[HISTORY: Adopted by the Mayor and Council
of the Borough of Spring Lake 10-21-2003 by Ord. No. 24-2003. Amendments noted
where applicable.]
For the purpose of this ordinance the terms
defined above shall the meanings there indicated, and the following
additional terms shall have the following meanings.
That statute of the State of New Jersey relating to cable
television, known as the Cable Television Act, N.J.S.A. 48:5A-1 et
seq.
Cablevision's application for renewal of municipal consent,
which application is on file in the Borough Clerk's office and is
incorporated herein by reference and made a part hereof, except as
modified, changed, limited or altered by this ordinance.
The Board of Public Utilities of the State of New Jersey
or its successor agency.
The governing body of the Borough of Spring Lake in the County
of Monmouth, and the State of New Jersey.
Cablevision of Monmouth, Inc. ("Cablevision") the grantee
of rights under this ordinance.
The Federal Communications Commission.
That federal statute relating to cable communications commonly
known as the Cable Communications Policy Act of 1984, 47 U.S.C. § 521
et seq. and the Telecommunications Act of 1996, or as those statutes
may be amended.
Those federal regulations relating to cable television services,
47 CFR 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 CFR 76.3), or as such regulations
may be amended.
The State of New Jersey.
Those regulations of the State of New Jersey Board of Public
Utilities relating to cable television, N.J.A.C. 14 :17-11 et seq.
and N.J.A.C. 14:18-1 et seq., or as such regulations may be amended.
A public hearing concerning the consent herein
granted to Cablevision 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 municipality having received
all comments regarding the qualifications of Cablevision to receive
this consent, the Borough hereby finds Cablevision possesses the necessary
legal, technical, character, financial and other qualifications to
support municipal consent, and that Cablevision's operating and construction
arrangements are adequate and feasible.
The Borough hereby grants to Cablevision its
nonexclusive consent to place in, upon, along, across, above, over
and under its highways, streets, alleys, sidewalks, public ways, and
public places in the municipality poles, wires, cables, and fixtures
necessary for the maintenance and operation in the Borough of cable
television system, and for the provision of any communication service
over the such system as may be authorized by federal or state regulatory
agencies. Operation and construction, pursuant to said consent, is
conditioned upon prior approval of the Board of Public Utilities.
This consent granted herein shall be nonexclusive
and shall be for a term of 10 years from the date of expiration of
previous certification of approval issued by the Board, to wit, April
27, 2003. At the end of the first five years after the issuance of
the certificate of approval, the Borough shall have the right to conduct
a review to determine whether the company has substantially complied
with the material obligations under this ordinance. In the event that
the Borough shall determine, as a result of said review, that the
company shall not have substantially complied with all material obligations
under this ordinance, the Borough shall provide the company with written
notice of all alleged instances of noncompliance and an opportunity
to cure the same within six months. If the company has not after such
notice brought itself into material compliance then the Borough shall
have the right to request that the Board of Public Utilities take
appropriate action. Nothing herein shall be deemed a waiver by the
company of any right which it may possess as a matter of law.
If Cablevision seeks successive consent, it
shall, prior to the expiration of this consent, apply for a municipal
consent and certificate of approval in accordance with N.J.S.A. 48:5A-16,
and applicable state and federal rules and regulations. The company
shall also petition the Board for approval authorizing continued operation
during the period following expiration of the consent granted herein,
and until such a time that a decision is made by the Borough and the
Board relative to the renewal of said consent.
The consent granted under this ordinance to
Cablevision shall apply to the entirety of the Borough and any property
hereafter annexed.
Cablevision shall be required to proffer video
programming service along any public right-of-way to any person's
residence within the portion of the franchise territory, as described
in the application for municipal consent, at tariffed rates for standard
and nonstandard installation.
Cablevision shall extend service to any commercial
area within the franchise territory in accordance with the company's
commercial line extension policy as provided by the company in its
application for municipal consent.
Pursuant to the terms and conditions of the
Cable Television Act, Cablevision shall pay to the Borough, as an
annual franchise fee, a sum equal to 2% of the actual gross revenues
received from all recurring charges in the nature of subscription
fees paid by subscribers for its cable television reception services
in the Borough. In the event applicable law hereinafter permits a
larger franchise fee to be collected, but does not fix the amount
thereof, the Borough and Cablevision shall negotiate in good faith
with respect to the amount thereof.
A.
Cablevision shall, upon written request, provide free
of charge, one standard installation and monthly cable television
reception service to all state or locally accredited elementary and
secondary schools and all municipal public libraries, as well as municipal
buildings located within the Borough as set forth in Exhibit A to
this ordinance.[1]
[1]
Editor's Note: Exhibit A is on file in the
Clerk's office.
B.
Cablevision shall, upon written request, provide free
of charge, one high-speed cable modem and monthly Internet access
service, including a standard installation service to all state or
locally accredited elementary and secondary schools and all municipal
public libraries.
C.
Cablevision shall provide to the Borough, upon written
request, one high-speed cable modem and monthly Internet access service,
including a standard installation, to Spring Lake Borough Hall (the
"designated building"). The Borough 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 Cablevision.
A.
Cablevision shall perform construction and installation
of its plant and facilities in accordance with applicable local, state
and federal law. The company shall be subject to the following additional
construction requirements with respect to the installation of its
plant and facilities in the Borough.
(1)
In the event that the company or its agents shall
disturb any pavement, street surfaces, sidewalks, driveways or other
surfaces, the company shall at its sole expense restore and replace
such disturbances in as good a condition as existed prior to the commencement
of said work, and in accordance with the Borough's generally applicable
laws, rules and regulations.
(2)
If at any time during the period of this consent,
the municipality 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 or relocate its equipment, at its own expense.
(3)
Upon request of a person holding a building or moving
permit issued by the Borough, the company shall temporarily move or
remove appropriate parts of its facilities so as to permit the moving
or erection of buildings or for the performance of other work. The
expense of any such temporary removal or relocation shall be paid
in advance to the company by the person requesting the same. In such
cases, the company shall be given not less than 14 days prior written
notice in order to arrange for the changes required.
(4)
During the exercise of its rights and privileges under
this consent, 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, cables, conduits and fixtures of the company.
Such trimming shall be only to the extent necessary to maintain proper
clearance for the company's facilities. Except in an emergency, the
company will provide reasonable advanced notice to the Borough's code
enforcement official prior to any trimming of trees.
B.
The cable system shall be capable of operating at
an upper frequency bandwidth of at least 750 MHz and supporting video,
audio and data transmissions, including the ability to deliver no
less than 110 channels of analog or digital video programming services
to subscribers.
Cablevision shall comply with the technical
and customer service standards established for the cable industry
under applicable federal and state laws, rules and regulations.
Cablevision shall establish and maintain during
the entire term of this consent a local area business office or agent
for the purpose of receiving, investigating and resolving complaints
regarding the quality of service, equipment malfunctions and similar
matters. Said office shall be open daily during normal business hours,
and in no event less than 9:00 a.m. to 5:00 p.m., Monday through Friday,
with the exception of holidays. Cablevision shall provide telephone
customer service from a local or toll-free exchange twenty-four hours
per day, seven days a week by trained Company representatives.
The Office of Cable Television is hereby designated
as the complaint officer for the Borough pursuant to the provisions
of N.J.S.A. 48:5A-26. All complaints shall be reviewed and processed
in accordance with N.J.A.C. 14:17-65.
Cablevision agrees to maintain and keep in force
and effect at its sole cost at all times during the term of this consent,
sufficient liability insurance naming the Borough as an additional
insured and insuring against loss by any such claim, suit, judgment,
execution or demand in the minimum amounts of $500,00 for bodily injury
or death to one person, $1,000,000 for bodily injury or death resulting
from any one accident or occurrence and $1,000,000 for damage to property
stemming from or arising out of the company's exercise of its rights
hereunder. The Company shall also maintain a minimum of $10,000,000
in excess liability/umbrella coverage.
Cablevision shall obtain and maintain, at its
sole cost and expense, during the entire term of this agreement, a
bond to the municipality in the amount of $25,000. Such bond shall
be to insure the faithful performance of its obligations as provided
in this franchise.
A.
The rates of the company for cable television services
shall be subject to regulation to the extent permitted by federal
and state law.
B.
Cablevision shall implement a senior citizen discount
in the amount of 10% off the monthly rate of the broadcast basic level
of cable television reception service to any person 62 years of age
or older who subscribes to the company's cable television service,
subject to the following:
(1)
Such discount shall only be available to eligible
senior citizens who do not share the subscription with more than one
person in the same household who is less than 62 years of age; and
(2)
In accordance with N.J.S.A. 48:5A-11.2, subscribers
seeking eligibility for the discount must meet the income and residence
requirements of the Pharmaceutical Assistance to the Aged and Disabled
program pursuant to N.J.S.A. 30:4D-21; and
(3)
The senior discount herein relates only to the broadcast
basic level of cable television service, and shall not apply to any
additional service, feature, or equipment offered by the company,
including any premium channel services and pay-per-view service; and
(4)
Senior citizens who subscribe to a level of cable
television service beyond expanded basic service, including any premium
or per channel a la carte service, shall not be eligible for the discount.
Cablevision shall be required to have the capability
to override the audio portion of the system in order to permit the
broadcasting of emergency messages pursuant to state and federal requirements.
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 municipality is unable to make full use of the cable television
system as contemplated herein. The Borough shall utilize the state-approved
procedures for such emergency uses.
Cablevision agrees that the capabilities of
the cable system shall be maintained technologically current throughout
the duration of the franchise, as compared with other communities,
of similar size, served by the company, to the extent economically
reasonable and commercially practicable.
A.
In the event that another multichannel video program
provider's service within the Borough creates a significant competitive
disadvantage to Cablevision, the company shall have the right to request
from the Borough 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 Borough 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.
B.
If the parties are unable to reach an agreement on
appropriate amendments to the franchise, the Borough 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 Borough shall be under no obligation
to support Cablevision's request for such relief from the Board.
C.
Cablevision represents and acknowledges that as of
the date of its acceptance of this municipal consent, competition
within the Borough has not yet risen to the level of creating a significant
competitive disadvantage sufficient to enable the company to seek
relief under this section.
Upon expiration, termination or revocation of
this ordinance, Cablevision at its sole cost and expense and upon
direction of the Board, shall remove the cables and appurtenant devices
constructed or maintained in connection with the services authorized
herein, unless Cablevision, its affiliated entities or assignees should
within six months after such expiration, termination or revocation
obtain certification from the FCC to operate an open video system
or any other federal or state certification to provide telecommunications.
A.
Cablevision shall continue to make available noncommercial
educational and governmental (EG) access as described in the application
for municipal consent.
B.
The Borough agrees that Cablevision shall retain the
right to use the EG access channel, or portion thereof, for non-EG
access programming, during times when the Borough is not utilizing
the channel for purposes of providing EG access programming. In the
event that the company uses said EG access channel for the presentation
of such other programming, the EG programming shall remain the priority
use and the company's rights with respect to using the channel for
non-EG programming shall be subordinate to the Borough's provision
of EG access programming on such channel.
C.
In consideration for the rights granted in this ordinance,
the company shall provide the Borough with a one-time grant of $9,000,
which may be used by the Borough for any cable and/or other telecommunications
related purpose as the Borough, in its discretion, may deem appropriate.
D.
The company shall provide upon the reasonable request
of the Borough and/or the Borough's Board of Education a training
session in video production, which will include technical assistance
and, if appropriate, access to necessary equipment on a temporary
basis to use for the training session.
E.
In the event that Cablevision shall have any usable
production equipment that it intends to discard from its PEG access
studio serving the Borough as described in the application for municipal
consent, the company shall, if reasonably feasible to do so, offer
to donate such equipment to the Borough prior to its disposal. Upon
receipt of a written request from the Borough, Cablevision shall inform
the Borough whether it has such equipment to donate. Donated equipment
shall only be used for the production of noncommercial PEG access
programming by the municipality and its residents for the benefit
of Cablevision subscribers in the Borough.
All of the commitments contained in the application
and any amendment thereto submitted in writing to the Borough by the
company except as modified herein, are binding upon Cablevision as
terms and conditions of this consent. The application and any other
written amendments thereto submitted by Cablevision in connection
with this consent are incorporated in this ordinance by reference
and made a part hereof, except as specifically modified, changed,
limited, or altered by this ordinance, or to the extent that they
conflict with state or federal law.
This consent shall be construed in a manner
consistent with all applicable federal, state and local laws.
