[1]
Editor's Note: Prior ordinance history includes portions of Ordinance Nos. 5-77, 12-85, 1-86.
[Ord. No. 12-2005, S1]
The borough hereby grants to the company its nonexclusive consent to place in, upon, along, across, above, over and under the highways, streets, alleys, sidewalks, public ways, and public places in the borough poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the borough of a cable television system and cable communications system.
All of the written commitments contained in the written application for renewal of municipal consent, and any amendments thereto, filed by the company, except as modified herein, are to be considered binding upon the company as the current terms and conditions of this renewal of municipal consent, subject to change in the ordinary course of business. Said application shall be made a part hereof by reference thereto, subject to the limitations set forth herein and except to the extent that same may conflict with State or Federal law.
[Ord. No. 12-2005, S2]
For the purposes of this Article, 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 given under Federal law, including but not limited to those of the Federal Communications Commission, FCC Rules and Regulations 47 C.F.R. Subsection 76.1 et seq., and the Communications Act of 1934 at 47 U.S.C. § 521 et seq., as amended, and the Cable Television Act, N.J.S.A. 48:5A-1 et seq., and shall in no way be construed to broaden, alter or conflict with Federal or State definitions:
a.
BOARD – Is the New Jersey Board of Public Utilities.
b.
BOROUGH – Is the Borough of Cliffside Park, County of Bergen, State of New Jersey.
c.
OCTV – Is the Office of Cable Television within the Board of Public Utilities.
d.
TIME WARNER OR COMPANY – Is the grantee of rights under this Article and is known as TWFanch-One Co.
e.
ACT OR CABLE TELEVISION ACT – Is Chapter 186 of the General Laws of New Jersey, and subsequent amendment thereto, Section 48:5A-1 et seq.
[Ord. No. 12-2005, S3]
A public hearing concerning the consent herein granted to the company 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 borough having received all comments regarding the qualifications of the company to receive this consent, the borough hereby finds 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.
[Ord. No. 12-2005, S4; Ord. No. 2009-05, S1]
The consent herein granted shall expire five years from the date of issuance by the Board of a renewal certificate of approval with regard to this matter.
[Ord. No. 12-2005, S5]
Pursuant to the terms and conditions of the Cable Television Act, the company shall, during each year of operation under the consent granted herein, pay to the borough two percent of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers for its cable television reception service in the borough.
[Ord. No. 12-2005, S6]
The consent granted herein to the company shall apply to the entirety of the borough and any property hereafter annexed by the borough by law.
[Ord. No. 12-2005, S7]
The company shall be required to proffer service along any public right-of-way to any person's residence or business located in those areas of the franchise territory described herein, in accordance with the proposal for the provision of services as described in the application. Any additional extension of the system will be made in accordance with the company's line extension policy.
[Ord. No. 12-2005, S8]
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 places or things so disturbed in as good condition as existed prior to the commencement of said work.
[Ord. No. 12-2005, S8]
If at any time during the period of this consent, the borough 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, re-lay and relocate its equipment, at the expense of the company.
[Ord. No. 12-2005, S8]
The company shall temporarily move or remove appropriate parts of its facilities to allow for the moving of buildings, and machinery, or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the borough, in which case the company shall bear the cost.
[Ord. No. 12-2005, S8]
During the exercise of its rights and privileges under this franchise, 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 and cables of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities.
[Ord. No. 12-2005, S9]
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. Such local business office shall be open during normal business hours, and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday.
[Ord. No. 12-2005, S10]
The Office of Cable Television is hereby designated as the complaint officer for the borough, pursuant to N.J.S.A. 48:5A-26(b) and amendments thereto.
All complaints shall be received and processed in accordance with N.J.A.C. 14:17- 6.5 and amendments thereto.
[Ord. No. 12-2005, S11]
During the franchise, the company shall provide a surety bond to the Borough, which bond shall be in the amount of twenty-five thousand ($25,000.00) dollars.
Such bond shall be to insure the faithful performance of all undertakings of the company as represented in its application.
[Ord. No. 12-2005, S12]
The rates of the company shall be subject to regulation as appropriate in accordance with Federal and State law.
[Ord. No. 12-2005, S13]
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 borough as an insured and insuring against loss by any claim, suit, judgment, execution or demand, in the minimum amounts of one million ($1,000,000.00) dollars for bodily injury or death to one person, and five hundred thousand ($500,000.00) dollars for property damage resulting from any one accident.
[Ord. No. 12-2005, S14]
The company shall be required to abide by applicable Federal requirements regarding the Emergency Alert System (EAS). 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 borough is unable to make full use of the System as contemplated herein.
[Ord. No. 12-2005, S15]
Notwithstanding any other provisions of this Article, the company shall not be liable for any delay in the performance of, or failure to perform, in whole or in part, its obligations pursuant to this Article due to strike, unavailability of materials or equipment, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, civil disturbance, sabotage or vandalism, customer tampering or interference, act of public enemy, accident, fire, flood or other events, to the extent that such causes or other events are beyond the control of company.
[Ord. No. 12-2005, S16]
If any section, subsection, sentence, clause, phrase or portion of this Article 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 hereof.
[Ord. No. 12-2005, S17]
The company shall hold the borough harmless for any liability arising out of the company's operation and construction of its System.
[Ord. No. 12-2005, S18]
This consent shall be subject to applicable State and Federal law.
[Ord. No. 12-2005, S20]
This borough consent shall become effective as of the date upon which the borough receives written notification that the company accepts the terms and conditions herein.
[Ord. No. 5-2000, S1]
This article shall be known and may be cited as the "RCN Telecom Services of New Jersey, Inc., Open Video Systems Service Agreement."
[Ord. No. 5-2000, S2]
For the purpose of this article, 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 C.F.R. 76.1500(g).
Shall mean the borough of Cliffside Park, County of Bergen, State of New Jersey.
Shall mean RCN Telecom Services of New Jersey, Inc.
Is the Federal Communications Commission.
Shall mean the Federal statute relating to Open Video Systems, known as 47 U.S.C. § 521 et seq., or as the statute may be amended.
Shall mean those Federal regulations relating to Open Video Systems, 47 C.F.R. § 76.1500 et seq., and, to the extent applicable, any other Federal rules and regulations.
As used herein includes every street, road, alley, thoroughfare, way or place of any kind used by the public or open to use by the public.
Is any person, firm, partnership, association, corporation, company, or organization of any kind.
Shall mean those revenues derived from the provision of video programming services as part of the open video systems services.
Shall mean 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 C.F.R. 76.1502.
Shall mean 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.
Shall include the video programming services distributed by an OVS operator or is affiliate directly to their subscribers in the borough by use of the OVS operator's facilities.
Shall mean those revenues paid by the company to the borough pursuant to Section 10-18 of this agreement to be used by the borough to promote access to advanced technologies.
[Ord. No. 5-2000, S3]
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 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 non-exclusive 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.
[Ord. No. 5-2000, S4]
The authority granted to the company shall be for a term of ten years from the date that notice of final passage of this article is published in a newspaper of general circulation in Cliffside Park.
[Ord. No. 5-2000, S5]
The company shall, during each year of operation under this agreement, pay to the borough two (2%) percent of the revenues received from the company's basic level of video programming services and an additional three (3%) percent of gross revenues from the company's OVS service, which shall be applied as a Technology Access Fund.
[Ord. No. 5-2000, S6]
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 subsection, 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 Cliffside Park subscribers, and other issues of concern of the borough.
g.
The company will make trained company representatives available to respond to telephone inquiries from Cliffside Park 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.
[Ord. No. 5-2000, S7]
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 ninety (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 and tender on the adoption of this article and every year thereafter an insurance certificate 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: (1) one million ($1,000,000.00) dollars for bodily injury or death resulting from any one accident; (2) three million ($3,000,000.00) dollars for property damage resulting from any one accident; (3) one million ($1,000,000.00) dollars for all other types of liability including property damage; and an umbrella policy in the minimum amount of fifteen million ($15,000,000.00) dollars.
c.
Upon the effective date of this authority, the company shall secure and tender to the borough a performance bond in the amount of one hundred thousand ($100,000.00) dollars or a sum which in the opinion of the borough engineer adequately reflects the costs associated with the construction proposed by RCN. Upon completion of construction of the system and during the life of this authority, the company may reduce the amount to twenty-five thousand ($25,000.00) dollars. Such bond shall be to insure the faithful performance of all undertakings of the company.
[Ord. No. 5-2000, S8]
a.
Territory. The authority granted under this article 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 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 article, 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 equivalent to the costs established by PSE&G for similar work. Said expense 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 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 in to contact with the wires and cables of the company. The company indemnifies the borough or any resident if any trees shall die as a result of company's actions.
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.
[Ord. No. 5-2000, S9]
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.
[Ord. No. 5-2000, S10]
The company shall not sell or transfer its open video system to another entity, nor transfer any rights under this article 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 receipt 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.
[Ord. No. 5-2000, S11]
This article and agreement are subject to all provisions of the State and Federal law applicable to OVS service providers and to all lawful rules and regulations pursuant thereto.
[Ord. No. 5-2000, S12]
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.
[Ord. No. 5-2000, S13]
The company shall provide installation and free monthly basic service in all schools and public libraries in the borough, as well as borough hall.
[Ord. No. 5-2000, S14]
The company shall offer a discount of two ($2.00) dollars 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 thirty thousand ($30,000.00) dollars or less.
[Ord. No. 5-2000, S15]
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 Cliffside Park 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 C.F.C. § 76-309(c)(3). Additionally, in such event, the company shall tender and publish notice of any change in an access channel position to the mayor and council and a newspaper respectively of general circulation in Cliffside Park 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.
[Ord. No. 5-2000, S16]
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.
[Ord. No. 5-2000, S17]
a.
The company shall provide Internet access services for use by the borough and board of education. Internet access shall include the hosting of an Internet web site for the borough and board of education and Internet addresses for borough and board of education 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 inter-connection 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.
[Ord. No. 5-2000, S18]
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.
[Ord. No. 5-2000, S19]
If any section, subsection, sentence, clause, phrase, or portion of this article 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 article, and such holding shall not affect the validity of the remaining portions hereof.
[Ord. No. 5-2000, S20]
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 article, shall be so incorporated, consistent with any applicable effective dates specified in such modification. To the extent that any such modifications places limits on permissible terms and conditions, and any provision of this article becomes invalid by virtue of such modification, the preceding section 10-32 shall apply.
[Ord. No. 5-2000, S21]
This article shall take effect upon its final passage and publication according to law.
[Ord. No. 5-2000, S22]
The rights granted herein are non-exclusive 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.
[Ord. No. 5-2000, S23]
All notices shall be sent via certified mail/return receipt requested and regular mail to the following addresses:
For the borough: | For the company: |
|---|---|
Borough Clerk Borough Hall 525 Palisade Avenue Cliffside Park, NJ | RCN Telecom Services of New Jersey, Inc. Vice President, Franchising & Development 105 Carnegie Center Princeton, NJ 08540 |
[Ord. No. 5-2000, S24]
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.