All license or franchise grantees shall, before
commencing any construction in the public ways, comply with all regulations
of the BPU and of the applicable state, federal and local regulations.
No licensee may locate or maintain its telecommunications
facilities so as to unreasonably interfere with the use of the public
ways by the Township, by the general public or by other persons authorized
to use or be present in or upon the public ways. All such facilities
shall be moved by the licensee, temporarily or permanently, as determined
by the Township Engineer.
No licensee nor any person acting on a licensee's
behalf shall take any action or permit any action to be done which
may impair or damage any Township property, public ways of the Township,
other ways or other property located in, on or adjacent thereto.
Unless otherwise provided in a license agreement,
no licensee nor any person acting on the licensee's behalf shall commence
any nonemergency work in or about the public ways of the Township
or other ways within 10 working days advance notice to the Township.
In the event of an unexpected repair or emergency,
a licensee may commence such repair and emergency response work as
required under the circumstances, provided that the licensee shall
notify the Township as promptly as possible, before such repair or
emergency work or as soon thereafter as possible if advance notice
is not practicable.
Each licensee shall maintain its facilities
in good and safe condition and in a manner that complies with all
applicable federal, state and local requirements.
Within 30 days following written notice from
the Township, a licensee shall, at its own expense, temporarily or
permanently remove, relocate, change or alter the position of any
telecommunications facilities within the public ways whenever the
Township shall have determined that such removal, relocation, change
or alteration is reasonably necessary for:
Within 30 days following written notice from
the Township, any licensee, telecommunications carrier, or other person
that owns, controls or maintains any unauthorized telecommunications
system, facility or related appurtenances within the public ways of
the Township shall, at its own expense, remove such facilities or
appurtenances from the public ways of the Township. A telecommunications
system or facility is unauthorized and subject to removal in the following
circumstances:
A.
Upon expiration or termination of the licensee's telecommunications
license.
B.
Upon abandonment of a facility within the public ways
of the Township.
C.
If the system or facility was constructed or installed
without the prior grant of a telecommunications license.
D.
If the system or facility was constructed or installed
without the prior issuance of a required construction permit.
E.
If the system or facility was constructed or installed
at a location not permitted by the licensee's telecommunications license.
The Township retains the right and privilege
to cut or move any telecommunications facilities located within the
public ways of the Township, as the Township may determine to be necessary,
appropriate or useful in response to any public health or safety emergency.
Unless directly and proximately caused by the
willful, intentional or malicious acts by the Township, the Township
shall not be liable for any damage to or loss of any telecommunications
facility within the public ways of the Township as a result of or
in connection with any public works, public improvements, construction,
excavation, grading, filling, or work of any kind in the public ways
by or on behalf of the Township.
A.
When a licensee or any person acting on its behalf
does any work in or affecting any public ways, other ways or Township
property, it shall, at its own expense, promptly remove any obstructions
therefrom and restore such ways or property to as good a condition
as existed before the work was undertaken, unless otherwise directed
by the Township.
B.
If weather or other conditions do not permit the complete
restoration required by this section, the licensee shall temporarily
restore the affected ways or property. Such temporary restoration
shall be at the licensee's sole expense and the licensee shall promptly
undertake and complete the required permanent restoration when the
weather or other conditions no longer prevent such permanent restoration.
C.
A licensee or other person acting in its behalf shall
use suitable barricades, flags, flagmen, lights, flares and other
measures as required for the safety of all members of the general
public and to prevent injury or damage to any person, vehicle property
by reason of such work in or affecting such ways or property.
Each licensee shall provide the Township with
an accurate map or maps certifying the location of all telecommunications
facilities within the public ways. In addition, the licensee shall
provide a computer aided design and drafting (CADD) diskette containing
the facilities' mapping in the .dxf format. Each licensee shall provide
updated maps and diskettes annually.
Within 10 days of a written request from the
Township Committee, each licensee shall furnish the Township with
information sufficient to demonstrate:
A licensee shall have the right, without prior
Township approval, to offer or provide capacity or bandwidth to its
customers, provided that:
A.
Unless otherwise provided in a license agreement,
each licensee shall, as a condition of the license, secure and maintain
the following liability insurance policies insuring both the licensee
and the Township, and its elected and appointed officers, officials,
agents and employees as coinsureds.
(2)
Automobile liability for owned, nonowned and hired
vehicles with a limit of $3,000,000 for each person and $3,000,000
for each accident.
(3)
Worker's compensation within statutory limits and
employer's liability insurance with limits of not less than $1,000,000.
(4)
Comprehensive form premises-operations, explosions
and collapse hazard, underground hazard and products completed hazard
with limits of not less than $3,000,000.
B.
The liability insurance policies required by this
section shall be maintained by the licensee throughout the term of
the telecommunications license, and such other period of time during
which the licensee is operating without a license hereunder, or is
engaged in the removal of its telecommunications facilities. Each
such insurance policy shall contain the following endorsement: "It
is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 90 days after receipt
by the Township, by registered or certified mail, of a written notice,
addressed to the Township Clerk, of such intent to cancel or not to
renew."
C.
Within 60 days after receipt by the Township of said
notice, and in no event later than 30 days prior to said cancellation,
the licensee shall obtain and furnish to the Township replacement
insurance policies meeting the requirements of this section.
Each license agreement shall include, to the
extent permitted by law, licensee's express undertaking to defend,
indemnify and hold the Township and its officers, employees, agents
and representatives harmless from and against any and all damages,
losses and expenses, including reasonable attorney's fees and costs
of suit or defense, arising out of, resulting from or alleged to arise
out of or result from the negligent, careless or wrongful acts, omissions,
failures to act or misconduct of the licensee or its affiliates, officers,
employees, agents, contractors or subcontracts in the construction,
operation, maintenance, repair or removal of its telecommunications
facilities, and in providing or offering telecommunications services
over the facilities or network, whether such acts or omissions are
authorized, allowed or prohibited by this chapter or by a grant agreement
made or entered into pursuant to this chapter.
Before a license granted pursuant to this chapter
is effective, and as necessary thereafter, the licensee shall provide
and deposit such monies, bonds, letters of credit or other instruments
in form and substance acceptable to the Township as may be required
by this chapter or by an applicable license.
Unless otherwise provided in a license agreement,
a performance bond written by a corporate surety acceptable to the
Township equal to at least 100% of the estimated cost of constructing
licensee's telecommunications facilities within the public ways of
the Township shall be deposited before construction is commenced.
A.
The construction bond shall remain in force until
released by the Township. Licensee may apply, in writing, for such
release upon the lapse of at least 60 days after substantial completion
of the work, as determined by the Township Engineer, including restoration
of public ways and other property affected by the construction. The
Township Engineer shall, within 45 days of receipt of the licensee's
written request for release, file a written recommendation with the
governing body concerning the release. The Township Committee shall
take formal action on the request for release within 45 days of the
filing of the Township Engineer's recommendation.
B.
The construction bond shall guarantee, to the satisfaction
of the Township:
(1)
Timely completion of construction;
(2)
Construction in compliance with applicable plans,
permits, technical codes and standards;
(3)
Proper location of the facilities as specified by
the Township;
(4)
Restoration of the public ways and other property
affected by the construction;
(5)
The submission of as-built drawings, as well as a
computer aided design and drafting (CADD) diskette containing the
drawings in the .dxf format, after completion of the work as required
by this chapter; and
(6)
Timely payment and satisfaction of all payments then
due to the Township, all claims, demands or liens for labor, material
or services provided in connection with the work.
All licensees are required to cooperate with
the Township and with each other.
A.
By February 1 of each year, licensees shall provide
the Township with a schedule of their proposed construction activities
in, around or that may affect the public ways.
B.
Each licensee shall meet with the Township, other
licensees and users of the public ways annually or as determined by
the Township to schedule and coordinate construction in the public
ways.
C.
All construction locations, activities and schedules
shall be coordinated, as ordered by the Township Engineer, to minimize
public inconvenience, disruption or damages.
Ownership or control of a telecommunications
system or license may not, directly or indirectly, be transferred,
assigned or disposed of by sale, lease, merger, consolidation or other
act of the licensee, by operation of law or otherwise, without the
prior consent of the Township, which consent shall not be unreasonably
withheld or delayed, as expressed by formal act and then only on such
reasonable conditions as may be prescribed therein.
A.
No license shall be assigned or transferred in any
manner within 12 months after the initial grant of the license, unless
otherwise provided in a license agreement.
B.
Absent extraordinary and unforeseeable circumstances,
no grant, system or integral part of a system shall be assigned or
transferred before construction of the telecommunications system has
been completed.
C.
Licensee and the proposed assignee or transferee of
the grant or system shall provide and certify the following information
to the Township not less than 150 days prior to the proposed date
of transfer:
(1)
Complete information setting forth the nature, terms
and conditions of the proposed transfer or assignment;
(2)
All information required of a telecommunications license applicant pursuant to Article II of this chapter with respect to the proposed transferee or assignee;
(3)
Any other information reasonably required by the Township.
D.
No transfer shall be approved unless the assignee
or transferee has the legal, technical, financial and other requisite
qualifications to own, hold and operate the telecommunications system
pursuant to this chapter.
E.
Unless otherwise provided in a license agreement,
the grantee shall reimburse the Township for all direct and indirect
fees, costs, and expenses reasonably incurred by the Township in considering
a request to transfer or assign a telecommunications license.
F.
Any transfer or assignment of a telecommunications
grant, system or integral part of a system without prior approval
of the Township under this section or pursuant to a license agreement
shall be void and is cause for revocation of the license.
Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the licensee, of the ownership or working control of a telecommunications license or the ownership or working control of affiliated entities having ownership or working control of the licensee or of a telecommunications system, or of control of the capacity or bandwidth of licensee's telecommunications system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring Township approval pursuant to § 319-44 hereof. Transactions between affiliated entities are not exempt from Township approval.
A license granted by the Township to use or
occupy public ways of the Township may be revoked for the following
reasons:
A.
Construction or operation in the Township or in the
public ways of the Township contrary to a license grant.
B.
Construction or operation at an unauthorized location.
C.
Unauthorized substantial transfer of control of the
licensee.
D.
Unauthorized assignment of a license.
E.
Unauthorized sale, assignment or transfer of licensee's
assets, or a substantial interest therein.
F.
Misrepresentation or lack of candor by or on behalf
of a licensee in any application to the Township.
G.
Abandonment of telecommunications facilities in the
public ways.
H.
Failure to relocate or remove facilities as required
in this chapter.
I.
Failure to pay fees and costs when and as due the
Township.
J.
Insolvency or bankruptcy of the licensee.
K.
Violation of material provisions of this chapter.
L.
Violation of the material terms of a license agreement.
In the event that the Township Committee believes
that grounds exist for revocation of a license, it shall give the
licensee written notice of the apparent violation or noncompliance,
providing a short and concise statement of the nature and general
facts of the violation or noncompliance, and providing the licensee
a reasonable period of time not exceeding 30 days to furnish evidence:
In the event that a licensee fails to provide evidence reasonably satisfactory to the Township Committee as provided in § 319-47 hereof, the committee shall provide the licensee with notice and a reasonable opportunity to be heard concerning the matter.
If persuaded that the licensee has violated
or failed to comply with material provisions of this chapter, or of
a license agreement, the Committee shall determine whether to revoke
the license or to establish some lesser sanction and cure, considering
the nature, circumstances, extent and gravity of the violation as
reflected by one or more of the following factors:
A.
Whether the misconduct was egregious.
B.
Whether substantial harm resulted.
C.
Whether the violation was intentional.
D.
Whether there is a history of prior violations of
the same or other requirements.
E.
Whether there is a history of overall compliance.
F.
Whether the violation was voluntarily disclosed, admitted
or cured.
