A.
In the event that the Village shall grant to the grantee
a nonexclusive, revocable franchise to construct, operate and maintain
a cable communications system within the Village, said franchise shall
constitute both a right and an obligation to provide the services
of a cable communications system, as regulated by the provisions of
this Part 2 and the franchise. The franchise shall include by reference
those provisions of the grantee's application for franchise that are
finally negotiated and accepted by the Village and grantee.
B.
The franchise shall be granted under the terms and
conditions contained herein, consistent with the Village's Code and/or
other applicable statutory requirements. In the event of conflict
between the terms and conditions of this Part 2, the franchise or
the terms and conditions on which the Village can grant a franchise,
the Code and/or statutory requirements shall control.
C.
Any franchise granted by the Village is hereby made
subject to the generally applicable local law provisions now in effect
and hereafter made effective; provided, however, that any amendment
to this Part 2 that is binding on any franchisee shall be confined
to changes which do not materially alter the rights of the franchisee
under a franchise. Nothing in the franchise shall be deemed to waive
the requirements of the various codes and local laws of the Village
regarding permits, fees to be paid or manner of construction.
The franchise area shall be the entire Village
or portions thereof for which a franchise is granted.
For the purpose of operating and maintaining
a cable communications system in the Village, the grantee may erect,
install, construct, repair, replace, reconstruct and retain in, on,
over, under, upon, across and along the public streets and ways within
the Village such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary to the operation of the cable
communications systems; provided, however, that the grantee complies
with all design, construction, safety and performance provisions contained
in this Part 2, the franchise agreement and other applicable local
laws.
At the Village's option, the Village may require
a grantee to utilize Village-owned conduit or other facilities for
any portion of its cable communications system during the initial
construction of the system, provided that the cost of construction
is not materially increased due to the use of Village-owned facilities.
The consideration for the use of Village conduit or other facilities
shall be as stated in the franchise. A reasonable fee for the use
of Village facilities shall be established in the franchise and may
be adjusted at the periodic performance evaluations.
No poles shall be erected by the grantee without
prior approval of the Village with regard to location, height, type
and any other pertinent aspect. However, no location of any pole of
the grantee shall be a vested right, and such poles shall be removed
or modified by the grantee at its own expense whenever the Village
determines that the public convenience would be enhanced thereby.
The grantee shall utilize existing poles and conduits, where possible.
The Village shall have the right, during the life of the franchise,
to install and maintain, free of charge, upon the poles owned by the
grantee, any wire and pole fixtures that do not unreasonably interfere
with the cable system operations of the grantee.
No cable communications system shall be allowed
to occupy or use the streets of the Village or be allowed to operate
without a franchise.
The term of any franchise granted pursuant to
this Part 2 shall be stated in the franchise.
Any franchise granted pursuant to this Part
2 shall be nonexclusive. The Village specifically reserves the right
to grant at any time such additional franchises for a cable communication
system as it deems appropriate and/or build, operate and own such
cable communication system or systems as it deems appropriate.
Whenever the agreement shall establish a separate
schedule for specific acts by or on behalf of the grantee, these shall
be deemed of the essence and any failure of the grantee to perform
within the time allotted shall always be sufficient ground for the
Village to invoke an appropriate penalty, including possible revocation
of the franchise.
In any controversy or dispute under this Part
2, the law of the State of New York shall apply.
A.
Transfer of franchise. Any franchise granted hereunder
shall not be transferred without the prior consent of the Village,
which consent shall not be unreasonably withheld.
B.
The grantee shall promptly notify the Village of any
actual or proposed transfer.
C.
Every transfer shall make the franchise subject to
cancellation, unless the Village shall have consented thereto. For
the purpose of determining whether it shall consent to such transfer,
the Village may inquire into the legal, technical and financial qualifications
of the proposed controlling party, consistent with FCC rules, and
the grantee shall assist the Village in any such inquiry.
D.
Assumption of control. The Village agrees that any
financial institution having a pledge of the franchise or its assets
for the advancement of money for the construction and/or operation
of the franchise shall have the right to notify the Village that it
or its designees, satisfactory to the Village, will take control and
operate the cable television system. Further, said financial institution
shall also submit a plan for such operation that will ensure continued
service and compliance with all franchise obligations during the term
the financial institution exercises control over the system. The financial
institution shall not exercise control over the system for a period
exceeding one year, unless extended by the Village at its discretion,
and during said period of time it shall have the right to petition
for transfer of the franchise to another grantee. If the Village finds
that such transfer, after considering the legal, financial, character,
technical and other public interest qualifications of the applicant
are satisfactory, the Village will transfer and assign the rights
and obligations of such franchise as in the public interest. The consent
of the Village to such transfer shall not be unreasonably withheld.
E.
The consent or approval of the Village to any transfer
of the grantee shall not constitute a waiver or release of the rights
of the Village in and to the streets, and any transfer shall, by its
terms, be expressly subject to the terms and conditions of this Part
2 and the franchise.
F.
In the absence of extraordinary circumstances, the
Village will not approve any transfer or assignment of the franchise
prior to completion of construction of the proposed system.
G.
Time frame for Village review. The Village shall have
120 days from the time specified under federal law to act upon any
request for approval of such sale or transfer that contains or is
accompanied by such information as is required in accordance with
FCC regulations and by the Village. If the Village fails to render
a final decision on the request within 120 days, such request shall
be deemed granted unless the requesting party and the Village agree
to an extension of time. In the event that the Village refuses to
grant the aforementioned request, it shall set forth specific reasons
for its decision, in writing, by municipal resolution.
H.
In determining whether to approve said request, the
Village may consider the following:
(1)
Experience of the proposed assignee or transferee
(including conducting an investigation of proposed assignee or transferee's
service record in other communities.
(2)
Qualifications of proposed assignee or transferee.
(3)
Legal integrity of proposed assignee or transferee.
(4)
Financial ability and stability of the proposed assignee
or transferee.
(5)
The ability and express commitment of the proposed
assignee or transferee to fully comply with the provisions of this
agreement.
I.
A copy of the completed sales agreement or a functionally
equivalent instrument between the grantee and the proposed transferee
or assignee shall be available to the Village for inspection at the
grantee's local office, upon request of the letter.
J.
The Village may approve said petition contingent on
compliance with additional standards, terms or conditions within its
legal authority and consistent with findings resulting from its review
of the aforementioned petition.
Upon completion of the term of any franchise
granted under this Part 2, the Village may, in its sole discretion,
grant or deny renewal of the franchise of the grantee in accordance
with the provisions of the Cable Act. The grantee shall own the cable
communication system, but shall have no property right in the public
rights of way upon the completion of the franchise term.
A.
In accepting the franchise, the grantee acknowledges
that its rights hereunder are subject to the police power of the Village
to adopt and enforce general local laws necessary to the safety and
welfare of the public; and it agrees to comply with all applicable
general laws and local laws enacted by the Village pursuant to such
power.
B.
Any conflict between the provisions of this Part 2
or the franchise and any other present or future lawful exercise of
the Village's police powers shall be resolved in favor of the latter,
except that any such exercise that is not of general application in
the jurisdiction or applies exclusively to the grantee or cable communications
systems which contain provisions inconsistent with this Part 2 shall
prevail only if, upon such exercise, the Village finds an emergency
exists constituting a danger to health, safety, property or general
welfare and such exercise is mandated by law.
A.
Because the Village finds that:
(1)
The streets of the county, state and Village to be
used by the grantee in the operation of its system within the boundaries
of the franchise area are valuable public properties acquired and
maintained by the county, state and Village at great expense to its
taxpayers.
(2)
The grant to the grantee to said streets is a valuable
property right without which the grantee would be required to invest
substantial capital in right-of-way costs and acquisitions.
(3)
The administration of this Part 2 and the franchise
imposes upon the Village additional regulatory responsibility and
expense.
(4)
A grantee of any franchise hereunder shall pay to
the Village a franchise fee in an amount as designated in the franchise,
but in no event less than 5% of the gross annual revenues or the maximum
amount permitted under applicable federal, state or local law, if
such maximum is greater than 5% less the annual assessment paid by
the grantee to the New York State Commission on Cable Television.
The annual franchise payment shall be in addition to any other fee
and shall commence as of the effective date of the franchise. The
Village shall be furnished a statement of said payment by a certified
public accountant reflecting the total amounts of annual gross revenues
and the above charges and computations for the period covered by the
payment.
B.
Franchise fee in addition to other tax or payment.
This payment shall be in addition to any other tax or payment owed
to the governments or other taxing jurisdiction by the grantee.
C.
Acceptance by the Village. No acceptance of any payment
by the Village shall be construed as a release or as an accord and
satisfaction of any claim the Village may have for further or additional
sums payable as a franchise fee under this Part 2 or for the performance
of any other obligation of the grantee.
D.
Failure to make required payment. In the event that
any franchise payment or recomputed amount is not made on or before
the dates specified herein, the grantee shall pay, as additional compensation,
an interest charge, computed from such due date, at the annual rate
equal to the commercial prime interest rate of the Village primary
depository bank during the period that such unpaid amount is owed.
E.
Payments to be made quarterly. The franchise fee and
any other cost or damage assessed against the grantee shall be payable
quarterly to the Village of Ossining. The grantee shall file a complete
and accurate verified statement of all gross revenues within the franchise
area during the period for which said quarterly payment is made, and
said payment shall be made to the Village no later than 45 days following
the end of each calendar quarter. Quarterly computation dates are
the last day in the months of March, June, September and December.
F.
The Village's right of inspection. The Village shall have the right to inspect the grantee's income records and the right to audit at its own expense determined to be payable under this Part 2. However, in the event that the audit concludes that the grantee's payments hereunder were underpaid by an amount greater than 5% of the proper payment, then the grantee shall reimburse the Village for the costs of said audit, in addition to making any additional payments required to bring said grantee into compliance with this section. At the sole discretion of the Village, the latter may collect interest from the grantee on the underpayment or any other late payment at a rate equal to the prime rate, plus 3%.
A.
Grounds for revocation. The Village reserves the right
to revoke any franchise granted hereunder and rescind all rights and
privileges associated with the franchise in the following circumstances,
each of which shall represent a default and breach under the local
law and the franchise grant:
(1)
Defaulting in the performance of any of the material
obligations under this Part 2 or under such documents, contracts and
other terms and provisions entered into by and between the Village
and the grantee.
(2)
Failure to provide or maintain in full force and effect
the liability and indemnification coverage or the performance bond
as required herein.
(3)
Violating any lawful orders or rulings of any regulatory
body having jurisdiction over the grantee relative to this Part 2
or the franchise.
(4)
Evading, as defined in state law, any of the provisions
of this Part 2 or the franchise or practices any fraud or deceit upon
the Village or cable subscribers.
(5)
Failure to meet the construction schedule contained
in the franchise or beyond any extended date set by the Village.
(6)
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption
is obtained from the Village.
(7)
Material misrepresentation of fact in the application
for or negotiation of the franchise or any extension or renewal thereof.
(8)
Ceasing to provide all services for any reason within
the control of the grantee over the cable communications system.
B.
Effect of circumstances beyond control of the grantee.
The grantee shall not be declared at fault or be subject to any sanction
under any provision of this Part 2 in any case, in which performance
of any such provision is prevented for reasons beyond the grantee's
control. A fault shall not be deemed to be beyond the grantee's control,
if committed by a corporation or other business entity in which the
grantee holds a controlling interest, whether held directly or indirectly.
C.
Pending litigation or any appeal to any regulatory body or court having jurisdiction over the grantee shall not excuse the grantee from the performance of its obligations under this Part 2 or the franchise. Failure of the grantee to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section.
D.
Procedure prior to revocation.
(1)
The Village shall make written demand that the grantee
shall comply with any such requirement, limitation, term condition,
rule or regulation or correct any action deemed cause for revocation.
If the failure, refusal or neglect of the grantee continues for a
period of 30 days following such written demand, the Village shall
place its request for termination of the franchise upon a regular
Village Board of Trustees meeting agenda. The Village shall cause
to be served upon such grantee, at least seven days prior to the date
of such Village Board of Trustees meeting, a written notice of this
intent to request such termination and the time and place of the meeting,
notice of which shall be published by the Village Clerk at least once,
seven days before such meeting in a newspaper of general circulation
within the Village.
(2)
The Village Board of Trustees shall hear any persons
interested therein, and shall determine in its discretion, whether
or not any failure, refusal or neglect by the grantee was with just
cause.
(3)
If such failure, refusal or neglect by the grantee
was with just cause, as defined by the Village, the Village Board
of Trustees shall direct the grantee to comply within such time and
manner and upon such terms and conditions as are reasonable.
(4)
If the Village Board of Trustees shall determine such
failure, refusal or neglect by the grantee was without just cause,
then the Village Board of Trustees shall, by resolution, declare that
the franchise of the grantee shall be terminated and the performance
bond forfeited unless there is compliance by the grantee within a
specified period of time not to exceed 90 days or such longer period
as reasonably necessary to comply as approved by the Board of Trustees,
whose approval shall not be reasonably withheld.
E.
Disposition of facilities. In the event that a franchise
is not renewed and/or revoked, the Village may, in its sole discretion,
do any of the following:
(2)
Effect a transfer of ownership of the system to another
party;
(3)
Order the removal of the system facilities required
by public necessity from the Village within a reasonable period of
time as determined by the Village or require the original grantee
to maintain and operate its system for a period of six months or until
such further time as is mutually agreed upon. The grantee may convey
its ownership or interest in the facilities constituting the cable
system to a successor grantee approved by the Village. Any such facilities
that are not so conveyed shall be considered to be abandoned to the
ownership and use of the Village, subject to the right of the grantee
to remove any such facilities or any portion of such facilities that
may be salvageable.
F.
Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good a condition or better as that prevailing prior to the grantee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The Village shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. The liability, indemnity, insurance and performance bond, as provided herein, shall continue in full force and effect during the period of removal and until full compliance by the grantee with the terms and conditions of this subsection, this Part 2 and the franchise.
G.
Restoration by Village; reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§ 103-10 and 103-12 and/or Subsection F above or any other work required by the Village Law or local law within the time as may be established and to the satisfaction of the Village, the Village may cause such work to be done and the grantee shall reimburse the Village the cost thereof within 30 days after receipt of an itemized list of such costs or the Village may recover such costs through the performance bond provided by grantee. The Village shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
H.
Extended operation. Upon either the expiration or revocation of a franchise, the Village may require the grantee to continue to operate the system for a period of six months from the date of such expiration or revocation, or until such time as is mutually agreed upon. The grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this Part 2 and the franchise and to provide the regular subscriber service and any and all of the services that may be provided at the time. The Village shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
I.
Recourse. The grantee may seek recourse as available
by law or regulation.
A.
Termination by insolvency. To the extent permitted
under federal bankruptcy law, the franchise granted hereunder shall,
at the option of the Village, cease and terminate 120 days after the
appointment of a receiver or receivers or trustee or trustees to take
over and conduct the business of the grantee whether in a receivership,
reorganization, bankruptcy or other action or proceeding unless such
receivership or trusteeship shall have been vacated prior to the expiration
of said 120 days, or unless:
(1)
Such receivers or trustees shall have, within 120
days after their election or appointment, fully complied with all
the terms and provisions of this Part 2 and the franchise granted
pursuant hereto, and the receivers or trustees within said 120 days
shall have remedied all defaults under the franchise; and
(2)
Such receivers, or trustees shall, within said 120
days, execute an agreement duly approved by the Court having jurisdiction
in the premises, whereby such receivers or trustees assume and agree
to be bound by each and every term, provision and limitation of the
franchise herein granted.
B.
Termination by judicial action. In the case of a foreclosure
or other judicial sale of the plant, property and equipment of the
grantee or any part thereof, including or excluding the franchise,
the Village may serve notice of termination upon the grantee and the
successful bidder at such sale, in which event the franchise and all
rights and privileges of the grantee granted hereunder shall close
and terminate 30 days after service of such notice, unless:
A.
Equal opportunity employment shall be afforded by all operators of cable television systems to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, age, national origin, sex, or physical handicap. The grantee shall comply with all equal opportunity provisions enacted by federal, state and local authorities, as well as all such provisions contained in this Part 2 and the franchise. It is agreed that Continental's compliance with FCC rules constitutes compliance with this section.
B.
Local employment and procurement practices. Whenever
reasonably possible, all services, personnel, hardware and supplies
for the construction, maintenance and operation of the system shall
be procured locally. The grantee shall describe in detail plans and
policies for each year of the term of the agreement for utilizing
and contracting with local construction contractors, subcontractors,
suppliers, vendors and other business enterprises and persons for
services, supplies, equipment, consultation, banking, financial accounting
and legal services, insurance and other necessary facilities and services
that will be used in establishing, operating, marketing, programming
and maintaining the cable communications system.
All notices from grantee to the Village pursuant
to this Part 2 and the franchise shall be to the Village Mayor or
his/her designee. The grantee shall maintain with the Village, throughout
the term of the franchise, an address for service of notices by mail.
The grantee shall also maintain with the Village a local office and
telephone number for the conduct of matters related to the franchise
during normal business hours. The grantee shall be required to advise
the Village of such address(es) and telephone numbers and any changes
thereof.
The grantee shall not be excused from complying
with any of the terms and conditions of this Part 2 or the franchise
by any failure of the Village upon any one or more occasions to insist
upon or to seek compliance with any such terms or conditions.
A.
Renewal. If a renewal of a franchise held by a cable
operator is denied and the franchising authority acquires ownership
of the cable system or effects a transfer of ownership of the system
to another person, any such acquisition or transfer shall be:
(1)
At fair market value, determined on the basis of the
cable system valued as a going concern but with no value allocated
to the franchise itself; or
(2)
In the case of any franchise existing on the effective
date of this title, at a price determined in accordance with the franchise
is such franchise contains provisions applicable to such an acquisition
or transfer.
B.
Revocation. If a franchise held by a cable operator
is revoked for cause and the franchising authority acquires ownership
of the cable system or effects a transfer of ownership of the system
to another person, any such acquisition or transfer be:
C.
Right of inspection of records.
(1)
The Village shall have the right to inspect all books,
records, reports, maps, plans, financial statements and other like
materials of the grantee at any time upon reasonable notice during
normal business hours necessary to the enforcement of this Part 2
and the franchise. The grantee shall provide such information in such
form as may be required by the Village for said records. To the extent
allowed by law, the Village agrees to treat as proprietary any information
identified as such by the grantee and shall not intentionally divulge
any such information publicly or to actual or potential competitors
of the grantee, except as may be required in a legal proceeding or
ordered by a court of competent jurisdiction.
(2)
If any such maps or records are not kept in the Village
or, upon notice, the grantee is unable to provide the records in the
Village, and if the Village shall determine that an examination of
such maps or records is necessary or appropriate to the performance
of the Village's responsibilities under this franchise, then all travel
and maintenance expenses necessarily incurred in making such examination
shall be paid by the grantee.
D.
Right of inspection of construction. The Village shall
have the right to inspect all construction or installation work performed
subject to the provisions of the franchise and to make such tests
as it shall find necessary to ensure compliance with the terms of
this Part 2 and other pertinent provisions of the law.
E.
Right of inspection of property. At all reasonable
times, the grantee shall permit examination by any duly authorized
representative of the Village of system facilities, together with
any appurtenant property of the grantee situated within or without
the Village.
F.
Right of intervention. The Village shall have the
right of intervention in any suit or proceeding to which the grantee
is a party.
G.
Right to require tests. The Village shall have the
right and authority to test the performance of the cable communications
system. The Village may require that any tests performed at the Village's
request be supervised or conducted by a Village designee, not an employee
or agent of the grantee. The grantee shall reimburse the Village for
the costs of such designee if the test performed show that the quality
of service is below the standards set forth in the franchise. The
grantee shall cooperate fully with the Village in performing such
testing.
