[Adopted 9-9-2008 by Ord. No. 3783]
For the purpose of this ordinance, the following
terms, phrases and words shall have the meaning given herein:
LEVEL 3 COMMUNICATIONS, LLC
The grantee of rights under this ordinance and is known as
"Level 3 Communications, LLC," its servants, employees, agents, officers,
directors and contractors.
SCOPE OFFERING
Any business or service offering that Level 3 Communications,
LLC currently or in the future may provide to any business or resident,
whether or not currently contemplated.
TELECOMMUNICATIONS SERVICE
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.
TOWNSHIP
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 Level 3 Communications, LLC'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.
[Amended 10-28-2014 by Ord. No. 4087-14]
The Township Council of the Township of Franklin
hereby consents to the nonexclusive use of its right-of-way for a
period of five years. The conditions for the parameters of said use
are set forth below. Said period shall begin on November 1, 2014,
and shall expire five years from said date on October 31, 2019. This
consent shall permit Level 3 Communications, LLC to place and maintain
in, upon, along, across, above, over the public highways and streets
in Franklin Township poles, wires, cable 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 Level 3 Communications, LLC violates any provision
of this ordinance, the Township will give notice of such violation
and allow Level 3 Communications, LLC 30 days to cure the violation
unless additional time is granted by the Township Council. In the
event that Level 3 Communications, LLC 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 Level 3 Communications,
LLC.
The grant of the above public street rights-of-way
shall be for the purpose of providing telecommunications services.
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 Level 3 Communications, LLC, and Level 3 Communications, LLC 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 Level 3 Communications, LLC's own cost and expense; procedures
necessary to gather relevant information and to resolve every such
question shall be pursued in Level 3 Communications' 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, terminating equipment and electronics and fiber optic cables shall be subject to the Township's prior written approval before its 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 Level 3 Communications, LLC.
In consideration of the rights and privileges
granted to Level 3 Communications, LLC, Level 3 Communications agrees
to pay the Township on an annual basis the following fees:
A. Two hundred dollars per mile of Level 3 Communications,
LLC 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 Level
3 Communications, LLC shall be made on or before November 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 November 1 of each said year will result in the automatic
revocation of the nonexclusive franchise granted to such Level 3 Communications,
LLC by the applicable authorizing action.
[Amended 10-28-2014 by Ord. No. 4087-14]
A. Restoration. In the event Level 3 Communications,
LLC shall, from time to time disturb any public or private pavement,
street surfaces, curbs, gutters, sidewalks, driveways, aboveground
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, Level 3 Communications, LLC 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, Level 3 Communications, LLC
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, Level 3
Communications, LLC, 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. Level 3 Communications,
LLC shall, for the purpose of and upon request of the Township, at
Level 3 Communications, LLC'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. Level 3 Communications, LLC
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.
Level 3 Communications, LLC shall respond when
requested to mark out underground lines within 48 hours of the request.
To secure the faithful performance by Level
3 Communications, LLC of all of its obligations to the Township, Level
3 Communications, LLC 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 Level 3 Communications, LLC 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, Level 3 Communications, LLC 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. Level 3 Communications, LLC 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. Level 3 Communications, LLC 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 or every kind by or against
Level 3 Communications, LLC;
(5)
Any act or omission of Level 3 Communications,
LLC 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)
Level 3 Communications, LLC's action, inaction,
franchise, operation, maintenance, construction or installation of
the lines, cables and fixtures described herein.
B. "Loss" shall include all legal fees and court costs.
A. This ordinance is for Level 3 Communications, LLC's
nonexclusive use of the Township's said rights-of-way for telecommunications
services. When and if Level 3 Communication, LLC increases its scope
offering to any business or resident in the State of New Jersey and
said increase in scope offering passes through the Level 3 Communications,
LLC cable lines located within the Township, the within ordinance
shall be null and void. Level 3 Communications, LLC 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 Level 3 Communications, LLC.
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 Level 3 Communications,
LLC'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, Level 3 Communications,
LLC 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 Level 3 Communications
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 Level 3 Communications, LLC'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.