[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.
A.
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.
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, TCG, upon reasonable notice by the
Borough, shall at is own expense remove, relay, and relocate its cables, equipment
or other facilities.
C.
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.
D.
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.
A.
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:
(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 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.
