Permission and authority are hereby granted to NetSpeed and its successors a non-exclusive municipal consent to use existing utility poles, 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 on those Somers Point public streets in the City of Somers Point for the construction, installation, operation, repair, maintenance and replacement of a fiber optic telecommunications system subject to the following conditions:
A.
NetSpeed 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.
NetSpeed and its successors shall:
(1)
Limit the right-of-way within which NetSpeed shall be permitted to install its fiber optic telecommunications equipment to utility poles situated within right-of-way under the jurisdiction or control of the City along the routes designated on Map 1 attached hereto and incorporated herein as Exhibit "A" (a copy of which is on file in the office of the City Clerk and available for public inspection during normal business hours);
(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 City of Somers Point or by the City of Somers Point Development Ordinances[1];
(3)
Provide the City of Somers Point Construction Official/Code Enforcement Officer and City of Somers Point City Engineer with the location of each pole upon which fiber optic facilities are proposed to be placed together with the pole identification number, the identity of the owner of the pole and Geographic Information System (GIS) map;
(4)
Not install on any utility pole any device other than a fiber optic attachment which is of the size and type described in Exhibits "B-1," "B-2," and "B-3" (copies of which are on file in the office of the City Clerk and are available for public inspection during normal business hours);
(5)
At all times comply with the terms and conditions of that certain rights-of-way use agreement between the City of Somers Point and NetSpeed, as same may be supplemented and amended.
C.
NetSpeed shall not install any replacement poles, which will be done only by the utility company owning the 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 NetSpeed to attach to any pole, structure, or other facility owned by or under the control of the City of Somers Point 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, NetSpeed 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 NetSpeed shall not overburden any existing easement.
F.
Nothing contained herein shall preempt or in any way preclude or constitute a waiver of the City's exercise of its planning or zoning powers under the New Jersey Municipal Land Use Law[2] or other applicable law relative to the placement, regulation, zoning, or suitability of such structures within the City.
[2]
Editor’s Note: See N.J.S.A. 40:55D-1 et seq.
G.
This grant of municipal consent is limited exclusively to NetSpeed/GONETSPEED for its own fiber optic equipment to provide services to customers using the NetSpeed network.
H.
NetSpeed shall not install any of its telecommunications system equipment on any pole within any municipal right-of-way other than described in § A271-1B(4) of this chapter without the express consent of the governing body of the City through enactment of a supplemental ordinance granting such use.
I.
This municipal consent is hereby given upon the further condition and provision that NetSpeed and its successors shall, to the fullest extent permitted by law, defend, pay on behalf of, indemnify, and hold harmless the City of Somers Point, its elected and appointed officials, its contractors, agents, employees and volunteers, the Atlantic County Joint Insurance Fund, and others working on behalf of the City of Somers Point 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 City of Somers Point, its elected and appointed officials, its agents, employees, volunteers, the Atlantic County Joint Insurance Fund, or others working on behalf of the City of Somers Point 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 City of Somers Point.
(1)
NetSpeed 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 City of Somers Point, 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 chapter on all general liability policies; and NetSpeed shall provide the City of Somers Point City 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, waiver of subrogation, and primary not secondary coverage endorsements to such policies.
(2)
In the event NetSpeed shall utilize third-party contractors and/or subcontractors to perform any of the work contemplated by this agreement, NetSpeed shall require such contractors/subcontractors to procure and provide the same policies of insurance with the same terms and conditions set forth in the prior subsection.
(3)
Insurance maintained by any contractor/subcontractor shall not relieve NetSpeed of its obligation to defend, indemnify and hold harmless the City as set forth above.
J.
NetSpeed 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.
NetSpeed and its successors shall file with the Clerk of the City of Somers Point true and complete copies of all agreements between NetSpeed and the owner(s) of the poles to which NetSpeed 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 15 years unless the underlying connection agreements between NetSpeed and VERIZON, and ACE, or any other utility pole attachment agreement which NetSpeed/GONETSPEED shall have entered shall be earlier terminated, and is further subject to continuation of a municipal consent by the City of Somers Point granted to those parties whose utility poles to which NetSpeed is attaching its fiber optic facilities 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 City Clerk are authorized to execute and deliver such documents as necessary to effectuate this grant of municipal consent.
N.
Upon final passage the City Clerk shall send certified copies of this chapter to NetSpeed, GONETSPEED, and to the Atlantic County Clerk.