As used in this chapter, the following terms shall have the
meanings indicated:
ADMINISTRATIVE REVIEW
Ministerial review of an application by the Borough to determine
whether the issuance of a permit is in conformity with the applicable
provisions of this chapter.
ANTENNA
Communications equipment that transmits and/or receives electromagnetic
radio frequency signals used in the provision of wireless services.
This definition does not apply to broadcast antennas, antennas designed
for amateur radio use, or satellite dishes for residential or household
purposes.
APPLICABLE CODES
Uniform building, fire, safety, electrical, plumbing, or
mechanical codes adopted by a recognized national code organization
to the extent such codes have been adopted by the Authority, including
any amendments adopted by the Authority, or otherwise are applicable
in the jurisdiction.
APPLICANT
Any person or entity who submits an application under this
chapter, such as a provider described herein.
APPLICATION
A written request, on a form provided by the Borough of Avon-by-the-Sea.
AUTHORITY
The Board of Commissioners of the Borough of Avon-by-the-Sea.
The term "Authority" and "Borough" are interchangeable.
COLLOCATE
To install or mount a small wireless facility in the public
right-of-way on an existing support structure, on an existing pole,
on a new pole, or smart pole. Collocation has a corresponding meaning.
COMMUNICATIONS FACILITY
A.
Collectively, the equipment at a fixed location or locations
within the public ROW that enables communications services, including:
(1)
Radio transceivers, antennas, coaxial, fiber-optic or other
cabling, power supply (including backup battery), and comparable equipment,
regardless of technological configuration; and
(2)
All other equipment associated with any of the foregoing.
B.
A communications facility does not include the pole or support
structure to which the equipment is attached.
COMMUNICATIONS SERVICE
Cable service, as defined in 47 U.S.C. § 522(6);
information service, as defined in 47 U.S.C. § 153(24);
or telecommunications service, as defined in 47 U.S.C. § 153(53).
CONSULTANT
The person appointed by the Borough to serve as the consultant
for the Borough for all matters concerning this chapter, and who may
be contracted for professional services.
DECORATIVE POLE
A pole that is specially designed by the Authority and placed
for aesthetic purposes and employs stealth technology.
ELIGIBLE FACILITIES REQUEST
An eligible facilities request as set forth in 47 CFR 1.6100,
as that section may be amended from time to time.
FCC
The Federal Communications Commission of the United States.
LAWS
Collectively, any and all federal, state or local law, statute,
common law, code, rule, regulation, order, or ordinance.
ORDINARY MAINTENANCE AND REPAIR
Inspections, testing and/or repair that maintain functional
capacity, aesthetic and structural integrity of a communications facility
and/or the associated support structure or pole, that does not require
blocking, damaging or disturbing any portion of the public ROW.
PERMIT, ROW PERMIT or SMALL CELL PERMIT
A written authorization to install, at a specified location(s)
in the public ROW, a communications facility or a pole to support
a communications facility.
PERMITTEE
An applicant that has received a permit under this chapter.
PERSON
An individual, corporation, limited liability company, partnership,
association, trust or other entity or organization, including a governmental
entity.
POLE
A legally constructed pole, such as a utility, lighting or
similar pole made of wood, metal or other material as determined by
the Borough, located or to be located within the public right-of-way.
A pole does not include a support structure.
PROVIDER
A communications service provider or a wireless services
provider, and includes any person that owns and/or operates within
the public ROW any communications facilities, wireless facilities,
poles built for the sole or primary purpose of supporting communications
facilities.
PUBLIC RIGHT-OF-WAY or PUBLIC ROW
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
or similar purpose. The term does not include a federal interstate
highway, state highway, county right-of-way or other areas that are
not within the legal jurisdiction, ownership or control of the Authority.
REPLACE or REPLACEMENT
In connection with an existing pole or support structure,
to replace (or the replacement of) same with a new structure, substantially
similar in design, size and scale to the existing structure and in
conformance with this chapter and any other applicable regulations
in order to address limitations of the existing structure to structurally
support collocation of a communications facility.
SMALL WIRELESS FACILITY
A wireless facility that meets both of the following qualifications:
A.
Each antenna could fit within an enclosure of not more than
three (3) cubic feet in volume; and
B.
All other wireless equipment associated with the antenna, including
the preexisting equipment, is cumulatively no more than twenty-eight
(28) cubic feet in volume.
SMART POLE
A decorative pole that conceals, disguises or camouflages
one or more small wireless facility installation(s) and may include
other features such as street lighting, 911 call service access, public
access Wi-Fi and surveillance cameras. A smart pole must allow for
at least three (3) occupants and allow space for Borough use for other
services and/or equipment. Smart poles shall neither have protruding
latches, external hinges, nor external cabling. The pole must be made
of an inherently rust-resistant material (i.e., aluminum alloys or
stainless steel). The design of the smart pole is within the exclusive
discretion of Borough.
STATE
The State of New Jersey.
SUPPORT STRUCTURE
A structure in the public ROW other than a pole which is
capable of supporting a wireless facility.
SURROUNDING STREETSCAPE
The visual elements of a street, including the road, adjoining
buildings, street furniture, trees and open spaces, etc., that combine
to form the street's character.
WIRELESS FACILITY
A.
The equipment at a fixed location or locations in the public
ROW that enables wireless services. The term does not include:
(1)
The support structure, tower or pole on, under, or within which
the equipment is located or collocated; or
(2)
Coaxial, fiber-optic or other cabling that is between communications
facilities or poles or that is otherwise not immediately adjacent
to or directly associated with a particular antenna.
B.
A small wireless facility is one type of a wireless facility.
Throughout this chapter, the terms "communications facility," "wireless
facility" and "small wireless facility" may be used interchangeably
and shall be taken to refer to the same thing unless the context clearly
indicates otherwise.
WIRELESS SERVICES
Any wireless services using licensed or unlicensed spectrum,
whether at a fixed location or mobile, provided to the public.
Prior to installing in the public ROW any communications facility,
or any pole built for the sole or primary purpose of supporting a
communications facility, a person shall enter into a right-of-way
use agreement with the Borough of Avon-by-the-Sea expressly authorizing
use of the public right-of-way for the communications facility or
pole proposed to be installed.
A. The term of the ROW use agreement shall be a minimum of 15 years
and shall not exceed 30 years.
B. The ROW use agreement authorizes the provider's nonexclusive
use of the public ROW for the sole purpose of installing, maintaining
and operating communications facilities, including any pole built
for the sole or primary purpose of supporting the communications facilities
and to provide the services expressly authorized in the agreement
subject to applicable codes and applicable laws, this chapter and
the terms and conditions of the agreement. The agreement authorizes
use only of the public ROW in which the Borough has an actual interest.
It is not a warranty of title or interest in any public ROW and it
does not confer on the provider any interest in any particular location
within the public ROW No other right or authority is granted except
as expressly set forth in the ROW license agreement. Nothing herein
shall authorize the use of the Borough's poles or support structures,
in the public ROW, without express approval from the Borough. All
use of the Borough's poles or support structures in the public
ROW shall require a separate agreement and the payment of separate
fees for such use.
C. The provider shall, at its sole cost and expense, keep and maintain
its communications facilities, poles, and support structures in the
public ROW in a safe condition, and in good order and repair.
D. The provider shall provide insurance and indemnification of the Borough
as described in the ROW use agreement. The insurance coverage limits
must be at least as broad as follows:
(1) Insurance. The provider shall at all times maintain a commercial
general liability insurance policy with a single amount of at least
one million dollars ($1,000,000.00) per occurrence and in the aggregate
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) in the
amount of five million dollars ($5,000,000.00) per occurrence and
in the aggregate. The provider may use any combination of primary
and excess insurance to meet the total limits required. Such coverage
shall be primary, noncontributory and shall contain a waiver of subrogation.
Evidence of same shall be provided prior to the commencement of any
work of any kind by the provider. Prior to the commencement of any
work pursuant to this chapter the provider shall file with the Borough,
a certificate(s) of insurance with any required endorsements evidencing
the coverage provided by said liability and excess liability policies.
The Borough shall notify provider within fifteen (15) days after the
receipt of any claim or demand to the Borough, either by suit or otherwise,
made against the Borough on account of any of provider or its subcontractors,
agents, employees, officers, servants, designees, guests and invitees,
activities pursuant to the rights granted in this chapter. Provider
shall notify the designee within fifteen (15) days of receipt of any
claim or demand of provider or its subcontractors, agents, employees,
officer, servants, designees, guests or invitees by any aggrieved
party for any work or action made pursuant to this chapter. The Borough
shall be named as an additional insured. Provider shall provide Borough
with renewal insurance.
(2) Indemnification. Provider, its successors, assigns, contractors,
subcontractors, agents, servants, officers, professionals, employees,
designees, guests and invitees, hereby indemnify, defend and hold
harmless the Borough, 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 provider's actions under this chapter and costs in connection
therewith except to the extent that such claims, demands, suits, or
actions are the result of the negligence or willful misconduct of
the county, its successors, assigns, elected officials, officers,
employees, servants, contractors, designees or invitees. 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 Borough 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 provider's
activities pursuant to the rights granted in this chapter. This indemnification
shall also specifically include that the Borough retains the right
to choose its own defense counsel in regard to any action at law or
equity pursuant to this section.
Notwithstanding anything else in the Code of the Borough of
Avon-by-the-Sea, the installation of antennas, small cells and other
communication devices and associated equipment in the public municipal
roadway either on existing or new poles are permitted and considered
a permitted use if a right-of-way use agreement is entered into and
if right-of-way permits are obtained pursuant to this chapter.
This Chapter is intended to govern the installation, placement, maintenance, modification, upgrade and repair of communications facilities, including small wireless facilities, in the public right-of-way. The placement of telecommunications equipment outside of the public right-of-way shall be governed by the applicable codes and ordinances of the Borough, including the provisions of §
113-29E, Special conditions for wireless telecommunications towers and antennas.
In addition to compliance with the applicable provisions of
this chapter, prior to the start of any installation of poles, support
structures, small wireless facilities or other communications facilities
that requires excavation, applicant shall contact New Jersey One Call
at 811 at least three (3) full business days prior to the commencement
of work.
Violation of any of the provisions of this chapter shall be
a simple citation punishable with a civil penalty of $500 for each
violation which continues more than ten (10) days after written notice
of such violation is provided to the person or applicant. Each day,
after such notice, that a violation occurs or is permitted to exist
by the person or applicant constitutes a separate offense.