[HISTORY: Adopted by the City Council of
the City of Hackensack as indicated in article histories. Amendments
noted where applicable.]
[Adopted 9-15-2003 by Ord. No. 15-2003[1]]
[1]
Editor's Note: This ordinance also provided
for the repeal of former Ch. A181, Cable Television Franchise, adopted
12-7-1992 by Ord. No. 15-92.
For the purpose of this ordinance the terms
defined above shall have the meanings there indicated,[1] and the following additional terms shall have the following
meanings:
That statute of the State of New Jersey relating to cable
television, known as the Cable Television Act, N.J.S.A. 48:5A-1 et
seq.
Cablevision's application for renewal of municipal consent,
which application is on file in the City Clerk's office and is incorporated
herein by reference and made a part hereof, except as modified, changed,
limited or altered by this ordinance.
The Board of Public Utilities of the State of New Jersey
or its successor agency.
The governing body of the City of Hackensack in the County
of Bergen and the State of New Jersey.
CSC TKR, Inc., d/b/a Cablevision of Oakland, LLC (Cablevision),
the grantee of rights under this ordinance.
The Federal Communications Commission.
That federal statute relating to cable communications commonly
known as the Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq. and the Telecommunications Act of 1996, or as those statutes
may be amended.
Those federal regulations relating to cable television services,
47 C.F.R. § 76.1 et seq. (and, to the extent applicable,
any other federal rules and regulations relating to cable television,
including but not limited to, those described in 47 C.F.R. § 76.3),
or as such regulations may be amended.
The State of New Jersey.
Those regulations of the State of New Jersey Board of Public
Utilities relating to specifically cable television, N.J.A.C. 14:17-1.1
et seq. and N.J.A.C. 14:18-1 et seq., or as such regulations may be
amended.
[1]
The preamble to this chapter defined "City"
as "City of Hackensack" and "the company" or "cablevision" as "Cablevision
of Oakland, LLC." The full text of said preamble is on file in the
City offices.
A public hearing concerning the consent herein
granted to Cablevision 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 municipality having received
all comments regarding the qualifications of Cablevision to receive
this consent, the City hereby finds Cablevision possesses the necessary
legal, technical, character, financial and other qualifications to
support municipal consent, and that Cablevision's operating and construction
arrangements are adequate and feasible.
The City hereby grants to Cablevision its nonexclusive
consent to place in, upon, along, across, above, over, and under its
highways, streets, alleys, sidewalks, public ways, and public places
in the municipality poles, wires, cables, and fixtures necessary for
the maintenance and operation in the City of a cable television system,
and for the provision of any communication service over the system
as may be authorized by federal or state regulatory agencies. Operation
and construction, pursuant to said consent, is conditioned upon prior
approval of the Board of Public Utilities.
This consent granted herein shall be nonexclusive
and shall be for a term of 10 years from the date of issuance of a
certificate of approval by the Board.
If Cablevision seeks successive consent, it
shall, prior to the expiration of this consent, apply for a municipal
consent and certificate of approval in accordance with N.J.S.A. 48:5A-16,
and applicable state and federal rules and regulations. The company
shall also petition the Board for approval authorizing continued operation
during the period following expiration of the consent granted herein,
and until such a time that a decision is made by the City and the
Board relative to the renewal of said consent.
The consent granted under this ordinance to
Cablevision shall apply to the entirety of the City and any property
hereafter annexed.
Cablevision shall be required to proffer video
programming service along any public right-of-way to any person's
residence within the portion of the franchise territory, as described
in the application for municipal consent, at tariffed rates for standard
and nonstandard installation.
Cablevision shall extend service to commercial
establishments along any public right-of-way outside its existing
service area in accordance with the line extension formula as provided
by the company in its application for municipal consent.
Pursuant to the terms and conditions of the
Cable Television Act, Cablevision shall pay to the City, as an annual
franchise fee, a sum equal to 2% of the actual gross revenues received
from all recurring charges in the nature of subscription fees paid
by subscribers for its cable television reception services in the
City. In the event applicable law hereinafter permits a larger franchise
fee to be collected during the course of this franchise, then the
grantee shall pay to the City the higher franchise fee.
A.
Cablevision shall provide, upon request, free of charge,
one standard installation and monthly cable television reception service
to all state-accredited elementary and secondary public schools and
all municipal public libraries, as well as all municipal buildings
used for governmental purposes located within the City.
B.
Cablevision shall provide, free of charge, standard
installation, one cable modem and monthly Internet access to one municipal
location upon written request by the City. The City 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 Cablevision.
C.
Cablevision shall provide, upon written request, free
of charge, one high-speed cable modem and monthly Internet access
service, including a standard installation, to each state-accredited
elementary and secondary public and private school within the City.
Each school shall be permitted, at its own cost, to network up to
an additional 24 personal computers terminals to the cable modem provided
by Cablevision.
D.
Cablevision shall provide, upon written request, free
of charge, one high-speed cable modem and monthly Internet access
service, including a standard installation, to the municipal public
library in the City. The cable modem provided by the company may be
networked to an additional 24 computer terminals at such public library;
however, the costs, including the cost of the router that would be
required to network these additional computers, will be borne by the
City. The router, if purchased from the company, shall be at a cost
not to exceed $2,000. Alternatively, the City may elect not to purchase
the router, and instead, at its own cost, network the cable modem
to three additional personal computer terminals (four computers in
total) in the City library.
Cablevision shall perform construction and installation
of its plant and facilities in accordance with applicable state and
federal law. The company shall be subject to the following additional
construction requirements with respect to the installation of its
plant and facilities in the City:
A.
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 disturbances in as good a condition
as existed prior to the commencement of said work.
B.
If at any time during the period of this consent,
the municipality shall alter or change the grade of any street, alley
or other way or place, the company, upon reasonable notice by the
City, shall remove or relocate its equipment at its own expense.
C.
Upon request of a person holding a building or moving
permit issued by the city, the company shall temporarily move or relocate
appropriate parts of its facilities so as to permit the moving or
erection of buildings or for the performance of other work. The person
requesting the same shall pay the expense of any such temporary removal
or relocation in advance to the company. In such cases, the company
shall be given not less than 14 days' prior written notice in order
to arrange for the changes required.
D.
Removal or trimming of trees. During the exercise
of its rights and privileges under this franchise, and excepting emergent
circumstances, upon reasonable notice to the City Manager or his delegate,
the company shall have the authority to trim trees upon and overhanging
streets, alleys, sidewalks and public places of the City 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 only as approved by the City Manger or his
delegate.
Cablevision shall comply with the technical
and customer service standards established for the cable industry
under applicable federal and state laws, rules and regulations.
Cablevision shall establish and maintain during
the entire term of this consent a local area business office or agent
for the purpose of receiving, investigating and resolving complaints
regarding the quality of service, equipment malfunctions and similar
matters. Said office shall be open daily during normal business hours,
and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday,
with the exception of holidays.
The Office of Cable Television (OCT) is hereby
designated as the complaint officer for the City pursuant to the provisions
of N.J.S.A. 48:5A-16(b). All complaints shall be reviewed and processed
in accordance with N.J.A.C. 14:17-6.5.
Cablevision agrees to maintain and keep in force
and effect at its sole cost at all times during the term of this consent,
sufficient liability insurance naming the City as an additional insured
and insuring against loss by any such claim, suit, judgment, execution
or demand in the minimum amounts of $1,000,000 for bodily injury or
death to one person, and $2,000,000 for bodily injury or death resulting
from any one accident or occurrence stemming from or arising out of
the company's exercise of its rights hereunder.
Cablevision shall obtain and maintain, at its
sole cost and expense, during the entire term of this agreement, a
bond to the municipality in the amount of $25,000. Such bond shall
be to insure the faithful performance of its obligations as provided
in this franchise.
A.
Cablevision's rates for cable television service shall
be subject to regulation to the extent permitted by federal and state
law.
B.
Cablevision shall implement a senior citizen discount
in the amount of 10% off the monthly rate of the broadcast basic level
of cable television reception service to any person 62 years of age
or older who subscribes to the company's cable television service,
subject to the following:
(1)
Such discount shall only be available to eligible
senior citizens who do not share the subscription with more than one
person in the household who is less than 62 years of age;
(2)
In accordance with N.J.S.A. 48:5A-11.2, subscribers
seeking eligibility for the discount must meet the income and residence
requirements of the Pharmaceutical Assistance to the Aged and Disabled
program pursuant to N.J.S.A. 30:4D-21;
(3)
The senior discount herein relates only to the
broadcast basic level of cable television service, and shall not apply
to any additional service, feature, or equipment offered by the company,
including any premium channel services and pay-per-view services;
and
(4)
Senior citizens who subscribe to a level of
cable television beyond expanded basic service, including any premium
or per-channel a la carte service, shall not be eligible for the discount.
Cablevision 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 City pursuant to state and
federal requirements. The company shall in no way be held liable for
any injury suffered by the City or any other person during an emergency
if for any reason the municipality is unable to make full use of the
cable television system as contemplated herein. The City shall utilize
the state-approved procedures for such emergency uses.
A.
In the event that another multichannel video program
provider's service within the City creates a significant disadvantage
to Cablevision, the company shall have the right to request from the
City 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 City 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.
If the parties are unable to reach an agreement on
appropriate amendments to the franchise, the City 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 City shall be under no obligation
to support Cablevision's request for such relief from the Board.
C.
Cablevision represents and acknowledges that as of
the date of its acceptance of this municipal consent, competition
within the city has not yet risen to the level of creating a significant
competitive disadvantage sufficient to enable the company to seek
relief under this section.
Upon expiration, termination or revocation of
this ordinance, Cablevision at its sole cost and expense and upon
direction of the Board, shall remove the cables and appurtenant devices
constructed or maintained in connection with the services authorized
herein, unless Cablevision, its affiliated entities or assignees should,
within six months after such expiration, termination or revocation
obtain certification from the FCC to operate an open video system
or any other federal or state certification to provide telecommunications.
A.
Cablevision shall continue to make available noncommercial
public, educational and governmental (PEG) access as described in
the application for municipal consent.
B.
The City agrees that Cablevision shall retain the
right to use the PEG access channel, or portion thereof, for non-PEG
access programming, during when the City is not utilizing the channel
or purposes of providing PEG access programming. In the event that
the company uses said PEG access channel for the presentation of such
other programming, the PEG programming shall remain the priority use,
and the company's rights with respect to using the channel for non-PEG
programming shall be subordinate to the City provision of PEG access
programming on such channel.
C.
In consideration for the rights granted by this ordinance,
Cablevision shall provide the City with a one-time grant of $30,000
to be used by the municipality for cable- and/or other telecommunications-related
purposes, including to supplement PEG-access-related production and
programming efforts in the City.
D.
Cablevision shall provide and maintain, without charge
for its use, one composite PEG access channel for the exclusive use
by the City, and accredited educational institutions located within
the City, which are authorized by the City to utilize such channel.
This channel may only be used for noncommercial programming. The City
shall be responsible for developing, implementing, interpreting and
enforcing reasonable rules for access channel use, in accordance with
applicable law.
Upon 30 days' prior written notice from the
City, Cablevision shall make available a representative of the company
to meet biannually with the City for the purpose of reviewing the
company's performance under this ordinance. The company representative
shall respond to the reasonable requests for information made by the
City. Either party shall have the right to request the OCTV to have
a representative at said meeting. The OCTV shall decide whether to
attend such meeting or not.
All of the commitments contained in the application
and any amendment thereto submitted in writing to the City by the
company, except as modified herein, are binding upon Cablevision as
terms and conditions of this consent. The application and any other
writings submitted by Cablevision in connection with this consent
are incorporated in this ordinance by reference and made a part hereof,
except as specifically modified, changed, limited, or altered by this
ordinance, or to the extent that they conflict with state or federal
law.
This consent shall be construed in a manner
consistent with all applicable federal, state and local laws.
If any section, subsection, sentence, clause,
phrase, or portion of this ordinance is for any reason held invalid
or unconstitutional by any court of competent jurisdiction or is otherwise
preempted or in violation of any applicable federal or state law or
regulation, such portion shall be deemed a separate, distinct and
independent provision, and such holding shall not affect the validity
of the remaining portion thereof.
This ordinance shall take effect upon issuance
of a certificate of approval as issued by the Board of Public Utilities.
[Adopted 12-18-2007 by Ord. No. 33-2007]
A.
The City Council of the City of Hackensack hereby
consents to the nonexclusive use of its rights-of-way by applicant
for the erection and maintenance of fiber optic telecommunications
cable. The conditions for the parameters of said use are set forth
below. This consent shall permit applicant to place and maintain in,
upon, along, across, above, over and under the public highways and
streets in the City of Hackensack poles, wires, cable, underground
conduits, manholes, and fiber optic cables and fixtures necessary
for the maintenance and operation of the proposed use. The consent,
however, is subject to the provisions of this ordinance. In the event
that applicant violates any provision of this ordinance, the City
will give its notice of such violation and allow applicant 60 days
to cure the violation, unless additional time is granted by the City
Council. In the event applicant does not cure the violation in the
prescribed time, appropriate action will be taken on behalf of the
City, which may include but is not limited to court intervention and
the voiding of this ordinance and the termination of any and all relationships
between the City and applicant.
B.
The grant of the consent to nonexclusive use of the
public street right-of-way is solely for the purpose of erecting and
maintaining fiber optic telecommunications cable.
C.
The consent granted by this ordinance shall apply
to the entirety of the City of Hackensack. All questions of municipal
boundary location, rights and interests 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 applicant's own cost and expense; procedures necessary to gather
relevant information and to resolve every such question shall be pursued
in applicant's own name, and the City shall never be under any obligation
to perform investigations or research, conduct or prosecute proceedings,
expend legal fees or pay the charge of engineers, surveyors, title
searches or others, or otherwise take any steps to define, delineate,
establish or clarify the boundaries or rights of the City.
D.
The foregoing consent is, and at all times shall be,
subject to full and complete compliance with the City's Zoning Ordinance,
Land Subdivision Ordinance, all other lawful City ordinances and regulations,
and all lawful rules, regulations and laws of the applicable jurisdictions
as to all aspects of location, operation and maintenance of the fiber
optic cables and fixtures necessary thereto. Any fixture other than
wires, cable, underground conduits and fiber optic cables shall be
subject to the City's prior approval before its installation.
A.
Every applicant for the installation of fiber optic
or other cable or for the use of a public utility easement shall submit
to the City Engineer:
(1)
A plat showing the proposed location of the
fiber optic or proposed installation;
(2)
A depiction indicating whether the proposed
installation is overhead or underground;
(3)
If applicable, copies of all easements proposed
to be used which have previously been granted to utilities; and
(4)
If applicable, all consents for the use of any
such easements by the applicable utilities.
B.
In any trench authorized by the City, the applicant
will install for use solely by the City or any governmental or quasi-governmental
entity approved by the City, a second conduit of the same size and
in the same trench to be located side by side with the approved conduit.
The conduit will be tagged to avoid any confusion as to which is the
applicant's conduit and which is available for the City's use.
C.
Every initial application recommended for approval
by the City Engineer, if approved by the Mayor and Council, will require
as a condition thereof the following:
(1)
Payment of a permit fee in accordance with the
following schedule:
(a)
Aboveground installation: $1 per lineal foot;
(b)
Underground installation: $1.50 per lineal foot,
provided that, if the installation is located on publicly owned property
(not right-of-way), the fee shall be $2.50 per lineal foot;
(c)
In no event shall the fee be less than $1,000;
(d)
An engineering and legal professional escrow
for review of at least $2,500, or more, as determined by the City
Manager.
(2)
An annual renewal fee payable to the Finance
Department on January 1 of each subsequent fiscal year of $0.025/linear
foot, with a minimum of $750.
(3)
A certificate of insurance naming the City as
an additional insured for general liability coverage in the amount
of at least $2,000,000.
D.
Every subsequent application recommended for approval
by the City Engineer, if approved, will require as a condition thereof
the following:
(1)
Payment of a permit fee in accordance with the
following schedule:
(a)
Aboveground installation: $1 per lineal foot;
(b)
Underground installation: $1.50 per lineal foot,
provided that, if the installation is located on publicly owned property
(not right-of-way), the fee shall be $2.50 per lineal foot;
(c)
In no event shall the fee be less than $1,000;
(d)
An engineering and legal professional escrow
for review of at least $2,500, or more, as determined by the City
Manager.
(2)
An annual renewal fee payable to the Finance
Department on January 1 of each subsequent fiscal year of $0.025/linear
foot, with a minimum of $750.
(3)
A certificate of insurance naming the City as
an additional insured for general liability coverage in the amount
of at least $2,000,000.
A.
During the term of the use of the City's said right-of-way,
applicant shall deliver to the City and maintain in force, at its
sole expense, sufficient combined automobile and comprehensive general
liability insurance, naming the City of Hackensack as an additional
insured and insuring against the loss by any such claim, suit, judgment,
execution or demand, in the minimum amounts of:
(1)
For bodily injury or death to one person: $1,000,000.
(2)
For bodily injury or death from any one accident:
$1,000,000.
(3)
For property damage resulting from any one accident:
$1,000,000.
(4)
"Umbrella" excess liability coverage for both
bodily injury and property damage for each occurrence and in the aggregate:
$5,000,000.
B.
The insurance carrier must be acceptable to the risk
manager and shall be authorized to do business in the State of New
Jersey. Applicant shall assure that no such policy of insurance shall
be cancelled without a minimum of 60 days' notice to the City, or
greater notice if required by regulations of the New Jersey Department
of Insurance.
C.
An indemnification agreement, properly executed by
the applicant, which shall hold the City, its officers, agents and
employees harmless from any loss, claim or damage arising out of the
installation, maintenance or use of the fiber optic cable installed
by the applicant, the form of said agreement to be approved by the
City Attorney.
A.
Restoration. In the event applicant 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, applicant shall, at its sole expense, reasonably restore
and replace such places and things so disturbed to and in not less
than as good condition as existed prior to each disturbance. In doing
so, applicant shall comply with all applicable ordinances, resolutions,
laws, rulings and regulations for securing street opening permits.
All restoration shall to be completed within 60 working days 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, applicant, upon reasonable notice by the
City, shall, at its own expense, remove, relay, and relocate its cables,
equipment or other facilities.
C.
Temporary relocation or removal of cables. Applicant
shall, for the purpose of and upon the request of the City, at applicant's
sole expense, temporarily raise, lower, relocate or remove its cables
and associated facilities in order to facilitate the moving of buildings,
equipment, vehicles and machinery and to accommodate other like circumstances.
Applicant may suggest alternatives to the temporary removal of cable,
where such temporary removal may cause a disruption of services or
otherwise interfere with the expectations of its customers. However,
the City retains the right to make the final decision regarding said
cable removal.
D.
Abandonment of cables. In the event that cables are
installed by applicant or its successor and the same are abandoned,
applicant or its successor shall remove said abandoned cables and
restore the property and facilities of the City. "Abandoned cables,"
as used herein, shall be deemed cables that are not in active service
for a period of 60 days.
E.
Interference with municipal installations(s). In the
event that the fiber optic or other cable installation interferes
with a planned municipal installation, the subject fiber optic or
other cable shall be relocated by its owner in an expeditious manner
within the right-of-way to a location approved by the City at no cost
to the City. The owner of the fiber optic or other cable shall not
pay any additional fee to the City due to the relocation.
A.
Should any provision of this ordinance be determined
invalid by a court or administrative tribunal of competent jurisdiction,
such determination shall not affect the remaining provisions.
B.
The captions and titles assigned to the sections of
this ordinance 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 ordinance.
C.
In the event applicable law shall, during the term
hereof, modify any provision of this ordinance, the ordinance shall
be automatically modified to incorporate the change.
D.
The grant of rights under this ordinance shall be
for a period of 10 years and shall thereafter renew automatically
one year at a time unless the City or applicant chooses to terminate
with six months' prior written notice, but such grant may also be
extended or renewed for additional periods by resolution or ordinance
adopted by the City.
E.
This ordinance shall take effect immediately upon
final passage and publication according to law and upon receipt by
the applicant's written acceptance of the terms hereof. If such acceptance
is not received by the City Clerk within 60 days of the final passage
of this ordinance, the same will automatically expire and be of no
further effect.
