[HISTORY: Adopted by the Borough Council of the Borough of Lodi as indicated in article histories. Amendments noted where applicable.]
[Adopted 6-19-1991 by Ord. No. 91-09]
A. 
Pursuant to the provisions of N.J.S.A. 48:17-11 and 48:17-12 and subject to the provisions of § A590-4 hereof, permission and consent is hereby granted to New Jersey Bell Telephone Company (hereinafter referred to as "Company"), its successors and assigns, to erect, construct, reconstruct, remove, locate, relocate, replace, inspect, maintain, repair and operate its communications facilities and other transmission or process equipment, including underground facilities such as conduits, manholes, cables, wires and all other facilities appurtenant thereto and aerial and aboveground facilities such as cables, wires, antennas, poles, posts, supports, guys, pedestals, cable termination and distribution cabinets and all other facilities appurtenant thereto, in, through, upon, along, over, under and across all of the various public ways, sidewalks, streets, roads, avenues, highways, bridges, waterways and other public places and parts thereof, throughout their entire length, and to effect the necessary street openings and lateral connections to curb poles, property lines and other facilities in the Borough of Lodi (hereinafter referred to as "Borough") for said Company's local and through lines and other communications facilities in connection with transaction of its business.
B. 
All of the public ways, including by way of illustration and not of limitation the various sidewalks, streets, roads, avenues, highways, bridges and waterways, and other public places, and parts thereof, throughout their entire length, located in this municipality are hereby designated and prescribed for the uses and purposes of said Company as aforementioned.
C. 
In the event that any public street or way where the Company has facilities is vacated by the Borough, the municipality agrees to reserve unto said Company the rights granted the Company by the present ordinance.
All poles, posts, pedestals, cabinets, or other facilities hereafter to be erected, constructed, reconstructed, located, relocated, maintained, repaired or operated shall be located and placed back of the curblines where shown on the official map(s) of the Borough; the poles and posts, however, shall be located within 18 inches of the face of such curbline or as may otherwise be mutually agreed by both parties, or at the points or places now occupied by the poles, posts, pedestals, cabinets or other facilities of the Company, its successors and assigns, and where there are no curblines, at other convenient points or places in, upon, along, adjacent or across the public ways, streets, roads, avenues, highways or other public places as may be mutually agreed upon between the parties.
A. 
The Company may bury its local and through communications facilities such as cables, conduit, manholes and associated equipment, fixtures, process equipment and appurtenances within the right-of-way of the various public ways, sidewalks, streets, roads, avenues, highways and other public places and parts thereof, and at such locations as shall be mutually agreed upon by the parties for said Company's local and through lines and communications facilities.
B. 
Underground conduits and associated facilities, as aforementioned, shall be placed at least 18 inches below the surface of said public ways, sidewalks, streets, roads, avenues, highways and other public places and parts thereof, and with the exception of lateral branches to curb poles and property lines and other facilities, the same shall generally not be constructed more than 10 feet from the curbline, unless obstructions make it necessary to deviate from such course or unless the parties mutually agree to another location.
C. 
Manholes shall be located at such points along the line of underground conduits as may be necessary or convenient for placing, maintaining and operating the facilities, as aforementioned, which the Company may from time to time use in connection with its underground conduit system, and shall be so constructed as to conform to the cross-sectional and longitudinal grade of the surface so as not to interfere with the safety or convenience of persons or vehicles.
Before proceeding with any new construction or relocation work in an area covered by this ordinance, the Company shall give prior notice in writing thereof to the Borough, through its designated representative, of its intention to perform such work, including therewith a map or plan showing the location and size of such facilities. Such maps or plans are for the information of the municipality only and shall not be considered as construction specifications upon which the municipality or any third party may rely for subsequent excavation or other work. Prior to the opening or excavating of any public ways, sidewalks, streets, roads, avenues or other public places or parts thereof for the purposes of installing, maintaining or operating its underground systems as aforementioned, the Company shall only be required to first obtain such street opening or excavation permits and pay such reasonable fees therefor as may be lawfully required to cover the cost of administration and inspection, as provided by any ordinances regulating such openings or excavations. No building permits or zoning variances shall be required for the facilities covered by this ordinance.
The surface of the public ways, sidewalks, streets, roads, avenues, highways and other public places and any pavement or other surface and/or planting disturbed by the Company in constructing its facilities shall be restored to as good condition as it was before the commencement of work thereon. No highways or other public ways shall be encumbered for a period longer than shall be necessary to execute the work. Such restoration shall be subject to the approval of the Borough after an inspection by its authorized representative upon completion of the work.
The Company agrees to indemnify and save harmless the Borough from and against all claims and liabilities resulting from any loss of life or property or injury or damage to the person or property of any person, firm or corporation caused by or arising out of road conditions resulting from any negligent or faulty excavations, installation or maintenance connected with the work or equipment of said Company, or both, when not attributable to the fault, failure or negligence of the Borough, except that, if such loss, injury or damage shall be caused by the joint or concurring negligence or fault of the Company and the Borough, the same shall be borne by them to the extent of their respective fault or negligence.
Whenever a curbline shall be established on streets where one does not now exist or where an established curbline shall be relocated in order to widen an existing street or highway in conjunction with road construction being performed by the Borough, the Company shall change the location of its aboveground facilities covered by this ordinance, so that the same shall be back of and adjacent to the new curbline so established, upon receipt of notice that the curbline has been so established, so long as the municipality has acted with reasonable care in establishing the new curbline and providing notice thereof.
Any company or corporation having legal authority to erect and maintain poles, posts or pedestals upon any of the public ways, sidewalks, streets, roads, avenues, highways or other public places in the Borough may jointly use the Company's poles, posts, pedestals or other structures for all lawful purposes, provided the Company consents to such use, on terms and conditions acceptable to the Company and not inconsistent with the provisions of the present ordinance.
A. 
The Company shall provide space, to the extent available, on its poles so long as said poles are occupied by the Company and space, to the extent available, in its main conduits existing on the date of passage of this ordinance, but not exceeding one duct of standard size, for the sole benefit of the Borough during the pendency of this ordinance. Such space shall be provided for the exclusive use of the Borough, which use shall be limited to accommodating the wires or electrical conductors required for one-way signal control in connection with municipal police patrol, fire alarm signal control and traffic signal control systems only, but for no other uses or purposes either along or in conjunction therewith, nor for circuits for the supply of electrical energy for traffic or other signals, nor for wires, conductors, cable or the equivalent which provide a means of transmitting any signal to a private, commercial or residential location and which is normally provided by a nongovernmental supplier; provided, further, that no such use or attachment by the Borough shall interfere with the plant or facilities of or the use thereof by the Company. All costs or expenses incurred by the Company in connection therewith shall be paid by the Borough. It shall be the obligation of the Borough to attach its wires to the poles or place its electric conductors in the conduits or manholes of the Company, provided that, before proceeding with said work, either by itself or by a person, firm or corporation engaged to perform such work, the Borough shall give the Company 30 days' prior notice in writing. All such work shall be performed under the supervision of said Company.
B. 
The Borough will indemnify and save harmless the Company from and against all claims, liabilities or demands arising in any manner in connection with the Borough's wires or their installation, maintenance, operation or removal, or the Borough's use or enjoyment of the Company's plant or facilities provided under this § A590-9.
If any or all of the said streets or highways are later taken over by the Board of Chosen Freeholders of the County of Bergen or the State of New Jersey, Department of Transportation, such Board of Chosen Freeholders or Department of Transportation shall have such rights and privileges and be subject to the same terms, conditions and limitations of use as herein granted by this ordinance to the Borough; provided, however, that satisfactory prior arrangements as may be necessary are made with the Borough and the Company for the full protection of the respective interest of each.
Nothing herein contained shall be construed to grant unto said Company, its successors and assigns an exclusive right or to prevent the granting of permission and consent to other companies for like purposes on any of the streets, roads, avenues or highways of the Borough.
The term "Borough" as used in this ordinance shall be held to apply to and include any form of municipality or government into which the Borough or any part thereof may at any time hereafter be changed, annexed or merged, and the term "Mayor and Council" or any other term herein used in referring to the governing body of the Borough shall be held to apply to and include the governing body of such other form of municipality.
The permission and consent hereby granted shall apply to and cover all communications facilities of the Company existing at any time, and related structures, process equipment, and appurtenances heretofore or hereafter erected, constructed, reconstructed, removed, located, relocated, replaced, maintained, repaired, or operated by the Company, its predecessors, successors, or assigns within the Borough.
The Company shall pay the expenses incurred for advertising required in connection with the passage of this ordinance, after the date of its first reading, within 30 days after the Company has received a bill for said advertising from the publisher.
In the event that any one or more of the provisions contained herein shall for any reason be illegal or unenforceable in any respect under applicable law, such illegality or unenforceability shall not affect any other provisions of this ordinance, and this ordinance shall then be construed as if such illegal or unenforceable provision(s) had never been contained herein.
A. 
This ordinance shall continue in full force and effect for a period of 50 years from the date it becomes effective, subject to the right of the Company to seek such changes herein as it may deem necessary and reasonable from time to time prior to the expiration of said period.
B. 
Throughout the full term of this ordinance, the Company, for itself, its successors and assigns, agrees to maintain its property within the Borough in good order and shall furnish safe, adequate and proper service within the Borough at just and reasonable rates. At and after expiration of the term of this ordinance, the Company shall safeguard the public interest in continuous and uninterrupted service within the Borough.
C. 
Following final passage of this ordinance, the Borough Clerk shall provide the Company with written notice thereof by certified mail. As provided by applicable law, this ordinance shall not become effective until acceptance thereof by the Company and approval thereof by the Board of Public Utilities.
D. 
This ordinance shall cancel and supersede all prior consent ordinances between the Borough and the Company regarding the subject matter hereof.
[Adopted 12-20-2004 by Ord. No. 505-08]
For the purpose of this ordinance, the terms defined above shall have the meanings there indicated, and the following additional terms shall have the following meanings:
ACT OR CABLE TELEVISION ACT
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.
APPLICATION
Cablevision's application for renewal of municipal consent, which application is on file in the Borough Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this ordinance.
BOARD
The Board of Public Utilities of the State of New Jersey or its successor agency.
BOROUGH
The governing body of the Borough of Lodi in the County of Bergen and the State of New Jersey.
COMPANY
Cablevision of Oakland, LLC ("Cablevision"), the grantee of rights under this ordinance.
FCC
The Federal Communications Commission.
FEDERAL ACT
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.
FEDERAL REGULATIONS
Those federal regulations relating to cable television services, 47 CFR 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 CFR 76.3), or as such regulations may be amended.
STATE
The State of New Jersey.
STATE REGULATIONS
Those regulations of the State of New Jersey Board of Public Utilities relating specifically to cable television, N.J.A.C. 14:17-1.1 et seq., or as such regulations may be amended.
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 Borough 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 Borough 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 Borough 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. The Borough reserves the right at any time, subject to approval of the Board, to enforce and/or terminate the municipal consent according to applicable laws, rules and regulations for Cablevision's failure, in a material way, to perform any of its commitments and obligations as set forth in this ordinance.
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 Borough and the Board relative to the renewal of said consent.
Cablevision shall be required to proffer video programming service along any public right-of-way to any person's residence within the franchise territory at tariff rates for standard and nonstandard installation.
Pursuant to the terms and conditions of the Cable Television Act, Cablevision shall pay to the Borough, 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 Borough. In the event applicable law hereinafter permits a larger franchise fee to be collected, but does not fix the amount thereof, the Borough and Cablevision shall negotiate in good faith with respect to the amount thereof. In the event applicable law mandates a larger franchise fee and establishes the amount, Cablevision shall pay such larger fee.
A. 
Cablevision shall provide, upon written request, free of charge, one standard installation and monthly cable television reception service to all state and locally accredited elementary and secondary public schools and all municipal public libraries as well as all municipal buildings used for municipal governmental purposes located within the Borough.
B. 
Upon written request from the Borough, the Company shall provide to the Municipal Building, without charge, the following: 1) one standard installation; 2) one cable modem per installation; and 3) basic cable modem service for the term of this ordinance for each installation. This offer shall be subject to the terms, conditions and use policies of the Company, as those policies may exist from time to time.
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 Borough:
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 Borough, 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 Borough, 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. 
During the exercise of its rights and privileges under this consent, the Company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the Borough so as to prevent the branches of such trees from coming in contact with the wires, cables, conduits and fixtures of the Company. Such trimmings shall be only to the extent necessary to maintain proper clearance for the Company's facilities.
A. 
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 in accordance with N.J.A.C. 14:18-5.1. All complaints shall be received and processed by Cablevision pursuant to N.J.A.C. 14:17-6.5. 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. Any complaints from subscribers shall be investigated as soon as practicable and with no unreasonable delay. The company shall keep a maintenance service log in the ordinary course of business to reasonably identify the nature of the service complaint and the disposition thereof, including the date of the complaint and disposition.
B. 
The Company shall comply with all requirements of the Office of Cable Television or other appropriate regulatory bodies.
The Office of Cable Television (OCTV) is hereby designated as the complaint officer for the Borough pursuant to the provisions of N.J.S.A. 48:5A-26(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 Borough 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 same 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 service 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 Borough pursuant to state and federal requirements. The Company shall in no way be held liable for any injury suffered by the Borough 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 Borough shall utilize the state-approved procedures for such emergency uses.
A. 
Cablevision agrees that the capabilities of the cable system shall be maintained technologically current throughout the duration of the franchise, as compared with other communities of similar size served by the Company, to the extent economically reasonable and commercially practicable.
B. 
During the first five years of the effective date of this agreement, the Borough may notify Cablevision, in writing, no more than once annually, of a good faith belief that Cablevision has entered into a subsequent effective franchise agreement with a municipality located within 20 miles of the Borough having a comparable subscriber size as measured by the number of subscribers within the municipality who subscribe to the system at comparable service level percentages and which the Borough demonstrates contains material provisions which are substantially more favorable than those in this agreement, taking into consideration the overall costs, obligations and benefits of the subsequent agreement viewed in its totality. The parties shall then meet to discuss in good faith modifications to this agreement proposed by the Borough to any material provision of this agreement equal to the overall costs, obligations and benefits of the subsequent agreement viewed in its totality and which the Borough demonstrates is necessary to address a material adverse impact on the Borough and its residents. The process for modification of this § A590-34 shall be limited to the good faith negotiations described herein; provided, however, that nothing herein shall be deemed to waive or otherwise restrict either party's rights under applicable law.
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 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 Borough agrees that Cablevision shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming during the times when the Borough is not utilizing the channel for 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 Borough provision of PEG access programming on such channel.
C. 
In consideration for the rights granted by this ordinance, Cablevision shall provide the Borough 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 Borough.
D. 
Cablevision shall continue to provide and maintain one access return line at the Lodi High School without charge for the exclusive use by the Borough and accredited educational institutions located within the Borough which are authorized by the Borough to utilize it in the production of noncommercial, educational and governmental (PEG) access for the benefit of the Company's customers in the Borough.
E. 
Upon written request, Cablevision shall provide and maintain one access return line without charge at Borough Hall, One Memorial Drive, for use by the Borough in the production of noncommercial, educational and governmental (PEG) access for the benefit of the Company's customers in the Borough.
Upon 30 days' prior written notice from the Borough, Cablevision shall make available a representative of the Company to meet biannually with the Borough for the purpose of reviewing the Company's performance under this ordinance. The Company representative shall respond to reasonable requests for information made by the Borough. Either party shall have the right to request the OCTV to have a representative at the said meeting. The OCTV shall decide whether to attend such meeting or not.
All of the commitments contained in the application, and any amendments thereto submitted in writing to the Borough by the Company except as modified herein, are binding upon Cablevision as terms and conditions of this consent. The application and any other written amendments 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, altered by this ordinance, or to the extent that they conflict with state or federal law.
A. 
In the event another multichannel video program provider's service within the Borough creates a significant competitive disadvantage to Cablevision, the Company shall have the right to request from the Borough lawful amendments to its franchise that relieve it of the 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 Borough agrees not to oppose 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 whether appropriate amendments are necessary, or on the nature or extent of such amendments to the franchise, the Borough 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 Borough shall be under no obligation to support Cablevision's request for such relief from the Board.
C. 
Cablevision acknowledges that, as of the date of its acceptance of this municipal consent, competition within the Borough has not yet risen to the level of creating a significant competitive disadvantage sufficient to enable the Company to seek relief under this section.
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, 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.