[Adopted 8-12-1997 by ord No. 2024]
For the purpose of this ordinance, the following
terms, phrases and words shall have the meaning given herein:
The grantee of rights under this ordinance and is known as
New Jersey Fiber Technologies, it servants, employees, agents, officers,
directors and contractors.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
The Township of Franklin, County of Somerset, State of New
Jersey, and its government, including the Township Council and its
administrative personnel.
The Township has reviewed all documentation
regarding NJFT's request for use of the municipality's public road
rights-of-way and feels that it is in the best interest of the residents
of Franklin Township to grant said request.
The Township Council of the Township of Franklin hereby consents to the nonexclusive use of its rights-of-way for a period of five years. The conditions for the parameters of said use are set forth in § A401-4 below. Said period shall begin on July 28, 1997 and shall expire five years from said date on July 27, 2002. This consent shall permit NJFT to place and maintain in, upon, along, across, above, over and under the public highways and streets in Franklin Township, poles, wires, cable, underground conduits, manholes and fiber optic cables and fixtures necessary for the maintenance and operation of the proposed use. The consent, however, is subject to the provisions of this ordinance. In the event that NJFT violates any provision of this ordinance, the Township will give notice of such violation and allow NJFT 30 days to cure the violation unless additional time is granted by the Township Council. In the event that NJFT does not cure the violation in the prescribed time, appropriate action will be taken on behalf of the Township which may include, but is not limited to, court intervention and the voidance of this ordinance and the termination of any and all relationships between the Township and NJFT.
The grant of the above public street rights-of-way
shall be for the purpose of providing telecommunications service.
The needs of the Township and the public to
minimize interruption in street and sidewalk traffic and public and
private business, to avoid congestion, environmental degradation,
undue cost, inconvenience, reduction in property values, private interests
and the like, frustration or burdening of Township planning for future
utility installations and operations, maintenance of current utilities
and general planning for development by the Township, shall be respected
by NJFT and NJFT will notify the Township of the location of any cable
or other fixtures permitted to be installed pursuant to this ordinance
prior to such installation.
The consent granted by this ordinance shall
apply to the entirety of Franklin Township. All questions of municipal
boundary location, rights and interest in property, federal, state,
county and/or other governmental or quasi-governmental rights, privileges
and/or interests in real estate shall be investigated and researched
at NJFT's own cost and expense; procedures necessary to gather relevant
information and to resolve every such question shall be pursued in
NJFT's own name and the Township shall never be under any obligation
to perform investigations or research, conduct or prosecute proceedings,
expend legal fees or pay the charge of engineers, surveyors, title
searchers or others or otherwise take any steps to define, delineate,
establish or clarify the boundaries or rights of the Township.
The foregoing consent is and at all times shall be subject to full and complete compliance with the Township Development Ordinance, Chapter 112 of the Code of the Township of Franklin, all other Township ordinances and regulations, and all rules, regulations and laws of the applicable jurisdictions as to all aspects of location, operation, and maintenance of the fiber optic cables and fixtures necessary thereto. Any fixture other than wires, cable, underground conduits, terminating equipment and electronics and fiber optic cables shall be subject to the Township's prior written approval before their installation.
No easement, title in fee, leasehold or other
interest in real estate, nor any other interest in property of the
Township, is hereby granted to NJFT.
[Amended 9-14-1999 by ord No. 3064]
A.
In consideration of the rights and privileges granted
to NJFT, NJFT agrees to pay the Township on an annual basis the following
fees: $200 per mile of NJFT fiber optic cable located in the public
road rights-of-way within the Township with a minimum annual fee of
$500.
B.
All payments due to the Township hereunder by NJFT
shall be made on or before October 1 of each year in which access
to the Township's public road rights-of-way is in effect. Any failure
to accurately make the payment called for on or before October 1 of
each year will result in the automatic revocation of the nonexclusive
franchise granted to such NJFT by the applicable authorizing action.
[1]
Editor’s Note: Former § A401-10 was repealed
9-14-1999 by Ord. No. 3064.
A.
Restoration. In the event NJFT shall from time to
time disturb any public or private pavement, street surfaces, curbs,
gutters, sidewalks, driveways, above or below ground utilities, lines,
fixtures, equipment or other facilities or trees, shrubs or other
landscaping or surfaces in the natural topography or any other matter
whatsoever, NJFT shall, at its sole expense, reasonably restore and
replace such places and things so disturbed to and in not less than
as good condition as existed prior to each disturbance. In doing so,
NJFT shall comply with all applicable ordinances, resolutions, laws,
rulings and regulations. All restorations shall be completed within
30 working days of the work requiring the same.
B.
Relocation. If at any time during the period of this
consent, the Township shall alter or change the grade of any public
street or highway, or alter or change the location of grade of any
public water or sewer facility or other utility facility, NJFT, upon
reasonable notice by the Township, shall at its own expense, remove,
relay and relocate its cables, equipment and other facilities.
C.
Temporary removal of cables. NJFT shall for the purpose
of and upon request of the Township, at NJFT's expense temporarily
raise, lower or remove its cables and associated facilities in order
to facilitate the moving of buildings, equipment, vehicles and machinery
and to accommodate other like circumstances. NJFT may suggest alternatives
to the temporary removal of cables where such temporary removal may
cause a disruption of services or otherwise interfere with the expectations
of its customers. However, the Township retains the right to make
the final decision regarding said cable removal.
NJFT shall respond, when requested to mark out
underground lines, within 48 hours of the request.
To secure the faithful performance by NJFT of
all of its obligations to the Township, NJFT shall deliver to the
Township and maintain in force throughout the duration of the use
of the Township's said rights-of-way a surety bond in the penal sum
of not less than $50,000, conditioned on the faithful performance
by NJFT of all of its undertakings pursuant to this ordinance. Said
bond must be acceptable in form and content to the Township Attorney.
The bonding company shall be authorized to do business in the State
of New Jersey.
A.
During the term of the use of the Township's said
rights-of-way, NJFT shall deliver to the Township and maintain in
force, at its sole expense, sufficient combined automobile and comprehensive
general liability insurance naming the Township as an additional insured
and insuring against loss by any such claim, suit, judgment, execution
or demand in the minimum amounts of:
(1)
For bodily injury or death to one person: $1,000,000.
(2)
For bodily injury or death from any one accident:
$1,000,000.
(3)
For property damage resulting from any one accident:
$1,000,000.
(4)
"Umbrella" excess liability coverage for both bodily
injury and property damage for each occurrence and in the aggregate:
$5,000,000.
B.
The insurance carrier must be acceptable to the Township
Attorney and shall be authorized to do business in the State of New
Jersey. NJFT shall assure that no such policy of insurance shall be
canceled without a minimum of 30 days' notice to the Township or greater
notice if required by regulations of the New Jersey Department of
Insurance.
A.
NJFT shall hold and save the Township harmless from
and indemnify and defend the Township against every claim, loss and
liability of every kind, arising in any and every way directly or
indirectly, immediately or consequently from:
(1)
The grant or use of this municipal consent;
(2)
The acquisition of, or negotiation for the acquisition
of, any interest in real estate, rights or privileges within or without
the Township;
(3)
The making, prosecuting or processing of any application
for any governmental approval, permits or license, including all appeals;
(4)
All proceedings of every kind by or against NJFT;
(5)
Any act or omission of NJFT or any of its officers,
directors, employees, agents, contractors, suppliers, materialmen
or affiliated companies;
(6)
The exercise or implementation, whether or not proper
or lawful, of any right of privilege expressed or implied hereunder,
by law or otherwise arising out of this municipal consent; or
(7)
NJFT's action, inaction, franchise, operation, maintenance,
construction or installation of the lines, cables and fixtures described
herein.
B.
"Loss" shall include all actual legal fees and court
costs.
A.
This Ordinance is for NJFT's nonexclusive use of the
Township's said rights-of-way for telecommunications services. When
and if NJFT increases its scope offering to any business or resident
in the State of New Jersey and said increase in scope passes through
the NJFT cable lines located within the Township, the within ordinance
shall be null and void. NJFT and the Township must then renegotiate
the terms, conditions and fees of the proposed increase in scope.
If agreement cannot be reached, this ordinance will be deemed terminated.
The Township is not obligated to accept any increase in scope proposed
by NJFT.
B.
Any proposed increase of scope of this ordinance must
be duly authorized and accepted by the Township after good faith negotiations
and acceptance of the proposed change by the Township with the proper
ordinance and/or agreement in place prior to NJFT's use of the Township's
said rights-of-way for the increase in scope.
Should any provision of this ordinance be determined
invalid by a court or administrative tribunal of competent jurisdiction,
such determination shall not affect the remaining provisions hereof.
The captions and titles assigned to the sections
of this ordinance are for convenience and reference only, and are
in no way to be construed as defining, limiting or modifying the scope
or intent of the various provisions of this ordinance.
A.
In the event applicable law shall, during the term
hereof, modify any provision of this ordinance, the ordinance shall
be automatically modified to incorporate the change.
B.
If at any time during the term hereof, NJFT is deemed
to be a public utility, as that term is defined in N.J.S.A. 48:2-13,
by the appropriate governmental authority, then NJFT shall no longer
be subject to this ordinance except to the extent that other public
utilities providing telecommunications service are subject to like
requirements.
This ordinance shall take effect immediately
upon final passage and publication according to law and upon receipt
by the Township of NJFT's written acceptance of the terms hereof.
If such acceptance is not received by the Township Clerk within 30
days of the final passage of the ordinance, the same will automatically
expire and be of no further effect.
