A.
In the event that the town shall grant to the grantee
a nonexclusive, revocable franchise to construct, operate and maintain a cable
communications system within the town, 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 chapter 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
town and grantee.
B.
The franchise shall be granted under the terms and conditions
contained herein, consistent with the town's Code and/or other applicable
statutory requirements. In the event of conflict between the terms and conditions
of this chapter, the franchise or the terms and conditions on which the town
can grant a franchise, the Code and/or statutory requirements shall control.
C.
Any franchise granted by the town 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 chapter 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 town regarding permits, fees to be paid or manner of construction.
The franchise area shall be the entire town, or portions thereof, for
which a franchise is granted.
For the purpose of operating and maintaining a cable communications
system in the town, 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 town 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 chapter, the franchise
agreement and other applicable local laws.
At the town's option, the town may require a grantee to utilize
a town-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 town-owned facilities.
The consideration for the use of a town conduit or other facilities shall
be as stated in the franchise. A reasonable fee for the use of town 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
town 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 town determines that the public convenience would be enhanced
thereby. The grantee shall utilize existing poles and conduits, where possible.
The town 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 town or be allowed to operate without a franchise.
The term of any franchise granted pursuant to this chapter shall be
stated in the franchise.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The town 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, 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 town to invoke an appropriate penalty, including
possible revocation of the franchise.
In any controversy or dispute under this chapter, 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 town, which consent
shall not be unreasonably withheld.
B.
The grantee shall promptly notify the town of any actual
or proposed transfer.
C.
Every transfer shall make the franchise subject to cancellation
unless the town shall have consented thereto. For the purpose of determining
whether it shall consent to such transfer, the town may inquire into the legal,
technical and financial qualifications of the proposed controlling party,
consistent with FCC rules, and the grantee shall assist the town in any such
inquiry.
D.
Assumption of control. The town 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 town that it or its designees satisfactory to the
town 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 town 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 town finds that such transfer, after
considering the legal, financial, character, technical and other public interest
qualifications of the applicant, is satisfactory, the town will transfer and
assign the rights and obligations of such franchise as in the public interest.
The consent of the town to such transfer shall not be unreasonably withheld.
E.
The consent or approval of the town to any transfer of
the grantee shall not constitute a waiver or release of the rights of the
town in and to the streets, and any transfer shall, by its terms, be expressly
subject to the terms and conditions of this chapter and the franchise.
F.
In the absence of extraordinary circumstances, the town
will not approve any transfer or assignment of the franchise prior to completion
of construction of the proposed system.
G.
Time frame for town review. The town 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 town. If the
town fails to render a final decision on the request within 120 days, such
request shall be deemed granted unless the requesting party and the town agree
to an extension of time. In the event that the town 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 town
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 the proposed assignee or transferee.
(3)
Legal integrity of the 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 proposed transferee or assignee
shall be available to the town for inspection at the grantee's local
office, upon request of the letter.
J.
The town 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 chapter,
the town 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 town 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 town pursuant to such power.
B.
Any conflict between the provisions of this chapter or
the franchise and any other present or future lawful exercise of the town'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 contains
provisions inconsistent with this chapter shall prevail only if, upon such
exercise, the town finds an emergency exists constituting a danger to health,
safety, property or general welfare and such exercise is mandated by law.
A.
Establishment of franchise fees.
(1)
The town finds that:
(a)
The streets of the county, state and town 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 town at great expense to its taxpayers.
(b)
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.
(c)
The administration of this chapter and the franchise
imposes upon the town additional regulatory responsibility and expense.
(d)
A grantee of any franchise hereunder shall pay to the
town 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 town 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 town. No acceptance of any payment
by the town shall be construed as a release or as an accord and satisfaction
of any claim the town may have for further or additional sums payable as a
franchise fee under this chapter 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 town's 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 Town 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 town 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 town's right of inspection. The town 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 chapter. However, in
the event that the audit concludes that grantee's payments hereunder
were underpaid by an amount greater than 5% of the proper payment, then the
grantee shall reimburse the town for the costs of said audit, in addition
to making any additional payments required to bring the grantee into compliance
with this subsection. At the sole discretion of the town, 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 town 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 this chapter and the franchise
grant:
(1)
If the grantee shall default in the performance of any
of the material obligations under this chapter or under such documents, contracts
and other terms and provisions entered into by and between the town and the
grantee.
(2)
If the grantee shall fail to provide or maintain in full
force and effect the liability and indemnification coverage or the performance
bond as required herein.
(3)
If the grantee shall violate any lawful orders or rulings
of any regulatory body having jurisdiction over the grantee relative to this
chapter or the franchise.
(4)
If the grantee evades, as defined in state law, any of
the provisions of this chapter or the franchise or practices any fraud or
deceit upon the town or cable subscribers.
(5)
If the grantee fails to meet the construction schedule
contained in the franchise or beyond any extended date set by the town.
(6)
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption is obtained
from the town.
(7)
Material misrepresentation of fact in the application
for or negotiation of the franchise or any extension or renewal thereof.
(8)
If the grantee ceases 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 chapter 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 chapter 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 town shall make written demand that the grantee do
so 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 town shall place its request for termination of the franchise
upon a regular Town Council meeting agenda. The town shall cause to be served
upon such grantee, at least seven days prior to the date of such Town Council
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
Town Clerk at least once, seven days before such meeting in a newspaper of
general circulation within the town.
(2)
The Town Council 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 town, the Town Council shall direct the
grantee to comply within such time and manner and upon such terms and conditions
as are reasonable.
(4)
If the Town Council shall determine that such failure,
refusal or neglect by the grantee was without just cause, then the Town Council
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 is reasonably necessary to comply as approved by the Council, whose approval
shall not be reasonably withheld.
E.
Disposition of facilities. In the event that a franchise
is not renewed and/or revoked, the town 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 town within a reasonable period of time as determined
by the town 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 town. Any such facilities
that are not so conveyed shall be considered to be abandoned to the ownership
and use of the town, 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 town 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 chapter and the franchise.
G.
Restoration by town; reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§ 70-6 and 70-8 and/or Subsection F above or any other work required by town law or local law within the time as may be established and to the satisfaction of the town, the town may cause such work to be done, and the grantee shall reimburse the town the cost thereof within 30 days after receipt of an itemized list of such costs, or the town may recover such costs through the performance bond provided by the grantee. The town shall be permitted to seek legal and equitable relief to enforce the provisions of this subsection.
H.
Extended operation. Upon either the expiration or revocation
of a franchise, the town 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 chapter 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 town shall be permitted to seek legal
and equitable relief to enforce the provisions of this subsection.
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 town, 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 chapter 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 town 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 cease 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 chapter and the franchise.
It is agreed that Continental's compliance with FCC rules constitutes
compliance with this subsection.
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 the grantee to the town pursuant to this chapter and
the franchise shall be to the Town Supervisor or his/her designee. The grantee
shall maintain with the town, throughout the term of the franchise, an address
for service of notices by mail. The grantee shall also maintain with the town
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 town 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 chapter or the franchise by any failure of the town
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
if 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 shall be:
C.
Right of inspection of records. The town 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 chapter
and the franchise. The grantee shall provide such information in such form
as may be required by the town for said records. To the extent allowed by
law, the town 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.
If any such maps or records are not kept in the town, or upon notice the grantee
is unable to provide the records in the town, and if the town shall determine
that an examination of such maps or records is necessary or appropriate to
the performance of the town'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 town 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 chapter 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 town of system facilities, together with any appurtenant property of
the grantee situated within or without the town.
F.
Right of intervention. The town shall have the right
of intervention in any suit or proceeding to which the grantee is a party.
G.
Right to require tests. The town shall have the right
and authority to test the performance of the cable communications system.
The town may require that any tests performed at the town's request be
supervised or conducted by a town designee, not an employee or agent of the
grantee. The grantee shall reimburse the town for the costs of such designee
if the test performed shows that the quality of service is below the standards
set forth in the franchise. The grantee shall cooperate fully with the town
in performing such testing.
