[Adopted 11-20-2007 by Ord. No. 3725]
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
AT&T, its 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 AT&T'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 § A401-81 below. Said period shall begin on December 15, 2007, and shall expire five years from said date on December 14, 2012. This consent shall permit AT&T to place and maintain in, upon, along, across, above, and over the public highways and streets in Franklin Township poles, wires, cable, and fiberoptic 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 AT&T violates any provision of this ordinance, the Township will give notice of such violation and allow AT&T 30 days to cure the violation unless additional time is granted by the Township Council. In the event that AT&T 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 AT&T.
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 AT&T, and AT&T 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 route set forth on the map entitled "Schedule A," and
attached to this ordinance.[1] 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 AT&T's own cost
and expense; procedures necessary to gather relevant information and
to resolve every such question shall be pursued in AT&T '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.
[1]
Editor's Note: Said map is on file in the
Township offices.
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 fiberoptic cables and fixtures necessary thereto. Any fixture other than wires, cable, terminating equipment and electronics and fiberoptic 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 AT&T.
In consideration of the rights and privileges
granted to AT&T, AT&T agrees to pay the Township on an annual
basis the following fees:
A.
Two hundred dollars per mile of AT&T fiberoptic
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 AT&T
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 AT&T by the applicable authorizing action.
A.
Restoration. In the event AT&T 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, AT&T 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, AT&T 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, AT&T,
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. AT&T shall for the
purpose of and upon request of the Township, at AT&T '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. AT&T
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.
AT&T shall respond when requested to mark
out underground lines within 48 hours of the request.
To secure the faithful performance by AT&T
of all of its obligations to the Township, AT&T 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 AT&T 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, AT&T 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. AT&T 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.
AT&T 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 AT&T;
(5)
Any act or omission of AT&T 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)
AT&T'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 AT&T's nonexclusive use
of the Township's said rights-of-way for telecommunications services.
When and if AT&T increases its scope offering to any business
or resident in the State of New Jersey and said increase in scope
passes through the AT&T cable lines located within the Township,
the within Ordinance shall be null and void. AT&T 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 AT&T.
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 AT&T'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, AT&T 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 AT&T
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 AT&T'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.