[HISTORY: Adopted by the Village Council of the Village of Ridgewood 12-12-2001
by Ord. No. 2769. Amendments noted where applicable.]
Subject to compliance by the company with lawful Village ordinances
concerning land use, street openings, permits, and all other applicable ordinances
to the extent not preempted by applicable federal or state laws, the Village
grants to the company its nonexclusive consent to place in, upon, along, across,
above, over and under the highways and streets in the municipality poles,
wires, and cables necessary for the maintenance and operation in the municipality
of a cable television system and cable communications system. Construction,
pursuant to said consent, is conditioned upon prior approval of the New Jersey
Board of Public Utilities (the "Board"). This right of easement is subject
to the Village's determination that the specific highways, streets, etc.,
allow for the installation of telecommunications facilities. In complying
with the ordinances of the Village of Ridgewood, the company shall not be
required to pay permit fees, including fees for road openings. Except as preempted
by federal law, the type and design of the cable television facilities to
be placed in the Village streets is subject to the regulation of the Board
of Public Utilities.
For the purposes of this ordinance, the following terms, phrases, words
and their derivations shall have the meaning given herein. Such meaning or
definition of terms is supplemental to those definitions given by the Federal
Communications Commission FCC Rules and Regulations (47 CFR Subsection 76.1
et seq.) and the Cable Communications Policy Act (47 U.S.C. § 521
et seq.) as amended, the Telecommunications Act of 1996 (47 U.S.C. § 609
et seq.) and the Cable Television Act (N.J.S.A. 48:5A-1 et seq.) and shall
in no way be construed to broaden, alter or conflict with federal or state
definitions:
Chapter 186 of the General Law of New Jersey, 1972, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
The grantee of rights under this ordinance and is known as Cablevision
of Oakland, Inc.
The Communications Act of 1934 and its amendments, 47 U.S.C. 51 et
seq.; P.L. 102-385, 1992 and the Telecommunications Act of 1996, 47 U.S.C.
609 et seq.; P.L. 104-104, 1996.
The Village of Ridgewood, County of Bergen and State of New Jersey.
A public hearing concerning the consent herein granted to the company
was held after proper public notice pursuant to the terms and conditions of
the Act. Said hearing having been held and fully open to the public, and the
Village having received all comments regarding the qualifications of the company
to receive this consent, the Village hereby finds that the company possesses
the necessary legal, technical, financial and other qualifications and that
the company's operating and construction arrangements are adequate and feasible.
The consent herein granted shall expire 10 years from the date of issuance
of a certificate of approval by the Board of Public Utilities. At the end
of the first three years after the issuance of the certificate of approval
by the Board, the Village shall have the right to conduct a review to determine
whether the company has substantially complied with all material obligations
under this ordinance. In the event the Village shall determine, as a result
of said review, that the company has not substantially complied with all material
obligations under this ordinance, the Village shall provide the company with
written notice of all alleged instances of noncompliance and an opportunity
to cure same within six months. If the company has not, after such notice,
brought itself into material compliance, then the Village shall have the right
to request that the Board take appropriate action. Nothing herein shall be
deemed a waiver by the company of any rights which it may possess as a matter
of law.
If the company seeks a successive consent, it shall, prior to the expiration
of this consent, apply for a municipal consent and certificate of approval
in accordance with the Cable Television Act (N.J.S.A. 48:5A-11 and 48:5A-16)
and applicable state and federal rules and regulations. The company shall
also petition the Board for a certificate of approval authorizing continued
operation during the period following expiration of the consent granted herein
and until such time as a decision is made by the governing body of the Village
relative to the renewal of said consent.
Pursuant to the terms and conditions of the Act, the company shall,
during each year of operation under the consent granted herein, pay to the
municipality 2% of the gross revenues from all recurring charges in the nature
of subscription fees paid by subscribers to its cable television reception
service in the Village or any amount permitted by the Cable Television Act
or otherwise allowable by law.
The Village requires completion of the proposed upgrade of the current
cable infrastructure that presently serves the Village on or before June 30,
2002.
The consent granted herein to the company shall apply to the entirety
of the Village and any property hereafter annexed.
The company shall be required to proffer service along any public right-of-way
to any person's residence or business located in those areas of the franchise
territory described herein, in accordance with the proposal for the provision
of services as described in the application. Any additional extension of the
system will be made in accordance with the provisions set forth in Appendix
IV attached to the application filed with the Village.
A.Â
Restoration. In the event that the company or its agents
shall disturb any pavement, street surfaces, sidewalks, driveways or other
surfaces in the natural topography, the company shall, at its sole expense,
restore and replace such places or things so disturbed in as good condition
as existed prior to the commencement of said work and in accordance with Village
ordinances governing the replacement of pavement in the public right-of-way.
B.Â
Relocation. If at any time during the period of this
consent the Village shall alter or change the grade of any street, alley or
other way or place or when the Village determines by reason of traffic conditions
or public safety or the construction of any public improvement or structure
by any governmental agency, the company, upon reasonable notice by the Village,
shall remove, relay and relocate its equipment, at the expense of the company.
C.Â
Movement of building and equipment. The company shall
temporarily move or remove appropriate parts of its facilities to allow moving
of building, machinery or in other similar circumstances when reasonably requested
to do so. The expense shall be borne by the party requesting such action,
except when reasonably requested by the Village, in which case the company
shall bear the cost.
D.Â
Removal or trimming of trees. During the exercise of
its rights and privileges under this franchise, the company shall have the
authority to trim trees upon and overhanging streets, alleys, sidewalks and
public places of the Village so as to prevent the branches of such trees from
coming in contact with the wires, cables or other equipment of the company.
Such trimming shall be only to the extent necessary to maintain proper clearance
for the company's facilities and upon prior notice to the Village, emergency
situations excepted.
E.Â
Undergrounding of facilities. Where feasible, the company
shall install its cable or other facilities underground. This requirement
shall not apply to facilities which are required to remain above ground in
order to be functional. This requirement shall not apply to the company if
the Village does not require the undergrounding of its facilities in the location
of all other utilities facilities at the time of installation by the company.
The company shall provide installation to any person's residence or
business in accordance with the terms and conditions of the application which
are incorporated herein as if fully set forth at length.
During the term of this franchise and any renewal thereof, the company
shall maintain a local business office or agent for the purpose of receiving,
investigating and resolving all complaints regarding the quality or service,
equipment malfunctions and similar matters. Such local business office shall
be open during normal business hours and in no event less than 9:00 a.m. to
5:00 p.m., Monday through Friday and shall have a phone number which does
not incur a toll charge when called by any extension in the Village of Ridgewood.
The Village of Ridgewood Clerk is hereby designated as the municipal
complaint officer to receive and act on complaints by subscribers to cable
television reception service provided pursuant to this franchise. All complaints
shall be received and processed in accordance with the New Jersey Administrative
Code (N.J.A.C. 14:17-6.5 et seq.).
A.Â
During the life of the franchise, the company shall give
a performance bond to the Village of Ridgewood, which bond shall be in the
amount of $25,000 in a form to be approved by the attorney for the Village
of Ridgewood.
B.Â
Such bond shall be to insure the faithful performance
of all undertakings of the company as represented in its application for municipal
consent and incorporated herein.
The rates proposed in the application for cable television reception
service shall be subject to review and regulation by the New Jersey Board
of Public Utilities to the extent permitted by law.
The basic service shall be as defined under the federal Act and applicable
regulations.
The company shall provide access time to noncommercial public, governmental and education entities for noncommercial purposes. The company currently offers two public access channels in the Village of Ridgewood. At the completion of the upgrade noted in § A285-7 above, the company will provide the Village of Ridgewood with one designated access channel exclusive to the Village of Ridgewood for noncommercial use. The company will provide the Village with a second designated access channel provided the first designated access channel is in use 80% of the time between the hours of 2:00 p.m. and 11:00 p.m. five days per week for four consecutive weeks and at least 20 hours of programming each week is original programming, not character-generated messages or programming that was previously shown on the cable system. The Village must keep notarized logs of its daily programming schedule on file at Village Hall to be inspected upon request by the company. All access programming must be of a noncommercial nature.
The company shall provide one complimentary outlet and basic monthly
service, including standard installation, to each public school and municipal
library in the Village of Ridgewood. In addition, subject to compliance with
N.J.S.A. 48:5A-11.1, the company shall provide one complimentary outlet, including
standard installation, and basic monthly service to any municipally owned
senior center in the Village of Ridgewood.
At such time that the company provides for a senior citizen's discount
plan to any of its customers in any Cablevision of Oakland, Inc., municipalities
during the term of this franchise, said plan and all of its terms shall be
made available to qualified Ridgewood residents.
The company shall allow the Village to utilize the buying power of their
organization as it relates to the purchase of PEG access equipment, i.e.,
cameras, editing and playback devices. The company shall also provide technician
services at a cost only basis for public, educational or governmental use
at the request of the Village.
The company agrees to maintain and keep in full force and effect at
its sole expense at all times during the term of this consent sufficient liability
insurance naming the Village of Ridgewood as an additional insured and insuring
against loss by any such claim, suit, judgment, execution or demand in the
minimum amounts of $2,000,000 combined limits for bodily injury or death to
one person or resulting from any one accident and for any property damages
resulting from any one accident.
The company shall be required to have the capability to override the
audio portion of the system in order to permit the broadcasting of emergency
messages by the Village pursuant to state and federal requirements. The company
shall in no way be held liable for any injury suffered by the Village or any
other person during an emergency if for any reason the Village is unable to
make full use of the cable television system as contemplated herein. The Village
shall also establish reasonable procedures for such uses.
A.Â
The company agrees that the capabilities of the system
shall be maintained as technologically current throughout the duration of
the franchise as compared with other cablevision systems of comparable size,
measured by the number of subscribers in the system and to the extent economically
reasonable.
B.Â
The company shall make a one-time contribution of $75,000,
within 90 days after the adoption of the ordinance, to be utilized to purchase
PEG equipment such as cameras, editing and playback devices and to provide
public, educational and governmental noncommercial programming.
C.Â
The company acknowledges the Village's right under common
law, the statutes and regulations of the State of New Jersey and the Telecommunications
Act of 1996 to control the municipal rights-of-way and to legislate under
the Municipal Land Use Law and the Home Rule Provisions of the New Jersey
Constitution and agrees to comply with all ordinances and regulations adopted
thereunder which are not specifically superseded by state or federal law,
reserving its rights to challenge any statute or regulation which it considers
in good faith to be unlawful, contrary to this ordinance or otherwise preempted
by applicable state or federal law.
D.Â
The company hereby releases, covenants not to bring suit
and agrees to indemnify, defend, and hold harmless the Village, its officers
and employees, agents and representatives from any and all claims, costs,
judgments, award or liability to any person, including claims by the company's
employees, arising from injury, sickness or death of any person or damage
to property through the negligent acts or omissions of the company, its agents,
servants, officers or employees in performing the activities authorized by
this agreement or the proximate cause. The company further releases, covenants
not to bring suit, agrees to indemnify and defend and hold harmless the Village,
its officers and employees from any and all claims, costs, judgments, awards
or liability to any person, including claims by the company's own employees,
by virtue of the company's exercise of the rights granted herein or by virtue
of the Village's permitting the company's use of the Village's rights-of-way
or other public property or based upon the Village's inspection or lack of
inspection of work performed by the company, its agents or servants, officers,
or employees in connection with the work authorized on the Village's property
or property over which the Village has control pursuant to this agreement
or pursuant to any other permit or approval issued in connection with this
agreement. The obligations of indemnification under this subsection shall
apply regardless of whether liability for damages arising out of bodily injury
to persons or damages to property were caused or contributed to by the concurrent
negligence of the Village, its officers, agents, employees, or contractors
but shall not apply in the event of gross negligence or willful misconduct.
E.Â
With the exception of PEG access or other programming
produced or provided by the Village and its employees or agents, the company
shall indemnify the Village against and shall save it harmless from any and
all claims for injury and damage to persons or property, both real and personal,
caused by the construction, erection, operation and maintenance of the cable
television system authorized or used pursuant to the authority of the this
ordinance.
F.Â
In addition, the company shall also pay all reasonable
legal expenses incurred by the Village in exercising its right to appear and
respond to any petition or proceeding brought by the company arising out of
this ordinance before the Board of Public Utilities, including, but not limited
to, petitions for modification of the franchise terms pursuant to N.J.S.A.
48:5A-47 on the following basis:
(1)Â
The first $5,000 of such legal expenses shall be the
responsibility of the Village.
(2)Â
Legal expenses over the first $5,000 up to $10,000 shall
be the responsibility of the company.
(3)Â
Any amount over $10,000 up to $50,000 shall be borne
equally on a dollar-for-dollar basis by the Village and the company.
When high-speed Internet access via cable modem service from the company
becomes commercially available to residential customers within the Village,
the company shall provide to the Village, free of charge, one high-speed cable
modem and monthly Internet access service, including a standard installation,
to municipal building (the "designated building"). The Village shall be permitted,
at its own cost, to network up to three additional personal computer terminals
in the designated building (four computers in total) to the cable modem provided
by the company. In addition, when high-speed access via cable modem service
from the company becomes commercially available to residential customers within
the Village, the company shall provide, free of charge, one high-speed cable
modem and monthly Internet access service, including standard installation,
to each public school and municipal library in the Village.
A.Â
In the event that another multichannel video program
provider's service within the Village of Ridgewood creates a significant competitive
disadvantage to Cablevision, the company shall have the right to request from
the Village of Ridgewood lawful amendments to its franchise that relieve it
of burdens which create the unfair competitive situation. Should the company
seek such amendments to its franchise, the parties agree to negotiate in good
faith appropriate changes to the franchise in order to relieve the company
of such competitive disadvantages. If the parties can reach an agreement on
such terms, the Village of Ridgewood agrees to support the company's petition
to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47
and N.J.A.C. 14:17-6.7.
B.Â
If the parties are unable to reach an agreement on appropriate
amendments to the franchise, the Village of Ridgewood acknowledges that the
company shall have the right to petition the Board directly for such amendments
in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however,
the Village of Ridgewood shall be under no obligation to support Cablevision's
request for such relief from the Board.
C.Â
Cablevision represents and acknowledges that as of the
date of its acceptance of this municipal consent, competition within the Village
of Ridgewood has not yet risen to the level of creating a significant competitive
disadvantage sufficient to enable the company to seek relief under this section.
All of the commitments and statements contained in the application and
in all filings with the Office of Cable Television or any amendment or amendments
thereto and any applications and amendments thereto submitted in writing to
the Village are binding upon the company as terms and conditions of this consent.
The application and any other relevant writings submitted by the company shall
be annexed hereto and made a part hereof by reference as long as it does not
conflict with state or federal law.
If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held invalid or unconstitutional by any court
of federal or state agency of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision, and such holding shall
not effect the validity of the remaining portions hereof.
This municipal consent shall become effective as of the date of publication
in accordance with the law and the company's written acceptance of the terms
and conditions hereof.
Upon this ordinance becoming effective and having been accepted and
approved by the Board of Public Utilities, the adoption and approval of this
ordinance shall act as a specific repealer of Ordinance No. 2614 of the Village
of Ridgewood heretofore adopted on September 9, 1997.[1]
[1]
Editor's Note: Ordinance No. 2614 was included as former Ch. A285,
Cable Television Franchise.
