[Adopted 3-11-2008 by Ord. No. 3746; amended
in its entirety 3-24-2015 by Ord.
No. 4099-15]
For the purpose of this ordinance, the following
terms, phrases and words shall have the meaning given herein:
4CONNECTIONS, LLC
The grantee of rights under this ordinance and is known as
4Connections, LLC, its servants, employees, agents, officers, directors
and contractors.
TELECOMMUNICATIONS SERVICE
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.
TOWNSHIP
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 April 1, 2015,
and shall expire five years from said date on February 28, 2035. 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 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 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. 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.
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 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 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 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 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,
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 of 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)
All proceedings of every kind by or against 4Connections, LLC;
(3)
Any act or omission of 4Connections, LLC, or any of its officers,
directors, employees, agents, contractors, suppliers, materialmen
or affiliated companies;
(4)
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
(5)
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.