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 the 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 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 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 of 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.
If any section, subsection, sentence, clause,
phrase or portion of this chapter or the franchise is for any reason
held invalid or unconstitutional by any court of competent jurisdiction
or by any federal, state or local statute or regulation, such portion
shall be deemed a separate, distinct and independent provision and
such holding shall not affect the validity of the remaining portions
thereof.
A.
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 Federal Communications
Commission rules, and the grantee shall assist the town in any such
inquiry.
D.
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.
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 Federal Communications Commission 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)
The experience of the proposed assignee or transferee
(including conducting an investigation of the proposed assignee's
or transferee's service record in other communities).
(2)
The qualifications of the proposed assignee or transferee.
(3)
The legal integrity of the proposed assignee or transferee.
(4)
The 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 latter.
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 contain 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. Because the town finds that 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; 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; and the administration of this chapter and the franchise
imposes upon the town additional regulatory responsibility and expense,
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 New Castle. 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 the 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 section. 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)
If the grantee fails to restore service after 96 consecutive
hours of interrupted service, except when approval of such interruption
is obtained from the town.
(7)
If there is 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 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. 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
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 Board
meeting agenda. The town shall cause to be served upon such grantee,
at least seven days prior to the date of such Town Board 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 Board 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 Board shall
direct the grantee to comply within such time and manner and upon
such terms and conditions as are reasonable.
(4)
If the Town Board shall determine such failure, refusal
or neglect by the grantee was without just cause, then the Town Board
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 Board, which 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 §§ 49-6 and 49-8 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 section.
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 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 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 Federal Communications Commission 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 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 the 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 chapter, 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 if, 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 this franchise. The
grantee shall cooperate fully with the town in performing such testing.