Borough of Bay Head, NJ
Ocean County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Bay Head 12-21-2004 by Ord. No. 2004-14. Amendments noted where applicable.]
For the purpose of this ordinance, the terms below 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.
Comcast's Application for Renewal of Municipal Consent, which application is on file in the Municipal 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 Borough of Bay Head in the County of Ocean and the State of New Jersey.
Comcast of Ocean County, Inc. ("Comcast") the grantee of rights under this ordinance.
The Federal Communications Commission.
The federal statute relating to cable communications commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. Section 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. 14:17-1.1 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 Comcast was held after proper public notice pursuant to the terms and conditions of the Act. This hearing having been held and fully open to the public, and the municipality having received all comments regarding the qualifications of Comcast to receive this consent, the Borough hereby finds Comcast possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent, and that Comcast's operating and construction arrangements are adequate and feasible.
The Borough hereby grants to Comcast 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 a 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 15 years from the date of issuance of a Certificate of Approval by the Board.
If Comcast 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 Comcast shall apply to the entirety of the Borough and any property hereafter annexed.
[Amended 3-7-2006 by Ord. No. 2006-4[1]]
Comcast shall be required to proffer service to any residence or business along any public right-of-way in the primary service area, as set forth in Comcast's application. Any extension of plant beyond the primary service area shall be governed by Comcast's Line Extension Policy, as set forth in Comcast's application.
Editor's Note: This ordinance repealed former § A237-7, Primary service area, redesignated former § A237-8, Extension of service, as § A237-7, Extension of service.
Pursuant to the terms and conditions of the Cable Television Act, Comcast 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 that applicable state and federal law hereinafter changes to permit a higher franchise fee to be collected, but does not fix the amount thereof, or changes to allow the inclusion of Internet revenues in the franchise fee payment authorized under applicable cable television law, then the Borough and Comcast shall negotiate in good faith with respect to the amount thereof.
[Amended 3-7-2006 by Ord. No. 2006-4]
Comcast shall, upon written request, provide free of charge, one standard installation and monthly cable television reception service to all state or locally accredited public, elementary and secondary schools and all municipal public libraries, as well as municipal buildings, used for municipal and governmental purposes, located within the Borough.
Comcast shall also provide, upon written request, free of charge, one high-speed cable modem and monthly internet access service, including a standard installation, to each state or locally accredited elementary and secondary public and private school and the municipal public library within the Borough.
Comcast will provide a one-time $15,000 technology grant.
Comcast shall perform construction and installation of its plant and facilities in accordance with applicable 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:
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.
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.
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.
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.
Comcast agrees that the capabilities of the cable system shall be maintained technologically current throughout the duration of the franchise, as compared with other communities served by Comcast, to the extent economically reasonable and commercially practicable. Comcast further agrees that it will exercise reasonable efforts to deploy the same or comparable cable services in the Borough that are provided to other similarly situated communities operated by Comcast in Ocean County, on other than a trial or test basis; provided, however, this obligation shall apply only to comparisons with other communities whose cable system has the same technical capabilities to offer such cable services as the system operated in the Borough, including, but not limited to, the system's band width capacity, physical architecture. and network construction; and, further provided that this requirement shall be subject to Comcast's reasonable right to consider the commercial practicality of providing such cable service in the Borough, including its ability to obtain a reasonable rate of return on investment over the remaining term of the Consent.
Comcast shall comply with the technical and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
Comcast 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. The 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 1 exception of holidays.
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, and any complaints by local subscribers to cable television reception or service shall be filed directly with said office. All complaints shall be reviewed and processed in accordance with N.J.A. C. 14:17-6.5.
Comcast 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 $500,000 for bodily injury or death to one person, and $1,000,000 for bodily injury or death resulting from any one accident or occurrence stemming from or arising out of the Company's exercise of its rights herein.
Comcast 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. The bond shall be to insure the faithful performance of its obligations as provided in this franchise.
[Amended 3-7-2006 by Ord. No. 2006-4]
The rates of Comcast for cable television services shall be subject to regulation to the extent permitted by federal and state law.
[Amended 3-7-2006 by Ord. No. 2006-4]
Comcast will comply with the Emergency Alert System (EAS) rules in accordance with applicable state and federal statutes and regulations.
Comcast shall in no way be held liable for any injury suffered by the municipality 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.
[Amended 3-7-2006 by Ord. No. 2006-4]
Should the municipality grant a franchise to construct, operate and maintain a cable television system to any other person, corporation or entity on terms materially less burdensome or more favorable than the terms contained herein, Comcast may substitute such language that is more favorable or less burdensome for the comparable provision of this ordinance subject to the provisions of N.J.A.C. 14:17-6.7.
Editor's Note: Former § A237-20, Removal of facilities, was repealed 3-7-2006 by Ord. No. 2006-4.
Editor's Note: Former § A237-21, Public educational and governmental access, was repealed 3-7-2006 by Ord. No. 2006-4.
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 Comcast as terms and conditions of this consent. The application and any other written amendments thereto submitted by Comcast 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.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portion thereof.
This ordinance shall become effective immediately upon its final passage and publication as required by law.