[Adopted 12-9-2008 by Ord. No. 3800]
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
Fiber Technologies Networks, LLC, its servants, employees, agents,
officers, directors and contractors.
Any business or service offering that Fiber Technologies
Networks, LLC, currently or in the future, may provide to any business
or resident, whether or not currently contemplated.
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 Fiber Technologies Networks, 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.
The Township hereby grants to the provider the
right, privilege and authority to enter upon the Township's right-of-way
to attach, install, operate, maintain, remove, reattach, reinstall,
relocate, maintain and replace its telecommunications system in or
on utility poles or other structures located within the Township's
right-of-way. Nothing in this agreement shall be deemed to grant,
convey or vest a real property interest in land, including any fee,
leasehold interest, easement, or any other form of interest or ownership,
to the provider.
This agreement shall not in any manner prevent
the Township from entering into other similar agreements or granting
other or further franchises or uses in, under, on, across, over, through,
along or below any of the Township's rights-of-way, streets, avenues
or all other public lands or properties of every type and description.
This agreement shall in no way prevent or prohibit the Township from
using any of its roads, streets or other public properties or affect
its jurisdiction over them or any part of them, and the Township shall
retain power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement, and/or dedication of same
as the Township may deem fit, including the dedication, establishment,
maintenance, and improvement of all new rights-of-way, thoroughfares
and other public properties of every type and description.
The facilities to be attached and/or installed
on existing utility poles and/or in underground conduit in the public
right-of-way shall be installed at the sole cost and expense of the
provider.
A.Â
Prior to the commencement of any work in the public
right-of-way, for the purpose of installation, construction, repair,
maintenance or relocation of its facilities or equipment, the provider
shall obtain all applicable permits and approvals as may be required
by the Township and shall pay all duly established permit and inspection
fees associated with the processing of permits and approvals. During
any work performed or conducted by or on behalf of the provider within
the public right-of-way and other public properties, such work shall
be conducted so as to minimally interfere with the free passage of
traffic and the free use of adjoining property. Further, the provider
shall at all times during such period of work, post and maintain proper
barricades and comply with all applicable safety regulations as required
by the ordinances of the Township and the laws of the State of New
Jersey.
B.Â
The provider shall be responsible for the repair of
any and all damage to paving, existing utility lines, or any surface
or subsurface installations, caused by or from the construction, installation
or maintenance of said facilities. Such repair shall return the paving
or surface to the condition it was in immediately prior to any work
conducted by or on behalf of the provider. The provider shall promptly
complete all repair work at its sole cost and expense.
The provider shall adhere to all applicable
federal, state, county and Township laws, ordinances, rules and regulations
for use and safety of the public right-of-way, and shall comply with
all federal, state, county and Township laws, ordinances, rules and
regulations requiring permits, inspections, and certificates prior
to, during, and at the completion of construction.
A.Â
The provider hereby releases and agrees to indemnify,
defend and hold harmless the Township, its officers, employees, agents
and representatives from any and all claims, costs, judgments, awards
or liability to any person or entity, including claims by the provider's
own employees, whether from injury, sickness or death of any person
or damage to property, arising from the negligent acts or omissions
of the provider, its agents, servants, officers or employees. The
provider further releases, and agrees to indemnify, defend and hold
harmless the Township, its officers and employees from any and all
claims, costs, judgments, awards or liability to any person or entity,
including claims by the provider's own employees, arising against
the Township solely by virtue of the Township's ownership or control
of the right-of-way or other public properties, by virtue of the provider's
exercise of the rights granted herein, or by virtue of the Township's
permitting the provider's use of the Borough's right-of-way or other
public property, or based upon the Township's inspection or lack of
inspection of work performed by the provider, its agents and servants,
officers or employees in connection with work authorized on the Township's
property or property over which the Township has control, pursuant
to this agreement or pursuant to any other permit or approval issued
in connection with this agreement excluding in all instances, claims
arising out of gross negligence or willful misconduct on the part
of the Township, its officers, agents, employees and contractors.
This covenant of indemnification shall include, but not be limited
by this reference to, claims against the Township arising as a result
of negligent acts or omissions of the provider, its agents, servants,
officers and employees in barricading, instituting trench safety systems
or providing other adequate warnings of any excavation, construction,
or work in any public right-of-way or other public place in performance
of work or services permitted under this agreement. In the event that
the provider's transmission technology or facilities emit electromagnetic
impulses (EMF), the provider expressly agrees that this indemnity
provision extends to any and all claims for injury, sickness or death
of any person or entity, including employees of the provider, arising
out of or caused by said emissions.
B.Â
Inspection or acceptance by the Township of any work
performed by the provider at the time of completion of construction
shall not be grounds for avoidance of any of these covenants of indemnification.
The indemnification obligations shall extend to claims which are not
reduced to a suit and any claims which may be compromised prior to
the culmination of any litigation or the institution of any litigation,
provided that the provider has been given prompt written notice by
the Township of any such claim, has the right to defend or participate
in the defense of such claim, and has the right to approve any settlement
or other compromise of any such claim.
C.Â
In the event that the provider refuses the tender
of defense in any suit or any claim, said tender having been made
pursuant to the indemnification clauses contained herein, and said
refusal is subsequently determined by a court having jurisdiction
(or such other tribunal that the parties shall agree to decide the
matter) to have been a wrongful refusal on the part of the provider,
then the provider shall pay all of the Township's costs for defense
of the action, including all reasonable expert witness fees and reasonable
attorneys' fees and the reasonable costs of the Township, including
reasonable attorneys' fees of recovering under this indemnification
clause.
D.Â
The provisions of this section shall survive the expiration,
revocation or termination of this agreement.
In addition to the foregoing indemnity provisions, the provider shall, at its own cost and expense, procure and maintain at all times during the term of this agreement, in full force and effect, paid policies for comprehensive commercial general liability insurance in favor of the Township, in the amount of at least $5,000,000, covering bodily injury and property damage arising out of any one accident. The provider shall also maintain automobile liability insurance with limits of no less than $1,000,000 combined single limit per accident for bodily injury and property damage and workers compensation insurance in an amount as required by law. Proof of said coverage, naming the Township, its officers, elected officials, agents, employees, engineers and consultants as additional named insureds, and including the indemnification provisions in § A401-142, shall be filed with the Township Clerk prior to commencement of any work pursuant to this agreement. The Township shall have the right to require reasonable increases in the amount of comprehensive general liability insurance and to alter the terms of insurance called for under this section. The insurance shall not be subject to cancellation or change until 30 days after the Township Clerk has received written notice thereof as evidenced by return receipt of certified or registered letter.
Notwithstanding any provision contained herein,
neither the Township nor the provider shall be liable to the other
for consequential, incidental, exemplary or punitive damages on account
of any activity pursuant to this agreement.
No telecommunication facility laid in the right-of-way
by the provider may be abandoned by the provider without the express
written consent of the Township. Any plan for abandonment or removal
of the provider's facilities must be first approved by the Township,
and all necessary permits must be obtained prior to such work. The
provisions of this section shall survive the expiration, revocation
or termination of this agreement. In the event that the Township allows
the provider to abandon any portion of its facilities, the Township
shall be responsible for such facilities and the provider shall have
no further obligation to maintain, relocate or remove such facilities.
The permission and authority hereby granted
to the provider shall be for a period of 50 years from the effective
date of this agreement, so long as the provider remains in compliance
with the terms and conditions set forth herein, and such grant of
permission and authority is in accordance with law.
The parties hereby reserve the right to alter,
amend or modify the terms and conditions of this agreement upon written
agreement of both parties to such alteration, amendment or modification,
which agreement shall not be unreasonably withheld by either party.
In consideration of the rights herein conveyed
to the provider, the provider shall compensate the Township for its
reasonable costs incurred for its professional legal and engineering
work and review, and other reasonable costs and services rendered
by the Township in connection with the provider's request pursuant
to N.J.S.A. 54:30A-124.
The provider shall provide the Township with
a performance surety bond in the amount of $25,000 to ensure the faithful
performance of its undertakings, at its sole cost and expense. The
bond shall be submitted to the Township at the time of application
for a building permit, before commencement of any construction under
this agreement, or within 30 days of the date of this agreement, whichever
occurs first. The performance bond shall remain in effect during the
entire course of the work to be performed under this agreement and
for a period of one year after completion of all such work.
If the provider willfully violates or fails
to comply with any of the material provisions of this agreement, or
through willful misconduct or gross negligence fails to comply with
any notice given by the Township under the provisions of this agreement,
then the provider shall, at the election of the Township, forfeit
all rights conferred hereunder and this agreement may be revoked,
terminated or annulled by the Township after a hearing held upon reasonable
notice to the provider. The Township may decide, after consideration
of the reasons for the provider's failure to comply with the agreement,
to allow the provider additional time to cure before such termination
or revocation. The Township may elect, in lieu of the above and without
any prejudice to any of its other legal rights and remedies, to obtain
an order from the Superior Court having jurisdiction, compelling the
provider to comply with the provisions of this agreement and to recover
damages and costs incurred by the Borough by reason of the provider's
failure to comply.
In addition to any other remedy provided herein,
the Township reserves the right to pursue any remedy to compel or
force the provider to comply with the terms hereof, and the pursuit
of any right or remedy by the Township shall not prevent the Township
from thereafter declaring a forfeiture or revocation for breach of
conditions herein.
The provider shall be subject to any ordinance
or resolution now or hereafter adopted by the Township, and shall
be subject to any state or federal statute applicable to this agreement
or the rights conveyed herein .
This agreement may not be assigned or transferred
without written approval of the Township, which approval shall not
be unreasonably withheld or delayed, except the provider may freely
assign this agreement in whole or in part to a parent, subsidiary,
or affiliated corporation or as part of any corporate financing, reorganization
or refinancing. In the case of transfer or assignment as security
by mortgage or other security instrument in whole or in part to secure
indebtedness, such consent shall not be required unless and until
the secured party elects to realize upon the collateral. The provider
shall provide prompt, written notice to the Borough of any such assignment.
This agreement shall be governed by and interpreted
in accordance with the laws of the State of New Jersey.
All notices or other correspondence in connection
with this agreement should be mailed to:
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For the Township:
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Kenneth Daly, Township Manager
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Township of Franklin
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475 DeMott Lane
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Somerset, New Jersey 08873
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with a copy to:
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Leslie G. London, Esq.
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Township Attorney
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McManimon & Scotland, LLC
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One Riverfront Plaza, 4th Floor
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Newark, New Jersey 07102
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For the provider:
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Fiber Technologies Networks, LLC
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300 Meridian Centre
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Rochester, New York 14618
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Attn: General Counsel
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With a copy to:
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Richard P. DeAngelis, Jr., Esq.
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Stryker, Tams & Dill, LLP
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Two Penn Plaza East
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Newark, New Jersey 07105
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This agreement constitutes the entire understanding
and agreement between the parties as to the subject matter herein
and no other agreements or understandings, written or otherwise, shall
be binding upon the parties upon execution of this agreement.
If any one or more of the provision or provisions
of this agreement is determined by a court of competent jurisdiction
in a final judicial action to be void, voidable, or unenforceable,
such provision(s) shall be deemed severable from the remaining provisions
of this agreement and shall not affect the validity of the remaining
portions of this agreement.
This agreement shall be binding upon the parties
and their successors and assigns.
This ordinance shall take effect immediately
upon final passage and publication according to law and upon receipt
by the Township of Fiber Technologies Networks, 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.
