N.J. Admin. Code § 16:77-1.3

Current through Register Vol. 57, No. 1, January 6, 2025

Section 16:77-1.3 - Permit conditions

(a) The permittee shall provide the indemnification and insurance coverage as required by NJ TRANSIT, which may be updated from time to time in accordance with State and Federal law, regulations, policy, and as best practices may require.

1. The permittee shall indemnify, defend, keep, and save harmless New Jersey Transit Corporation, Inc., NJ Transit Rail Operations, Inc., NJ Transit Bus Operations, Inc., the State of New Jersey, and their contractors, operators, and other railroad(s) operating on the affected property, their successors, assigns, contractors, agents, employees, servants or officials, and each and every one of them or any other designee of NJ TRANSIT (indemnified parties) against all claims, just or unjust, made against the indemnified parties on account of injuries, deaths, losses of any kind whatsoever; damages, suits, liabilities, judgments, claims for infringement of patent, trademark or copyright, cost and expenses that may in any way accrue against the indemnified parties in consequence of the granting of a permit or that may in any way result therefrom; and whether or not it shall be alleged or determined that the cause thereof was the negligent acts or omissions of the indemnified parties and the permittee shall appear, defend and pay, as its own expense, all costs, including counsel fees, arising therefrom or incurred in connection therewith, and, if any judgment shall be rendered against the indemnified parties in any such action, the permittee shall, at its own expense, satisfy, and discharge the same.

2. Operations at or near the facilities involve some risk, and the permittee, as part of the consideration for a permit, and with full knowledge and appreciation of such risk, shall release and waive any right to ask for or demand any special, direct, incidental, indirect, punitive, reliance or consequential damages, whether foreseeable or not, for or on account of any loss or injury to any property of the permittee and its employees, including property in the care, custody, and control of the permittee, and to the facilities and contents thereof that are over, under, upon, or in the property of NJ TRANSIT, including loss of, or interference with, service or use thereof, or loss of profits or revenue, cost of capital, cost of replacement services, claims of customers or third parties, whether or not it shall be alleged or determined that the cause thereof was breach of contract, breach of warranty, negligent acts or omissions of the indemnified parties or the permittee, their successors, assigns, contractors, agents, employees, servants, and officials or of other persons.

(b) The permittee shall properly safeguard all work performed under the conditions of the permit. If considered necessary by the involved jurisdiction, the permittee will be required to employ additional safety devices including uniformed traffic directors.

(c) Upon approval of a permit, the permittee shall give notice, in writing, to the involved jurisdiction.

(d) Construction work materials and workmanship shall conform to NJ TRANSIT specifications.

(e) Work or occupancy shall not begin until a formal written notice to proceed or a temporary access permit is issued to the permittee by NJ TRANSIT.

(f) All uses, work, or occupancy within NJ TRANSIT-owned property shall be subject to the review by the involved jurisdiction affecting safety and operations. The safety and continuity of operation shall be of the first importance and shall be at all times protected and safeguarded, and the permittee, and the permittee's contractor and/or subcontractors, shall perform and arrange all use, work, and occupancy accordingly. All use and work shall be performed carefully and shall be regulated so as to avoid interruption and interference of train, bus, or light rail movements and damage to the tracks or other facilities and appurtenances.

(g) Upon completion of installation or vacation of the site, the permittee shall restore the affected area to the satisfaction of NJ TRANSIT and/or involved jurisdiction.

(h) NJ TRANSIT assumes no obligations whatsoever in connection with the use, work, and/or occupancy by the permittee and is not obligated to make any repairs to the property or furnish people, equipment, or materials in connection with use, work, and/or occupancy by the permittee. The use, work, and/or occupancy provided for by the permit shall be performed at no cost to the involved jurisdiction.

(i) The permittee is responsible for compliance with all applicable environmental laws/regulations including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA), the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the Spill Act), the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq., the Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq., and the Underground Storage Tank Act, N.J.S.A. 58:10A-21 et seq., and all regulations promulgated under such laws to the extent applicable. Any costs associated with contamination and/or pollution caused by the permittee is the responsibility of the permittee. Permittee is also required to indemnify NJ TRANSIT against any losses or expenses relating to any third-party claims arising from any pollution and/or contamination caused by the permittee; and against any losses, claims, and expenses relating to exacerbation of existing pollution and/or contaminants caused by the permittee. The act of discovery by permittee of contamination and/or pollution at the property not caused by the permittee is not deemed exacerbation of environmental conditions. Activities that allow discovered contamination and/or pollution to migrate, spill, release, or discharge are not considered "discovery" but exacerbation of existing conditions and therefore the responsibility of the permittee. In addition to the aforementioned requirements, NJ TRANSIT reserves the right to impose additional environmental and/or safety requirements and conditions on any permit application that it decides to approve.

(j) The permittee shall reimburse the involved jurisdiction for all actual costs incurred by the involved jurisdiction as a result of the permit project, which shall include, but not be limited to, inspectors, watchmen, operators, flagmen, and other personnel. All costs will be billed at the then current billing rates, which are subject to revision. The permittee shall remit payment to NJ TRANSIT within 30 days after receipt of an invoice. The permittee shall pay NJ TRANSIT a late charge of three percent of the total unpaid invoice amount for every month any invoice is owed and outstanding until the invoice is paid in full.

(k) The permittee shall have the responsibility during the term of the permit to maintain its facility in a safe and proper manner, to the satisfaction of the involved jurisdiction. If repair or maintenance of the permittee's facility is required, the permittee must notify NJ TRANSIT, in writing, and request permission to perform the repair or to maintain such facility. The permittee may not begin such work without prior written approval from NJ TRANSIT. The permittee is responsible for all costs incurred for repair, maintenance, or replacement of the permittee's equipment.

(l) In the event of an emergency, the permittee shall take immediate corrective action upon notification from the involved jurisdiction.

(m) If it is deemed necessary by NJ TRANSIT, the permittee shall be required to submit a deposit in an amount sufficient to guarantee that, should the permittee fail to restore the disturbed area in a safe and proper manner, there will be sufficient funds to pay for the cost of any work performed by the involved jurisdiction in consequence of that failure. This guarantee shall not operate to waive the permittee's complete responsibility with regard to restoring the affected area. When NJ TRANSIT deems it necessary to demand a deposit pursuant to this subsection, NJ TRANSIT will return to the permittee any unused funds upon the completion of the approved corrective measures. The deposit will be reduced by costs incurred by NJ TRANSIT including, but not limited to, administrative fees, personnel, equipment, and damages, as determined by NJ TRANSIT.

(n) When occupations require movement or relocation of facilities by NJ TRANSIT, the appropriate involved jurisdiction shall prepare an estimate of cost. Using this estimate, NJ TRANSIT shall request as a condition in granting the permit, a written agreement by the permittee, stating that the permittee shall assume all expenses involved in the movement or relocation of facilities and any expenses for additional facilities necessitated by the move. Upon the written request of NJ TRANSIT, the permittee shall promptly change the location of its facilities, or any of them, at the sole expense of the permittee and within 30 days after such request is made, so as to enable NJ TRANSIT to make any alterations or improvements upon its property and/or any changes in or additions to its facilities that it may deem necessary or advisable at any time, and nothing shall in any way be so construed as to limit NJ TRANSIT in the full and free use and occupation of the full width of its right-of-way and property at the location.

(o) Upon the termination of the permit, the permittee, subject to the review and approval by NJ TRANSIT, shall remove all permit-related facilities, unless otherwise authorized by NJ TRANSIT, and shall restore the affected area to the satisfaction of NJ TRANSIT. The permittee is responsible for all costs incurred for restoring the affected area.

(p) The involved jurisdiction reserves the right to impose special conditions in appropriate cases, as required at its sole discretion.

(q) The fees set forth within this chapter for transverse and longitudinal occupations are minimum fees. NJ TRANSIT reserves the right to negotiate higher fees for any use or occupation in order to accommodate circumstances and conditions specific to individual applications.

N.J. Admin. Code § 16:77-1.3

Adopted by 56 N.J.R. 1244(b), effective 7/15/2024