[HISTORY: Adopted by the Mayor and Council of the Borough of River Edge 3-17-2003 by Ord. No. 1418. Amendments noted where applicable.]
The Borough has reviewed all documentation regarding TCG's request for use of the municipality's public road right-of-way and feels that it is in the best interest of the residents of the Borough of River Edge to grant said request.
The Borough Council of the Borough of River Edge hereby consents to the nonexclusive use of its right-of-way by TCG for the erection and maintenance of fiber optic telecommunications cable. The conditions for the parameters of said use are set forth in § A474-3 below. This consent shall permit TCG to place and maintain in, upon, along, across, above, over and under the public highways and streets in the Borough of River Edge 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 TCG violates any provision of this ordinance, the Borough will give it notice of such violation and allow TCG 30 days to cure the violation, unless additional time is granted by the Borough Council. In the event TCG 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 TCG.
The grant of the consent to nonexclusive use of the public street right-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 TCG, and TCG 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 of River Edge. All questions of municipal boundary location, rights and interests 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 TCG's own cost and expense; procedures necessary to gather relevant information and to resolve every such question shall be pursued in TCG's own name, and the Borough 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 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, Land Subdivision Ordinance, all other lawful Borough ordinances and regulations, and all lawful 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's prior approval before its installation.
No easement, title fee, leasehold, or other interest in real estate nor any other interest property of the Borough is hereby granted.
In consideration of the rights and privileges granted to TCG, TCG agrees to pay the Borough on an annual basis an annual license fee of $100 per mile, or portion thereof, of TCG fiber optic cable located in the public road right-of-way within the Borough with a minimum annual fee of $500. All payments due to the Borough hereunder shall be made prior to the first installation of cable and thereafter on or before February 1 of each succeeding year as long as any cable remains in the Borough right-of-way. Any failure to accurately make the payment called for on or before March 1 of the said year will result in the automatic revocation of the nonexclusive right granted hereby, unless cured in accordance with § A474-2 hereof.
Restoration. In the event TCG 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, TCG 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, TCG shall comply with all applicable ordinances, resolutions, laws, rulings and regulations for securing street-opening permits. 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.
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, TCG, upon reasonable notice by the Borough, shall at is own expense remove, relay, and relocate its cables, equipment or other facilities.
Temporary removal of cables. TCG shall, for the purpose of and upon request of the Borough, at TCG'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. TCG 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.
Abandonment of cables. In the event that cables are installed by TCG or its successor and the same are abandoned, TCG or its successor shall remove said abandoned cables and restore the property and facilities of the Borough. “Abandoned Cables,” as used herein, shall be deemed cables that are not in active service for a period of 30 days.
TCG shall respond, when requested, to mark out underground lines within 48 hours of the request.
During the term of the use of the Borough's said right-of-way, TCG 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 River Edge as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand, in the minimum amounts of:
For bodily injury or death to one person: $1,000,000.
For bodily injury or death from any one accident: $1,000,000.
For property damage resulting from any one accident: $1,000,000.
“Umbrella” excess liability coverage for both bodily injury and property damage for each occurrence and in the aggregate: $5,000,000.
The insurance carrier must be acceptable to the risk manager and shall be authorized to do business in the State of New Jersey. TCG shall assure that no such policy of insurance shall be canceled without a minimum of 30 days' notice to the Borough, or greater notice if required by regulations of the New Jersey Department of Insurance.
TCG shall indemnify, defend and hold the Borough, its agents and employees harmless from all demands, claims, liabilities, suits, losses, injuries, damages, judgments, payments, expenses and costs of every kind, nature and description, expressly including counsel fees, cost of suit, cost of discovery, experts and witnesses and amount paid in settlement (collectively, 11 claims) arising out of or in connection with the use by TCG, its agents, employees, guests, licensees or invitees of the Borough's right-of-way, except for such claims attributable to the gross negligence or willful misconduct of Borough agents or employees.
This ordinance is solely for TCG's use of the Borough's said right-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 applicable law shall, during the term hereof, modify any provision of this ordinance, the ordinance shall be automatically modified to incorporate the change.
This ordinance shall take effect immediately upon final passage and publication according to law and upon receipt by the Borough of TCG'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.