[Adopted 5-8-2007 by Ord. No. 3697]
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
4Connections, LLC, its 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 4Connections, LLC'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. Said period shall begin
on June 1, 2007, and shall expire five years from said date on May
31, 2012. This consent shall permit 4Connections, LLC to place and
maintain in, upon, along, across, above, over the public highways
and streets in Franklin Township, poles, wires, cable, and fiberoptic
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 4Connections, LLC violates any
provision of this ordinance, the Township will give notice of such
violation and allow 4Connections, LLC 30 days to cure the violation
unless additional time is granted by the Township Council. In the
event that 4Connections, LLC 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 4Connections, LLC.
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 4Connections, LLC, and 4Connections, LLC 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 4Connections, LLC's
own cost and expense; procedures necessary to gather relevant information
and to resolve every such question shall be pursued in 4Connections,
LLC'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's 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 fiberoptic cables and fixtures necessary thereto. Any fixture other than wires, cable, terminating equipment and electronics and fiberoptic 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 4Connections, LLC.
In consideration of the rights and privileges
granted to 4Connections, LLC, 4Connections, LLC agrees to pay the
Township on an annual basis the following fees:
A.
Two hundred dollars per mile of 4Connections, LLC
fiberoptic 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 4Connections,
LLC 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 4Connections, LLC by the applicable authorizing
action.
A.
Restoration. In the event 4Connections, LLC shall
from time to time disturb any public or private pavement, street surfaces,
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, 4Connections, LLC 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, 4Connections, LLC 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 or grade of any
public water or sewer facility or other utility facility, 4Connections,
LLC, 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. 4Connections, LLC shall
for the purpose of and upon request of the Township, at 4Connections,
LLC'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.
4Connections, LLC 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.
4Connections, LLC shall respond when requested
to mark out underground lines, within 48 hours of the request.
To secure the faithful performance by 4Connections,
LLC of all of its obligations to the Township, 4Connections, LLC 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 4Connections, LLC 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, 4Connections, LLC 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. 4Connections, LLC 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.
4Connections, LLC 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 4Connections,
LLC;
(5)
Any act or omission of 4Connections, LLC 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)
4Connections, LLC'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 4Connections, LLC's nonexclusive
use of the Township's said rights-of-way for telecommunications services.
When and if 4Connections, LLC increases its scope offering to any
business or resident in the State of New Jersey and said increase
in scope passes through the 4Connections, LLC cable lines located
within the Township, the within ordinance shall be null and void.
4Connections, LLC 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 4Connections,
LLC.
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 4Connections, LLC'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, 4Connections,
LLC 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 4Connections,
LLC 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 4Connections, LLC'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.
