration. Permits issued for the construction or installation of any
telecommunication facilities under this chapter shall expire after a period of one (1)
year unless construction or installation of the permitted facility has been initiated_
or unless construction has been delay ed to due to a lack of commercial power or
transport facilities.
(P) Variances and Appeals.
(1) An Applicant may request a variance of any requirement in this section
through the Board of Adjustment by complying with the procedures set forth
in Chapter 156 of the Unified Development Code. Requests to vary from any
City aesthetic requirements applicable to a new small wireless facility must be
made in writing by a wireless provider to the City's Planning Division for
submission to the Board of Adjustment. The request must specifically identify
16
the provision requested to be varied, justification for requesting the variance,
17
and the proposed solution as a result of the variance. A request for variance or
waiver shall be heard expeditiously by the Board of Adjustment at the first
available regular meeting after the request is received. The request will be
considered according to the normal rules and procedures of the Board of
Zoning Adjustments and shall afford the requestor the right to present
evidence and testimony that shall be considered in any final determination.
(2) An applicant may appeal to the Board of Adjustment a decision or
interpretation made in the Administrative Review process by the Zoning and
Development Administrator. Appeals shall follow the procedure set forth in
Section 155.02 of the Unified Development Code.
(3) Findings and Determinations. The Board of Zoning Adjustment shall make
findings of fact and determinations as are necessary to: (1) fulfill the intent of
this regulation; (2) prevent the prohibition of wireless service; and (3)
otherwise comply with the law; provided that. the Board of Zoning
Adjustment shall not make any finding or determination contrary to applicable
codes.
(Q) Pedestrian access and safety. All facilities shall be installed in such a manner not to
impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or
violate any provision of the Americans with Disabilities Act.
(R) Emergency removal or relocation of facilities. The City retains the right to cut or
move any facility located within its rights-of-way as the City, in its sole discretion,
may determine to be necessary, appropriate, or useful in response to any public health
or safety emergency. City shall notify the provider as soon as practicable after cutting
or removing any facility within its rights-of-way. If circumstances pennit, the City
shall notify the provider in advance of any cutting or removal and give the provider
an opportunity to move its own facilities.
(S) Violations.
(1) Notice. If a pole, wireless support structure, or small wireless facility is installed,
used, or maintained in violation of this regulation and such violation does not
pose a potential emergency, City shall provide notice of the violation to the
owner. Notice may be provided by any written ^- Weelr4,.,lr4wis form, so long as
notice is documented and received. If the owner is unknown (such as, an
unauthorized installation), notice shall be made by conspicuously posting the
same on the pole, wireless support structure, small wireless facility or other
suitable place in proximity to the pole, wireless support structure or small
wireless facility for a period of thirty (30) days.
(2) Remedies. If the owner of a pole. wireless support structure, or small wireless
facility neglects, refuses, or otherwise fails to cure a violation within thirty (30)
days from receipt of notice of the violation from the City. the following remedies
shall apply:
(a) Continuing violation fees. Any person who installs. uses or maintains a
pole, wireless support structure. or small wireless facility in violation of
this regulation after having received notice thereof for a period of more
than thirty (30) days shall be subject to assessment of a continuing
violation fee as shown in Appendix A to recover the City's costs
associated investigating. monitoring. and resolving the violation.
18
(b) Self-help. After sixty (60) days has elapsed after providing notice of a
violation to the owner of a pole, wireless support structure, or small
wireless facility, City may take such corrective measures as are
reasonably warranted to resolve the violation and the owner shall be
responsible for the actual and documented costs incurred by the City,
including overhead.
(c) Remedies not exclusive. The remedies provided in this section are in
addition to every other legal and equitable remedy available to the City.
(3) Exceptions. In the event City or another attaching entity prevents the owner ofa
pole, wireless support structure, or small wireless facility from correcting anon -
emergency violation, the timeframe for correcting such violation shall be
extended one day for each day the owner was so delayed. No wireless provider
will be responsible for any fee or cost associated with violations caused by other
entities that are not affiliated with them or acting under their direction. In all
circumstances, attaching entities and City will work together to maximize safety
while minimizing the cost of correcting deficiencies, but the entity responsible
for the violation will be responsible for the actual and documented cost of any
necessary or appropriate corrective measures, including without limitation,
removal and replacement of a pole, transfers or other such work.
(4) Notice of Completion. Wireless providers shall provide timely written
notification to City upon completion of work necessary to correct a violation or
deficiency. All applicable daily penalties and fees will continue to accrue until
City's receipt of such notice of completion. Notice of completion shall be
delivered by the same means as the notice of violation was received from City.
(T) Liability and Indemnification
(1) Liability. City reserves to itself the right to maintain and operate its poles and
facilities in the manner that will best enable City to fulfill its service
requirements. As a condition of every permit, wireless providers must agree
that its use of City's poles and facilities is at the sole risk of the wireless
provider. Notwithstanding the foregoing, City shall seek to exercise
reasonable precaution to avoid damaging small wireless facilities and report
to wireless providers the occurrence of any such damage caused by its
employees, agents or contractors
(2) Indemnification. As a condition of every permit, wireless providers, as well as
their agents, contractors, and subcontractors. ("wireless provider indemnitors")
shall be required to defend, indemnify, and hold harmless City and its respective
officers, board members, council members, representatives, employees, and
agents against any and all claims, demands, damages, lawsuits, judgments,
costs, liens, losses, expenses, fines, taxes, special charges by others, penalties,
payments (including payments made by City under any workers' compensation
laws or under any plan for employees' disability and death benefits), and
expenses (including reasonable attorney's fees of City and all other costs and
expenses of litigation) ("covered claims") arising in any way or in connection
with the negligence of the wireless provider or their officers, directors,
employees, agents, contractors, or subcontractors. except when caused by the
scArnegligence of City, or their respective officers. board members, council
19
members. representatives, employees, and agents. Covered claims shall
include, but are not limited to, the following:
(a)
Communication -based torts. Intellectual property infringement, libel
and slander, trespass, unauthorized use of television or radio broadcast
programs and other program material, and infringement of patents;
(b)
Local compliance. Cost of work performed by City that was
necessitated by a wireless provider's failure, or the failure of a wireless
provider's officers, directors, employees, agents, contractors, or
subcontractors to install, maintain, use, transfer, or remove their small
wireless facilities in accordance with the requirements and
specifications of this regulation, or from any other work this regulation
authorizes City to perform on behalf of a wireless provider;
(c)
Harm to persons or property. Damage to property, injury to or death of
any person arising out of the performance or nonperformance of any
work or obligation undertaken by a wireless provider, or its agents,
contractors, or subcontractors, pursuant to this regulation;
(d)
Regulatory violations. Liabilities incurred as a result of a wireless
provider's violation, or a violation by a wireless provider's officers,
directors, employees, agents, contractors, or subcontractors of any law,
rule, or regulation of the United States, any state, or any other
governmental entity or administrative agency.
(e)
Environmental harm. Environmental harm arising from or due to the
release, threatened release or storage of hazardous substances on, under,
or around City's rights-of-way, poles or facilities attributable to a
wireless provider indemnitor.
(U) Insurance. All providers receiving permits pursuant to this chapter shall have in effect
at all times the following minimum insurance coverage:
(a)
Commercial general liability insurance coverage with a limit of no less
than cane five million dollars ($+5,000,000) #o-eaehpp r occurrence and
five million dollars ($5,000,000) aggregate;
(b)
Umbrella or excess liability coverage with a limit of firman
fwetwo million dollars ($52,000,000) for each occurrence and Owe -two
35 -million dollars ($52,000,000) aggregate, and
(c)
Workers' compensation coverage as required by law.
(d)
A provider shall not be self-insured unless it provides evidence,
according to an independent audit or report of net assets of at least five
hundred million dollars ($500,000,000.00). including the assets of its
affiliates. In the event a wireless provider elects to self -insure one or
more obligations under this regulation. the following conditions apply: (i)
City shall promptly and no later than thirty (30) days after notice thereof
provide wireless provider with written notice of any claim. demand,
lawsuit, or the like for which it seeks coverage pursuant to this Section
and provide wireless provider with copies of any demands, notices,
summonses, or legal papers received in connection with such claim_
demand, lawsuit, or the like; (ii) City shall not settle any such claim.
demand, lawsuit or the like without the prior written consent of wireless
16
provider; and (iii) City shall fully cooperate with wireless provider in the
defense of the claim, demand, lawsuit, or the like. A wireless provider
that self-insures shall immediately notify City of any change in its self-
insured status as to any required coverage and of any change in the ability
of the wireless provider to cover the risk of loss under this regulation.
(e) Qualification; Priority; Contractors' Coverage. Insurance required by
this subsection must be provided by an insurer that is eligible to do
business in Arkansas and have an "A minus" or better rating in Best's
Guide. Such required insurance will be primary. All contractors and all
of their subcontractors who perform work on behalf of a wireless
provider shall carry workers' compensation and employers' liability,
commercial general liability, and automobile liability insurance
coverages of the type that wireless providers are required to obtain
under this subsection with reasonable and prudent limits.
(f) Certificate of Insurance; Other Requirements. As a condition of every
permit, wireless providers will furnish City with a certificate of
insurance ("certificate"). City shall be given thirty (30) calendar days
advance notice of cancellation or nonrenewal of required insurance if
not replaced during the term of this regulation. All policies, other than
workers' compensation, shall be written on an occurrence and not on
a claims-made basis. Policies may be written with deductibles or self-
insured retentions. Upon request, wireless service providers shall
obtain certificates from its agents, contractors, and their
subcontractors working hereunder and provide a copy of such
certificates to City.
(g) Prohibited Exclusions. No policies of insurance required to be
obtained by a wireless provider or its contractors or subcontractors
shall contain provisions that: (1) exclude coverage of liability assumed
by this regulation with City except as to infringement of patents or
copyrights or for libel and slander in program material, (2) exclude
coverage of liability arising from excavating, collapse, or underground
work, or (3) exclude coverage for injuries to City's employees or
agents or (4) exclude , ar,.e e fli Mbity f r i ,,.....,.,.o..
eaused by the wireless providers eaniFaetar-s or- the eefitraefers
(h) Deductible/Self-insurance Retention Amounts. Wireless providers
shall be responsible for any deductible or self-insured retention amounts
contained in their insurance or for any deficiencies in the amounts of
insurance maintained.
(V)Bonding. All providers shall comply with 4x-bonding requirements r.,' f,4414 in_
accordance with Ark. Code Arm. § 23-17-516(d)(3)
(W) Assignment.
(1) Limitations on Assignment. Wireless providers shall not assign any pen-nits
granted under this regulation, nor any part of such permits, without the prior
written consent of City, which consent shall not be unreasonably withheld;
17
provided, however, a wireless provider may assign its rights and obligations
to an affiliate without consent
(2) Obligations of Assignee/Transferee and Permittee. �' :b •.,o '
d-er '"'" subseetion shall be alle ed until theAn assignee or transferee
beeames a signatai:y to the permit issued under this regulation and—shall
assumes all associated obligations arising under this regulation. Wireless
providers who seek to assign or transfer a permit to a non-affiliated entity shall
furnish City with prior written notice of the transfer or assignment, together
with the name and address of the transferee or assignee.
(3) Sub-permitting. Permit holders shall not sub-permit. sub-license, lease, or
otherwise allow a third party to place attachments on City's poles or structures,
except the authorized use of small wireless facilities by third parties that
involves no additional attachment.
(X) Severability. If any provision or portion thereof of this regulation is or becomes invalid
under any applicable statute or rule of law, and such invalidity does not materially alter
the essence of this regulation to either party, such provision shall not render
unenforceable this entire regulation. Rather, the parties intend that the remaining
provisions shall be administered as if the regulation did not include the invalid
provision.
18
NORTHWEST ARKANSAS
Democrat, Ofr azette
AFFIDAVIT OF PUBLICATION
I, Cathy Staggs, do solemnly swear that I am the Accounting Manager of the Northwest Arkansas Democrat -
Gazette, printed and published in Washington and Benton County, Arkansas, and of bona fide circulation,
that from my own personal knowledge and reference to the files of said publication, the advertisement of:
CITY OF FAYETTEVILLE
Ord. 6220
Was inserted in the Regular Edition 011:
August 29, 2019
Publication Charges $ 201.50
aL��
Cathy Stag s
Subscribenn sworn to before me
This j day of SVO19.
— (��t /,� ��
Notary Public
My Commission 4ires. Z/U
**NOT -I-** Please do not pay from All idavit
Invoice Will be sent.
EMERGENCY FOOD & SHELTER
NATIONAL. BOARD PROGRAM
FUNDING PI IASI: 35 FUNDS
Benton. C.vtoll, and Washington
Connote., lace been awarded funds under
r:FSP.
Springdale, AR 15/9/2018) - BENTON.
CARROLL. AND WASHINGTON
COUNTIES IIAVI: BEEN AWARDED
FEDERAL FUNDS MADE
AVAILABLIt THROUG1I'1'IIE
DEPARTMENT OF HOMELAND
SECURITY (DI ISVFEDI:RAI.
EMERGENCY MANAGEMENT
AGENCY UNDER THE
EMERGENCY FOOD AND SHEI: I ER
NATIONAL. BOARD PROGRAM.
The following counties have been
chosen to receive finding in the amounts
below to supplement cmerrency food
and shelter programs.
Funding Grant Dollars.
Benton Comity - $65,777
Carroll County - SS.133
Washington County -
$57,591
I he selection was made by a National
Board that is chaired by the U S.
Department of Ilomcland Security's
Federal Energency Management
Agency and consists ofrepresentatives
front American Red Cross: Catholic
Charities, USA; National Council of the
Churches of Christ in the IJSA;'1'hc
Jewish Pcdcialluns of North America,
The Salvation Anny: and. United Way
Worldwide. The Local Board is charged
to distribute funds appropriated by
Congress to help expand the capacity of
fixA and ,licher pnrgranls in Ingh-need
areas around the country
A Local Board appoinlcd by the Untied
Way of NortMscst Arkansas will
docrinnc how the funds awarded to
Bcmon. Caroll. and Washington
Counties are to le distributed among the
cnhcigencc foodand shchei prrgrmns
run by local service agencies tit file arca.
The Local Botud is tcspunsdde for
recommending agencies to receive these
finds and any addiunn:d fonds trade
available tinder this phase of fife
program
Ihider the icons of the grant from the
National Board. local agencies chosen to
mccwc fiords now 1) be private
varluutan 11011-pr0fits or units of
ro%ernmenl. -v) le eligible to rcccnc
Federal tiurds. 3) trig an accounting
system. -1) practice nondiscrimination, 3)
have demonstrated the capability to
dcllvcr emergency lbod andfor shelter
programs, and 6) if they arc a private
%oli n arse orga11natiun, have a volunlar)
hoard ()ualtjvlg agencies arc urged to
apply
'rhe heap I:nergency Food and Shelter
Progrmn prctvorr,ly piovrdcd fluids it,
CARE Commumly Center. Genesis
House. I laver"'". ManCna entel.
Peace at 1 Ionic. NWA Wonlcit s Shcher,
Samaritan Community Center. 7 Hills
Homeless Center, and Salation Amoy
Public or private rolum:n r agencies
interested in apphvulg too F l ergency
Food and Shelter Program funds most
contact Casey Beaver at file Eroln nie
Opportunity Agency at •179-872-7.177 or
cbcaYcrrir corlwc org for more details.
Applications are due May 2.1. 21118 by
12:00 I'M.
The United Way of Norlhwest Arkansas
Illisslnn is to trolle Our coulnrunit' to
cnpower people and nnpme lives
through volunteers, advocates and giving
For more information, visit
llwwunkedwayn"n org
C - OA mission is to empower children
and families to learn, connect and
succeed For more udormauon, visit
www.eoawcorg
74525245 May 11.2018