Section 19.04 - Licensing Procedures(1)General.(a) A party seeking to submit a License Application may access a DCR Right of Way prior to such submission solely for the purpose of obtaining the documentation necessary to request locations for Small Cell(s) or new Structure(s) or to assess the suitability of the structure(s) for proposed Small Cells.(b) License Applicant must consult with the Massachusetts Historical Commission for any project that may adversely affect properties listed on the State Register of Historic Places. Consultation is described in 950 CMR 71.00: Protection of Properties Included in the State Register of Historic Places.(c) License Applicant must consult with the Massachusetts Division of Fisheries and Wildlife - Natural Heritage and Endangered Species Program (NHESP) for any project that may impact Priority or Estimated Habitat for Rare Species listed in 321 CMR 10.00: Massachusetts Endangered Species Act Regulations.(d) License Applicant is solely responsible for ascertaining whether any other certificates, licenses, permits or approvals will be required from other local, state, or federal authorities or entities including, but not limited to, the following: Commonwealth Architectural Access Board; Federal Communications Commission; Massachusetts Water Resources Authority; local Wire permitting authorities; Massachusetts Department of Public Safety (Building Code enforcement); Massachusetts Department of Environmental Protection; local Conservation Commissions; local landmark or historical commissions; United States Army Corps of Engineers; Massachusetts Division of Capital Asset Management and Maintenance; Massachusetts Department of Transportation (MassDOT); Federal Highway Administration. License Applicant is encouraged to consult MassDOT's website for useful "Design Guides and Manuals" ( https://www.mass.gov/lists/design-guides-and-manuals).(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.(3)Application Processing.(a) Applications are reviewed on a first come, first served basis.(b) Applications will be date and time stamped upon receipt by DCR.(c) A single application may seek authorization for multiple installments of Small Wireless Facilities and/or Structures only if all of the Locations of such installations will be located in the same Right of Way.(d) An application, whether for multiple installations or a single installation, will be approved or denied in whole.(e) Time for processing applications.1. DCR will review applications proposing to install Small Wireless Facilities only on an existing Structure(s) within a DCR Right of Way 60 calendar days, except as follows: a. If, within ten business days from the date of receipt of an application, DCR determines that the application is incomplete and notifies the applicant of such deficiencies with sufficient specificity, the Shot Clock resets once the License Applicant submits the supplemental information requested by DCR.b. If the License Applicant submits the supplemental information requested by DCR, DCR shall have ten business days to review the supplemental information and to notify the License Applicant of any deficiencies therein with sufficient specificity. Such notification will toll the Shot Clock pending receipt by DCR of additional supplemental information. Submitted supplemental information shall be subject to the ten-day review and tolling process set forth in 302 CMR 19.04(3)(e)1.b.2. DCR will review applications proposing to install a new Small Cell Structure(s) within a DCR Right of Way within 90 calendar days, except as follows: a. If, within ten business days from the date of receipt of an application, DCR determines that the application is incomplete and notifies the applicant of such deficiencies with sufficient specificity, the Shot Clock resets once the License Applicant submits the supplemental information requested by DCR.b. If the License Applicant submits the supplemental information requested by DCR, DCR shall have ten business days to review the supplemental information and to notify the License Applicant of any deficiencies therein with sufficient specificity. Such notification will toll the Shot Clock pending receipt by DCR of additional supplemental information. Submitted supplemental information shall be subject to the ten-day review and tolling process set forth in 302 CMR 19.04(3)(e)2.b.3. DCR will review applications proposing to install both new Small Cell Structures and Small Wireless Facilities within a DCR Right of Way within 90 calendar days, except as follows:a. If, within ten business days from the date of receipt of an application, DCR determines that the application is incomplete and notifies the applicant of such deficiencies with sufficient specificity, the Shot Clock resets once the License Applicant submits the supplemental information requested by DCR.b. If the License Applicant submits the supplemental information requested by DCR, DCR shall have ten business days to review the supplemental information and to notify the License Applicant of any deficiencies therein with sufficient specificity. Such notification will toll the Shot Clock pending receipt by DCR of additional supplemental information. Submitted supplemental information shall be subject to the ten-day review and tolling process set forth in 302 CMR 19.04(3)(e)3.(f) The Shot Clock begins to run on the first business day after receipt of a License Application by DCR.(g) DCR is under no obligation to review applications that it has deemed incomplete.(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, seehttps://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.Adopted byMass Register Issue 1395, eff. 7/12/2019.