[Adopted 9-14-1999 by ord No. 3065]
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
MCI Worldcom, 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 MCI Worldcom'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 § A401-24 below. Said period shall begin on September 1, 1999 and shall expire five years from said date on August 31, 2004. This consent shall permit MCI Worldcom 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 MCI Worldcom violates any provision of this ordinance, the Township will give notice of such violation and allow MCI Worldcom 30 days to cure the violation unless additional time is granted by the Township Council. In the event that MCI Worldcom 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 MCI Worldcom.
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 MCI Worldcom and MCI Worldcom 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 MCI Worldcom's own cost and expense; procedures necessary to gather
relevant information and to resolve every such question shall be pursued
in MCI Worldcom'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 MCI Worldcom.
A.
In consideration of the rights and privileges granted
to MCI Worldcom, MCI Worldcom agrees to pay the Township on an annual
basis the following fees: $200 per mile of MCI Worldcom 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 MCI
Worldcom 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 said year will result in the automatic revocation of the
nonexclusive franchise granted to such MCI Worldcom by the applicable
authorizing action.
A.
Restoration. In the event MCI Worldcom 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, MCI Worldcom 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, MCI Worldcom 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, MCI Worldcom,
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. MCI Worldcom shall for
the purpose of and upon request of the Township, at MCI Worldcom'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.
MCI Worldcom 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.
MCI Worldcom shall respond when requested to
mark out underground lines, within 48 hours of the request.
To secure the faithful performance by MCI Worldcom
of all of its obligations to the Township, MCI Worldcom 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 MCI Worldcom 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, MCI Worldcom 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. MCI Worldcom 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.
MCI Worldcom 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 MCI Worldcom;
(5)
Any act or omission of MCI Worldcom 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)
MCI Worldcom'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 MCI Worldcom's nonexclusive
use of the Township's said rights-of-way for telecommunications services.
When and if MCI Worldcom increases its scope offering to any business
or resident in the State of New Jersey and said increase in scope
passes through the MCI Worldcom cable lines located within the Township,
the within ordinance shall be null and void. MCI Worldcom 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 MCI Worldcom.
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 MCI Worldcom'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, MCI Worldcom
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 MCI Worldcom
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 MCI Worldcom'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.