[HISTORY: Adopted by the Village Council of the Village of Ridgewood 12-12-2001 by Ord. No. 2769. Amendments noted where applicable.]
Subject to compliance by the company with lawful Village ordinances concerning land use, street openings, permits, and all other applicable ordinances to the extent not preempted by applicable federal or state laws, the Village grants to the company its nonexclusive consent to place in, upon, along, across, above, over and under the highways and streets in the municipality poles, wires, and cables necessary for the maintenance and operation in the municipality of a cable television system and cable communications system. Construction, pursuant to said consent, is conditioned upon prior approval of the New Jersey Board of Public Utilities (the "Board"). This right of easement is subject to the Village's determination that the specific highways, streets, etc., allow for the installation of telecommunications facilities. In complying with the ordinances of the Village of Ridgewood, the company shall not be required to pay permit fees, including fees for road openings. Except as preempted by federal law, the type and design of the cable television facilities to be placed in the Village streets is subject to the regulation of the Board of Public Utilities.
For the purposes of this ordinance, 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 by the Federal Communications Commission FCC Rules and Regulations (47 CFR Subsection 76.1 et seq.) and the Cable Communications Policy Act (47 U.S.C. § 521 et seq.) as amended, the Telecommunications Act of 1996 (47 U.S.C. § 609 et seq.) 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:
- ACT or CABLE TELEVISION ACT
- Chapter 186 of the General Law of New Jersey, 1972, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
- The grantee of rights under this ordinance and is known as Cablevision of Oakland, Inc.
- FEDERAL ACT
- The Communications Act of 1934 and its amendments, 47 U.S.C. 51 et seq.; P.L. 102-385, 1992 and the Telecommunications Act of 1996, 47 U.S.C. 609 et seq.; P.L. 104-104, 1996.
- The Village of Ridgewood, County of Bergen and State of New Jersey.
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 Village having received all comments regarding the qualifications of the company to receive this consent, the Village hereby finds that the company possesses the necessary legal, technical, financial and other qualifications and that the company's operating and construction arrangements are adequate and feasible.
The consent herein granted shall expire 10 years from the date of issuance of a certificate of approval by the Board of Public Utilities. At the end of the first three years after the issuance of the certificate of approval by the Board, the Village shall have the right to conduct a review to determine whether the company has substantially complied with all material obligations under this ordinance. In the event the Village shall determine, as a result of said review, that the company has not substantially complied with all material obligations under this ordinance, the Village shall provide the company with written notice of all alleged instances of noncompliance and an opportunity to cure same within six months. If the company has not, after such notice, brought itself into material compliance, then the Village shall have the right to request that the Board take appropriate action. Nothing herein shall be deemed a waiver by the company of any rights which it may possess as a matter of law.
If the company seeks a successive consent, it shall, prior to the expiration of this consent, apply for a municipal consent and certificate of approval in accordance with the Cable Television Act (N.J.S.A. 48:5A-11 and 48:5A-16) and applicable state and federal rules and regulations. The company shall also petition the Board for a certificate of approval authorizing continued operation during the period following expiration of the consent granted herein and until such time as a decision is made by the governing body of the Village relative to the renewal of said consent.
Pursuant to the terms and conditions of the Act, the company shall, during each year of operation under the consent granted herein, pay to the municipality 2% 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 Village or any amount permitted by the Cable Television Act or otherwise allowable by law.
The Village requires completion of the proposed upgrade of the current cable infrastructure that presently serves the Village on or before June 30, 2002.
The consent granted herein to the company shall apply to the entirety of the Village and any property hereafter annexed.
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 provisions set forth in Appendix IV attached to the application filed with the Village.
Restoration. 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 and in accordance with Village ordinances governing the replacement of pavement in the public right-of-way.
Relocation. If at any time during the period of this consent the Village shall alter or change the grade of any street, alley or other way or place or when the Village determines by reason of traffic conditions or public safety or the construction of any public improvement or structure by any governmental agency, the company, upon reasonable notice by the Village, shall remove, relay and relocate its equipment, at the expense of the company.
Movement of building and equipment. The company shall temporarily move or remove appropriate parts of its facilities to allow moving of building, machinery or in other similar circumstances when reasonably requested to do so. The expense shall be borne by the party requesting such action, except when reasonably requested by the Village, in which case the company shall bear the cost.
Removal or trimming of trees. 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 Village so as to prevent the branches of such trees from coming in contact with the wires, cables or other equipment of the company. Such trimming shall be only to the extent necessary to maintain proper clearance for the company's facilities and upon prior notice to the Village, emergency situations excepted.
Undergrounding of facilities. Where feasible, the company shall install its cable or other facilities underground. This requirement shall not apply to facilities which are required to remain above ground in order to be functional. This requirement shall not apply to the company if the Village does not require the undergrounding of its facilities in the location of all other utilities facilities at the time of installation by the company.
The company shall provide installation to any person's residence or business in accordance with the terms and conditions of the application which are incorporated herein as if fully set forth at length.
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 or 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 and shall have a phone number which does not incur a toll charge when called by any extension in the Village of Ridgewood.
The Village of Ridgewood Clerk is hereby designated as the municipal complaint officer to receive and act on complaints by subscribers to cable television reception service provided pursuant to this franchise. All complaints shall be received and processed in accordance with the New Jersey Administrative Code (N.J.A.C. 14:17-6.5 et seq.).
During the life of the franchise, the company shall give a performance bond to the Village of Ridgewood, which bond shall be in the amount of $25,000 in a form to be approved by the attorney for the Village of Ridgewood.
Such bond shall be to insure the faithful performance of all undertakings of the company as represented in its application for municipal consent and incorporated herein.
The rates proposed in the application for cable television reception service shall be subject to review and regulation by the New Jersey Board of Public Utilities to the extent permitted by law.
The basic service shall be as defined under the federal Act and applicable regulations.
The company shall provide access time to noncommercial public, governmental and education entities for noncommercial purposes. The company currently offers two public access channels in the Village of Ridgewood. At the completion of the upgrade noted in § A285-7 above, the company will provide the Village of Ridgewood with one designated access channel exclusive to the Village of Ridgewood for noncommercial use. The company will provide the Village with a second designated access channel provided the first designated access channel is in use 80% of the time between the hours of 2:00 p.m. and 11:00 p.m. five days per week for four consecutive weeks and at least 20 hours of programming each week is original programming, not character-generated messages or programming that was previously shown on the cable system. The Village must keep notarized logs of its daily programming schedule on file at Village Hall to be inspected upon request by the company. All access programming must be of a noncommercial nature.
The company shall provide one complimentary outlet and basic monthly service, including standard installation, to each public school and municipal library in the Village of Ridgewood. In addition, subject to compliance with N.J.S.A. 48:5A-11.1, the company shall provide one complimentary outlet, including standard installation, and basic monthly service to any municipally owned senior center in the Village of Ridgewood.
At such time that the company provides for a senior citizen's discount plan to any of its customers in any Cablevision of Oakland, Inc., municipalities during the term of this franchise, said plan and all of its terms shall be made available to qualified Ridgewood residents.
The company shall allow the Village to utilize the buying power of their organization as it relates to the purchase of PEG access equipment, i.e., cameras, editing and playback devices. The company shall also provide technician services at a cost only basis for public, educational or governmental use at the request of the Village.
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 Village of Ridgewood as an additional insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $2,000,000 combined limits for bodily injury or death to one person or resulting from any one accident and for any property damages resulting from any one accident.
The company shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the Village pursuant to state and federal requirements. The company shall in no way be held liable for any injury suffered by the Village or any other person during an emergency if for any reason the Village is unable to make full use of the cable television system as contemplated herein. The Village shall also establish reasonable procedures for such uses.
The company agrees that the capabilities of the system shall be maintained as technologically current throughout the duration of the franchise as compared with other cablevision systems of comparable size, measured by the number of subscribers in the system and to the extent economically reasonable.
The company shall make a one-time contribution of $75,000, within 90 days after the adoption of the ordinance, to be utilized to purchase PEG equipment such as cameras, editing and playback devices and to provide public, educational and governmental noncommercial programming.
The company acknowledges the Village's right under common law, the statutes and regulations of the State of New Jersey and the Telecommunications Act of 1996 to control the municipal rights-of-way and to legislate under the Municipal Land Use Law and the Home Rule Provisions of the New Jersey Constitution and agrees to comply with all ordinances and regulations adopted thereunder which are not specifically superseded by state or federal law, reserving its rights to challenge any statute or regulation which it considers in good faith to be unlawful, contrary to this ordinance or otherwise preempted by applicable state or federal law.
The company hereby releases, covenants not to bring suit and agrees to indemnify, defend, and hold harmless the Village, its officers and employees, agents and representatives from any and all claims, costs, judgments, award or liability to any person, including claims by the company's employees, arising from injury, sickness or death of any person or damage to property through the negligent acts or omissions of the company, its agents, servants, officers or employees in performing the activities authorized by this agreement or the proximate cause. The company further releases, covenants not to bring suit, agrees to indemnify and defend and hold harmless the Village, its officers and employees from any and all claims, costs, judgments, awards or liability to any person, including claims by the company's own employees, by virtue of the company's exercise of the rights granted herein or by virtue of the Village's permitting the company's use of the Village's rights-of-way or other public property or based upon the Village's inspection or lack of inspection of work performed by the company, its agents or servants, officers, or employees in connection with the work authorized on the Village's property or property over which the Village has control pursuant to this agreement or pursuant to any other permit or approval issued in connection with this agreement. The obligations of indemnification under this subsection shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property were caused or contributed to by the concurrent negligence of the Village, its officers, agents, employees, or contractors but shall not apply in the event of gross negligence or willful misconduct.
With the exception of PEG access or other programming produced or provided by the Village and its employees or agents, the company shall indemnify the Village against and shall save it harmless from any and all claims for injury and damage to persons or property, both real and personal, caused by the construction, erection, operation and maintenance of the cable television system authorized or used pursuant to the authority of the this ordinance.
In addition, the company shall also pay all reasonable legal expenses incurred by the Village in exercising its right to appear and respond to any petition or proceeding brought by the company arising out of this ordinance before the Board of Public Utilities, including, but not limited to, petitions for modification of the franchise terms pursuant to N.J.S.A. 48:5A-47 on the following basis:
The first $5,000 of such legal expenses shall be the responsibility of the Village.
Legal expenses over the first $5,000 up to $10,000 shall be the responsibility of the company.
Any amount over $10,000 up to $50,000 shall be borne equally on a dollar-for-dollar basis by the Village and the company.
When high-speed Internet access via cable modem service from the company becomes commercially available to residential customers within the Village, the company shall provide to the Village, free of charge, one high-speed cable modem and monthly Internet access service, including a standard installation, to municipal building (the "designated building"). The Village shall be permitted, at its own cost, to network up to three additional personal computer terminals in the designated building (four computers in total) to the cable modem provided by the company. In addition, when high-speed access via cable modem service from the company becomes commercially available to residential customers within the Village, the company shall provide, free of charge, one high-speed cable modem and monthly Internet access service, including standard installation, to each public school and municipal library in the Village.
In the event that another multichannel video program provider's service within the Village of Ridgewood creates a significant competitive disadvantage to Cablevision, the company shall have the right to request from the Village of Ridgewood lawful amendments to its franchise that relieve it of burdens which create the unfair competitive situation. Should the company seek such amendments to its franchise, the parties agree to negotiate in good faith appropriate changes to the franchise in order to relieve the company of such competitive disadvantages. If the parties can reach an agreement on such terms, the Village of Ridgewood agrees to support the company's petition to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
If the parties are unable to reach an agreement on appropriate amendments to the franchise, the Village of Ridgewood acknowledges that the company shall have the right to petition the Board directly for such amendments in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however, the Village of Ridgewood shall be under no obligation to support Cablevision's request for such relief from the Board.
Cablevision represents and acknowledges that as of the date of its acceptance of this municipal consent, competition within the Village of Ridgewood has not yet risen to the level of creating a significant competitive disadvantage sufficient to enable the company to seek relief under this section.
All of the commitments and statements contained in the application and in all filings with the Office of Cable Television or any amendment or amendments thereto and any applications and amendments thereto submitted in writing to the Village 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.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of federal or state agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not effect the validity of the remaining portions hereof.
This municipal consent shall become effective as of the date of publication in accordance with the law and the company's written acceptance of the terms and conditions hereof.
Upon this ordinance becoming effective and having been accepted and approved by the Board of Public Utilities, the adoption and approval of this ordinance shall act as a specific repealer of Ordinance No. 2614 of the Village of Ridgewood heretofore adopted on September 9, 1997.
Editor's Note: Ordinance No. 2614 was included as former Ch. A285, Cable Television Franchise.