[HISTORY: Adopted by the Mayor and Council of the Borough of Edgewater 10-16-2000 by Ord. No. 1200-2000 (Ch. A314 of the 1975 Code). Amendments noted where applicable.]
This ordinance shall be known and may be cited as the "RCN Telecom Services of New Jersey, Inc., Open Video Systems Service Agreement."
For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural.
- Shall have the same meaning as set forth in the Rules and Regulations of the FCC which govern the provision of OVS services as set forth in 47 CFR 76.1500(g).
- The Borough of Edgewater, County of Bergen, State of New Jersey.
- COMPANY or RCN
- RCN Telecom Services of New Jersey, Inc.
- The Federal Communications Commission.
- FEDERAL LAW
- The federal statute relating to open video systems, known as 47 U.S.C. § 521 et seq., or as the statute may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to open video systems, 47 CFR 76.1500 et seq., and, to the extent applicable, any other federal rules and regulations.
- Includes every street, road, alley, thoroughfare, way or place of any kind used by the public or open to use by the public.
- OPEN VIDEO SERVICE OPERATOR or OVS OPERATOR
- Any person or group of persons who provides cable television service over an open video system and directly or through one or more affiliates owns a significant interest in such open video system, or otherwise controls or is responsible for the management and operation of such an open video system.
- OPEN VIDEO SYSTEM
- A facility consisting of transmission paths and associated signal generation, reception and control equipment that is to provide cable television service which includes video programming to multiple subscribers within the Borough and which has received a certificate from the FCC pursuant to 47 CFR 76.1502.
- OVS SERVICE
- Shall include the video programming services distributed by an OVS operator or its affiliate directly to its subscribers in the Borough by use of the OVS operator's facilities.
- Any person, firm, partnership, association, corporation, company or organization of any kind.
- TECHNOLOGY ACCESS FUND
- Those revenues paid by the company to the Borough pursuant to § A553-5 of this agreement to be used by the Borough to promote access to advanced technologies.
- VIDEO REVENUES
- Those revenues derived from the provision of video programming services as part of the open video systems services.
Pursuant to applicable law, at a public meeting, upon appropriate notice, the Borough has considered the qualifications of the company to provide OVS service and 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, and that, therefore, the Borough hereby grants the company a nonexclusive right and privilege to construct, erect, operate, modify and maintain, in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the Borough such poles, wires, cables, underground conduits, manholes and other communications conductors and fixtures necessary for the maintenance and operation in the Borough of an open video system and to provide OVS service and other electronic impulses in order to furnish television and radio programs, and various communications and other electronic services to the public. The right so granted includes the right to use and occupy said highways, streets, alleys, public ways and public places, and all manner of easements for the purposes herein set forth and as provided by federal and state law.
The authority granted to the company shall be for a term of 10 years from the date that notice of final passage of this ordinance is published in a newspaper of general circulation in Edgewater.
The company shall, during each year of operation under this agreement, pay to the Borough 2% of the revenues received from the company's basic level of video programming services and an additional 3% of gross revenues from the company's OVS service, which shall be applied as a technology access fund.
During the term of this authority, the company shall maintain a local business office or agent for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters.
The company shall comply with all federal regulations and state regulations pertaining to customer service, including, but not limited to, those pertaining to office hours and telephone availability, installations, outages and service interruptions, service calls, billing, billing disputes, service-related complaints and notices of changes in rates, programming and channel positions.
With respect to service-related complaints and other complaints, the company shall inform the complainant that he may request review of the complaint by the complaint officer, and shall provide the subscriber with the name and address of the complaint officer.
With respect to service-related complaints and other complaints, when such complaints are made in writing, the company shall retain an actual copy of such written complaints in its files. The company shall provide the Borough with notice of its intent to dispose of any records kept pursuant to this section in a manner similar to N.J.A.C. 14:18-6.2(b), or pursuant to N.J.A.C. 14:18-6.5, at least 120 days prior to such disposal, in order to permit the Borough adequate time to request that such records be available for the Borough's inspection and copying as permitted by law.
The company shall provide written notice to its subscribers on a quarterly basis of the procedures by which a subscriber may obtain credits for outages and interruptions of service.
The company will meet with the Borough on an annual basis, at the Borough's request, to review and discuss billing, service-related and other complaints of Edgewater subscribers, and other issues of concern to the Borough.
The company will make trained company representatives available to respond to telephone inquiries from Edgewater customers between the hours of 8:00 a.m. and 11:00 p.m., Monday through Friday, between the hours of 9:00 a.m. and 12:00 a.m. on Saturday, and between the hours of 12:00 p.m. and 12:00 a.m. on Sunday.
The Borough Clerk is hereby designated as the complaint officer for the Borough.
The company expressly agrees that it will indemnify and hold harmless the Borough and its officials, agents and employees and pay all damages and penalties which the Borough may legally be required to pay as a result of the company's negligence in the installation, operation or maintenance of the open video system authorized herein. The Borough shall notify the company's manager within 90 days after the presentation of any claim or demand to the Borough, either by suit or otherwise, made against the Borough on account of any negligence or contract as aforesaid on the part of the company.
Furthermore, the company shall maintain and keep in full force and effect liability insurance naming the Borough and the company as insureds and insuring against loss by any claim, suit, judgment, execution or demand in the minimum amounts as follows:
Upon the effective date of this authority, the company shall secure a performance bond in the amount of $100,000. Upon completion of construction of the system and during the life of this authority, the company may reduce the amount to $25,000. Such bond shall be to insure the faithful performance of all undertakings of the company.
Territory. The authority granted under this ordinance shall apply to the entirety of the Borough, and any property hereafter annexed thereto.
Facilities and equipment. In transmitting its communications signals to subscribers in the Borough, the company shall provide a quality of signal that is at least as good as that customarily provided under prevailing industry standards, and shall comply with any requirements imposed by the federal regulations, any federal pronouncements and (to the extent not preempted by federal law) any state pronouncements relating to technical standards for the transmission of communication signals, transmission quality or facilities and equipment. The company shall notify the Borough prior to commencement of any work or construction activities which would materially impact the condition or use of Borough property or the public streets and rights-of-way.
Extension of service. The company shall be required to provide service to any person's residence or business located in the Borough along public streets and rights-of-way, except where access to such residence or business is denied.
Relocation of poles. In the event that, at any time during the term of this ordinance, the Borough shall lawfully elect to alter or change the grade of any street, alley or other public way, the company, upon reasonable notice by the Borough, shall promptly remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at the company's own expense.
Temporary wire changes. The company shall, on the request of any person holding a valid building moving permit issued by the Borough, temporarily raise or lower its wires to permit the moving of buildings, machinery or in other similar circumstances. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting same, unless the request is on behalf of the Borough, in which case there shall be no charge. The company shall have the authority to require any such payment in advance. The company shall be given not less than 30 days' advance notice to arrange for temporary wire changes.
Tree trimming. The company shall have the authority, upon written approval of the Borough Administrator, to trim trees upon and overhanging streets, highways, alleys, sidewalks and public places within the Borough so as to prevent the branches of such trees from coming into contact with the wires and cables of the company.
Compliance with standards. All facilities and equipment of the company shall be constructed and maintained in accordance with the requirements and specifications of the applicable ordinance and regulations set forth by the Borough and/or any other local, state or federal agencies. The company shall maintain its facilities and equipment within the Borough in good and reasonable operating condition at all times during the term of the authority granted herein.
Coordination of initial construction. During the initial construction of the open video system, the company will coordinate construction activities with the Borough to minimize disruption to residents of the Borough. The vehicles of the company, and those of any contractors, shall be suitably marked and all employees and contractors shall display appropriate identification.
The company shall have the authority to promulgate such reasonable rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the company to exercise its rights and perform its obligations under this authority, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with federal and/or state laws.
The company shall not sell or transfer its open video system to another entity, nor transfer any rights under this ordinance to another, without the consent of the Borough, which shall not be unreasonably withheld. The company shall notify the Borough at least 60 days in advance of any transfer. Such transfer shall be deemed approved by the Borough if the Borough has not raised any questions or objections within 60 days of receipts of such notice. The company, may, however, upon 60 days' written notice to the Borough, and without reasonable objection by the Borough, transfer any rights or privileges to an affiliate of the company without prior approval and may pledge its property in the ordinary course of business.
This ordinance and agreement is subject to all provisions of the state and federal law applicable to OVS service providers and to all lawful rules and regulations pursuant thereto.
The company shall not allow its OVS service or other operations to interfere with television reception of persons not served by the company, nor shall the system interfere with, obstruct or hinder in any manner the operation of the various utilities serving the residents of the Borough.
The company shall provide installation and at least one outlet of free monthly basic service in all schools and public libraries in the Borough, as well as Borough Hall.
The company shall offer a discount of $2 on its basic level of video programming service, exclusive of any other package or discounts, to any senior citizen 62 years of age or older who does not share the company's service with more than one person who is less than 62 years of age and any disabled persons or any disabled individual. In order to receive the discount, the senior citizens or disabled citizen must have an annual household income of $30,000 or less.
After the construction is complete, the company will provide a minimum of one governmental access channel, one educational access channel and one public access channel on the Edgewater system. The educational access channels, governmental access channels and public access channels (hereinafter referred to collectively as the "PEG channels") will be provided at no cost to the Borough as part of the entry-level service for the duration of the agreement.
In the event that any of the access channels are relocated to another channel number during the term of this agreement, the company shall comply with the provisions of the federal regulations and any applicable state regulations pertaining to changes in channel positions or channel allocation, including but not limited to 47 CFR 76.309(c)(3). Additionally, in such event, the company shall publish notice of any change in an access channel position in a newspaper of general circulation in Edgewater at least 15 days prior to the effective date of such change. Furthermore, contemporaneous with its written notice provided to subscribers, the company shall provide written notice to the Borough of any change in the channel position of either the municipal or educational access channel.
The company shall take any steps that are necessary to ensure that the signals originated on the PEG channels are carried without material degradation, and that the quality of the signal transmitted to subscribers over the PEG channels meets prevailing industry standards and is equal to the quality of the signals transmitted by RCN on its other channels.
The company will provide, free of charge, such technical assistance, advice and support as is reasonably requested by the Borough. Such technical assistance, advice and support will be available to:
Upon reasonable notice to the company by the Borough, the company shall provide annual training workshops, free of charge, to municipal and educational persons or groups on the use of access facilities and equipment, including production techniques. Equipment for public access courses will be provided by the company.
The company shall provide Internet access services for use by the Borough. Internet access shall include the hosting of an Internet web site for the Borough and Internet addresses for Borough Hall officials. The company shall also provide one outlet of a basic level of Internet access to each school and library in the Borough.
Upon completion of construction of the open video system, the company shall dedicate two fiber-optic cables to permit an interconnection of municipal building and schools. These fiber-optic cables would permit two-way video capability and point-to-point data capability. The two fiber-optic cables would be owned and maintained by the company, but would be dedicated to the Borough's use. End-user equipment will be the responsibility of the Borough to purchase and maintain.
The open video system shall have the capability to have an emergency alert throughout the Borough by an audio or video override of all channels in the event of a public emergency. The company shall coordinate the use of the emergency alert system with appropriate national, state and local officials.
It any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid, preempted or unconstitutional by any court or federal or state agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision of this ordinance, and such holding shall not affect the validity of the remaining portions hereof.
This agreement is subject to the Laws of the State of New Jersey, and any actions hereto shall be maintained in the State of New Jersey.
Should any of the federal or state acts, regulations or pronouncements applicable to the regulation of OVS service or cable television service be modified in any way, such modification, to the extent it embodies required terms and conditions and meaningfully can be incorporated into this ordinance, shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modification places limits on permissible terms and conditions, and any provision of this ordinance becomes invalid by virtue of such modification, the preceding § A553-19 shall apply.
This ordinance shall take effect upon its final passage and publication according to law.
The rights granted herein are nonexclusive, and the Borough may, in accordance with the requirements of federal or state law, award another like authority to a separate company in addition to the company.
All notices shall be sent via certified mail, return receipt requested, and regular mail to the following addresses:
This agreement may be amended or modified in accordance with law if, during the term of this agreement, the parties determine that such amendment or modification is necessary or desirable due to changes in circumstances or applicable law.