[HISTORY: Adopted by the Mayor and Council of the City of
Hoboken as indicated in article histories. Amendments noted where
applicable.]
[Adopted 2-7-2001 by Ord. No. R-473]
FACILITIES — Third party owned utility poles,
street light poles, lighting fixtures, and electroliers, within the
municipal right-of-way and may refer to such facilities in the singular
or plural, as appropriate to the context in which used.
The space in, upon, above, along, across, and over the public
streets, roads, lanes, courts, ways, alleys, boulevards, and places,
that are public utility easements as the same now or may hereafter
exist, that are under the jurisdiction of the City.
The Right-of-Way Use Agreement entered into between Metricom
and the City of Hoboken. (Exhibit A)[1]
[1]
Editor's Note: Exhibits A and B, referred to herein,
may be found on file in the office of the City Clerk.
The City has reviewed all documentation regarding Metricom's
request for the described use of the municipal right-of-way and finds
that it is in the best interest of the residents to grant said request.
The City hereby grants to Metricom the nonexclusive use of the public right-of-way for the installation and maintenance of its Ricochet® radios and associated fixtures on existing facilities located within the public right-of-way. The conditions for the parameters of said use are set forth in § A261-4 below. This consent shall permit Metricom to place and maintain such radios on facilities located upon and along certain public highways and streets in the City, as described by Exhibit B.[1] This consent is subject to all provisions of this article.
The City and Metricom may make amendments to the map attached as Exhibit
B[2] due to redevelopment in the City, upon agreement by the
parties, or in accordance with Section 5 of the Use Agreement. In
the event that Metricom violates any provision of this article, the
City will give Metricom written notice of such violation. Such violation
must be cured within 45 days of the receipt by Metricom of the City's
notice of violation, or, if said violation cannot be cured within
45 days, Metricom will begin such cure within 45 days and continuously
prosecute such cure until completed. Failure to cure the violation
within the prescribed time will result in appropriate action on behalf
of the City, which may include, but is not limited to court intervention,
revocation of this article and the termination of any and all relationships
between the City and Metricom.
This grant of consent to nonexclusive use of the public right-of-way
is solely for the purpose of installing and maintaining radios installed
on facilities to facilitate wireless Internet and online communications
and services.
The needs of the City and the public to minimize interruptions
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 City planning for future utility installations and
operations, maintenance of current utilities and general planning
for development by the City shall be respected by Metricom and Metricom
prior to installation will notify the City of the proposed location
of the facilities on which Ricochet® radios are to be installed.
The consent granted by this article shall apply to the facilities
located in the City right-of-way described in Exhibit A[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 the cost and expense
of Metricom.
[1]
Editor's Note: Exhibits A and B, referred to herein, may be
found on file in the office of the City Clerk.
The foregoing consent is and at all times shall be subject to
full and complete compliance with the City land use and development
ordinances, all other City ordinances and regulations, and all rules,
regulations and laws applicable to all aspects of location, operation,
and maintenance of the radios and fixtures necessary thereto. Installation
of any fixture other than such facilities shall be subject to prior
approval of the City.
A.
Reimbursement of municipality's recurring costs and expenses.
Pursuant to and as allowed for in N.J.S.A. 54:30A-124, Metricom shall
reimburse the City for recurring costs and expenses in providing actual
services to administer this article and the deployment of radios in
the municipal right-of-way hereunder. The parties hereto agree that
a reasonable fixed annual reimbursement for such costs and expenses
shall be $2,000, which annual amount shall be payable no later than
the 45th day after the date that Metricom first provides services
to commercially paying subscribers within the City using radios installed
pursuant to this article and the forty-fifty-day after the start of
each calendar year thereafter or fraction thereof. The parties further
agree that such reimbursement shall compensate the City for all expenses
relating to this article except for costs and expenses specifically
identified as payable by Metricom under this article. The reimbursement
provided for in this section shall not replace or excuse Metricom
from the payment of any applicable municipality permit fee for work
undertaken in connection with this article.
B.
Metricom shall pay to the City within 30 days of the effective date
of this article a legal fee in the amount of $2,500.
C.
In consideration of the City's consent, the City shall have
the right throughout the term of this consent to the use of 10 Ricochet
(or such other named) basic service subscriptions from Metricom at
no cost or expense to the City. The parties agree that the City has
a daytime population of 80,000 people.
A.
In the event New Jersey law is modified to allow imposition of a
right-of-way fee by the City, then and only then, pursuant to the
procedure set forth in this section to the extent consistent with
applicable law in order to reimburse the City for any costs it may
incur in connection with Metricom's entry upon and deployment
within the municipal right-of-way, Metricom shall pay to the City,
on an annual basis, an amount equal to 5% (or, if lesser, the maximum
percentage allowed under New Jersey law) of Metricom's gross
revenues, as defined below, (the "right-of-way fee") which amount
will be collected from subscribers of the services with billing addresses
in the City and remitted to the City as provided herein. The compensation
provided under this section shall be payable annually, on or before
the forty-fifth day after the start of each calendar year following
notification by the City to Metricom that a right-of-way fee is allowed
under New Jersey law, and on or before the forty-fifth day after the
start of each calendar year thereafter, or fraction thereof, prorated
as appropriate. Metricom shall furnish to the City with each payment
of compensation required by this section a statement, executed by
an authorized officer of Metricom or his or her designee, showing
the amount of gross revenues for the period covered by the payment.
If Metricom discovers that it has failed to pay the entire or correct
amount of compensation due, the City shall be paid by Metricom within
30 days of discovery of the error or determination of the correct
amount. Any overpayment to the City through error or otherwise shall
be refunded or offset against the next payment due from Metricom.
Acceptance by the City of any payment due under this section shall
not be deemed to be a waiver by the City of any breach of this article
occurring prior thereto, nor shall the acceptance by the City of any
such payments preclude the City from later establishing that a larger
amount was actually due or from collecting any balance due to the
City.
B.
Gross revenues. Gross revenues means the gross dollar amount received
by Metricom for its services provided to subscribers with billing
addresses in the City, excluding (i) the right-of-way fee, if any,
payable under this section and any utility users' tax, telecommunications
tax, or similar tax or fee; (ii) local, state, or federal taxes that
have been billed to the subscribers and separately stated on subscribers'
bills; and (iii) revenue uncollectible from subscribers (i.e., bad
debts) with billing addresses in the City that was previously included
in adjusted gross revenues.
C.
Reduction of right-of-way fee by amount of utility users or telecommunications
tax, Notwithstanding anything to the contrary in this article, if
the services are subject to a utility users tax, telecommunications
tax, or other similar tax or fee by operation of the City's Municipal
Code or other applicable law, then the amount of the right-of-way
fee shall be reduced by the amount of the applicable utility users
tax, telecommunications tax, or such other similar tax or fee.
D.
Accounting matters. Metricom shall keep accurate books of account
at its principal office for the purpose of determining the amount
potentially due to the City under this section. The City may inspect
Metricom's books of account relative to the City at any time
during regular business hours on 15 business days' prior written
notice and may audit the books from time to time at the City's
sole expense, but in each case only to the extent necessary to confirm
the accuracy of payments potentially due under this section. The City
agrees to hold in confidence any nonpublic information it learns from
Metricom to the fullest extent permitted by law.
E.
Most favored municipality. Should Metricom, after the enactment of
this article, enter into an agreement with or be subject to an ordinance
of another municipality that is the same size or smaller than the
City of Hoboken and is located in the New Jersey Metropolitan Statistical
Area, and that grants permission to Metricom to use that municipality's
public right-of-way, which agreement or ordinance contains financial
benefits for such municipality which, taken as a whole and balanced
with the other terms of such agreement or ordinance, are in the City's
opinion substantially superior to those in this article, the City
shall have the right to modify this article to incorporate the same
or substantially similar superior benefits and such other terms and
burdens by substitution, mutatis mutandis, of such other agreement
or otherwise.
A.
Restoration. In the event Metricom shall, from time to time, disturb
any public or private pavement, street surface, 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, Metricom
shall, at no expense to the City, reasonably restore and replace such
places and things so disturbed to as good condition as existed prior
to each disturbance. In doing so, Metricom shall comply with all applicable
ordinances, resolutions, laws, rulings, and requirements for securing
street opening permits and regulations. All restoration is to be,
completed in accordance with the relevant ordinances, resolutions,
laws, rulings, or regulations and shall be completed within 30 working
days of the work unless a longer period is specifically permitted
by the applicable ordinance, resolution, law, ruling or regulation.
B.
Relocation. If, at any time during the period of this consent, the
City 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, and such alteration shall require
the relocation of the radios of Metricom in the public right-of-way
in the City, Metricom shall, upon receipt of written consent of the
City, relocate its radios and other associated equipment at no expense
to the City.
To secure the faithful performance by Metricom of all of its
obligations to the City, Metricom shall deliver to the City and maintain
in force throughout the duration of its use of the public right-of-way
within the City, a surety bond in the sum of $2,500, conditioned on
the faithful performance by Metricom of all of its undertakings pursuant
to this article. The bonding company shall be authorized to do business
in the State of New Jersey.
During the term of the use of the public right-of-way within
the City, Metricom shall deliver to the City Risk Manager and maintain
in force, at no expense to the City, sufficient combined automobile
and comprehensive general liability insurance naming the City and
its agents, servants and employees as additional insureds and insuring
against loss by any such claim, suit, judgment, execution or demand
in the minimum amounts of:
A.
One million dollars for commercial general liability insurance and
general automobile liability, per occurrence.
B.
Five million dollars "umbrella" excess liability coverage in following
form.
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The insurance carrier must be authorized to do business in the
State of New Jersey. Metricom shall assure that no such policy of
insurance shall be canceled without a minimum of 30 days notice to
the City.
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In accepting the privileges of this article and the installation,
maintenance and use hereby authorized, Metricom, their successors
and assigns, hereby agree to assume full, complete and undivided responsibility
for any and all injury or damage to person or property by reason of
said installation, maintenance and use, and to indemnify, defend and
hold the City of Hoboken and its agents, servants, and employees harmless
from all claims, suits and losses incurred in connection with said
installation, maintenance and use pursuant to this article except
to the extent they arise from the negligence of or the willful misconduct
of the City or its agents, employees, servants or contractors.
This article is solely to permit Metricom to use the public
right-of-way in the City for the installation and maintenance of radios
on facilities.
The grant of consent under this article shall be for a period
of 10 years, but may be extended or renewed for additional periods
by ordinance adopted by the City.
Should any provision of this article be determined invalid by
a court or administrative tribunal of competent jurisdiction, such
determination shall not affect the remaining provisions.
The captions and titles assigned to the sections of this article
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 article.
In the event applicable law shall, during the term hereof, modify
any provision of this article, the Article shall be automatically
modified to incorporate the change.
Prior to any installation within the City, Metricom shall provide
the City Clerk upon request a certificate of authority from the Secretary
of State evidencing its authority to do business in New Jersey.
The grant of consent to Metricom under this article shall not
be assigned by Metricom without the prior written consent of the City,
which consent shall not be unreasonably withheld, delayed, or conditioned.
Notwithstanding the foregoing, the transfer of the rights and obligations
of Metricom under this article to a parent, subsidiary, affiliate
or any successor or entity acquiring 51% or more of Metricom's
stock or assets shall not be deemed an assignment for the purposes
of this article except that Metricom shall notify the City at least
30 days in advance of any such transfer.
All costs and expenses incident to the introduction, passage
and publication of this article shall be borne and paid by Metricom.
This article shall not become effective unless an acceptance
hereof in writing shall be filed by Metricom with the City Clerk.
In the event that Metricom shall not file with the City Clerk its
acceptance in writing of the provisions of this article within 30
days after receiving notice of its passage, this article shall become
void and be of no effect.
