(2)
Application
Requirements.
(a) All parts of a
Small Cell License Application must be completed, and all required application
fees, plans, studies, photographs, drawings, and other details must be included
with an Application in order for it to be deemed complete.
(b) DCR shall require that the engineering
plans and specifications provide for safe and efficient access which protects
the operational integrity of the DCR property. Plan review and approval shall
be based on generally accepted Roadway design and safety standards (including,
without limitation, the most recent Manual on Uniform Traffic Control Devices
(MUTCD) and amendments adopted by the Massachusetts Department of
Transportation, the Highway Safety Manual published by AASHTO,
and/or DCR Historic Parkway Preservation Treatment Guidelines).
(c) Licensee is responsible for Subsurface
Utility Engineering reviews and clearance with other entities.
(d) Where applicable, a Dig Safe will be
required prior to the start of any construction.
(e) Licensee must provide complete
information as to the current conditions in the subject Right of Way.
(f) Licensee must provide complete
information as to the current conditions on the existing Structure, if
applicable, including, without limitation, the existence of existing conduits
or the need for new conduits.
(g)
Licensee must provide a structural analysis of a new or existing Structure,
which uses accurate geographic, ground conditions, and elevation information
for all calculations. Such structural analysis must include not only the
applicant's proposed equipment, but all other equipment currently existing on
the structure. Detailed information about all proposed equipment must be
provided to DCR including, without limitation, schematics, power sourcing,
finish, color, etc. The final structural analysis and any
related plans must be stamped by an engineer qualified and currently registered
for such work and must be provided to DCR for review.
(h) Licensee must provide a Traffic
Management Plan stamped by a licensed professional engineer.
(i) Licensee must provide a restoration plan
including, but not limited to, details as to compliance with requirements and
regulations of the Americans with Disabilities Act (ADA) and the Architectural
Access Board (AAB). Any sidewalk that is not ADA compliant prior to
installation under a License must be made ADA compliant if the Licensee seeks
to install a new pole or conduit.
(4)
Small Cell License
Provisions. Licenses issued under 302 CMR 19.00 shall include
provisions substantially similar to the following:
(a) A License is fully revocable by DCR and
may be terminated by DCR at any time and for any reason upon written notice to
the Licensee.
(b) No License will
have a term greater than ten years.
(c) All License terms are fixed and
nonnegotiable.
(d) A Licensee must
comply with any and all terms and conditions contained within a License. Any
act authorized pursuant to a License may be performed only by the person(s)
named in the approved license application which is attached to the License, and
any such authorizations may not be assigned or delegated, except as provided by
such License; provided that a Licensee may change the installer of equipment or
a Structure upon written notice to DCR; provided also that a Licensee may
utilize contractors to maintain, repair, and/or replace equipment or a
Structure authorized by the License, if any such contractors are identified to
DCR and consented to in writing by DCR.
(e) Licensee must comply, at the Licensee's
exclusive expense, with all applicable federal, state and local statutes, laws,
ordinances, rules, regulations and policies.
(f) A Licensee is solely and exclusively
responsible for any applicable taxes.
(g) A License does not confer on the Licensee
any rights or interests in real property. Licensee shall not record the License
in the Registry of Deeds or register the License in the Land Registration
Office of the Land Court.
(h) A
Licensee shall not use or occupy DCR property for which a fee or other charge
has been established unless the Licensee has first paid such fee or charge,
unless otherwise authorized.
(i)
Licensee may not assign, give, delegate, sublicense, transfer, encumber, or
otherwise dispose of the rights and duties contained in a License to any other
entity or person. However, Licensee may assign, sublicense, or transfer the
rights and duties contained in a License to an affiliate, subsidiary, or
successor of Licensee upon prior written notice to DCR. If a Licensee is
required by regulating authorities to assign the License, Licensee shall
provide prior written notice to DCR. Licensee may assign, sublicense, or
transfer the rights and duties contained in a License to an unaffiliated person
only after receiving written permission for such assignment, sublicense, or
transfer from DCR. Except as set forth in 302 CMR 19.04(4)(i), DCR shall not be
obligated to recognize any right of any entity or person to any interest in the
License or to any rights, equipment, structures, or property of the Licensee at
the Location(s) as granted by the License.
(j) If a Licensee is acquired, Licensee shall
promptly provide written notice to DCR.
(k) Licensee agrees to install Small Cells,
Small Cell Structures, and any related equipment for which it receives a
License at the Location(s) and in the manner specified in the
License.
(l) If Licensee does not
commence the installation(s) authorized by a License at any approved Location
within six months of the date on which the License was signed by DCR, the
approval for such installation at any such Location shall be revoked. If
Licensee timely commences an installation authorized by the License, but does
not complete any such installation within 12 months of the date on which the
License was signed by DCR, the approval for such installation at such Location
shall be revoked, and the Licensee must promptly remove all of its equipment
from such Location. In the event approval for any Location is revoked in
accordance with 302 CMR 19.04(4)(l), Licensee may not submit a new Small Cell
application to reapply for a License for that Location within six months from
the date of revocation or from the date the equipment is fully removed by the
Licensee, whichever is later. If Licensee does not remove its equipment within
30 calendar days after being requested to do so in writing by DCR, DCR may
remove and dispose of the equipment without incurring any liability to
Licensee. Licensee will not be eligible for any other Licenses or permits from
DCR until restitution is made for the necessary and reasonable costs actually
incurred by DCR for such removal and disposal. Such costs shall include, but
not be limited to, DCR staff time.
(m) Licensee agrees not to make any change,
addition, reconfiguration, or replacement of a Small Cell or, if applicable, a
Small Cell Structure or related equipment in any way that increases the size,
weight or wind load of the Small Cell, Structure, or equipment, or which does
not otherwise comply with the provisions of 302 CMR 19.00, without the prior
written approval of DCR.
(n) If a
Licensee is found to have any equipment on the Location(s) which was not
included in a duly issued License, other than equipment installed pursuant to
302 CMR 19.04(4)(m), upon written notice from DCR, the Licensee shall take
immediate action to discontinue the non-permitted use and remove any and all
equipment associated with such non-permitted use. Failure to remove such
equipment and end the use thereof will be deemed a material breach of the
License, and the approval for such Location will automatically and immediately
be revoked.
Upon such revocation, Licensee shall promptly remove its
equipment from the subject Location. In the event of such revocation, Licensee
may not submit a new Small Cell application to reapply for a License for the
same Location(s) within six months from the date of revocation or from the date
the equipment is fully removed by Licensee, whichever is later. If Licensee
does not remove its equipment within 30 calendar days after being requested to
do so in writing by DCR, DCR may remove and dispose of the equipment without
incurring any liability to Licensee. Licensee will not be eligible for any
other Licenses or permits from DCR until restitution is made for the necessary
and reasonable costs actually incurred by DCR for such removal and disposal.
Such costs shall include, but not be limited to, DCR staff
time.
(o) A Licensee is
responsible, at its sole cost and expense, for maintaining and repairing its
Small Wireless Facilities, Structures, and related equipment.
(p) A License issued by DCR is conditioned
upon the Licensee having obtained, for each Location, all certificates,
permits, licenses, and other approvals that may be required by any other
federal, state, and local authority, or any other entity including, but not
limited to, other owners of Structures within the ROW, prior to the
commencement of any installation, including DCR-approved change, addition,
reconfiguration, or replacement, of a Small Cell, or, if applicable, a
Structure, or related equipment. If any application for such certificates,
permits, licenses, or other approvals including, but not limited to, zoning
approval, is rejected, withdrawn, expires, lapses, or is terminated by any
governmental authority or by the owner of a Structure upon which the Licensee
seeks to attach a Small Cell, Licensee shall immediately notify DCR in writing.
Upon such notification, or upon DCR's independent confirmation of the loss of
any certificates, permits, licenses, or other approvals, and DCR's notification
to the Licensee thereof, DCR's approval for such Location(s) shall be
immediately and automatically revoked, and Licensee shall promptly remove its
equipment from such Location(s). In the event approval for any Location is
revoked in accordance with 302 CMR 19.04(4)(p), Licensee may not submit a new
Small Cell application to reapply for a License for that Location within six
months from the date of revocation or from the date the equipment is fully
removed by Licensee, whichever is later. If Licensee does not remove its
equipment within 30 calendar days after being requested to do so in writing by
DCR, DCR may remove and dispose of the equipment without incurring any
liability to Licensee. Licensee will not be eligible for any other Licenses or
permits from DCR until restitution is made for the necessary and reasonable
costs actually incurred by DCR for such removal and disposal. Such costs shall
include, but not be limited to, DCR staff time. (q) Licensee agrees to notify
DCR staff listed in the License when accessing the Location(s) to conduct
either routine or non-routine work (i.e., work involving large
trucks, cranes, excavation of any kind, major building, tower repairs or
additions) by the Licensee, its consultants, agents, or contractors at or on
the Location(s) no less than ten business days in advance. Licensee shall
comply with any other reasonable notification arrangements set by DCR staff.
Licensee agrees that neither it nor its consultants, agents, or contractors has
authorization to use other structures or equipment not identified in the
License that may be located on nearby DCR property. In the event of an
emergency affecting Licensee's Small Cell, Structure, or related equipment,
Licensee and its consultants, agents, and contractors may access the
Location(s) and perform necessary repairs to its equipment and to the
Structure, including removal of a damaged Structure, with prior notice to DCR.
Licensee shall seek any required approval of permits as soon as practicable in
the circumstances. All emergency work shall be conducted in a safe and good
workmanlike manner and in accordance with all applicable codes, regulations,
and laws.
(r) To the extent that a
Licensee's use of DCR property is authorized by DCR through issuance of a
License, the Licensee may have the right to utilize any existing DCR Rights of
Way, access licenses, or easements to gain access to the Location(s) for the
limited purpose of performing installation, maintenance and repairs to the
Licensee's authorized equipment. A Licensee will not be authorized to make
improvements on the land under or leading to the Location(s) without the prior
written approval of DCR, which DCR may grant or withhold at its sole
discretion. Closure of a Roadway for installation, maintenance or repairs to a
Licensee's authorized equipment requires written permission from DCR, which
permission will not be granted during the hours noted in 302 CMR
19.03(22)(b).
(s) Licensee shall pay
restitution to DCR for the amount of reasonable and necessary costs actually
incurred by DCR for maintenance and repairs which arise solely from work
described in 302 CMR 19.04(4)(o).
(t) Licensee shall not make any claims
against DCR for loss of electrical power or other utilities due to damaged
power lines or poles regardless of the length of time of the outage as such
losses generally are beyond the authority and scope of DCR to rectify. Licensee
shall not obstruct or interfere with electrical service to DCR or any permitted
user's equipment.
(u) Licensee
agrees to arrange for the installation and payment of a separate electrical
meter for all of its electricity consumed on the Location(s) and to pay all
such electricity and utility bills directly to the provider. Upon request of
DCR, Licensee shall provide proof of arrangements and payment. Licensee shall
provide DCR (Engineering Department) with a copy of any new electrical service
application documents, utility company plans, and notice of the proposed
installation schedule.
(v) Provided
that Licensee is not in default of any obligations under a Small Cell License
and has paid all fees and sums due and payable to DCR, Licensee may terminate
its License upon at least 60 days prior written notice to DCR.
(w) Without waiving any other rights granted
at law or in equity, DCR shall have the right, but not the obligation, to
terminate a License if the Licensee fails or has failed to perform any covenant
or commits a material breach of 302 CMR 19.00 or the License provisions and
fails or has failed to diligently pursue a cure thereof to its completion
within 30 days after written notice from DCR specifying such failure of
performance or default. In the event of the loss of any certificate, permit,
license or other approval that may be required for the authorized use of any
Location by the Licensee, the approval for such Location shall be automatically
and immediately revoked, and Licensee shall promptly remove its equipment from
such Location in accordance with 302 CMR 19.04(4)(y).
(x)
Removal Upon
Termination. Within 60 calendar days after the termination or
expiration of a License, Licensee, at its sole cost and expense, shall remove
all Small Cells and related equipment which the Licensee installed. Such
removal must occur without damage to property of the Commonwealth, DCR, other
licensees or permittees, or any other party. If, after said 60-day period has
elapsed, Licensee has not fully removed its equipment, DCR may remove and
dispose of the equipment without incurring any liability to the Licensee.
Licensee will not be eligible for any other Licenses or permits from DCR until
restitution is made for the necessary and reasonable costs actually incurred by
DCR. Such reasonable and necessary costs may include, but not be limited to,
DCR staff time.
(y) Any Structure
remaining on the Location(s) shall be deemed a fixture and shall become the
property of DCR unless Licensee is directed by DCR in writing to remove said
Structure. If a Licensee does not remove its Structure within 60 days after
DCR's request to do so, DCR may remove and dispose of the Structure without
incurring any liability to the Licensee. Licensee will not be eligible for any
other Licenses or permits from DCR until restitution is made for the necessary
and reasonable costs actually incurred by DCR. Such reasonable and necessary
costs may include, but not be limited to, DCR staff time.
(z) The terms of the License are not to be
construed as authorizing exclusive use of the Location(s). DCR may permit,
license, rent, provide access to, or otherwise assign all or a portion of the
Location(s) at its sole discretion, to other authorized licensees or
permittees. However, DCR agrees not to allow any other licensee or permittee to
interfere with the uses authorized under the license.
(aa) DCR may limit public access to the
Location when a License has been duly issued for use of the Location.
(bb) Licensee shall not obstruct or interfere
with DCR or any other licensee or permittee, including, but not limited to,
obstruction or interference with equipment or with the transmission or
reception of radio signals, frequency, or use of power. Immediately upon
receiving notice from DCR that a Licensee's activities are causing any such
obstruction or interference, Licensee agrees to take appropriate action to
eliminate the obstruction or interference. If said obstruction or interference
cannot be eliminated within ten business days, Licensee agrees to discontinue
use of the equipment which is creating the obstruction or
interference.
(cc)
Indemnification.
1.
Licensee must agree, in writing, to indemnify, defend and hold the
Commonwealth, including DCR and its employees, officers, and agents, harmless
against all claims relating to or arising out of the use of DCR property and
from any claims for personal injury or death or damage to personal property, of
whatever kind or nature, arising from the Licensee's activities in the
Location(s), including, but not limited to, claims arising from the release or
threat of release of oil or hazardous materials, substances or wastes, or
assessing, containing, removing, or disposing of the same, in or from the
Location(s) or in connection with the Licensee's activities or operation of the
Location(s), except to the extent such claims were caused solely by DCR's gross
negligence or willful misconduct; claims arising from the intentional, willful,
wanton or reckless, negligent, or careless acts or omissions of the Licensee,
or by its contractors, agents, representatives, employees, permittees,
licensees, guests, and invitees; and claims arising from the Licensee's failure
to provide adequate safety or security in the Location(s), except to the extent
such claims were caused solely by DCR's gross negligence or willful misconduct.
DCR may also require the Licensee to obtain liability insurance with limits of
coverage sufficient to support the Licensee's obligation to indemnify and hold
the Commonwealth and DCR harmless.
2. The Licensee shall agree in writing not to
make any claims against the Commonwealth, including DCR, in connection with or
arising out of the use of the Location(s) for any injury, loss, or damage to
persons, including, but not limited to, bodily injury or death, or damage to
property arising out of or in connection with the actions or omissions of any
third parties or DCR, or their contractors, agents, representatives, employees,
permittees, licensees, guests and invitees, or any claims arising from or in
connection with the release or threat of release of oil or hazardous materials,
including, without limitation, any claims, including for costs or contribution,
in connection with response actions or assessing, containing, removing, or
disposing of oil or hazardous materials, substances or wastes, except to the
extent such claims were caused solely by DCR's gross negligence or willful
misconduct.
3. Neither DCR nor the
Commonwealth shall be responsible for the Licensee's property, or the property
of the Licensee's contractors, agents, representatives, employees, permittees,
licensees, guests, or invitees.
4.
Licensee shall waive any and all claims for compensation for any and all loss
or damage sustained by reason of any interference by any public agency or
official in the operation of its License.
5. These indemnification provisions are
independent of and shall not in any way be limited by the insurance
requirements contained in the License. DCR's approval of insurance contracts
required under a License does not in any way relieve a Licensee from liability.
The obligations of a Licensee under the "Indemnification" section of a License
shall survive the expiration or termination of a License.
(dd)
Insurance.
1. Licensee shall carry insurance in the
minimum amounts and of the types described in the License, including, but not
limited to, commercial general or public liability insurance, insurance for
Commonwealth property (i.e., any Commonwealth-owned
Structures, Small Cell, related equipment, or other property at, on, or within
Location(s)), fire and casualty insurance, and workers' compensation.
2. Licensee must purchase a notice
endorsement on all insurance policies such that DCR is provided no less than 30
days prior notice of cancellation for non-payment reasons and no less than ten
days prior notice for payment reasons. Licensee shall also obtain an
endorsement for the Location(s) explicitly naming "Commonwealth of
Massachusetts, Department of Conservation and Recreation" as an additional
insured on all applicable policies. Such endorsements shall be evidence on any
certificates of insurance provided to DCR and may be submitted by
e-mail.
3. Licensee must furnish
Certificates of Insurance and proof of the required endorsements issued by an
insurer or insurers qualified to do business in the Commonwealth (per the
Massachusetts Division of Insurance,
see
https://www.mass.gov/lists/massachusetts-licensed-insurance)
with a A.M. Best rating of no less than A, Class VI or higher or an equivalent
Standard & Poor's Rating of AA+/-or higher to the following DCR office
along with its License Application and updated annually each year of the
License term and any extended periods: Commonwealth of Massachusetts
Department of Conservation and Recreation
Attn: Engineering Department - Sean Casey
Re: License No. ______________
251 Causeway Street, Suite 600
Boston, Massachusetts 02114
Fax: 617-626-1351 or 1301; e-mail:
dcrSmallCell@mass.gov
4.
Failure to maintain insurance throughout the term and any extension periods of
a License shall be deemed a material breach of the License.
(ee) Licensee agrees not to do
anything to cause DCR to be in violation of any federal, state, or local laws,
rules, regulations, ordinances, orders and policies.
(ff) If, at any time during the term of a
License, the Location(s) is damaged or destroyed by fire or other incident of
any kind or nature whether ordinary or extraordinary, foreseen or unforeseen,
DCR shall not be obligated to repair or reconstruct said Location(s) and, at
the option of DCR or Licensee, the License may be terminated with 30 days prior
written notice to the other.
(gg)
Any actions arising out of a License shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to conflict of laws
principles.
(hh) If any part of a
License is determined to be invalid, illegal, or unenforceable, such
determination shall not affect the validity, legality, or enforceability of any
other part of the License, and the remaining parts of the License shall be
enforced as if such invalid, illegal, or unenforceable part were not contained
therein.
(ii) The Licensee shall,
in writing, assume all risk in connection with any and all activities engaged
in by Licensee, its contractors, agents, representatives, employees,
permittees, licensees, guests, and invitees at the Location(s) and shall be
solely responsible and answerable in damages, and any other equitable remedies,
for all accidents or injuries to all persons or property caused by the
activities of the Licensee, its contractors, agents, representatives,
employees, permittees, licensees, guests, and invitees at the
Location(s).
(jj) Should it become
necessary to enforce the terms of a License in an administrative proceeding or
in a court of competent jurisdiction, the Licensee shall pay all reasonable
attorney's fees.