[Editor's Note: Prior ordinance history includes portions
of Ordinance Nos. 499 and 942.]
a. Short Title. This section shall be known and may be cited as the
"Comcast of Central New Jersey II, LLC Municipal Consent Ordinance."
[Ord. No. 942 § 2]
[Ord. No. 942 § 2]
For the purposes of this section, the following terms, phrases,
words and their derivations shall have the meaning given herein. Such
meaning or definition of terms is supplemental to those definitions
of the Federal Communication Commission ("F.C.C.") Rules and Regulations,
47 C.F.R. subsection 76.1 et seq., and the Cable Communications Policy
Act of 1984, 47 U.S.C. Section 521 et seq., as amended and the Cable
Television Act, N.J.S.A. 48:5A-1 et seq. and shall in no way construed
to broaden, alter or conflict with the Federal or State definitions:
ACT OR CABLE TELEVISION ACT
Shall mean Chapter 186 of the General Laws of New Jersey,
1972, Section 48:5A-1 et seq., and subsequent amendments thereto.
APPLICATION
Shall mean the application for a cable television franchise
of Comcast of Central New Jersey II, LLC, dated October 13, 2009,
which application is on file in the office of the Borough Clerk and
is incorporated herein by reference and make a part hereof, except
as modified, changed, limited or altered by this section.
BOARD
Shall mean the Board of Public Utilities of the State of
New Jersey.
COMPANY
Shall mean the grantee of rights under this section and is
known as "Comcast of Central New Jersey II, LLC," a Delaware Limited
Liability Company, with executive offices at One Comcast Center, Philadelphia,
Pennsylvania, 19103.
FEDERAL ACT
Shall mean that Federal statute relating to cable communications
commonly known as the Cable Communications Policy Act of 1984, 47
U.S.C., Section 521 et seq., or as that statute may be amended.
FEDERAL REGULATIONS
Shall mean those Federal regulations relating to cable television
service, 47 C.F.R. Section 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. Section
76.3), or as such regulations may be amended.
MUNICIPALITY
Shall mean the Borough of Peapack and Gladstone, County of
Somerset, in the State of New Jersey.
OFFICE
Shall mean the New Jersey Office of Cable Television within
the Board of Public Utilities.
PRIMARY SERVICE AREA
Shall mean the area of the Municipality in which the Company
shall make service available to all present and future customers at
standard and non-standard installation rates and without a subscriber
contribution in aid of construction.
STATE REGULATIONS
Shall mean those regulations of the State of New Jersey Board
of Public Utilities relating to cable television, N.J.A.C. 14:17-1.1
et seq., and 14:18-1.1 et seq., or as such regulations may be amended.
[Ord. No. 942 § 2]
The Municipality hereby grants to the Company its non-exclusive
consent to place in, upon, along, across, above, over and under the
highways, streets, alleys, sidewalks, public ways, and public places
in the Municipality, poles, wires, cables, underground conduits, manholes,
and other television conductors and fixtures necessary for the maintenance
and operation in the Municipality of a cable television system and
cable communication system. The placement of equipment and facilities
in the public rights-of-way pursuant to this section shall not unreasonably
interfere with the public rights-of-way and shall not prelude other
entities from being able to place facilities in the rights-of-way.
Equipment and facilities placed in a public rights-of-way shall be
of the type and nature that is generally consistent with such equipment
normally or regularly used within this industry and shall not be of
a size that unreasonably consumes an excessive portion of the right-of-way
or unreasonably interferes with the use of the right-of-way. The Company
shall also comply with all zoning ordinances unless exempted pursuant
to N.J.S.A. 48:5A-17(e). Construction pursuant to said consent is
conditioned upon prior approval of the Board.
[Ord. No. 942 § 2]
A public hearing regarding Comcast of Central New Jersey II,
LLC's consent application was conducted on January 5, 2010, after
proper public notice, according to the terms and conditions of the
Act. The hearing was fully open to the public. The Municipality found
that Comcast of Central New Jersey II, LLC possesses the necessary
legal, technical, character, financial and other qualifications to
support municipal consent, pursuant to terms and conditions set forth
herein. This Ordinance incorporates the terms and conditions agreed
to by Comcast of Central New Jersey II, LLC on June 8, 2010.
[Ord. No. 942 § 2]
The consent herein granted shall be nonexclusive for a renewal
period of ten (10) years running from July 11, 2010 to July 9, 2020,
and shall expire coincident with the expiration of the Certificate
of Approval issued by the Board of Public Utilities pursuant to the
consent granted herein.
In the event that the Municipality shall find that the Company
has not substantially complied with the material terms and conditions
of this Ordinance, the Municipality shall have the right to petition
the OCTV, pursuant to N.J.S.A. 48:5A-47, for appropriate action, including
modification and/or termination of the Certificate of Approval; provided
however, that the Municipality shall first have given the Company
written notice of all alleged instances of noncompliance and an opportunity
to cure same within ninety (90) days of that notification.
[Ord. No. 942 § 2]
Pursuant to terms and conditions of the Act, the Company shall,
during each year of operation under the consent granted herein, pay
to the Municipality two (2%) percent of the gross revenues from all
recurring charges in the nature of subscription fees paid by subscribers
to its cable television reception service in the Municipality or any
greater amount permitted by the New Jersey Cable Television Act or
otherwise allowed by law, immediately upon the effective date thereof.
The Company shall file with the Chief Financial Officer of the Municipality
a verified statement showing the gross receipts upon which payment
is based.
[Ord. No. 942 § 2]
The consent hereby granted to the Company shall apply to the
entirety of the Municipality and any property hereafter annexed thereto.
[Ord. No. 942 § 2]
The "primary service area" shall consist of the portion of the
Municipality as proposed in the application and as delineated on the
map submitted with the application. Consequently, the Company shall
be required to proffer service along any public right-of-way to any
person's residence or business located in the primary service
area at tariffed rates for standard and nonstandard installation.
The Company's Line Extension Policy, as set forth in the
Company's application, shall govern any extension of plant beyond
the primary service area. For the purposes of said policy the minimum
density of homes shall be twenty-five (25) per mile.
[Ord. No. 942 § 2]
a. In the event that the Company or its agents shall disturb any pavement,
street surface, sidewalks, driveways, lawns or other surfaces in the
natural topography, the Company shall, at its sole expense, restore
and replace such places or things so disturbed in as good condition
as existed prior to the commandment of said work. In the event that
the Company does not restore the property to as good condition that
existed prior to the commencement of such work, the Municipality shall
notify the Company and within ten (10) days of receipt of such notice
the Company shall restore the property to as good condition as existed
prior to the commencement of such work. If after the Company has received
notice pursuant to this paragraph, the Company does not restore the
property as required herein, the Municipality shall advise the Company
that if restoration is not completed in accordance with subsection
the Municipality shall refer the matter to the Board of OCTV for appropriate
administrative action. The Company shall comply with all State laws
and regulations governing excavation, including utility company marking
of areas prior to excavation activities.
b. At least ten (10) days prior to the commencement of any upgrade related
to underground construction work or work requiring new or enlarged
equipment to be installed on private property, other than equipment
installed in connection with necessary or normal repairs or maintenance,
Comcast of Central New Jersey II, LLC will use commercially reasonable
efforts to deliver to every affected property owner a notice of commencement
of such work.
c. All residential property, including grass, shrubbery, and other landscaping,
to the extent possible, shall be restored to its prior condition.
Where sod has been installed, Comcast of Central New Jersey II, LLC
will lift the sod and replace same. All restoration work will be conducted
by persons/contractors that are regularly engaged in the type of work
that is the subject of restoration. Any sprinkler repairs necessary
are to be completed within forty-eight (48) hours after notification,
unless otherwise agreed upon by the resident.
d. Where and when possible, all affected areas are to be returned to
a right-of-way condition on the same business day. All trenches are
to be closed the same working day. In the case of unusual circumstances,
the area is to be secured and closed the following work day. In the
event an area is not secured and closed at the end of a Friday, crews
will return and close the area on a Saturday morning.
e. If the Company is required to excavate or otherwise disturb grass
or sod during the months of November-March, the Company shall restore
the property to its prior condition upon completion of the work. However,
because during November-March it will be difficult to restore grass
or sod to its prior condition, the Company during the month of April
shall restore each tract of grass or sod that was disturbed by the
Company from November-March.
f. Comcast of Central New Jersey II, LLC will repair any damage to tree
limbs, trunks, or bark caused by Comcast of Central New Jersey II,
LLC's construction work using approved methods and/or materials,
i.e., any branches broken will be pruned off and sprayed with tree
wound spray. Comcast of Central New Jersey II, LLC will prune broken
tree limbs resulting from Comcast of Central New Jersey II, LLC's
construction/maintenance work using approved pruning methods.
1. Removal or trimming of trees during the exercise of its rights and
privileges under this franchise, Comcast of Central New Jersey II,
LLC shall have the authority, after consultation with the Municipality,
to thin trees upon and overhanging streets, alleys, sidewalks and
public places of the Municipality so as to prevent the branches of
such trees from coming in contact with the wires and cables of Comcast
of Central New Jersey II, LLC. Such trimming shall be performed only
to the extent necessary to maintain proper clearance for Comcast of
Central New Jersey II, LLC wires and cables.
g. Both the Municipality and Comcast of Central New Jersey II, LLC shall
maintain a list of the name and address of each person making a complaint
regarding construction, repair or maintenance work, the date of the
complaint, and the nature of the complaint.
h. In the event that an emergency arises as a result of Comcast of Central
New Jersey II, LLC's construction or maintenance activities,
it shall immediately contact the Municipal Police Department and any
utility companies that may be affected by the accident.
i. If at any time during the period of this consent the Municipality
shall alter or change the course or grade of, or close or vacate,
any street, alley or other way or place, the Company, upon reasonable
notice by the Municipality shall remove, re-lay and relocate its equipment,
at the expense of the Company.
j. The Company shall temporarily move or remove appropriate parts of
its facilities to allow moving of buildings, machinery or in other
similar circumstances. The expense for the movement or removal of
such facilities shall be borne by the party requesting such action
except when requested by the Municipality, in which case the Company
shall bear the cost.
k. During the exercise of its rights and privileges under this consent
and to the extent the authority is granted in the Company's Certificate
of Approval issued by the Board, the Company shall have the authority
to trim trees upon and overhanging streets, alleys, sidewalks and
public places of the Municipality so as to prevent, but only to prevent,
the branches of such trees from coming in contact with the wires and
cables of the Company. Such trimming shall be only to the extent necessary
to maintain proper clearance for the Company's facilities and
no trees shall be removed or destroyed without the prior consent of
the Municipality.
l. The Company shall cause any and all construction plans relating to
work on any extensions of Comcast of Central New Jersey II, LLC's
plant or work, which could have a significant impact on public works
within the Municipality to be filed with the Municipality. Nothing
herein shall create any rights or obligations with respect to construction
work which are inconsistent with any regulations or regulatory authority
of the Board.
[Ord. No. 942 § 2]
The rates of the Company shall be subject to regulation as permitted
by Federal and State law.
[Ord. No. 942 § 2]
During the term of this franchise, and any renewal thereof,
the Company shall maintain a local business office or agent for the
purpose of receiving, investigating and resolving all complaints regarding
the quality of service, equipment malfunctions and similar matters.
The local business office need not be located within the Municipality,
but rather within a reasonable distance thereof affording convenient
accessibility to Municipal subscribers. Such a business office shall
have a publicly listed toll-free telephone number and be open during
standard business hours, and in no event (excepting emergent circumstances)
less than 9:00 a.m. to 5:00 p.m., Monday through Friday. In addition,
telephone response for such purpose will be provided by the Company's
personnel, representative or agent twenty-four (24) hours a day. Said
phone number and address shall, at all times, be on file with the
Clerk of the Municipality.
[Ord. No. 942 § 2]
The Office of Cable Television is hereby designated as the complaint
officer for the Municipality pursuant to N.J.S.A. 48:5A-27(b). All
complaints shall be received and processed in accordance with N.J.A.C.
14:17-6.5. The Municipality shall have the right to request copies
of records and reports pertaining to complaints by Municipality customers
from the OCTV.
[Ord. No. 942 § 2]
a. Facilities and Equipment.
1. In transmitting its television signals to subscribers in the Municipality,
the Company shall provide a quality of a signal that is at least equivalent
to that customarily provided under prevailing industry standards.
2. The Company shall comply with any requirements imposed by the Federal
regulations, any Federal pronouncements, and (to the extent not preempted
by Federal law) any State regulations or pronouncements relating to
technical standards for the transmission of television signals, transmission
quality, or facilities and equipment.
3. The Company's system shall meet all Federal and State technical
requirements and shall be state-of-the-art and of the highest technical
quality.
4. Comcast of Central New Jersey II, LLC agrees that the capabilities
of the system shall be maintained as technologically current throughout
the duration of the franchise, as compared with other New Jersey systems
of comparable size measured by the number of customers in the system,
and to the extent economically reasonable.
5. The Company shall maintain standby power supplies for all existing
and future power supplies within the system serving the Municipality.
b. Customer Service. In providing services to its customers, the Company
shall comply with N.J.A.C. 14:18-1 et seq., and all applicable State
and Federal statutes and regulations. The Company shall strive to
meet or exceed all voluntary Company and industry standards in the
delivery of customer service and shall be prepared to report on it
to the Municipality upon written request of the Municipal Administrator
or Clerk.
1. In order to maintain its level of telephone accessibility for calls
relating to maintenance and repairs and to improve service for calls
relating to installation, addition or deletion of programming services,
and other customer inquiries, the Company shall do the following:
(a)
The Company shall comply with any and all properly adopted rules,
regulations or promulgations of the OCTV, or other regulatory bodies
insofar as they apply to telephone accessibility.
(b)
The Company shall maintain a telephone number by which subscribers
wishing to communicate with the Company can do so during the day or
evening.
(c)
The telephone number shall be published in every monthly bill.
(d)
In the event of major technical changeovers of equipment affecting
the majority of subscribers, where such changeover of equipment is
necessary for such subscribers to maintain their current level of
service, the Company shall make such equipment available to the subscriber
at the local office.
(e)
The Company shall continue to fully comply with all applicable
State and Federal statutes and regulations regarding the availability
of devices for the hearing impaired and the notification of same to
customers.
(f)
Nothing herein shall impair the right of any subscriber or the
Municipality to express any comment with respect to telephone accessibility
to the Complaint Officer, or impair the right of the Complaint Officer
to take any action that is permitted under that law.
2. The Company shall credit the accounts of Company subscribers for
service outages pursuant to any and all properly adopted rules, regulations
and promulgations of the Office or applicable State and Federal statutes.
c. Notices. The Company shall provide written notice to the Municipality
as may be required by any and all properly adopted rules, regulations
or promulgations of the Office or State or Federal statutes.
d. Compliance with Law. Notwithstanding any specific mention of applicable
Federal or State statutes or regulations above, the Company shall
comply with all of the requirements of the Federal Act, the Federal
Regulations, the State Act and State Regulations (to the extent not
preempted) and any other valid statute, regulation, rule or promulgation,
specifically including, but without limitation, those relating to
equal employment opportunity.
[Ord. No. 942 § 2]
During the life of the franchise, the Company shall give a bond
to the Borough of Peapack and Gladstone which bond shall be in the
amount of twenty-five ($25,000.00) dollars. Such bond shall be to
insure the faithful performance of all undertakings of the Company
as represented in its application for municipal consent incorporated
herein. In the event the Company does not comply with its obligations
regarding property restoration as set forth herein, the Municipality
after providing reasonable notice to the Company shall refer the matter
to the Board and/or The Office for appropriate administrative action.
[Ord. No. 942 § 2]
a. Although nothing herein shall require the Company to carry or transmit
any particular television station or programming source, the Company
shall provide the subscribers in the Municipality with at least the
same broad categories of programming as are now provided.
b. Changes in programming shall be provided in accordance with applicable
State and Federal requirements. Presently, the requirements for notification
are set forth in N.J.A.C. 14:18-3.17 and applicable FCC regulations.
[Ord. No. 942 § 2]
The Company shall provide standard installation and basic cable
television service at no cost on one (1) outlet to each municipal
government building including, but not limited to, the municipal building,
police, fire, emergency management facility, rescue squad headquarters,
public works garage, provided they are capable of being served by
a standard installation. Monthly charges shall be waived on all additional
outlets.
The Company shall provide standard installation and one (1)
non-networked internet connection and service via high-speed cable
modem at no cost to the municipality to each of the following municipal
facilities: Municipal building, Public Works office, fire house and
rescue squad headquarters. All facilities must be located within two
hundred (200) feet of active cable plant.
[Ord. No. 942 § 2]
The Company shall make available within the Municipality the
following:
a. The Company shall continue to provide residents with a system-wide
public access channel maintained by the Company. Qualified individuals
and organizations may utilize public access for the purpose of cable
casting noncommercial access programming in conformance with the Company's
published public access rules.
b. The Company shall continue to provide a system-wide leased access
channel maintained by the Company for the purpose of cable casting
commercial access programming in conformance with the Company's
guidelines and applicable State and Federal statutes and regulations.
c. The Company shall take any steps that are necessary to ensure that
the signals originated on the access channels are carried without
material degradation, and with a signal whose quality is equal to
that of the other standard channels that the Company transmits.
[Ord. No. 942 § 2]
The Company will comply with the Emergency Alert System that
is being implemented by Federal, State and County officials. See FCC
Regulations, Part II, Subpoint D, Section 11-51.
The Company shall in no way be held liable for any injury suffered
by the Municipality 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.
[Ord. No. 942 § 2]
The Company agrees to indemnify, save and hold harmless, and
defend the Municipality, its officers, boards and employees, from
and against any liability for damages and for any liability or claims
resulting from property damage or bodily injury (including accidental
death), which arise out of the Company's construction, operation,
or maintenance of its cable television system, including, but not
limited to, reasonable attorney's fees and costs provided that
the Municipality shall give the Company written notice of its obligation
to indemnify the Municipality. If the Municipality determines that
it is necessary for it to employs separate counsel, the costs for
such separate counsel shall be the responsibility of the Municipality.
[Ord. No. 942 § 2]
The Company agrees to maintain and keep in full force and effect
at its sole expense at all times during the term of this consent,
sufficient liability insurance naming the Municipality as an additional
insured and insuring against any loss, injury or damage which may
arise, directly or indirectly, from any claim, suit, judgment, action,
execution or demand. The amounts of such insurance against liability
due to physical damage to property or bodily injury or death to any
one person shall be not less than one million ($1,000,000.00) dollars
to any one accident and an excess liability policy in an amount of
five million ($5,000,000.00) dollars.
The Company shall also carry such insurance as it deems necessary
to protect it from all claims under the Workmen's Compensation
Laws in effect that may be applicable to the franchise.
All insurance required by this subsection shall be and remain
in full force and effect for the entire life of this franchise. A
Certificate of Insurance including the above mentioned limits of liability
shall be submitted to the Municipality. Said certificate of insurance
shall be deposited with and kept on file by the Borough Clerk, and
the Municipality shall be a named insured on said policies. The insurer
shall notify the Municipality at least thirty (30) days prior to its
intention to cancel any policy. The insurer further shall certify
to the Municipality the fact of renewal of every such insurance policy
at least fifteen (15) days prior to the expiration date.
[Ord. No. 942 § 2]
All of the commitments and statements contained in the application
and any amendment thereto submitted in writing to the Municipality
by the Company except as modified herein, are binding upon the Company
as terms and conditions of this consent. The application and any other
relevant writings submitted by The Company shall be annexed hereto
and made a part hereof by reference as long as it does not conflict
with State or Federal law. A copy of the application is annexed hereto
as Exhibit A.
[Ord. No. 942 § 2]
The conditions and terms set forth in this section shall be
binding upon the Company for the duration of the consent granted herein
and any Certificate of Approval issued by the Office based upon the
consent granted herein. All representations made by the Company in
its application and all conditions set forth in this section are binding
upon the Company even if another provider of cable television service
or cable television related services commences the provision of service
within the Municipality.
[Ord. No. 942 § 2]
If any section, subsection, sentence, clause, phrase or portion
of this Ordinance is for any reason held invalid or unconstitutional
by any Court or Federal or State agency of competent jurisdiction,
such portion shall be deemed a separate, distinct, and independent
provision and such holding shall not affect the validity of the remaining
portions thereof.
Should any State or Federal agency or body modify, change or
alter any of its provisions with respect to cable television generally,
such modifications, changes or alterations shall be incorporated into
this consent consistent with the applicable dates specified in the
change.
[Ord. No. 942 § 2]
Subject to the requirements of the Federal Act, agreement by
Comcast of Central New Jersey II, LLC and approval by the Board, the
Municipality reserves the power to amend any portion of this section
after public hearing for the purpose of requiring reasonable additions
or greater standards of construction, operation, maintenance or otherwise
on the part of Comcast of Central New Jersey II, LLC, provided said
amendments are feasible and within the economic capabilities of Comcast
of Central New Jersey II, LLC.
[Ord. No. 942 § 2]
a. Entry by Competitive Providers. In the event that the Municipality
approves or permits a cable system to operate in the Municipality
on terms more favorable or less burdensome than those contained in
this franchise, such more favorable or less burdensome terms shall
be applicable to this franchise, pursuant to approval of a petition
to amend the Certificate of Approval filed with the Board as provided
for under N.J.A.C. 14:17-6-7.
b. Annual Oral Report. To ensure continued communication between Comcast
of Central New Jersey II, LLC and the Municipality during the Renewal
Term, Comcast of Central New Jersey II, LLC shall render a yearly
report to the Borough Council at a scheduled Council Meeting upon
reasonable notice occurring throughout the Renewal Term. Attendees
for Comcast of Central New Jersey II, LLC shall be people responsible
for managing the system in the Municipality and shall be prepared
to report on and answer questions relating to compliance with the
franchise and plans for the system in the coming year.
[Ord. No. 942 § 2]
The municipal consent shall become effective as of the date
upon which the Municipality receives written notification that the
Company accepts terms and conditions herein.