[HISTORY: Adopted by the Mayor and Council of the Borough of New
Providence 5-11-1998 by Ord. No. 98-5.
Amendments noted where applicable.]
The borough has reviewed all documentation regarding Teleport Communications
New York's (TCNY'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 the borough to grant said request.
The Borough Council of the Borough of New Providence hereby consents
to the nonexclusive use of its rights-of-way by TCNY for the erection and
maintenance of fiber optic telecommunications cable. The conditions for the
parameters of said use are set forth in § A344-3 below. This consent
shall permit TCNY to place and maintain in, upon, along, across, above, over
and under the public highways and streets in the borough 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 TCNY violates
any provision of this ordinance, the borough will give it notice of such violation
and allow TCNY 30 days to cure the violation unless additional time is granted
by the Borough Council. In the event TCNY does not cure the violation in the
prescribed time, appropriate action will be taken on behalf of the borough
which may include, but is not limited to, court intervention and the voiding
of this ordinance and the termination of any and all relationships between
the borough and TCNY.
The grant of the consent to nonexclusive use of the public street rights-of-way
is solely for the purpose of erecting and maintaining fiber optic telecommunications
cable.
The needs of the borough and the public to minimize interruptions 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 borough
planning for future utility installations and operations, maintenance of current
utilities and general planning for development by the borough shall be respected
by TCNY, and TCNY will notify the borough of the proposed location of its
cable prior to installation.
The consent granted by this ordinance shall apply to the entirety of
the borough. All questions of municipal boundary location, rights and interests
in property, federal, state, county and/or other governmental or quasigovernmental
rights, privileges and/or interests in real estate shall be investigated and
researched at TCNY's own cost and expense; procedures necessary to gather
relevant information and to resolve every such question shall be pursued in
TCNY's own name, and the borough shall never be under any obligation
to perform investigations or research, conduct or prosecute proceedings, expand
legal fees or pay the charge of engineers, surveyors, title searches or others,
or otherwise take any steps to define, delineate, establish or clarify the
boundaries or rights of the borough.
The foregoing consent is and at all times shall be subject to full and
complete compliance with the Borough Zoning Ordinance,[1] Land Subdivision Ordinance,[2] all other borough 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 and fiber optic
cables shall be subject to the borough prior approval before their installation.
No easement, title in fee, leasehold or other interest in real estate,
nor any other interest in property of the borough, is hereby granted.
In consideration of the rights and privileges granted to TCNY, TCNY
agrees to pay the borough an annual license fee in the amount of $100 per
mile, or portion thereof, of TCNY fiber optic cable located in the public
right-of-way within the borough, with a minimum annual fee of $500. The term
of this grant shall run from January 1, 1996. All payments due to the borough
hereunder shall commence as of January 1, 1996, and thereafter on or before
February first of each succeeding year as long as any cable remains in the
borough rights-of-way. Any failure to accurately make the payment called for
on or before March first of said year will result in the automatic revocation
of the nonexclusive right granted hereby, unless cured in accordance with
§ A344-2 hereof.
A.
Restoration. In the event TCNY shall from time to time
disturb any public or private pavement, street surface, 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, TCNY 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, TCNY shall comply with all applicable ordinances, resolutions,
laws, rulings, requirements for securing street opening permits[1] and regulations. All restoration is to be completed in accordance
with the relevant ordinances, resolutions, laws, rulings or regulations and
shall be completed within 30 working days of the work unless a longer period
is specifically permitted by the applicable ordinance, resolution, law, ruling
or regulation.
B.
Relocation. If, at any time during the period of this
consent, the borough 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, TCNY, upon reasonable
notice by the borough, shall, at its own expense, remove, relay, and relocate
its cables, equipment or other facilities.
C.
Temporary removal of cables. TCNY shall, for the purpose
of and upon request of the borough at TCNY's sole 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. TCNY may suggest alternatives to the temporary removal
of cable where such temporary removal may cause a disruption of services or
otherwise interfere with the expectations of its customers. However, the borough
retains the right to make the final decision regarding said cable removal.
TCNY shall respond, when requested, to mark out underground lines within
48 hours of the request.
To secure the faithful performance by TCNY of all of its obligations
to the borough, TCNY shall deliver to the borough and maintain in force throughout
the duration of the use of the borough's said rights-of-way a surety
bond in the penal sum of not less than $50,000, conditioned on the faithful
performance by TCNY of all of its undertakings pursuant to this ordinance.
Said bond must be acceptable in form and content to the borough 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 borough's said
rights-of-way, TCNY shall deliver to the borough and maintain in force, at
its sole expense, sufficient combined automobile and comprehensive general
liability insurance naming the borough of New Providence as an additional
insured and insuring against loss by any such claim, suit, judgment, execution
or demand in the minimum amounts of:
(1)
One million dollars for bodily injury or death to one
person;
(2)
One million dollars for bodily injury or death from any
one accident;
(3)
One million dollars for property damage resulting from
any one accident; and
(4)
Five million dollars umbrella excess liability coverage
for both bodily injury and property damage for each occurrence and in the
aggregate.
B.
The insurance carrier must be acceptable to the borough
Attorney and shall be authorized to do business in the State of New Jersey.
TCNY shall assure that no such policy of insurance shall be canceled without
a minimum of 30 days' notice in the borough, or greater notice if required
by regulations of the New Jersey Department of Insurance.
A.
TCNY shall hold and save the borough harmless from and
indemnify and defend the borough against every claim, loss and liability of
every kind arising in any and every way directly or indirectly, immediately
and consequently from:
(1)
The grant 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
borough;
(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 TCNY;
(5)
Any act or omission of TCNY or any of its officers, directors,
employees, agents, contractors, suppliers, material, men or affiliated companies;
(6)
The exercise or implementation, whether or not proper
or lawful, of any right or privilege expressed or implied hereunder by law
or otherwise arising out of this municipal consent; and
(7)
TCNY's action, inaction, franchise, operations,
maintenance, construction, installation or the like.
B.
"Loss" shall include all actual legal fees and court
costs.
This ordinance is solely for TCNY's use of the borough's said
rights-of-way for the erection and maintenance of fiber optic telecommunications
cable.
The grant of rights under this ordinance shall be for a period of 10
years but may be extended or renewed for additional periods by ordinance adopted
by the borough.
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.
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.
In the event that applicable law shall, during the term hereof, modify
any provision of this ordinance, the ordinance shall be automatically modified
to incorporate the change.
Prior to any installation within the borough, TCNY shall provide to
the Borough Clerk a certificate of authority from the Secretary of State evidencing
its authority to do business in New Jersey.
This ordinance shall take effect immediately upon final passage and
publication according to law and upon receipt by the borough of TCNY's
written acceptance of the terms hereof. If such acceptance is not received
by the Borough Clerk within 30 days of the final passage of this ordinance,
the same will automatically expire and be of no further effect.
