[Adopted 5-12-2015 by Ord. No. 4106-15]
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
Promotion In Motion, Inc., it servants, employees, agents, officers,
directors and contractors.
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 Promotion
In Motion, Inc.'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 Council of the Township of Franklin hereby consents
to the nonexclusive use of its rights-of-way for a period of five
years. The conditions for the parameters of said use are set forth
in § 246-61 below.[1] Said period shall begin on June 1, 2015, and shall expire
five years from said date on May 31, 2020. This consent shall permit
Promotion In Motion, Inc. 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 Promotion In Motion, Inc. violates any provision of this ordinance,
the Township will give notice of such violation and allow Promotion
In Motion, Inc. 30 days to cure the violation unless additional time
is granted by the Township Council. In the event that Promotion In
Motion, Inc. 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 Promotion In Motion, Inc.
[1]
Editor's Note: So in original.
The grant of the above public street rights-of-way shall be
for the purpose of providing telecommunications service.
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 Promotion In
Motion, Inc., and Promotion In Motion, Inc. 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 route
set forth on the map entitled Schedule A and attached to this ordinance.[1] 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 Promotion In Motion,
Inc.'s own cost and expense; procedures necessary to gather relevant
information and to resolve every such question shall be pursued in
Promotion In Motion, Inc.'s 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.
[1]
Editor's Note: Said map is on file in the Township offices.
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 their 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 Promotion In Motion, Inc.
In consideration of the rights and privileges granted to Promotion
In Motion, Inc., Promotion In Motion, Inc. agrees to pay the Township
on an annual basis the following fees:
A.
Two hundred dollars per mile of Promotion In Motion, Inc. 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 Promotion In Motion,
Inc. shall be made on or before October 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 October
1 of each said year will result in the automatic revocation of the
nonexclusive franchise granted to such Promotion In Motion, Inc. by
the applicable authorizing action.
A.
Restoration. In the event Promotion In Motion, Inc. shall from time
to time disturb any public or private pavement, street surfaces, curbs,
gutters, sidewalks, driveways, above- or belowground utilities, lines,
fixtures, equipment or other facilities or trees, shrubs or other
landscaping or surfaces in the natural topography or any other matter
whatsoever, Promotion In Motion, Inc. 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, Promotion In Motion, Inc. 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, Promotion In Motion, Inc., 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. Promotion In Motion, Inc. shall for
the purpose of and upon request of the Township, at Promotion In Motion,
Inc.'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.
Promotion In Motion, Inc. 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.
Promotion In Motion, Inc. shall respond when requested to mark
out underground lines, within 48 hours of the request.
To secure the faithful performance by Promotion In Motion, Inc.
of all of its obligations to the Township, Promotion In Motion, Inc.
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 Promotion In Motion, Inc. 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,
Promotion In Motion, Inc. 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.
Promotion In Motion, Inc. 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.
Promotion In Motion, Inc. 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 of every kind by or against Promotion In Motion,
Inc.;
(5)
Any act or omission of Promotion In Motion, Inc. 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)
Promotion In Motion, Inc.'s action, inaction, franchise,
operation, maintenance, construction or installation of the lines,
cables and fixtures described herein.
B.
"Loss" shall include all actual legal fees and court costs.
A.
This ordinance is for Promotion In Motion, Inc.'s nonexclusive
use of the Township's said rights-of-way for telecommunications
services. When and if Promotion In Motion, Inc. increases its scope
offering to any business or resident in the State of New Jersey and
said increase in scope passes through the Promotion In Motion, Inc.
cable lines located within the Township, the within ordinance shall
be null and void. Promotion In Motion, Inc. 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 Promotion In Motion, Inc.
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 Promotion In Motion, Inc.'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, Promotion In Motion, Inc.
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 Promotion
In Motion, Inc. 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 Promotion In Motion, Inc.'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.
