[HISTORY: Adopted by the Township Council of the Township of Delran by Ord. No. 1997-5 (Ch. IX of the 1993 Revised General Ordinances). Amendments noted where applicable.]
Consent to construct and install system. The Township of Delran hereby grants to Comcast of Burlington County, Inc., subject to the terms and provisions of this chapter, its consent to renew the nonexclusive franchise to place in, upon, along, across, above, over and under highways, streets, alleys, sidewalks, public ways and public places in the Township of Delran, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Township of Delran of a cable television system and cable communications system. Construction, pursuant to said consent, is conditioned upon prior approval of the Board of Public Utilities.
[Amended by Ord. No. 1998-3]
Extent of easement. Comcast of Burlington County, Inc., (hereinafter designated as "company"), is hereby granted the use of the roads, streets and alleys as are owned by the Township or in which the Township possesses an easement or a right-of-way, but no such interest is granted with respect to such other public property as is owned by the Township, whether by easement, right-of-way, title in fee simple, leasehold or other interest.
[Amended by Ord. No. 1998-3]
Negotiability of placement. The foregoing consent with respect to public property, other than roads, streets and alleys, is and shall at all times be subject, nevertheless, to the specific negotiation between the Township and the company as to the actual and exact locations of all appliances referred to in Subsection A above, in, upon, across, above, under, over or otherwise affecting any Township easement, property or other interest in real estate, which right to negotiate the Township's governing body may, from time to time, waive as to items and matters said governing body may elect to specify.
Limitation of consent. The foregoing consent is and shall at all times be subject, also, to full and detailed compliance with Chapter 355, Zoning, Chapter 310, Subdivision of Land, all other Township ordinances and resolutions, and all rules, regulations and laws of all applicable jurisdictions as to all aspects of locations, operations, maintenance and to every microwave or other receiver or transmitter, studio facilities, mobile equipment and vehicles, all other facilities, equipment, apparatus and the like incidental to the origination of programming, the ending or receiving of signals, and offices, storage, power sources, power plant and the like.
[Amended by Ord. No. 1998-3]
For the purpose of this chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. Such meanings or definitions of terms are supplemental to those definitions of the Federal Communications Commission (47 CFR 76.5) 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 the federal or state definitions:
- ACT or CABLE TELEVISION ACT
- Chapter 186 of the Laws of New Jersey, 1972, N.J.S.A. 48:5A-1 et seq.
- The Board of Public Utilities of the State of New Jersey.
- CABLE COMMUNICATIONS ACT
- The Cable Communications Act of 1984, P.L. 98-549, 47 U.S.C. § 521 et seq.
- The grantee of rights under this chapter and is known as "Comcast of Burlington County, Inc." [Note: Comcast was not the original franchisee but is the successor-in-interest of the original franchisee, Storer Cablevision of Burlington County.]
- The Township of Delran, County of Burlington and State of New Jersey.
- The Office of Cable Television within the Board of Public Utilities, or its successors in interest.
Public hearings concerning the franchise herein granted to the company were held on August 27, 1996, after proper public notice pursuant to the terms and conditions of the Act. Said hearings having been held as above-stated and said hearings having been fully open to the public and the Township having received at said hearings all comments regarding the qualifications of the company, the Township hereby finds that the company possesses the necessary legal, technical, character, financial and other qualifications and that the company's operating and construction arrangements are adequate and feasible. The Township further finds, having reviewed and considered all aspects of said application, including programming, rates, financial and technical soundness, experience and capability, the nature and extent of the services provided, and the construction timetable, that the company is qualified and capable of satisfactorily constructing and operating a cable television system within the Township. However, during testimony at the public hearing, the Township Council raised its concerns relating to the quality of curbcut and roadway construction completed by applicant in the Township, cable access for the proposed Municipal Complex and the duration of the franchise.
The renewal of municipal consent and all rights herein granted shall expire 10 years from the date of expiration of the certificate of approval, as issued by the Board of Public Utilities.
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 N.J.S.A. 48:5A-16 and applicable state and federal rules and regulations.
Pursuant to N.J.S.A. 48:5A-30a and all other terms and conditions of the Act, the company shall, during each year of operation under the consent granted herein, pay to the Township 2% of the gross revenues from all recurring charges received by the company from subscribers to its cable television reception service in the Township. In the event that the Act is amended or supplemented so as to permit a different percentage of fees (excluding such additional percentages for which a municipality might presently apply upon formal hearing and as a result of factors warranting a greater franchise fee) or change the basis upon which such fees are based, then the franchise fee shall be automatically deemed amended so as to reflect such changes in the Act upon notice by the municipality to the company. The company will provide, upon receipt from the Township, a copy of the information provided to the Office of Cable Television upon which such franchise fee is based.
The consent granted herein to the company shall apply to the entirety of the Township and any property hereafter annexed thereto.
The company has completed significant construction within the Township, and any concerns raised by the Township in relation to deficient roadway or curbside construction by the company shall be investigated and remedied within 45 days from the date of notification from the Township.
Restoration. In the event that the company or its agents shall disturb any pavement, street surfaces, sidewalks, driveways, other utilities or existing landscaping, trees and 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.
Relocation. If any time during the period of this consent the Township shall alter or change the grade or alignment of any street, alley or other way or place, the company, upon reasonable notice by the Township, shall remove, re-lay and relocate its equipment at the company's expense.
Temporary removal of cables. The company shall temporarily move or remove appropriate parts of its facilities to allow for the moving of buildings and machinery, or in other similar circumstances. The expense shall be borne by the party requesting such action and be paid for no later than 48 hours in advance, except when requested by the municipality for its own purposes, in which case the company shall bear the cost.
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 Township so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. All work is to be in compliance with ANZI Standards Z133.1, Tree Care Operations for Safety and the National Arborist Association Standards for Pruning and Removal. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's wires and cables and shall be performed only after reasonable notice to the Township of Delran as to the timing of such work and the nature thereof. If the tree is privately owned, the company must give reasonable notice to the owner and make every effort to protect his interest in the tree. If an emergency exists whereby notice to the Township is impracticable, the company may trim any trees or bushes as may be necessary to remedy the situation without prior notification to the Township.
Compliance with line extension policy. The company agrees to comply with its line extension policy on file with the Office of Cable Television.
Provision of cable outlet to municipal buildings. The company shall provide, free of all standard installation and basic monthly service charges, one cable outlet to the municipal building hereinafter defined. Said municipal buildings shall specifically include the proposed Municipal Complex (former MacMillian Building), all accredited schools, whether public or private, and libraries. Each additional outlet installation shall be paid for by the institution at the same rate charged to other subscribers to the system. Monthly service on such additional outlets shall be charged at the regular tariffed rates for additional outlets.
During the terms of this municipal consent, the company shall maintain and staff a business office in the area for the purpose of receiving, in person, by mail and by telephone, investigating and resolving all complaints regarding the quality of service, equipment malfunctions, customer payments and similar matters. Such local business offices 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 9:00 a.m. to 12:00 noon, Saturday.
The Office of Cable Television is hereby designated as the complaint officer for the Township pursuant to N.J.S.A. 48:5A-26(b). All complaints shall be received and processed in accordance with N.J.S.A. 14:17-7.1.
During the period of this renewal of municipal consent, the company shall provide to the Township a surety bond in a form to be approved by the Township in the amount of $25,000, which shall remain in effect during the entire life of the company's cable television franchise consented to by this chapter and conditioned upon its faithful performance of and no violation of the terms of the grant of this municipal consent.
The Township, having determined the rates proposed in the application for cable television reception service are reasonable, approves them as presented subject to review by the Board; provided, however, that in the event any controlling law requires or shall in the future require a lesser or preferential rate to or for any subscriber, said lesser or preferential rate shall apply and control, and the company shall charge no greater rate. In the event that any such present or future law requires such a lesser or preferential rate but does not specify the extent of such reduction of preference, the company, after consultation with the Township, shall set the rate.
[Amended by Ord. No. 1998-3]
The company shall be required to have the capability to override at the head end the audio portion of the system simultaneously on all channels (with the exception of network broadcast channels) in order to permit the broadcasting of emergency messages by an authorized representative of the State Office of Emergency Management, provided that the company shall not be held liable for any injury suffered by the Township or any other person during an emergency if for any reason the Township is unable to make full use of the cable television system as contemplated in this section. The company and the Township shall establish reasonable procedures for such use.
[Amended by Ord. No. 1998-3]
In the event that the company seeks to assign the municipal consent granted herein, the company will comply with all Board of Public Utilities regulations.
[Amended by Ord. No. 1998-3]
Subject to § A370-15, the company shall hold and save the Township harmless from and indemnify and defend the Township against every claim, loss and liability of every kind, arising in any and every way, directly and indirectly, immediately and consequentially, except to the extent limited by state or federal law, from the company's operation of this franchise within the Township. "Loss" shall include all actual legal fees and court costs.
Required. 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 Township as an insured and insuring against loss of any such claim, suit, judgment, execution or demand in the minimum amounts of $250,000 for bodily injury or death to one person, $1,000,000 for bodily injury or death from any one accident and $200,000 for property damage resulting from any one accident. It is a condition of this consent that the company is, shall be and shall hold itself out as being an independent contractor and not an agent of the Township of Delran, and defend, hold harmless and indemnify the Township against all claims arising out of its construction and operation of the franchise.
Notice of cancellation; copy of policy. The company shall assure that no such policy of insurance shall be cancelable without a minimum of 10 days' notice to the Township. The company shall deliver to the Township certificates of insurance evidencing every such policy immediately upon or prior to the effective date of such.
[Amended by Ord. No. 1998-3]
All of the written commitments contained in the written application for renewal attached hereto, together with all other representations made by the company, either in writing prior to the adoption of this chapter or at the public hearings, are to be binding upon the applicant as to the terms and conditions of this consent and are incorporated by reference herein, to the extent permitted by state or federal law, now or hereafter adopted. A substantial failure of the company to comply with the material conditions of the aforesaid application, other material commitments made by the applicant during the application process and recorded by the Township or the material terms and conditions of this chapter may be considered as a default of this municipal consent. All complaints concerning such a default will be forwarded to the complaint officer specified in § A370-12 above. If necessary, Township Council may hold public hearings on this default at which all interested parties shall have the right to be heard and may forward to the complaint officer its recommendation for resolution of the default.
Categories of programming. Although nothing herein shall require the company to carry or transmit any particular television stations or programming source, the company shall provide the subscribers in the Township with at least the same broad categories of programming as are now provided and which appear in the application.
Compliance with state law. The company shall comply with any state law or regulation and shall use its best efforts to comply with any guideline, with respect to maintaining space for a statewide interconnect channel.
Parental lock option. In accordance with the Cable Communications Act, upon the request of a subscriber, the company shall provide a parental lock to allow the subscriber to block a specified cable service or channel, as required by 47 U.S.C. § 544(d)(2)A.
In the event that the existing television/cable system covered under this chapter is licensed, adapted, altered or converted to also provide two-way voice or data communications, including but not limited to wired, wireless, cellular, mini-cellular or PCN telephones, the cable provider or future license holders shall assure and provide exact location information when any telephone on the system dials 9-1-1 or the operator, if required by law.
If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court or federal or state agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.
It is understood that should any state or federal agency or body modify, change or alter any of its provisions with respect to cable television generally, such modifications, changes or alterations shall be incorporated into this consent consistent with the applicable dates specified in the change.