[Adopted 4-10-2018 by Ord. No. 4225-18[1]]
[1]
Editor’s Note: This ordinance also superseded former
Art. IX, United Telephone Company, adopted 5-12-2009 by Ord. No. 3827.
The Township hereby grants to CenturyLink the right, privilege,
and authority to construct, maintain, operate, upgrade, and relocate
its cables and related appurtenances ("facilities") in, under, along,
over, and across the present and future streets, alleys, and public
ways in the Township ("public ways," or in the singular, "public way"),
including for the purpose of providing telecommunication services
to the Township's inhabitants.
Within 60 days after the passage of this ordinance by the Township,
CenturyLink shall file an unqualified written acceptance thereof with
the Township Recorder; otherwise the Ordinance and the rights granted
herein shall be null and void.
The initial term of this franchise is 20 years, commencing on the date of acceptance by CenturyLink as set forth above in § A401-161 and shall automatically renew from year to year unless either party gives advance written notice to the other party at least 120 days prior to expiration of the initial term or subsequent annual term requesting the parties enter into good-faith discussions to reach terms of a new agreement.
CenturyLink shall make available to the Township, upon reasonable
advance written notice of no fewer than 60 days, such information
pertinent only to enforcing the terms of this ordinance in such form
and at such times as CenturyLink can reasonably make available. Subject
to applicable laws, any information that is provided to the Township,
except as otherwise provided herein, and/or that the Township reviews
in camera is confidential and proprietary and shall not be disclosed
or used for any purpose other than verifying compliance with the terms
of this ordinance. Except as otherwise provided herein, any such information
provided to the Township shall be returned to CenturyLink following
review, without duplication, unless CenturyLink grants the Township
permission to duplicate the information.
The right to use and occupy the public ways shall be nonexclusive,
and the Township reserves the right to use the public ways for itself
or any other entity. The Township's use, however, shall not unreasonably
interfere with CenturyLink's facilities or the rights granted
CenturyLink herein.
The Township reserves the right to adopt such additional ordinances
and regulations as may be deemed necessary in the exercise of its
police power for the protection of the health, safety and welfare
of its citizens and their properties consistent with applicable federal
and state law. The Township agrees to promptly notify CenturyLink
of any such changes potentially applicable to this franchise.
The Township shall not be liable for any property damage or
loss or injury to or death of any person that occurs in the construction,
operation or maintenance by CenturyLink of its facilities. CenturyLink
shall indemnify, defend and hold the Township harmless from and against
claims, demands, liens and all liability or damage of whatsoever kind
on account of CenturyLink's use of the public ways. The Township
shall: a) give prompt written notice to CenturyLink of any claim,
demand or lien with respect to which the Township seeks indemnification
hereunder; and b) permit CenturyLink to assume the defense of such
claim, demand, or lien. CenturyLink shall not be subject to liability
for any settlement made without its consent. Notwithstanding the other
provisions contained herein, CenturyLink shall in no event be required
to indemnify the Township for any claims, demands, or liens arising
from the negligence or wrongful actions or inactions of the Township,
its officials, boards, commissions, agents, contractors, and/or employees.
CenturyLink will maintain in full force and effect for the term
of the franchise, at CenturyLink's expense, a comprehensive liability
insurance policy written by a company authorized to do business in
the State of New Jersey, or will provide self-insurance reasonably
satisfactory to the Township, protecting it against liability for
loss, personal injury and property damage occasioned by the operation
of the system, including the facilities, by CenturyLink. Such insurance
will be in an amount not less than $1,000,000. CenturyLink will also
maintain Workers' Compensation coverage throughout the term of
this franchise as required by law. Evidence of such insurance will
be provided to the Township upon request.
When any territory is approved for annexation to the Township,
the Township shall within 10 business days provide by certified mail
to CenturyLink: a) each site address to be annexed as recorded on
Township assessment and tax rolls; b) a legal description of the proposed
boundary change; and c) a copy of the Township's ordinance approving
the proposed annexation.
A.
All facilities under authority of this ordinance shall be used, constructed
and maintained in accordance with applicable law.
B.
CenturyLink shall, prior to commencing new construction or major
reconstruction work in public ways or other public places, apply for
a permit from the Township, which permit shall not be unreasonably
withheld, conditioned, or delayed. CenturyLink will provide as-built
route maps of new facilities placed in the public ways pursuant to
a permit issued by the Township. CenturyLink will abide by all applicable
ordinances and reasonable rules, regulations and requirements of the
Township consistent with applicable law, and the Township may inspect
the manner of such work and require remedies as may be reasonably
necessary to assure compliance. Notwithstanding the foregoing, CenturyLink
shall not be obligated to obtain a permit to perform emergency repairs.
C.
To the extent practical and consistent with any permit issued by
the Township, all facilities shall be located so as to cause minimum
interference with the public ways and shall be constructed, installed,
maintained, cleared of vegetation, renovated, or replaced in accordance
with applicable rules, ordinances and regulations of the Township.
D.
If, during the course of work on its facilities, CenturyLink causes
damage to or alters the public way or other public property, CenturyLink
shall replace and restore such public way or public property at CenturyLink's
expense to a condition reasonably comparable to the condition that
existed immediately prior to such damage or alteration.
E.
CenturyLink shall have the right to excavate the public ways subject
to reasonable conditions and requirements of the Township. Before
installing new underground facilities or replacing existing underground
facilities, CenturyLink shall first notify the Township of such work.
The Township may then notify its other franchisees, who may, each
at its own expense, share the trench for laying its own facilities
therein, provided that such shared use will not unreasonably interfere
with others' use of the trench or unreasonably delay completion
of CenturyLink's installation or replacement project.
F.
Nothing in this ordinance shall be construed to prevent the Township
from constructing, maintaining, repairing, or relocating its sewers,
streets, water mains, sidewalks, or other public property. However,
before commencing any work within a public way that may affect CenturyLink's
facilities, the Township shall give written notice to CenturyLink,
and all such work shall be done, insofar as practicable, in such a
manner as not to obstruct, injure, or prevent the free use and operation
of CenturyLink's poles, wires, conduits, conductors, pipes, and
appurtenances.
G.
CenturyLink shall not attach to, or otherwise use or commit to use,
any pole owned by Township until a separate pole attachment agreement
has been executed by the parties.
A.
Relocation for the Township. CenturyLink shall, upon receipt of advance
written notice of not fewer than 120 days, protect, support, temporarily
disconnect, relocate, or remove any CenturyLink property located in
a public way when required by the Township consistent with its police
powers. CenturyLink shall be responsible for any costs associated
with these obligations to the same extent as other users of the respective
public way.
B.
Relocation for a third party. CenturyLink shall, at the request of
any person holding a lawful permit issued by the Township, protect,
support, raise, lower, temporarily disconnect, relocate in, or remove
from public ways, as applicable, any CenturyLink property, provided
that the cost of such action is borne by the person requesting it
and CenturyLink is given reasonable advance written notice. In such
situation, CenturyLink may also require advance payment. For purposes
of this subsection, "reasonable advance written notice" shall mean
no fewer than 14 days for a temporary relocation, and no fewer than
120 days for a permanent relocation.
C.
Alternatives to relocation.
(1)
CenturyLink may, after receipt of written notice requesting
a relocation of facilities, submit to the Township written alternatives
to such relocation. Such alternatives shall include the use and operation
of temporary transmitting facilities in adjacent public ways. The
Township shall promptly evaluate such alternatives and advise CenturyLink
in writing if one or more of the alternatives are suitable. If requested
by the Township, CenturyLink shall promptly submit additional information
to assist the Township in making such evaluation.
(2)
The Township shall give each alternative proposed by CenturyLink
full and fair consideration. In the event the Township ultimately
determines that there is no other reasonable alternative, CenturyLink
shall relocate the facilities as otherwise provided herein. Notwithstanding
the foregoing, CenturyLink shall in all cases have the right to abandon
the facilities.
CenturyLink shall have the authority to trim trees and other
natural growth in the public ways in order to access and maintain
the facilities in compliance with applicable law and industry standards.
CenturyLink will pay administrative costs actually incurred
by the Township due to CenturyLink's occupation of the public
rights-of-way as conforms to the requirements in N.J.S.A. 54:30A-124.
A.
In the event that the Township believes that CenturyLink has not
complied with the terms of the franchise, the Township shall informally
discuss the matter with CenturyLink. If these discussions do not lead
to resolution of the problem, the Township shall notify CenturyLink
in writing of the exact nature of the alleged noncompliance.
B.
CenturyLink shall have 30 days from receipt of the written notice described in Subsection A to either respond to the Township, contesting the assertion of noncompliance, or otherwise initiate reasonable steps to remedy the asserted noncompliance issue, notifying the Township of the steps being taken and the projected date that they will be completed.
C.
In the event that CenturyLink does not comply with Subsection B, above, the Township shall schedule a public hearing to address the asserted noncompliance issue. The Township shall provide CenturyLink at least 10 days prior written notice of and the opportunity to be heard at the hearing.
D.
Subject to applicable federal and state law, in the event the Township, after the hearing set forth in Subsection C, determines that CenturyLink is noncompliant with this ordinance, the Township may:
E.
Should the Township seek to revoke the franchise after following
the procedures set forth above, the Township shall give written notice
to CenturyLink. CenturyLink shall have 90 days from receipt of such
notice to object in writing and state its reason(s) for such objection.
Thereafter, the Township may seek revocation of the franchise at a
public hearing. The Township shall cause to be served upon CenturyLink,
at least 30 days prior to such public hearing, a written notice specifying
the time and place of such hearing and stating its intent to revoke
the franchise. At the designated hearing, the Township shall give
CenturyLink an opportunity to state its position on the matter, after
which the Township shall determine whether or not the franchise shall
be revoked. CenturyLink may appeal the Township's determination
to an appropriate court, which shall have the power to review the
decision of the Township de novo. Such appeal must be taken within
60 days of the issuance of the Township's determination. The
Township may, at its sole discretion, take any lawful action which
it deems appropriate to enforce its rights under this ordinance in
lieu of revocation.
Neither the Township nor CenturyLink shall be excused from complying
with any of the terms and conditions contained herein by any failure
of the other, or any of its officers, employees, or agents, upon any
one or more occasions, to insist upon or to seek compliance with any
such terms and conditions. Each party expressly reserves any and all
rights, remedies, and arguments it may have at law or equity, without
limitation, and to argue, assert, and/or take any position as to the
legality or appropriateness of any provision in this ordinance that
is inconsistent with state or federal law, as may be amended.
CenturyLink's right, title, or interest in the franchise
shall not be sold, transferred, assigned, or otherwise encumbered
without prior notice to and prior approval by the Township, such approval
not to be unreasonably withheld, except when said sale, transfer,
assignment, or encumbrance is to an entity controlling, controlled
by, or under common control with CenturyLink, or for any rights, title,
or interest of CenturyLink in the franchise or facilities in order
to secure indebtedness.
Amendments to the terms and conditions contained herein shall
be mutually agreed upon in writing by the Township and CenturyLink.
Any notice required or permitted to be given hereunder shall
be deemed sufficient if given by a communication in writing and shall
be deemed to have been received a) upon personal delivery or actual
receipt thereof or b) within two days after such notice is deposited
in the United States Mail, postage prepaid, certified, and addressed
to the parties as set forth below:
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The Township of Franklin:
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Ann Marie McCarthy, Township Clerk
Municipal Building
475 DeMott Lane
Somerset, NJ 06873-6704
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CenturyLink:
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Thomas A. Bailey
Director, Local Government Affairs
CenturyLink
240 N. 3rd Street, Suite 300
Harrisburg, PA 17101
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and
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Mr. Kiran Seshagiri
Senior Director Tax
CenturyLink
100 CenturyLink Drive, 3TX120
Monroe, LA 71203
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If any section, sentence, paragraph, term, or provision hereof
is for any reason determined to be illegal, invalid, or superseded
by other lawful authority, including any state or federal regulatory
authority having jurisdiction thereof, or unconstitutional, illegal,
or invalid by any court of common jurisdiction, such portion shall
be deemed a separate, distinct, and independent provision, and such
determination shall have no effect on the validity of any other section,
sentence, paragraph, term, or provision hereof, all of which will
remain in full force and effect for the term of the franchise or any
renewal or renewals thereof.
