Linden City Zoning Code
§ 31-50.2.1
General Provisions of Agreement for Access to the Public ROW.
a.
Applicability. Except as otherwise provided herein, the placement, installation, modification, replacement, repair and upgrade of any Communications Facilities, including Small Wireless Facilities, as well as the associated poles, towers or support structures, in the public right-of-way shall be governed by this section.
b.
Notice Prior to Any Work.
1.
Hoplite Communications, LLC, ("Hoplite") has been adopted by resolution by the City as the wireless telecommunications consultant.
2.
Hoplite will be the primary point of contact for the City for all matters pertaining to this section.
3.
No action, application, installation, upgrade, maintenance, repair, replacement or, modifications by applicant contemplated by this section shall be commenced without first giving notice to Hoplite.
4.
This notice requirement pertains to all work, including ordinary maintenance, repairs, upgrades and like-for-like equipment swap outs.
c.
Municipal agreement. Prior to receiving a permit to install a Communications Facility in the public ROW, each applicant shall be required to enter into a Municipal Agreement (e.g., Right-of-Way Access Agreement, Pole Attachment Agreement, License Agreement) between the City and the applicant, on terms and conditions substantially the same for all applicants and existing occupants of the public ROW. The terms and conditions of such Municipal Agreement will include the following:
1.
Fees and Rates. The applicant will pay the following fees and rates, as consideration to the City for the Municipal Agreement and also as a condition precedent for the issuance of a permit or permits to install the applicable Communications Facilities in the public right-of-way:
(a)
Application or One-Time Fees. Applications submitted by a Wireless Provider or any other Communications Service Provider to the City shall be paid upon submission of the application and will include the following:
(1)
Construction Permit (including building and electrical subcodes, and any other applicable codes or subcodes), per statutory fees established by uniform construction code regulations contained in N.J.A.C. 5:23.
(2)
Zoning Permit, if applicable, per City zoning ordinance and the provisions of this section.
(3)
Street Opening Permit, if applicable, per City Code Chapter 15, Streets and Sidewalks, and the provisions of this section.
(4)
Telecommunications Consultation and Review performed by Hoplite Communications, LLC, at the rate of $350/hour, not to exceed three hours per site, and to include permit review, construction oversight for code and zoning compliance and post-installation inspection to ensure compliance with applicable land use and legal requirements, said fees representing a reasonable approximation of the objectively reasonable costs associated with said review and inspection of the proposed Communications Facility and all associated permits, documentation and applications thereof.
(5)
Engineering Review by an outside consultant, as needed, at a rate determined by the City and the engineer.
(6)
City Presence: Applicant will be responsible for any one-time fees associated with the City Department of Public Works and police department presence during the installation, modification, repair and upgrade of Communications Facilities, including for necessary street closures, traffic diversion and other protocols and measures necessary to ensure the safety of the public right-of-way during any proposed work. Such fees shall be assessed according to customary pay scales charged to other companies for similar scopes of work in the public right-of-way.
(7)
Reasonable approximation: All one-time event fees will be a reasonable approximation of objectively reasonable costs.
(8)
One- time fees apply to all work: One-time fees and event fees apply to the initial installation of facilities as well as to any subsequent upgrade, repair, replacement, modification or alteration of same.
(9)
Separate and distinct from rates: One-time fees for subsequent upgrade, repair, maintenance, replacement, or modification of Small Wireless Facilities are separate and distinct from the recurring access and attachment rates described in § 31-50.2.1c1(b) and (c).
(10)
Not exhaustive: The aforementioned paragraphs (1) through (9) are not intended to be a complete list of potential one-time fees. Additional one-time fees may be required and shall be a reasonable approximation of objectively reasonable costs.
(b)
Annual ROW Occupancy Rate, for non-exclusive occupancy of the public ROW by the applicant, $270 shall be paid for each Small Wireless Facility site within 30 days of the issuance of the applicable permit and annually thereafter, with payment being due on the anniversary of the first payment date for the balance of the term. However, under no circumstances shall the rate be remitted later than 90 days after the full execution of the applicable Municipal Agreement between City and applicant.
(c)
Annual Attachment Rate, equal to an amount that represents a reasonable approximation of the objectively reasonable costs incurred by the City for the attachment of each Small Wireless Facility to City-owned structures in the public right-of-way. This amount shall be paid within 30 days of issuance of the applicable permit(s) and annually thereafter.
(d)
Generally Applicable Fees, such as those required for electrical permits, building permits, or street opening permits, shall be paid by applicant as required in the applicable provisions of the Revised General Ordinances of the City.
(e)
All fees and rates will be applied in a non-discriminatory manner to all telecommunications providers.
(f)
The applicant, or person who owns or operates the Communications Facility installed in the public ROW (including, without limitation, on the city pole) may remove its facilities at any time from the public ROW, upon not less than 30 days prior written notice to the City and may cease paying to the City any applicable fees and rates for such use, as of the date of actual removal of the facilities.
(g)
Make-Ready Fee, shall be determined on a site-specific, engineering basis, for work reasonably necessary to make a particular city pole suitable for attachment of the applicable Communications Facility shall be paid upon submission of the application as more particularly described in § 31-50.2.3e.
d.
Other Terms.
1.
Term. Unless otherwise agreed to in writing by the City and applicant, the agreement term shall be 10 years.
2.
Safety and accessibility. The applicant will demonstrate compliance with applicable safety and accessibility requirements, including those under Americans with Disabilities Act ("ADA"), OSHA and similar laws.
3.
The Municipal Agreement shall include, as an appendix thereof, a schedule containing the location of all proposed Small Wireless Facilities in the public right-of-way. Said locations shall be as specific as possible and shall include, but not be limited to, latitude, longitude, the nearest proximate address, cross streets as well as lot and block numbers, if available. Applicants shall also provide for inclusion in the Municipal Agreement information indicating the horizontal and approximate vertical location, relative to the boundaries of the public ROW, of all equipment which it owns or over which it has control and which is located in any public Right-of-Way. Mapping data shall be provided for the City and in the format requested by the City engineer for inclusion in the mapping system used by the City engineer.
4.
RF Safety Reports. Applicant shall provide, within a week of request, a copy of a health and safety report evidencing compliance with FCC requirements concerning electromagnetic radiation emissions, and which will reflect the current configuration of the Small Wireless Facilities in question. After any modification, enhancement or addition to a Small Wireless Facility that modifies that facility's electromagnetic profile, applicant will provide an updated health and safety report which reflect the most recent electromagnetic emissions levels.
5.
Indemnification and Insurance Requirements. Insurance. The applicant shall at all times maintain a comprehensive liability insurance policy with a single amount of at least $1,000,000 covering liability for any death, personal injury, property damage or other liability arising out of the construction and operation contemplated herein, and an excess liability policy (or "umbrella") policy amount in the amount of $5,000,000. Prior to the commencement of any work pursuant to this agreement, the applicant shall file with the City, a Certificate(s) of Insurance with endorsements evidencing the coverage provided by said liability and excess liability policies. The City shall notify applicant within 15 days after the presentation of any claim or demand to the City, either by suit or otherwise, made against the City on account of any of applicant or its subcontractors, agents, employees, officers, servants, designees, guests and invitees, activities pursuant to the rights granted in this agreement.
Indemnification. Applicant, its successors, assigns, contractors, sub-contractors, agents, servants, officers, employees, designees, guests and invitees, hereby indemnify, defend and hold harmless the City, its successors and assigns, elected officials, officers, employees, servants, contractors, designees and invitees from and against any and all personal injury and property damage claims, demands, suits, actions at law or equity or otherwise, or related judgments, arbitration determinations, damages, liabilities, decrees of any person(s) or entities claiming to be or being harmed as a result of applicant's actions under this agreement and costs in connection therewith. This indemnification shall specifically include, but not be limited to, any and all costs, reasonable attorneys' fees, court costs and any other expenses that may be incurred by the City in connection with any and all claims, demands, suits, actions at law or equity or otherwise and/or arbitration proceedings which may arise in connection with applicant's activities pursuant to the rights granted in this agreement.
6.
Reliable 24/7 Emergency Notification Contact Information will be provided by the applicant to the City and incorporated into the agreement.
7.
Additional Agreement Terms: Additional terms, such as for termination, assignment and sublicensing rights, shall be as negotiated between the applicant and City.
8.
Nondiscriminatory. Applications will be processed on a nondiscriminatory basis.