Borough of Chatham, NJ Agreement With Fiber Technologies Networks, LLC

The Borough of Chatham hereby approves and shall enter into a rights-of-way user agreement with Fiber Technologies Networks, LLC (hereinafter "Fibertech") for the purpose of owning, constructing, installing, operating, repairing, and maintaining a telecommunications system. The Borough of Chatham hereby grants consent to Fibertech to occupy said public rights-of-way within the Borough of Chatham for this purpose. The consent granted by the Borough of Chatham is for the nonexclusive use by Fibertech of the public rights-of-way within the Borough of Chatham for the purpose stated in this section. The Mayor and Clerk of the Borough of Chatham are hereby authorized and directed to execute a contract in substantially the following form jointly with the proper representatives of Fibertech and to deliver the same for and on behalf of the Borough of Chatham.




RIGHTS-OF-WAY USE AGREEMENT
THIS RIGHTS-OF-WAY USE AGREEMENT ("Use Agreement") is dated ___________, 2010 (the "Effective Date"), and entered into by and between the Borough of Chatham ("Municipality"), a New Jersey municipal corporation, having its address at 54 Fairmount Avenue, Chatham, New Jersey 07928-2393, and Fiber Technologies Networks, LLC ("Fibertech"), a New York limited liability company, with offices located at 300 Meridian Centre, Rochester, New York.
RECITALS
WHEREAS, Fibertech has been approved by the New Jersey Board of Public Utilities ("Board" or "BPU") to provide local exchange and interexchange telecommunications services throughout the State of New Jersey by Order of Approval in Docket No. TE05080683 dated September 14, 2005. Pursuant to such authority granted by the Board, Fibertech may locate, place, attach, install, operate and maintain facilities within municipal rights-of-way for purposes of providing telecommunications services; and
WHEREAS, Fibertech proposes to place its telecommunications facilities aerially on existing utility poles or in underground conduit in the public rights-of-way within the Municipality for the purpose of owning, constructing, installing, operating, repairing and maintaining a telecommunications system; and
WHEREAS, it is in the best interests of the Municipality and its citizenry for the Municipality to grant consent to Fibertech to occupy said public rights-of-way within the Municipality for this purpose; and
WHEREAS, the consent granted herein is for the nonexclusive use of the public rights-of-way within the Municipality for the purpose of owning, constructing, installing, operating, and maintaining a telecommunications system.
NOW THEREFORE, in consideration of the mutual covenants and obligations hereinafter set forth, the Municipality and Fibertech hereby agree to and with each other as follows:
Section 1: Definitions.
(a)	"BPU" is the New Jersey Board of Public Utilities.
(b)	"Fibertech" is the grantee of rights under this Rights-of-Use Agreement and is known as Fiber Technologies Networks, LLC, its successors and assigns.
(c)	"Municipality" is the grantor of rights under this Rights-of-Use Agreement and is known as the Borough of Chatham, County of Morris, State of New Jersey.
(d)	"Public Utility" means any public utility defined in N.J.S.A. 48:2-13.
(e)	"Rights-of-Way" means the areas devoted to passing under, over, on or through lands with public utility facilities.
(f)	"Utility Pole" means, in addition to its commonly accepted meaning, any wires or cable connected thereto and any replacement thereof which is similar in construction and use.
Section 2: Grant of Consent.
The Municipality hereby grants Fibertech its municipal consent for the nonexclusive use of the public rights-of-way within the Municipality for the purpose of owning, constructing, installing, operating, and maintaining a telecommunications system.
Section 3: Public Purpose.
It is deemed to be in the best interests of the Municipality and its citizenry, particularly including commercial and industrial citizens, for the Municipality to grant consent to Fibertech to occupy said public rights-of-way within the Municipality for this purpose.
Section 4: Project Description.
Any construction to be undertaken for the purposes described herein shall require prior notice by Fibertech to the Municipality. Fibertech shall fully describe the construction to be undertaken and shall coordinate and work with the appropriate Municipal department(s) before scheduling and commencing any construction.
Section 5: Scope of Use Agreement.
Any and all rights expressly granted to Fibertech under this Use Agreement, which shall be exercised at Fibertech's sole cost and expense, shall be subject to the prior and continuing right of the Municipality under applicable laws to use any and all parts of the municipal rights-of-way exclusively or concurrently with any other person or persons, and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect such municipal rights-of-way. Nothing in this Rights-of-Use Agreement shall be deemed to grant, convey, create or vest in Fibertech a real property interest in land, including any fee, leasehold interest, easement, or any other form of interest or ownership.
Subject to obtaining the permission of the owner(s) of existing Utility Poles, which shall be the sole responsibility of Fibertech to undertake and obtain, the Municipality hereby authorizes and permits Fibertech to enter upon the municipal rights-of-way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate and replace its telecommunications facilities in or on Utility Poles or other structures owned by public utility companies or to be constructed by Fibertech located within the municipal rights-of-way as may be permitted by the public utility company or property owner, as the case may be.
Section 6: Compliance with Ordinance.
Fibertech shall comply with all existing ordinances of the Municipality as may be amended from time to time and with all future ordinances as may be enacted.
Section 7: Municipal Costs.
Fibertech agrees to pay the reasonable costs incurred by the Municipality by reason of Fibertech's telecommunications system, including, but not limited to, the Municipality's attorneys' fees for the negotiation and preparation of this Rights-of-Use Agreement and accompanying Resolution authorizing its execution.
Section 8: Duration of Consent.
The nonexclusive municipal consent granted herein shall expire twenty-five (25) years from the Effective Date of this Rights-of-Use Agreement. Upon expiration of such consent, or at such earlier date that Fibertech ceases to maintain its facilities, it shall remove the facilities at its cost and expense.
Section 9: Indemnification.
Fibertech, its successors, assigns, subcontractors, 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 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 Fibertech's actions under this Rights-of-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 Fibertech's activities pursuant to the rights granted in this Rights-of-Use Agreement.
Section 10: Notices.
All notices or other correspondence required or permitted to be given in connection with this Rights-of-Use Agreement shall be in writing and delivered personally, by telecopy, by overnight carrier service or by registered or certified mail to the parties at the following addresses:
To Fibertech at:		Fiber Technologies Networks, LLC 300 Meridian Centre Rochester, New York 14618 Attn: General Counsel
With a copy to:		Dennis C. Linken, Esq. Stryker, Tams & Dill LLP Two Penn Plaza East Newark, New Jersey 07105
To the Borough of Chatham at:		Borough of Chatham 54 Fairmount Avenue Chatham, New Jersey 07928-2393 Attn: Municipal Clerk
Section 11: Liability Insurance.
Fibertech 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 (or "umbrella") policy in the amount of Five Million Dollars ($5,000,000.00).
Prior to the commencement of any work pursuant to this Rights-of-Use Agreement, Fibertech shall file with the Municipality Certificates of Insurance with endorsements evidencing the coverage provided by said liability and excess liability policies.
The Municipality shall notify Fibertech within fifteen (15) days after the presentation of any claim or demand to the Municipality, either by suit or otherwise, made against the Municipality on account of any of Fibertech's or its subcontractors', agents', employees', officers', servants', designees', guests' and invitees', activities pursuant to the rights granted in this Rights-of-Use Agreement.
Section 12: Assignment.
Fibertech may not assign this Rights-of-Use Agreement without the written consent of the Municipality, except that Fibertech shall have the right, upon notice to the Municipality, to assign this Rights-of-Use Agreement without the Municipality's consent, provided, however, that such assignment is approved by the BPU.
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: Governing Law.
This Rights-of-Use Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New Jersey.
Section 15: Incorporation of Prior Agreements.
This Rights-of-Use Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof, and no prior other written or oral agreement or undertaking pertaining to any such matter shall be effective for any purpose.
Section 16: Modification of Agreement.
This Rights-of-Use Agreement may not be amended or modified, nor may any obligation hereunder be waived orally, and no such amendment, modification or waiver shall be effective for any purpose unless it is in writing and signed by the party against whom enforcement thereof is sought.
Section 17: Invalidity.
If any provision hereof shall be declared invalid by any court or in any administrative proceedings, then the provisions of this Rights-of-Use Agreement shall be construed in such manner so as to preserve the validity hereof and the substance of the transaction herein contemplated to the extent possible. The headings are provided for purposes of convenience of reference only and are not intended to limit, define the scope of or aid in interpretation of any of the provisions hereof.
Section 18: Counterparts.
This Rights-of-Use Agreement may be executed and delivered in several counterparts, each of which, when so executed and delivered, shall constitute an original, fully enforceable counterpart for all purposes.
IN WITNESS WHEREOF, this Rights-of-Use Agreement has been executed as of the date set forth below.
FIBER TECHNOLOGIES NETWORKS, LLC
(AUTHORIZATION)
ATTEST:
DATED:
THE BOROUGH OF CHATHAM
(SEAL)
MAYOR:
ATTEST:
BOROUGH CLERK
DATED: