Ordinance No. 13-14

Introduced: June 24, 2013
Public Hearing: July 8, 2013
Status: Failed

An ordinance granting non-exclusive permission to co-locate telecommunications equipment and facilities within the public rights-of-way in Vernon Township

WHEREAS, facilities and equipment are co-located at various locations within the public Rights-of-Way in Vernon Township to facilitate the efficient and reliable distribution and provision of utility services; and

WHEREAS, Cross River Fiber, Inc. (“Cross River Fiber”) was approved by the New Jersey Board of Public Utilities to provide local exchange and interexchange telecommunications services throughout the State of New Jersey by Order of Approval in Docket No. TE11050320 on July 14, 2011 and Docket No. TE12040297 on June 18, 2012 and intends to provide telecommunication services in accordance with that Order and the rules and regulations of the Federal Communications Commission and the New Jersey Board of Public Utilities; and

WHEREAS, Cross River Fiber proposes to co-locate its telecommunication facilities aerially on existing utility poles or in underground conduit within the Public Rights-of-Way of Vernon Township for the purpose of owning, constructing, installing, operating, repairing and maintaining a telecommunications system; and

WHEREAS, the best interests of the Township and its citizenry are served by granting consent for co-location of equipment and facilities within the public tights-of-way for provision of telecommunication and other utility service; and

WHEREAS, the consent granted herein is for the non-exclusive use of the Public Rights-of-Way within the Township for the purpose of owning, constructing, installing, operating, and maintaining a telecommunications system.

NOW, THEREFORE, BE IT ORDAINED by the Township Council for the Township of Vernon, County of Sussex, State of New Jersey, as follows:

Section 1. Grant of Consent.
The Township hereby grants Cross River Fiber its municipal consent for the non-exclusive use of the Public Rights-of-Way within the municipality for the purpose of owning, constructing, installing, operating, and maintaining a telecommunications system.

Section 2. Duration of Consent.
The non-exclusive municipal consent granted herein shall expire fifty (50) years from the Effective Date of this Ordinance.

Section 3. Public Purpose.
It is deemed to be in the best interests of the Township and its citizenry, particularly including commercial and industrial citizens, to grant non-exclusive municipal consent to Cross River Fiber to co-locate within said Public Rights-of-Way of the Township for this purpose.

Section 4. Scope of Use.
Any and all rights expressly granted hereby shall be exercised at Cross River Fiber’s sole cost and expense, and shall be subject to the prior and continuing right of the Township under applicable laws to use any and all parts of the Public Rights-of-Way exclusively or concurrently with any other person or persons, and shall by further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect such Public Rights-of-Way. Nothing in this Ordinance shall be deemed to grant, convey, create or vest in Cross River Fiber a real property interest in land, including any fee, leasehold interest, easement, or any other form of interest or ownership.

Section 5. Location and Relocation of Facilities and Equipment.
Cross River Fiber’s facilities and equipment shall be located and relocated in accordance with applicable standards, including, but not limited to, Township ordinances, as may be mutually agreed upon with the Township. Underground facilities shall be placed at least eighteen (l8) inches below the surface of the public streets. Manholes shall be located at such points along the line of underground conduits as may be necessary or convenient for placing, maintaining, and operating the facilities and shall be constructed to conform to the cross-sectional and longitudinal grade of the surface so as not to interfere with the safety or convenience of persons or vehicles. Cross River Fiber shall reimburse the Township for costs or fees incurred for engineering, legal or other review of its plans.

Section 6. Construction Requirements.
Cross River Fiber shall comply with the street opening or excavation permit requirements of the Township. Any area affected by the construction shall be restored to as good condition as it was before commencement of the work. No public streets or ways shall be encumbered for a period longer than reasonably needed to execute the work.

Section 7. No Obligation to Accept or Open Street.
Nothing contained herein shall be construed as an acceptance by the Township of any unaccepted street nor impose an obligation on the part of the Township to open any street not dedicated or opened to the public use.

Section 8. Maintenance of Facilities and Equipment.
Cross River Fiber shall maintain its facilities and equipment within the Township.

Section 9. Copies of Maps and Plans.
Cross River Fiber agrees to provide to the Township, free of charge, copies of such maps and/or plans of its facilities and equipment as may be necessary or helpful to the Township in connection with any of its construction projects. This Section does not impose any obligation to create maps and plans specifically for the Township’s use. Any maps or plans provided pursuant to this section shall be for general information purposes only and are not to be relied upon as an indication of the exact location of the facilities and equipment.

Section 10. Liability Insurance.
Cross River Fiber shall at all times maintain a comprehensive liability insurance policy with a single amount of at least One Million Dollars ($1,000,000.00) covering liability for any death, personal injury, property damage or other liability arising out of the construction and operation contemplated herein, and an excess liability policy (or “umbrella”) policy amount in the amount of Five Million Dollars ($5,000,000.00).

Cross River Fiber shall file with the Township Certificates of Insurance with endorsements evidencing the coverage provided by said liability and excess liability policies prior to the commencement of any work in the Public Rights-of-Way.

The Township shall notify Cross River Fiber within thirty (30) days after the presentation of any claim or demand to it, either by suit or otherwise, made against the Municipality on account of any of Cross River Fiber or its sub-contractors, agents, employees, officers, servants, designees, guests and invitees, activities pursuant to the rights granted in this municipal consent.

Section 11. Indemnification.
Cross River Fiber, its successors, assigns, sub-contractors, agents, servants, officers, employees, designees, guests and invitees, hereby indemnify, defend and hold harmless the Municipality, its successors and assigns, elected officials, officers, employees, servants, contractors, designees and invitees from and against any and all personal injury and property damage claims, demands, suits, actions at law or equity or otherwise, judgments, arbitration determinations, damages, liabilities, decrees of any person(s) or entities claiming to be or being harmed as a result of Cross River Fiber actions under this Use Agreement and costs in connection therewith. This indemnification shall specifically include, but not be limited to, any and all costs, reasonable attorneys fees, court costs and any other expenses that may be incurred by the Municipality in connection with any and all claims, demands, suits, actions at law or equity or otherwise and/or arbitration proceedings which may arise in connection with Cross River Fiber activities pursuant to the rights hereby granted.

Section 12. Taxes, Fees and Charges.
Cross River Fiber shall pay reasonable fees imposed by the Township for actual services made and provided in connection with this municipal consent and its non-exclusive use of the Public Rights-of-Way. This municipal consent does not affect the ability of the Township to impose real property taxes on the telecommunications facilities and equipment under current law. Further, in the future should applicable law change so as to enable the Township to impose a franchise fee or other fee, tax, charge, or other monetary obligation on Cross River Fiber’s operations or facilities, it agrees that the provisions of this municipal consent shall not preclude the Township from imposing or collecting such fee, tax, charge or other monetary obligation as may be permitted by law.

Section 13. Successors and Assigns.
The terms and conditions herein contained shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.

Section 14. Severability.
If any article, section, subsection, sentence, clause or phrase of this Ordinance is for any reason declared to be unconstitutional or invalid by any court of competent jurisdiction, such declaration shall not affect the remaining portions of this Ordinance.

Section 15. Effective Date.
This Ordinance shall take effect upon notice, publication and adoption as required by law.