[HISTORY: Adopted by the Mayor and Council
of the Borough of Leonia 12-20-2004 by Ord. No. 22-04. Amendments noted where
applicable.]
The purpose of this chapter is to establish
general guidelines for the siting of wireless communications towers
and antennas. The goals of this chapter are to protect residential
areas and land uses from potential adverse impacts of towers and antennas;
encourage the location of towers in nonresidential areas; minimize
the total number of towers throughout the community; strongly encourage
the joint use of new and existing tower sites as a primary option
rather than construction of additional single-use towers; encourage
users of towers and antennas to locate them, to the extent possible,
in areas where the adverse impact on the community is minimal; encourage
users of towers and antennas through careful design, siting, landscape
screening, and innovative camouflaging techniques; enhance the ability
of the providers of telecommunications services to provide such services
to the community quickly, effectively and efficiently; consider the
public health and safety of communication towers; and avoid potential
damage to adjacent properties from tower failure through engineering
and careful siting of tower structures. In furtherance of the goals,
the Planning Board/Zoning Board shall give due consideration to the
Borough of Leonia's Master Plan, Zoning Map,[1] existing land uses, and environmentally sensitive areas
in approving sites for location of towers and antennas.
[1]
Editor's Note: The Zoning Map is on file in
the Borough offices.
As used in this chapter, the following terms
have the meanings indicated:
Man-made trees, clock towers, bell steeples, flagpoles, and
similar alternative-design mounting structures that camouflage or
conceal the presence of antennas or towers.
The buildings, cabinets, vaults, closures, and equipment
required for operation of telecommunication systems including but
not limited to repeaters, equipment, housing and ventilation and other
mechanical equipment, and interconnect in the cabling runs and their
support structures.
Exterior transmitting or receiving device mounted on a tower,
building or structure and used in communications that radiate or capture
electromagnetic waves, digital analogue signals, radio frequencies
(excluding radar signals), wireless telecommunications signals or
other communication signals.
The lines that connect a provider's towers/cell sites to
one or more cellular telephone switching offices, and/or long-distance
providers, or the public switched telephone network.
The area surrounding telecommunications towers and ancillary
facilities which lies between the tower and adjacent lot lines and/or
land lines.
A company that provides wireless services.
When two or more receiving and/or transmitting facilities
are placed together in the same location or on the same antenna structure.
Federal Aviation Administration.
The area on the ground within a prescribed radius from the
base of a wireless telecommunications tower. The fall zone is the
area within which there is a potential hazard from falling debris
(such as ice) or collapsing material.
Federal Communications Commission.
Any tower not attached to a building but which is mounted
from the ground and rises above or next to the buildings in the area.
Cellular, radio personal communications service (PCS), enhanced
specialized mobile radio, specialized mobile radio, and paging, commercial
and land mobile radio and additional emerging technologies.
A tower which is supported or braced through the use of cables
(guy wires) which are permanently anchored.
When referring to a tower, the vertical distance measured
from the lowest finished grade at the base of the tower to the highest
point on the tower even if said highest point is an antenna.
A type of mount that is self-supporting with multiple legs
and cross bracing of structural steel.
The type of tower that is self-supporting with a single shaft
of wood or steel or concrete and a platform (or racks) for panel antennas
arrayed at the top.
The structure or surface upon which antennas are mounted,
including the following three types of mounts:
A facility for the provision of personal wireless services,
as defined by the Telecommunications Act of 1996.
An engineer specializing in electrical or microwave engineering.
especially the study of radio frequencies.
For the purpose of this chapter shall mean the emissions
from personal wireless service facilities or any electromagnetic energy
within the frequency range from 0.003MHZ to 3,000MHZ.
A telecommunications facility that is designed or located
in such a way that the facility is not readily recognizable as telecommunications
equipment (see "alternative tower structure").
A facility designed and used for the purpose of transmitting,
receiving, and relaying voice and data signals from various wireless
communication devices, including transmission towers, antennas, and
ancillary facilities. For purposes of this chapter, amateur radio
transmission facilities and facilities used exclusively for the transmission
of television and radio broadcasts are not telecommunications facilities.
The monopole or lattice framework designed to support transmitting
and receiving antennas. For purposes of this chapter, amateur radio
transmission facilities and facilities used exclusively for the transmission
of television and radio signals are not transmission towers.
Any structure that is designed and constructed primarily
for the purpose of supporting one or more antennas for telephone,
radio and similar communications purposes, including self-supporting
lattice towers, guyed towers or monopole towers, common-carrier towers,
cellular telephone towers, alternative tower structures and any support
thereof.
Any personal wireless services, as defined in the Federal
Communications Act of 1996, which includes FCC-licensed commercial
wireless telecommunications services, including cellular, personal
communications services (PCS), specialized mobile radio (ESMR), paging
and similar services that currently exist or that may in the future
be developed. It does not include any amateur radio facility that
is owned and operated by a federally licensed amateur radio station
operator or is used exclusively for receive-only antennas, nor does
it include noncellular telephone service.
A.Â
Federal requirements. All towers must meet or exceed
current standards and regulations of the FAA, FCC and any other agency
of the federal government with the authority to regulate towers and
antennas. If such standards and regulations are changed, the owners
of the towers and antennas governed by this chapter shall bring such
towers and antennas into compliance within six months of the effective
date of such standards and regulations unless a more stringent compliance
schedule is mandated by the controlling federal agency. Failure to
bring towers and antennas into compliance with such revised standards
and regulations shall constitute grounds for the removal of the tower
or antenna at the owner's expense. Any such removal shall be ordered
by the Planning Board as all approval herein shall be unequivocally
deemed conditional approvals subject to this provision.
B.Â
Building codes; safety standards. To ensure the structural
integrity of towers, the owner of a tower shall ensure that the tower
is maintained in compliance with standards contained in the BOCA Building
Code[1] and the applicable standards for towers that are published
by Electronic Industries Associations, as amended from time to time.
If, upon inspection, the governing authority concludes that a tower
fails to comply with such standards and constitutes a danger to persons
or property, then, upon notice being provided to the owner of the
tower, the owner shall have 10 days to bring such tower into compliance
with such standards. If the owner fails to bring such tower in compliance
within said 10 days, the Mayor and Council, in conjunction with the
Borough of Leonia's Construction Code Official, may order the removal
of such tower at the owner's expense and lien the property for all
costs incurred, including the professional fees expended.
Prior to the issuance of a building permit for
the construction of wireless communications towers or for the installation
of an antenna, the applicant for such permit shall file in the Office
of the Construction Code Official, with a copy to be filed in the
office of the Borough Engineer, a written report confirming that the
structural integrity of the tower meets the applicable safety standards
of the latest Building Official's and Code Administrator's International
Incorporated (BOCA) design specifications as well as those of the
Telecommunications Industry Association/Electric Industry Association
(TIA/EIA).
A.Â
The Planning Board has exclusive jurisdiction pursuant
to the MLUL[1] and this chapter unless it is determined the Board of
Adjustment has jurisdiction pursuant to the Municipal Land Use Law,
N.J.S.A. 40:55D-1 et seq. (Use Variance), at which point the provisions
of this chapter shall apply to the Board of Adjustment.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
B.Â
Each applicant for administrative approval shall apply
to the Planning Board or Zoning Board of Adjustment, as indicated
supra, providing the information set forth in subsections of this
chapter and a nonrefundable fee is established by this chapter to
reimburse the Borough of Leonia for costs of reviewing the application(s)
submitted.
C.Â
The Planning Board or Zoning Board of Adjustment,
as indicated supra, shall review the applications for administrative
approval and determine if the proposed use complies with this chapter.
D.Â
The Planning Board or the Zoning Board of Adjustment,
as indicated supra, shall respond to each application within the time
parameter established pursuant to the MLUL after receiving an application
deemed complete.
E.Â
In connection with any such administrative approval,
the Planning Board or the Zoning Board of Adjustment, as indicated
supra, may, in order to encourage shared use, administratively waive
any zoning district setback requirements or separation distances between
towers by up to 50%.
F.Â
In connection with administrative approval, the Planning
Board or the Zoning Board of Adjustment, as indicated supra, may in
order to encourage the use of monopoles, administratively allow the
reconstruction of an existing tower to monopole construction.
G.Â
If site plan approval is denied, the applicant may
appeal said denial in accordance with the provisions of the MLUL.
The construction, erection, maintenance or outdoor
storage of any antenna and structural support is prohibited except
as specifically set forth herein.
All towers, antennas or other such equipment
shall require site plan approval. In addition to the site plan submission
requirements of the development regulations, the following information
shall be submitted with site plan approval for all wireless communications
facilities:
A.Â
Comprehensive service plan. In order to provide evidence
that any proposed location of wireless communications antenna (and
any supporting tower and/or ancillary building enclosing related electronic
equipment) has been planned to result in the fewest number of antennas
and freestanding towers within the Borough of Leonia, at the time
full service is provided by the applicant throughout the Borough,
the applicant shall submit a comprehensive service plan. Said comprehensive
service plan shall indicate how the applicant proposes to provide
full service throughout the Borough, and, to the greatest extent possible,
said service plan shall also indicate how the applicant's plan is
coordinated with the needs of all other providers of telecommunication
service within the Borough of Leonia. The comprehensive plan shall
include the following:
(1)Â
Whether the applicant's subscribers can receive adequate
service from antennas located outside the borders of the Borough of
Leonia. A vital gap in service must be clearly demonstrated.
(2)Â
How the proposed location of antennas relates to the
location of antennas or any existing towers within and/or near the
Borough of Leonia.
(3)Â
How the proposed location of the antennas relates
to the anticipated need for additional antennas and supporting towers
within the Borough of Leonia by both the applicant and by other providers
of telecommunication services within the Borough of Leonia.
(4)Â
How the proposed location of the antennas relates
to the objective of collocating the antennas of different service
carriers on the same tower.
(5)Â
How the proposed location of the antennas relates
to the overall objective of providing full telecommunications services
within the Borough of Leonia while, at the same time, limiting the
number of towers to the fewest possible.
(6)Â
Demonstration of need and minimal negative impact.
The applicant shall be required to demonstrate that the development
is the minimal necessary to provide adequate communications as may
be authorized by the Federal Communications Commission. The applicant
shall also demonstrate that the development results in the minimal
negative impact to the community and surrounding neighborhood. As
part of this requirement, the applicant shall demonstrate at least,
but not necessarily limited to, the following:
(a)Â
That the area to be served by the antenna(s)
does not presently have adequate cellular communications available
from the provider as required by Federal Communications Commission
and that the proposed antenna(s) will remedy such deficiency.
(b)Â
That the applicant is a licensed provider of
cellular telecommunications serviced by the Federal Communications
Commission and that all requisite franchise including, but not limited
to, franchises from other communications carriers, have been obtained
for provision of such services.
(c)Â
That collocation of the antenna on other existing
or pending structures, either within or outside the Borough of Leonia,
is either not practical in order to provide adequate communication
or that the visual impact to the community from the proposed tower
and/or antenna on the site is less than would exist at such alternative
locations. The applicant shall submit an inventory of all existing
antenna, towers, building-mounted antennas or sites approved or pending
approval, as well as all other tall buildings, water towers, utility
towers, and similar structures that could theoretically serve as an
alternative location for the proposed antenna. The applicant shall
also identify the various cellular telecommunications service providers
within such distance and the type and location of the antennas of
such providers with the aforesaid area.
(d)Â
That the design and technology proposed is the
least visually intrusive of various suitable designs and technologies.
Evaluation of alternative technologies shall include, but not necessarily
be limited to, the use of digital technologies, the use of a cable
microcell network using multiple low-power transmitters and receivers
attached to a wire line and the use of more numerous, but lower-in-height,
antennas.
B.Â
A scaled site plan clearly indicating the location,
type and height of the proposed tower, on-site land uses and zoning,
adjacent land uses and zoning (including when adjacent to other municipalities),
and all properties within the applicable fall zone, adjacent roadways,
proposed means of access, setbacks from property lines, elevation
drawings of the proposed tower and any other structure, topography,
parking and other information deemed by the approving authority to
be necessary to assess compliance with this chapter.
C.Â
Legal description of the entire tract and lease parcel
(if applicable).
D.Â
The setback distance between the proposed tower and
the nearest residential unit and residentially zoned properties and
public and private schools.
E.Â
The separation distance from other towers and antennas.
F.Â
A landscape plan showing specific landscape materials
including, but not limited to, species, size and existing vegetation
to be removed or retained.
G.Â
Method of fencing and finished color and, if applicable,
the method of camouflage.
H.Â
A description of compliance with all applicable federal,
state and local laws.
I.Â
A notarized statement by the applicant as to whether
construction of the tower will accommodate collocation of additional
antennas for future users.
J.Â
Identification of the entities providing the backhaul
network for the tower(s) described in the application and other telecommunication
sites owned and operated by the applicant in the Borough.
K.Â
A letter of commitment to lease excess space to other
potential users at prevailing market rates and conditions. The letter
of commitment shall be in form suitable for recording with the Borough
Clerk prior to the issuance of any permit and shall commit the tower
owner(s), property owner(s) and their successors in interest.
L.Â
A visual impact study containing, at a minimum, a
photographic simulation showing the appearance of the proposed tower,
antennas, and ancillary facilities from at least five points within
a three-mile radius. Such points shall be chosen by the carrier with
review and approval by the approving board or designee to ensure that
various potential views are represented.
M.Â
An analysis of RFR levels at the facility as a means
of assessing compliance with the FCC RF safety criteria. This analysis
shall:
(1)Â
Take into consideration all collocated radio transmitting
antennas and/or nearby antennas that could contribute to RFR levels
at the facility.
(2)Â
Be performed by an RF engineer, health physicist or
similarly knowledgeable individual.
(3)Â
Follow current methods recommended by the FCC for
performing such analyses.
A.Â
No building permit shall be issued for the construction,
erection or installation of a wireless communications tower or antenna
unless site plan approval has been granted by the Planning Board or
Board of Adjustment, where applicable.
C.Â
The applicants shall give notice of such hearing as
provided by law.
D.Â
A list of the property owners to whom the applicant
is required to give notice shall be furnished to the applicant in
accordance with local law. The approving authority's decision on such
application shall be in accordance with local law.
E.Â
In granting approval for such application, the approving
authority may impose such conditions to the extent the approving authority
concludes such conditions are necessary to minimize any adverse effect
of the proposed tower on adjoining properties.
F.Â
An applicant for approval shall submit the information
required by this chapter and a nonrefundable application fee and an
escrow deposit as required by the Borough for such applications as
herein established.
G.Â
Inventory of existing sites. Each applicant for a
wireless communication tower shall provide an inventory of its existing
towers, or sites approved for towers, that are either within the jurisdiction
of the Borough of Leonia or within three miles of the proposed site
within the State of New Jersey, including specific information about
the location, height, and design of each tower. Such information may
be shared with other applicants applying for administrative approvals
or permits under this chapter or other organizations seeking to locate
towers within the jurisdiction of the Borough of Leonia, provided,
however, that the Borough is not, by sharing such information, in
any way representing or warranting that such sites are available or
suitable.
[Amended 12-21-2009 by Ord. No. 21-09]
A.Â
Freestanding
towers. Freestanding cellular communications tower monopoles on a
P Zone District abutting an OB Office Building Zone District and at
the Leonia DPW facility located on Block 103, Lots 2 and 3. Any freestanding
tower or antenna structure shall be set back from any residential
property line a distance equal to or greater than the height of the
tower and antenna. Any buildings or equipment accessory to or servicing
the cellular communications tower or antenna shall conform to the
setback requirements otherwise applicable in the zone district.
B.Â
No freestanding
tower or antenna structure shall exceed 150 feet above the normal
grade at the base of such tower or structure. Any buildings or equipment
necessary to or servicing the cellular communications tower or antenna
shall conform to the height requirements otherwise applicable in the
zone district.
(1)Â
Tower
facilities shall be landscaped with a buffer of plant materials that
effectively screen the view of the tower compound from property used
for residences or any other area frequented by the public. The standard
buffer shall consist of a landscaped strip at least 10 feet wide outside
the perimeter of the compound. However, at a minimum, the facility
should be shielded from public view by evergreen trees at least eight
feet high at planting and planted in staggered double rows 15 feet
on center.
(2)Â
In locations
where the visual impact of the tower would be minimal, the landscaping
requirement may be reduced at the sole discretion of the approving
authority.
(3)Â
Existing
mature tree growth and natural land forms on the site shall be preserved
to the maximum extent possible. In some cases, such as towers sited
on large wooded lots, natural growth around the property perimeter
may be a sufficient buffer.
C.Â
Ancillary
buildings. Any proposed ancillary building enclosing electronic equipment
shall not be more than 15 feet in height nor more than 200 square
feet in area, and only one such building shall be permitted on the
lot for each provider of wireless telecommunications services located
on the site. Such buildings must satisfy the minimum zoning district
setback requirement for accessory structures.
A.Â
The Borough of Leonia requires that licensed carriers
share personal wireless service facilities and sites where feasible
and appropriate, thereby reducing the number of personal wireless
facilities that are stand-alone facilities. All applicants for site
plan approval for a wireless service facility shall demonstrate a
good-faith effort to collocate with other carriers. Such good-faith
effort includes:
(1)Â
A survey of all existing structures that may be feasible
sites for collocating personal wireless facilities.
(2)Â
Notification by certified mail of intent to seek site
plan approval to all other license carriers for commercial mobile
radio services operating in the county.
(3)Â
Sharing information to determine if collocation is
feasible under the design configuration most accommodating to collocation.
B.Â
In the event that collocation is found to be not technically
feasible, a written statement of the reasons for the unfeasibility
shall be submitted to the Borough. The Borough may retain a technical
expert in the field of RF engineering to verify if collocation at
the site is not feasible or is feasible given the design configuration
most accommodating to collocation. The cost for such a technical expert
will be at the expense of the applicant that has not demonstrated
a good-faith effort to provide collocation.
C.Â
If the applicant does not intend to collocate or to
permit collocation, plans and elevations which show the ultimate appearance
and operation of the personal wireless service facility at full build-out
shall be submitted, they must also include RF design data.
D.Â
Multiple antenna/tower plan. The Borough of Leonia
encourages users of towers and antennas to submit a single application
for approval of multiple towers and/or antenna sites. Applications
for approval of multiple sites shall be given priority in the review
process.
A.Â
Fees for antennas and wireless communication tower
applications.
(1)Â
The application fee for a permit to install an antenna
of one meter or less in diameter shall be $500, plus, if the Construction
Code Official deems it necessary to retain any experts such as the
Borough Engineer, Borough Planner or other persons, the applicant
shall post a cash deposit, which shall be determined by the Construction
Code Official, to cover such costs. The filing fee for an antenna
between one and two meters in diameter shall be a fee of $750. For
any satellite antenna exceeding two meters in diameter, there shall
be a filing fee of $l,000. In the event the applicant is required
to present a site plan before the Planning Board or Board of Adjustment,
applicable filing fees and escrow fees shall be posted with the Borough
of Leonia as provided herein.
(2)Â
Any application for a wireless communications tower
shall require a filing fee of $2,500.
A.Â
Monitoring and maintenance.
(1)Â
After the wireless telecommunications facility is
operational, the applicant shall submit, within 90 days of beginning
operations, and at intervals from the date of issuance of the building
permit, existing measurements of RFR from the wireless communication
facility. Such measurements shall be signed and certified by the RF
engineer, stating the RFR measurements are accurate and meet FCC guidelines
as specified in the radio frequency standards section of this chapter.
B.Â
The applicant and coapplicant shall maintain the personal
wireless service facility in good condition. Such maintenance shall
include, but shall not be limited to, painting. structural integrity
of the mount and security banner, and maintenance of the buffer area
landscape.
The antenna facilities shall be installed on
the premises in a good and workmanlike manner. The municipality reserves
the right to require the applicant to paint the antenna facilities
in a manner consistent with the property maintenance code[1] of the municipality and consistent with the color of the
building or otherwise shield the antenna from view.
A.Â
The applicant shall, at his own expense, maintain
any equipment on or attached to the premises in a safe condition,
in good repair and in a manner suitable to the municipality so as
not to conflict with the use of or other leasing of the tower by the
municipality. The applicant shall not interfere with the use of the
tower, the owned premises, related facilities or other equipment of
other applicants.
B.Â
The applicant shall have sole responsibility for the
maintenance, repair and security of his equipment, personal property,
antenna facilities, and leasehold improvements and shall keep same
in good repair and condition during the lease term.
C.Â
The applicant shall keep the premises free of debris
and anything of dangerous, noxious or offensive nature or which would
create a hazard or undue vibration, heat, noise or interference.
D.Â
In the event the municipality or any other applicant
undertakes painting, construction or other alterations on the tower,
the applicant shall take reasonable measures at the applicant's cost
to cover the applicant's equipment, personal property or antenna facilities
and protect such from paint and debris fallout which may occur during
the painting, construction or alteration process.
E.Â
Periodic inspection/proof of need. The applicant shall
be required to submit to the Zoning Officer annual certifications
that the installed equipment has been inspected and that it continues
to meet all applicable safety standards and continues to comply with
all the requirements of approval. In the event that safety standards
and requirements are no longer complied with, the applicant shall
be required to correct such deficiencies or to remove the antennas
and related structures as applicable.
F.Â
Removal upon termination of use. All cellular telecommunications
antennas and related structures and equipment shall be removed when
same are unused or abandoned. Such removal shall take place within
three months of such lack of use or abandonment. A copy of the relevant
portions of a signed lease or deed restriction, as applicable, which
requires removal of the antenna and related structures and equipment
as required shall be provided to the Board. Failure to remove the
antennas and related structures and equipment shall be deemed to be
a violation of this chapter and shall be subject to the penalties
and remedies set forth by this chapter.
G.Â
The applicant shall be required to post a bond with
the Borough of Leonia to cover the cost of removal of any cellular
communications antenna and/or tower.
The Construction Code Official of the Borough
of Leonia is hereby designated as the public officer charged with
enforcement of the terms for this chapter. All complaints for alleged
violation of any of the terms of this chapter shall be submitted in
writing to said Construction Official.
A.Â
Any person or entity who violates any provision of
this chapter shall be punished by a fine not exceeding $1,000 or imprisonment
in a place provided by the municipality for detention of prisoners
not exceeding 90 days, or by a period of community service not exceeding
90 days. Any person who is convicted of violating this chapter within
one year of the date of a previous conviction of the same ordinance
and who was fined for a previous violation, or was sentenced to a
term in jail or to community service, shall be fined by the court
to an additional fine or jail sentence as a repeat offender. The additional
penalty shall not be less than $100 and shall not exceed the sum of
$1,000, or imprisonment for term of 90 days, or the person may be
required to perform community service for a term not to exceed 90
days.
B.Â
In the event the person cannot pay the fine, the court
may provide, in default of the payment of the fine, imprisonment in
the county jail for a term not to exceed 90 days. The person may be
required to perform 90 days community service. All penalties for a
violation of this chapter shall be in accordance with N.J.S.A. 40:49-5
and the Code of the Borough of Leonia. In addition to the foregoing
penalties, the Borough may enforce this chapter for any violation
of this chapter in accordance with N.J.S.A. 40:55D-18, which action
shall be in Superior Court of the State of New Jersey. Each day a
provision of the chapter is in violation shall constitute a separate
and distinct violation.
A.Â
As used in this section "municipality" shall mean
the Borough of Leonia, the Mayor and Council and Planning Board and
Zoning Board of Adjustment of the Borough of Leonia; and "applicant"
shall mean the applicant for an antenna and/or tower.
B.Â
Default and remedies.
(1)Â
It shall be a default if applicant defaults in the
payment or provision of rent or any other sums to the landowner or
municipality when due and does not cure such default within 10 days;
or if the applicant defaults in the performance of any covenant or
condition of the lease and does not cure such default within 30 days
after written notice from the landowner or municipality specifying
the default complained of; or if the applicant abandons or vacates
the premises; or if the applicant is adjudicated as bankrupt or makes
any assignment for the benefit of creditors; or if the applicant becomes
insolvent or the municipality believes itself to be insecure.
(2)Â
In the event of a default, the landowner or municipality
shall have the right, at its option, in addition to and not exclusive
of any other remedy the fee owner may have by operation of law without
any further demand or notice, to reenter the premises and eject all
persons therefrom, and either declare the lease at end, in which event
the applicant shall immediately remove the antenna facilities and
pay the owner a sum of money equal to the total of the amount of unpaid
rent accrued through the date of termination, the amount by which
the unpaid rent reserved for the balance of the term exceeds the amount
of such rental loss that the applicant proves could be reasonably
avoided (net of costs of such reletting), and another amount necessary
to compensate the fee owner for the detriment proximately caused by
the applicant's failure to perform its obligations under the lease;
or with terminating the lease, relet the premises, or any part thereof,
for the account of the applicant upon such terms and conditions as
the fee owner may deem advisable, and any monies received from such
reletting shall be applied first to the expenses of such reletting
and collection, including reasonable attorney's fees, and real estate
commission paid, and thereafter towards the payment of all sums due
or to become due to the fee owner hereunder, and if a sufficient sum
shall not be thus realized to pay such sums and other charges, the
applicant shall pay the owner any deficiency monthly, notwithstanding
that the fee owner may have received rent in excess of the rent stipulated
in the lease in previous or subsequent months. and the fee owner may
bring an action therefor as such monthly deficiency shall arise.
(3)Â
Upon termination of the lease for any reason, the
applicant shall remove its equipment, personal property, antenna facilities,
and leasehold improvements from the premises on or before the date
of termination and shall repair any damage to the premises caused
by such equipment, normal wear and tear expected, all at the applicant's
sole cost and expense. Any such property or facilities which are not
removed by the end of the lease shall become property of the municipality.
C.Â
Posting bond. The applicant shall post with the municipality
a bond in an amount equal to 120% of the amount required for the construction
of said antenna. Said amount shall be available to the fee owner for
removal of the antenna structure should circumstances deem this necessary.
D.Â
Insurance. During the terms of the lease, the applicant
shall maintain, or cause to be maintained, in full force and effect
and at its sole cost and expense, the following types and limits of
insurance:
(1)Â
Workers' compensation insurance meeting applicable
statutory requirements and employer's liability insurance with minimum
amounts of $100,000 for each accident.
(2)Â
Comprehensive commercial general liability insurance
with minimum amount limits of $10,000,000 as the combined single limit
for each occurrence of bodily injury, personal injury, and property
damage. The policy shall provide blanket contractual liability insurance
for all written contracts and shall include coverage for property
damage from perils of explosion, collapse or damage to underground
utilities commonly known as "XCU coverage."
(3)Â
Automobile liability insurance covering all owned
and nonowned vehicles in use by the applicant, its employees and agents,
with personal protection insurance and properly protection insurance
to comply with the provisions of state law with minimum limits of
$2,000,000 as the combined single limit for each occurrence for bodily
injury and property damage.
(4)Â
At the start of and during the period of any construction,
builder's all-risk insurance, together with an installation floater
or equivalent property coverage covering cables, materials, machinery
and supplies of any nature whatsoever which are to be used in or incidental
to the installation of the antenna facilities. Upon completion of
the installation of the antenna facilities, the applicant shall substitute
for the foregoing insurance policies of fire, extended coverage and
vandalism and malicious mischief insurance on the antenna facilities.
The amount of insurance at all times shall be representative of the
insurable value installed or constructed.
(5)Â
Business interruption insurance coverage in an amount
sufficient to cover such loss of revenues for the period of time which
it would take, under normal circumstances, to repair or replace that
part(s) of the antenna facility which is damaged and caused the loss
of revenue.
(6)Â
All policies other than those for workers' compensation
shall be written on an occurrence and not on a claims-made basis.
(7)Â
The coverage amounts set forth above may be met by
a combination of underlying and umbrella policies so long as in combination
the limits equal or exceed those stated.
E.Â
Named insureds. All policies, except for business
interruption and workers' compensation policies, shall name the fee
owner and municipality and all associated, affiliated, allied and
subsidiary entities of the municipality, now existing or hereafter
created, and their respective officers, boards, commissions, employees,
agents and contractors, as their respective interests may appear as
additional insureds (herein referred to as the "additional insureds").
Each policy which is to be endorsed to add additional insureds hereunder
shall contain cross liability wording, as follows:
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In the event of a claim being made hereunder
by one insured for which another insured is or may be liable, then
this policy shall cover such insured against whom a claim is or may
be made in the manner as if separate policies had been issued to each
insured hereunder.
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F.Â
Evidence of insurance. Certificates for each insurance
policy required to be obtained by the applicant in compliance with
this section, along with written evidence of payment of required premiums,
shall be filed and maintained with the municipality annually during
the term of the lease. The applicant shall immediately advise the
municipality of any claim or litigation that may result in liability
to the municipality.
G.Â
Cancellation of policies of insurance. All insurance
policies maintained pursuant to the lease shall contain the following
endorsement:
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At least 60 days' prior written notice shall
be given to the municipality by the insurer of any intention not to
renew such policy or to cancel, replace or materially alter same,
such notice to be given by registered mail to the parties named in
the paragraph of the lease.
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H.Â
Insurance companies. All insurance shall be effected
under valid and enforceable policies, insured by insurers licensed
to do business in the State of New Jersey or surplus line carriers
on the State of New Jersey Insurance Commissioner's approved list
of companies qualified to do business in the State of New Jersey.
All insurance carriers and surplus line carriers shall be rated A+
or better by A.M. Best Company.
I.Â
Deductibles. All insurance policies may be written
with deductibles not to exceed $25,000 unless approved in advance
by the municipality. The applicant agrees to indemnify and save harmless
the municipality, the indemnities and additional insureds from and
against the payment of any deductible and from the payment of any
premium on any insurance policy required to be furnished by the lease.
J.Â
Contractors. The applicant shall require that each
and every one of its contractors and their subcontractors who perform
the work on the premises carry, in full force and effect, workers'
compensation, comprehensive public liability and automobile liability
insurance coverage of the type which the applicant is required to
obtain under the terms of this section with appropriate limits of
insurance.
K.Â
Review of limits. Once during each calendar year during
the term of the lease. the municipality may review the insurance coverages
to be carried by the applicant. If the municipality determines that
higher limits of coverage are necessary to protect the interests of
the municipality or the additional insureds, the applicant shall be
so notified to obtain the additional limits of insurance at its sole
cost and expense.
The applicant may not assign the lease or sublet
the premises without prior written consent of the municipality. Any
assignment or sublease shall require site plan review and will require
an application before the Planning Board.
The applicant shall pay any real estate taxes
or payments in lieu of taxes required or contributed to as a result
of a lease agreement between the applicant and municipality. In addition,
the applicant shall reimburse the municipality for its reasonable
cost and expenses, including legal fees incurred by the municipality
in connection with the negotiation of any lease agreement.
