Editor's Note: Prior ordinance history includes portions of 1970 Code §§ 18-1 — 18-24 and Ordinance Nos. 79-12 and 94-19.
[Ord. #2007-11, § 1]
The Borough hereby grants to the Company its nonxclusive consent to place in, upon, along, across, above, over and under highways, streets, alleys, sidewalks, public ways, and public places in the Borough poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the Borough of a cable television system.
All of the written commitments contained in the application, and any amendments thereto, filed by the Company, except as modified herein, are to be considered binding upon the Company as the current terms and condition of this renewal of municipal consent, subject to change in the ordinary course of business. Said application shall be made a part hereof by reference thereto, subject to the limitations set forth herein and except to the extent that same may conflict with State or Federal Law.
[Ord. #2007-11, § 2]
For the purposes of this Chapter, 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 under Federal law, including but not limited to those of the Federal Communications Commission ("FCC"), FCC Rules and Regulations 47 C.F.R. § 76.1 et seq., and the communications Act of 1934, 47 U.S.C. § 521 et seq., as amended, 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
- Shall mean Chapter 186 of the General Laws of New Jersey, and subsequent amendments thereto, N.J.S.A. 48:5A-1 et seq.
- Shall mean the New Jersey Board of Public Utilities.
- Shall mean the Borough of Moonachie, County of Bergen, State of New Jersey.
- Shall mean the Office of Cable Television within the Board of Public Utilities.
- TIME WARNER OR COMPANY
- Shall mean the grantee of rights under this Chapter and is known as TWFanch-one Co.
[Ord. #2007-11, § 3]
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 Borough having received all comments regarding the qualifications of the Company to receive this consent, the Borough hereby finds the Company possesses the necessary legal, technical, character, financial and other qualifications and that the Company's operating and construction arrangements are adequate and feasible.
[Ord. #2007-11, § 4]
The consent herein granted shall expire 10 years from the date of issuance by the Board of a Certificate of Approval.
[Ord. #2007-11, § 5]
Pursuant to the terms and conditions of the Cable Television Act, the Company shall, during each year of operation under the consent granted herein, pay to the Borough 2% of the gross revenues from all recurring charges in the nature of subscription fees paid by subscribers for its cable television reception service in the Borough.
[Ord. #2007-11, § 6]
The consent granted herein to the Company shall apply to the entirety of the Borough and any property hereafter annexed by the Borough by law.
[Ord. #2007-11, § 7]
The primary service area shall consist of all public residential streets within the Borough existing as of the date of this Chapter and over which Time Warner currently maintains cable plant, as set forth on a map supplied by Time Warner to the Borough with its application. Any additional extension of the system shall be governed by the Company's line extension policy.
[Ord. #2007-11, § 8]
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.
[Ord. #2007-11, § 8]
If at any time during the period of this consent, the Borough 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, re-lay and relocate its equipment, at the expense of the Company.
[Ord. #2007-11, § 8]
The Company shall temporarily move or remove appropriate parts of its facilities to allow for the moving of buildings and machinery, or in other similar circumstances. The expense shall be borne by the party requesting such action, except when requested by the Borough, in which case the Company shall bear the cost.
[Ord. #2007-11, § 8]
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 Borough so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company. Such trimmings shall be only to the extent necessary to maintain proper clearance for the Company's facilities.
[Ord. #2007-11, § 9]
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 of 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.
[Ord. #2007-11, § 10]
The Office of Cable Television is hereby designated as the complaint officer for the Borough, pursuant to N.J.S.A. 48:5A-26(b) and amendments thereto. All complaints shall be received and processed in accordance with N.J.A.C. 14:17-6.5 and amendments thereto.
[Ord. #2007-11, § 11]
During the franchise, the Company shall provide a surety bond to the Borough, which shall be in the amount of $25,000.
Such bond shall be to insure the faithful performance of all undertakings of the Company as represented in its application for municipal consent.
[Ord. #2007-11, § 12]
The rates of the Company shall be subject to regulations as appropriate in accordance with Federal and State law.
[Ord. #2007-11, § 13]
The Company shall continue to provide free basic monthly service to schools, libraries and other municipal facilities as is done presently. In addition, the Company shall provide free basic monthly service to one outlet at the Senior Citizen Community Center operated by the Borough and located at 125 Moonachie Road, Moonachie, NJ 07074.
[Ord. #2007-11, § 14]
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 Borough as an insured and insuring against loss by any such claim, suit, judgment, execution or demand in the minimum amounts of $1,000,000 for bodily injury or death to one person, and $500,000 for property damage resulting from any one accident.
[Ord. #2007-11, § 15]
The Company shall be required to abide by applicable Federal requirements regarding the Emergency Alert System (EAS). The Company shall in no way be held liable for any injury suffered by the Borough or any other persons, during an emergency, if for any reason the Borough is unable to make full use of the System as contemplated herein.
[Ord. #2007-11, § 16]
Notwithstanding any other provisions of this Chapter, the Company shall not be liable for any delay in the performance of, or failure to perform, in whole or in part, its obligations pursuant to this Chapter due to strike, unavailability of materials or equipment, war or act of war (whether an actual declaration of war is made or not), insurrection, riot, civil disturbance, sabotage or vandalism, customer tampering or interference, act of public enemy, accident, fire, flood or other events, to the extent that such causes or other events are beyond the control of Company.
[Ord. #2007-11, § 17]
Notwithstanding any other provision in this Chapter, in the event that any change to local, State or Federal law occurring during the term of the franchise granted herein eliminates the requirement for any persons desiring to construct, operate or maintain a cable television system in the Borough to obtain municipal consent from the Borough, then, at the Company's sole option, Company shall have the right immediately to terminate the franchise granted herein. If Company chooses to terminate the franchise granted herein, pursuant to this provision, the franchise shall be deemed to have expired by its terms on the effective date of any such election, whether or not such law allows existing franchise agreements to continue until the date of expiration provided in any existing franchise.
Company and Borough acknowledge that there is a law currently in effect in New Jersey authorizing cable television companies to elect to seek State-issued franchises. Company has chosen not to do so at this time but rather to seek a municipal ordinance that will be approved by the issuance of a Certificate of Approval by the Board. However, Company's decision at this time not to do so shall not be deemed or construed as a waiver of Company's right-to do so in future, should it so choose.
Should there be any change in local, State or Federal law during the term of the franchise granted herein which reduces the regulatory or economic burdens for persons desiring to construct, operate or maintain a cable television system in the Borough, then, at Company's request, the Borough shall agree with Company to amend this Chapter to similarly reduce the regulatory or economic burdens on Company. All such amendments must have Board approval to the extent required by applicable law. It is the intent of this section that, at Company's election, Company shall be subject to no more burdensome regulations or provided no lesser benefits under this Chapter than any other persons that might provide cable television service in the Borough.
[Ord. #2007-11, § 18]
If any section, subsection, sentence, clause, phrase, or portion of this Chapter is for any reason held invalid or unconstitutional by any court or Federal or State agency 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 portions hereof.
[Ord. #2007-11, § 19]
The Company shall hold the Municipality harmless for any liability arising out of the Company's operation and construction of its system.
[Ord. #2007-11, § 20]
This consent shall be subject to applicable State and Federal law.