[Ord. No. 99-028, Preamble]
Metropolitan Fiber Systems of New Jersey, a wholly-owned subsidiary
of MCIWORLDCOM, ("MFS"), has requested permission to install telecommunications
cable in the public rights-of-way of the Township of Chatham, New
Jersey (the "Township") by attaching such cable to poles owned by
public-utilities located in the public rights-of-way of the Township
and by excavating in certain public rights-of-way of the Township.
The Township desires, pursuant to N.J.S.A. 54:30A-124, to grant
permission for such use of the public right-of-way upon an annual
payment of the estimated reasonable cost of actual services provided
by the Township and by posting of certain safeguards for the protection
of the general public.
[Ord. No. 99-028 § 1]
The Township has reviewed all documentation regarding MFS' request
for use of the municipality's public road rights-of-way and finds
that it is in the best interest of the residents of the Township to
grant the request.
[Ord. No. 99-028 § 2]
The Township hereby consents to the non-exclusive use of its rights-of-way by MFS for the installation and maintenance of telecommunications cable and its appurtenances. The conditions for the parameters of the use are set forth in subsection 24-1.4 below. This consent shall permit MFS to place and maintain in, upon, along, across, above, over and under certain public highways and streets in the Township, as described by Exhibit A,[1] attached, poles, wires, underground conduits, manholes,
cables and fixtures necessary for the maintenance and operation of
the proposed use. This consent is subject to all provisions of this
ordinance. In the event that MFS violates any provision of this ordinance,
the Township will give MFS notice of such violation. Such violation
must be cured within 30 days of the receipt by MFS of the Township's
notice of violation, or, if the violation cannot be cured within 30
days, MFS will begin such cure within 30 days and continuously prosecute
such cure until completed. Failure to cure the violation within the
prescribed time will result in appropriate action on behalf of the
Township, which may include, but is not limited to court intervention,
revocation of this ordinance and the termination of any and all relationships
between the Township and MFS.
[1]
Editor's Note: Exhibit A, referred to herein, is included as an attachment to this chapter.
[Ord. No. 99-028 § 3]
This grant of consent to non-exclusive use of the public street
rights-of-way is solely for the purpose of installing and maintaining
telecommunications facilities.
[Ord. No. 99-028 § 4]
The needs of the Township 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 Township planning for future utility installations
and operations, maintenance of current utilities and general planning
for development by the Township shall be respected by MFS and MFS
will notify the Township of the proposed location of its facilities
prior to installation.
[Ord. No. 99-028 § 5]
The consent granted by this ordinance shall apply to the portions
of the Township rights-of-way described in Exhibit A,[1] attached. 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 the cost and
expense of MFS. Procedures necessary to gather relevant information
and to resolve each such question shall be pursued in the name of
MFS, 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 searches
or others, or otherwise take any steps to define, delineate, establish
or clarify the boundaries or rights of the Township.
[1]
Editor's Note: Exhibit A, referred to herein, is included as an attachment to this chapter.
[Ord. No. 99-028 § 6]
The foregoing consent is and at all times shall be subject to
full and complete compliance with the Township Land Development Ordinance,
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 telecommunications facilities and
fixtures necessary thereto. Installation of any fixture other than
telecommunications facilities shall be subject to prior approval of
the Township.
[Ord. No. 99-028 § 7]
No easement, title in fee, leasehold, or other interest in real
estate, nor any other interest in public rights-of-way or real or
personal property of the Township or any private party is hereby granted.
[Ord. No. 99-028 § 8]
In consideration of the estimated reasonable cost of actual services provided by the Township, MFS agrees to pay the greater of $500 or $200 per mile, or portion thereof, of telecommunications facilities located in the public right-of-way. The term of this grant shall run from the date of acceptance of the ordinance by MFS. All payments due to the Township hereunder shall commence as of the date of acceptance of this ordinance by MFS, and thereafter shall become due on or before the anniversary date of the acceptance by MFS for each succeeding year as long as any facilities remain in the public rights-of-way of the Township. Any failure to make timely payment shall be a violation of the provisions of this ordinance and shall be subject to any and all legal remedies available to the Township, including but not limited to those of subsection 24-1.3, above.
[Ord. No. 99-028 § 9]
a.
Restoration. In the event MFS 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, MFS shall,
at no expense to the Township, 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, MFS shall comply
with all applicable ordinances, resolutions, laws, rulings, requirements
for securing street opening permits and regulations. 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
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, and such alteration shall require
the relocation of the telecommunications facilities of MFS in the
public rights-of-way in the Township, MFS shall upon reasonable notice
by the Township relocate its cables, equipment or other facilities,
at no expense to the Township.
c.
Temporary Removal of Cables. MFS shall, for the purpose of and upon
request of the Township, and at no expense to the Township, temporarily
raise, or lower its cables and associated facilities in order to facilitate
the moving of buildings, equipment, vehicles and machinery and to
accommodate other like circumstances, MFS 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. The Township retains the right to make the final
decision regarding the cable removal.
[Ord. No. 99-028 § 10]
MFS participates in the One-Call System as set out by New Jersey
statute, and shall respond, when requested under its procedures, to
mark out underground lines, within the time-frame set by the One-Call
System's regulations.
[Ord. No. 99-028 § 11]
To secure the faithful performance by MFS of all of its obligations
to the Township, MFS shall deliver to the Township and maintain in
force throughout the duration of the use of the public rights-of-way
within the Township, a surety bond in the penal sum of not less than
$50,000, conditioned on the faithful performance by MFS of all of
its undertakings pursuant to this ordinance. The 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.
[Ord. No. 99-028 § 12]
During the term of the use of the public rights-of-way within
the Township, MFS shall deliver to the Township and maintain in force,
at no expense to the Township, 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:
a.
$1,000,000 for bodily injury or death to one person;
b.
$1,000,000 for bodily injury or death from any one accident;
c.
$1,000,000 for property damage resulting from any accident; and
d.
$5,000,000 "umbrella" excess liability coverage for both bodily injury
and property damage for each occurrence and in the aggregate.
The insurance carrier must be acceptable to the Township Attorney
and shall be authorized to do business in the State of New Jersey.
MFS 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.
[Ord. No. 99-028 § 13]
MFS shall hold and save the Township harmless from and indemnify
and defend the Township against every claim, loss and liability of
kind, excepting the gross negligence or willful misconduct of the
Township, its agents or employees, arising in any and every way directly
or indirectly, immediately and consequently from:
a.
The grant of this municipal consent;
b.
Any act or omission of MFS or any of its officers, directors, employees,
agents, contractors, suppliers, materialmen or affiliated companies;
c.
The exercise or implementation, whether or not proper or lawful,
of any right or privilege expressed or implied hereunder, by law or
otherwise arising out of this municipal consent; and
d.
Action, inaction, franchise, operations, maintenance, construction,
installation or the like, by MFS.
"Loss" shall also include all actual legal fees and court costs.
[Ord. No. 99-028 § 14]
This ordinance is solely for the use by MFS of the public rights-of-way
in the Township for the installation and maintenance of telecommunications
facilities.
[Ord. No. 99-028 § 15]
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 Township.
[Ord. No. 99-028 § 16]
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.
[Ord. No. 99-028 § 17]
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.
[Ord. No. 99-028 § 18]
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.
[Ord. No. 99-028 § 19]
Prior to any installation within the Township, MFS shall provide
to the Township Clerk a certificate of authority from the Secretary
of State evidencing its authority to do business in New Jersey.
[Ord. No. 99-028 § 20]
This ordinance and the rights and consents it conveys may be
assigned only with the prior written consent of the Township. Transfer
of the ordinance, and the rights and consents it conveys, to a parent,
subsidiary, or affiliate corporation shall not be considered an assignment
for purposes of this provision and shall not require the consent of
the Township. MFS agrees to notify the Township of any such transfer.
[Ord. No. 99-028 § 21]
This ordinance shall take effect immediately upon final passage
and publication according to law and upon receipt by the Township
of written acceptance of the terms hereof, by MFS. If such acceptance
is not received by the Township Clerk within 30 days of the final
passage of this ordinance, the same will automatically expire and
be of no further effect.
[Ord. No. 99-041, Preamble]
Metricom, Inc. has requested permission to install wireless
on-line facilities in the public rights-of-way of the Township of
Chatham, New Jersey (the "Township") by attaching its Ricochet radio
transceivers to poles owned by public-utilities located in the public
rights-of-way of the Township to facilitate wireless internet and
on-line communications and services.
The Township desires, pursuant to N.J.S.A. 54:30A-124, to grant
permission for such use of the public right-of-way upon an annual
payment of the estimated reasonable cost of actual services provided
by the Township and by posting of certain safeguards for the protection
of the general public.
[Ord. No. 99-041 § 1]
The Township has reviewed all documentation regarding Metricom's
request for use of the municipality's public road rights-of-way and
finds that it is in the best interest of the residents of the Township
to grant the request.
[Ord. No. 99-041 § 2; Ord. No. 2000-028]
The Township hereby consents to the non-exclusive use of its rights-of-way by Metricom for the installation and maintenance of its Ricochet transceivers. The conditions for the parameters of the use are set forth in subsection 24-2.4 below. This consent shall permit Metricom to place and maintain such transceivers on public utility poles located upon and along certain public highways and streets in the Township, as described by Exhibit A,[1] attached. This consent is subject to all provisions of
this ordinance. In the event that Metricom violates any provision
of this ordinance, the Township will give Metricom notice of such
violation. Such violation must be cured within 30 days of the receipt
by Metricom of the Township's notice of violation, or, if the violation
cannot be cured within 30 days, Metricom will begin such cure within
30 days and continuously prosecute such cure until completed. Failure
to cure the violation within the prescribed time will result in appropriate
action on behalf of the Township, which may include, but is not limited
to court intervention, revocation of this ordinance and the termination
of any and all relationships between the Township and Metricom.
[1]
Editor's Note: Exhibit A, referred to herein, is included as an attachment to this chapter.
[Ord. No. 99-041 § 3]
This grant of consent to non-exclusive use of the public street
rights-of-way is solely for the purpose of installing and maintaining
radio transceivers to facilitate wireless internet and on-line communications
and services.
[Ord. No. 99-041 § 4]
The needs of the Township 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 Township planning for future utility installations
and operations, maintenance of current utilities and general planning
for development by the Township shall be respected by Metricom and
Metricom will notify the Township of the proposed location of its
facilities prior to installation.
[Ord. No. 99-041 § 5]
The consent granted by this ordinance shall apply to the portions
of the Township rights-of-way described in Exhibit A,[1] attached. 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 the cost and
expense of Metricom. Procedures necessary to gather relevant information
and to resolve each such question shall be pursued in the name of
Metricom, 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
searches or others, or otherwise take any steps to define, delineate,
establish or clarify the boundaries or rights of the Township.
[1]
Editor's Note: Exhibit A, referred to herein, is included as an attachment to this chapter.
[Ord. No. 99-041 § 6]
The foregoing consent is and at all times shall be subject to
full and complete compliance with the Township Land Development Ordinance,
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 wireless internet and on-line communication
and service facilities and fixtures necessary thereto. Installation
of any fixture other than such facilities shall be subject to prior
approval of the Township.
[Ord. No. 99-041 § 7]
No easement, title in fee, leasehold, or other interest in real
estate, nor any other interest in public rights-of-way or real or
personal property of the Township or any private party is hereby granted.
[Ord. No. 99-041 § 8]
a.
In consideration of the estimated reasonable cost of actual services provided by the Township, Metricom agrees to pay an amount equal to $60 for the use of each municipal facility upon which a transceiver is installed, provided that the payment shall be no less than the sum of $800 per year. The term of this grant shall run from the date of acceptance of the ordinance by Metricom. All payment due to the Township hereunder shall commence as of the date of acceptance of this ordinance by Metricom, and thereafter shall become due on or before the anniversary date of the acceptance by Metricom for each succeeding year as long as any facilities remain in the public rights-of-way of the Township. Any failure to make timely payment shall be a violation of the provisions of this ordinance and shall be subject to any and all legal remedies available to the Township, including but not limited to those of subsection 24-2.3.
b.
In consideration of the Township's grant, the Township shall have
the right throughout the term of this grant to the use of six Ricochet
(or other such named) basic service subscriptions at no cost or expense
to the Township.
[Ord. No. 99-041 § 9]
a.
Restoration. In the event Metricom 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, Metricom
shall, at no expense to the Township, 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, Metricom
shall comply with all applicable ordinances, resolutions, laws, rulings,
requirements for securing street opening permits and regulations.
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
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, and such alteration shall require
the relocation of the facilities of Metricom in the public rights-of-way
in the Township, Metricom shall upon reasonable notice by the Township
relocate its transceivers or other facilities, at no expense to the
Township.
c.
Temporary Removal of Cables. Metricom shall, for the purpose of and
upon request of the Township, and at no expense to the Township, temporarily
raise, or lower its cables and associated facilities in order to facilitate
the moving of buildings, equipment, vehicles and machinery and to
accommodate other like circumstances, Metricom 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. The Township retains the right to make the final
decision regarding the cable removal.
[Ord. No. 99-041 § 10]
To secure the faithful performance by Metricom of all of its
obligations to the Township, Metricom shall deliver to the Township
and maintain in force throughout the duration of the use of the public
rights-of-way within the Township, a surety bond in the penal sum
of not less than $7,500, conditioned on the faithful performance by
Metricom of all of its undertakings pursuant to this ordinance. The
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.
[Ord. No. 99-041 § 11]
During the term of the use of the public rights-of-way within
the Township, Metricom shall deliver to the Township and maintain
in force, at no expense to the Township, 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:
a.
$1,000,000 for bodily injury or death to one person;
b.
$1,000,000 for bodily injury or death from any one accident;
c.
$1,000,000 for property damage resulting from any one accident; and
d.
$5,000,000 "umbrella" excess liability coverage for both bodily injury
and property damage for each occurrence and in the aggregate.
The insurance carrier must be acceptable to the Township Attorney
and shall be authorized to do business in the State of New Jersey.
Metricom 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.
[Ord. No. 99-041 § 12]
Metricom shall hold and save the Township harmless from and
indemnify and defend the Township against every claim, loss and liability
of kind, excepting the gross negligence or willful misconduct of the
Township, its agents or employees, arising in any and every way directly
or indirectly, immediately and consequently from:
a.
The grant of this municipal consent;
b.
Any act or omission of Metricom or any of its officers, directors,
employees, agents, contractors, suppliers, materialmen or affiliated
companies;
c.
The exercise or implementation, whether or not proper or lawful,
of any right or privilege expressed or implied hereunder, by law or
otherwise arising out of this municipal consent; and
d.
Action, inaction, franchise, operations, maintenance, construction,
installation or the like, by Metricom.
"Loss" shall also include all actual legal fees and court costs.
[Ord. No. 99-041 § 13]
This ordinance is solely for the use by Metricom of the public
rights-of-way in the Township for the installation and maintenance
of telecommunications facilities.
[Ord. No. 99-041 § 14]
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.
[Ord. No. 99-041 § 15]
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.
[Ord. No. 99-041 § 16]
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.
[Ord. No. 99-041 § 17]
Prior to any installation within the Township, Metricom shall
provide to the Township Clerk a certificate of authority from the
Secretary of State evidencing its authority to do business in New
Jersey.
[Ord. No. 99-041 § 18]
This ordinance and the rights and consents it conveys may be
assigned only with the prior written consent of the Township. Transfer
of this ordinance, and the rights and consents it conveys, to a parent,
subsidiary, or affiliate corporation shall not be considered an assignment
for purposes of this provision and shall not require the consent of
the Township. Metricom agrees to notify the Township of any such transfer.
[Ord. No. 99-041 § 19]
This ordinance shall take effect immediately upon final passage
and publication according to law and upon receipt by the Township
of written acceptance of the terms hereof by Metricom. The parties
may execute a Right-of-Way Use Agreement which incorporates the terms
and conditions of this ordinance. The terms of this ordinance shall
be incorporated into the Right-of-Way Use Agreement. If such acceptance
is not received by the Township Clerk within 30 days of the final
passage of this ordinance, the same will automatically expire and
be of no further effect. In the event of a conflict between the terms
of this ordinance and the Right-of-Way Use Agreement, the terms of
this ordinance shall control.
