[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.
RCN Telecom Services of New Jersey, Inc.
The Federal Communications Commission.
The federal statute relating to open video systems, known
as 47 U.S.C. § 521 et seq., or as the statute may be amended.
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.
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.
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.
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.
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.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
The Borough Clerk is hereby designated as the complaint officer for
the Borough.
A.
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.
B.
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:
C.
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.
A.
Territory. The authority granted under this ordinance shall apply
to the entirety of the Borough, and any property hereafter annexed
thereto.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
A.
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.
B.
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.
C.
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.
A.
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:
B.
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.
A.
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.
B.
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.
A.
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.
B.
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:
|
For the Borough:
Borough Clerk
Municipal Building
916 River Road
Edgewater, NJ 07020
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For the Company:
RCN Telecom Services of New Jersey, Inc.
Vice President, Franchising and Development
105 Carnegie Center
Princeton, NJ 08540
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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.
