Permission and authority are hereby granted to Everstream and
its successors a non-exclusive municipal consent to use existing utility
poles and in utility conduits, and on replacement poles which are
of a size and type equal to the poles being replaced and erected by
parties that have the lawful right through municipal consent and the
approval of the New Jersey Board of Public Utilities to maintain poles
and conduits within the public right-of-way in the Township of Mullica
for the construction, installation, operation, repair, maintenance
and replacement of a fiber optic telecommunications system subject
to the following conditions:
A. Everstream and its successors shall adhere to all applicable Federal,
State, and Local laws regarding safety requirements related to the
use of the public right-of-way.
B. Everstream and its successors shall:
(1) Limit the right-of-way within which Everstream shall be permitted
to install its fiber optic install telecommunications equipment to
the routes designated on Map 1 and Map 2 attached hereto and incorporated
herein as Exhibits A and B [copies of which are on file in the office
of the Township Clerk], and more specifically described as being limited
exclusively to those utility poles along the route from 3320 S. White
Horse Pike to Elwood Road, North on Elwood Road to Moss Mill Road,
west on Moss Mill Road to 4326 Moss Mill Road (Map 1) and Along the
west side of Hamburg Avenue south of Moss Mill Road, south to S. White
Horse Pike (Map 2).
(2) Comply with all applicable Federal, State, and Local laws requiring
permits prior to beginning construction, and shall obtain any applicable
permits that may be required by the Township of Mullica, by the Township
of Mullica Development Ordinances, or by the New Jersey Pinelands
Commission;
(3) Provide the Township of Mullica Construction Official/Code Enforcement
Officer and Township of Mullica Township Engineer with the location
of each pole and/or conduit upon or in which fiber optic facilities
are proposed to be placed together with the pole identification number,
the identity of the owner of pole and Geographic Information System
(GIS) map;
(4) Not install on any pole or in any conduit any device other than a
fiber optic attachment which is of the size and type described in
Exhibit C a [copy of which is on file in the office of the Township
Clerk];
(5) At all times comply with the terms and conditions of that certain
Rights-of-Way Use Agreement between the Township of Mullica and Everstream
Solutions LLC, as same may be supplemented and amended.
C. Everstream shall not install any new poles or replace any wood poles
that are taller than the existing utility pole being replaced, nor
install replacement utility poles made of steel or other non-wood
material to replace an existing pole.
D. This grant of municipal consent is not to be construed as authorizing
the erection of any new pole within the right of way nor is it to
be construed as authorizing Everstream to attach to any pole, structure,
or other facility owned by or under the control of the Township of
Mullica or any third party other than a New Jersey public utility
from which consent to attach to such pole has been granted in writing.
E. Notwithstanding anything to the contrary contained herein, Everstream
shall adhere to the terms and conditions of the underlying easement
granted to the owner of the pole by the owner of the underlying soil,
and Everstream shall not overburden any existing easement.
F. Nothing contained herein shall pre-empt or in any way preclude or
constitute a waiver of the Township's exercise of its planning
or zoning powers under the New Jersey Municipal Land Use Law or other
applicable law relative to the placement, regulation, zoning, or suitability
of such structures within the Township.
G. This grant of municipal consent is limited exclusively to Everstream
for its own equipment to provide services to customers using the Everstream
network.
H. Everstream shall not install any of its telecommunication system equipment on any pole within any municipal right-of-way other than described in §
A264-1B(1) of this ordinance without the express consent of the governing body of the Township through enactment of a supplemental ordinance granting such use.
I. This municipal consent is hereby given upon the further condition
and provision that Everstream, and its successors, shall to the fullest
extent permitted by law, defend, pay on behalf of, indemnify, and
hold harmless the Township of Mullica, its elected and appointed officials,
its contractors, agents, employees and volunteers, the Atlantic County
Joint Insurance Fund, and others working on behalf of the Township
of Mullica from and against any and all claims, demands, suits, or
loss, including all legal and professional fees, costs and any other
expenses connected therewith, and for any damages which may be asserted
claimed or recovered against or from the Township of Mullica, its
elected and appointed officials, its agents, employees, volunteers,
the Atlantic County Joint Insurance Fund, or others working on behalf
of the Township of Mullica by reason of personal injury, including
bodily injury or death and/or property damage, including loss of use
thereof, which arise out of this consent, except to the extent resulting
solely from the acts or omissions of the Township of Mullica.
(1) Everstream shall at all times maintain a comprehensive liability
insurance policy with a single amount of at least $1,000,000 covering
liability for any death, personal injury, property damage or other
liability arising out of the construction and operation contemplated
herein, an automobile insurance policy with combined single limits
of $2,000,000 for bodily injury (including death) and property damage
each occurrence, an excess liability policy (or "umbrella") policy
amount in the amount of $5,000,000, and Workers Compensation insurance
in compliance with the statutory requirements of the State of New
Jersey. The Township of Mullica, its elected and appointed officials,
its agents, employees, contractors, volunteers, and the Atlantic County
Joint Insurance Fund, shall be included as an "Additional Insured"
as their interests may appear under this municipal consent ordinance
on all general liability policies; and Everstream shall provide the
Township of Mullica Township Clerk with certificates of insurance
(which shall be maintained and kept current at all times during the
period of this municipal consent) and which shall provide for not
less than 30 days' notice in the event of cancellation or termination;
and shall also provide a copy of the Additional Insured Endorsement
to such policies.
J. Everstream shall be responsible for the repair of any damage to paving,
existing utility lines, or any surface or subsurface installations,
arising from its construction, installation, or maintenance of its
facilities.
K. Everstream and its successors shall file with the Clerk of the Township
of Township of Mullica true and complete copies of all agreements
between Everstream and the owner(s) of the poles to which Everstream
proposes to attach.
L. As authorized by N.J.S.A. 48:3-15, the permission and authority hereby
granted shall continue for a term of 25 years and subject to continuation
of a municipal consent by the Township of Mullica granted to those
parties whose poles Everstream is using and, to the extent required,
approval of such municipal consent by the New Jersey Board of Public
Utilities (or its successor agency).
M. The Mayor and the Township Clerk are authorized to execute and deliver
such documents as necessary to effectuate this grant of municipal
consent.
N. Upon final passage the Township Clerk shall send certified copies
of this Ordinance to Everstream, and the New Jersey Pinelands Commission.