Town of New Hartford, NY
Oneida County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of New Hartford 1-3-1990 by Res. No. 46. Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 102.
A. 
When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Provisions of this franchise agreement shall be construed in accordance with the laws of the State of New York. The word "shall" is always mandatory and not merely directory.
B. 
For the purposes of this franchise agreement, the following terms, phrases, words and their derivations shall have the meanings given herein:
CABLE TELEVISION SYSTEM
Coaxial cables, wave guides or other conductors and equipment for providing television, radio or other lawful service by cable or through its facilities as herein contemplated.
GROSS REVENUES
Any and all revenues received by the operator from the subscribers for cable service within the corporate limits of the town, including but not limited to installation income, regular subscriber charges and per program or per channel charges; advertising income allocated (per subscriber) to service within the corporate limits of the town; and revenues generated from the carriage of the QVC (or comparable shopping) Network allocated (per subscriber) to service within the corporate limits of the town.
OPERATOR
Harron Communications Corp. and the lawful successor or assignee thereof.
ROAD
The surface of and the space above and below any public road, highway, freeway, lane, alley, court, sidewalk, parkway or drive, now or hereafter existing as such within the town.
SUBSCRIBER
Any person or entity lawfully receiving for any purpose the cable service of the operator herein.
TOWN
The Town of New Hartford, a municipal corporation of the State of New York, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.
TOWN BOARD
The present governing legislative body of the town or any future board constituting the legislative body of the town.
The town does hereby grant to the operator the nonexclusive right to build, maintain, operate and use the broadband cable communications system herein defined in, upon, along, above, across, over and under the roads and other property within the town and within easements dedicated to compatible use such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances and attachments as may be necessary and appurtenant to the CATV system; and, in addition, so to use, operate and provide similar properties rented or leased from other persons, firms or corporations for such purpose and subsequent additions thereto for the purpose of providing services to users for a fee, on condition that the operator:
A. 
Makes cable service available on a timely basis to areas of the town as described in § A121-7.
B. 
Complies with the requirements of the New York State Executive Law, Article 28; the New York State Commission on Cable Television (the "Commission"); and all applicable laws and administrative rules and regulations of the local, state and federal government.
C. 
Renders efficient service, adhering to the provisions of § A121-4.
D. 
Provides programming required by § A121-5.
E. 
Meets all obligations to the town listed in §§ A121-9 through A121-12.
F. 
Abides by the procedures for this agreement, as set forth in §§ A121-13 through A121-20.
G. 
Cooperates with the town, providing records and reports as set forth in § A121-12I.
This agreement shall be for 10 years with an option for an additional five years, subject to renewal as provided in § A121-15.
A. 
The operator shall make necessary repairs promptly so as to keep service outages as brief as possible, shall time discretionary outages to be least inconvenient to users and shall make prorated rebates on request for users for loss of service in excess of four continuous hours excluding any delay caused by the user, as required by the rules of the Commission.
B. 
The operator shall respond quickly and constructively to all complaints, whether from users or nonusers, shall keep records of the same together with the resolutions thereof and shall make such records available for inspection by the town for up to one year following the latest complaint in each record. The operator shall give to each new user a copy of complaint and dispute resolution practices.
C. 
The operator shall in all events comply with Sections 596.8 and 590.62 of the rules of the Commission.
D. 
The operator shall not require contracts longer than 30 days for noncommercial residential cable television service but may offer such contracts as a service option.
E. 
As required by the New York State Commission on Cable Television, a subscriber who is dissatisfied with the operator's handling or resolution of a complaint may petition the municipality or the New York State Commission on Cable Television at any time for assistance in reaching a satisfactory resolution.
(1) 
A representative of the operator shall be available to meet with the municipality and the affected subscriber at a mutually convenient time but no later than 30 days after the complaint has been referred to the municipality to fully discuss and resolve the matter, if deemed necessary by the municipality.
(2) 
The municipality may establish procedures and regulations and impose reasonable additional requirements on the operator pertaining to subscriber complaint resolution with concurrence of the operator which shall not be unreasonably withheld.
F. 
The operator, on request, will issue a billing credit to any customer affected by a service outage that lasts for more than four consecutive hours or more than eight hours cumulative during any one day equal to a pro rata share of the customer's monthly bill, but in no case less than 1/30 of the total monthly bill.
G. 
The operator will discontinue billing subscribers for cable service or any portion thereof on the date that cessation of such service or portion thereof was requested by the subscriber.
H. 
When a cable television company supplies auxiliary equipment, such as a converter or other modifying device, to a subscriber, the company can expect reasonable care of such equipment by the subscriber. A cable operator shall notify the subscriber and the Commission, in writing, of any charges to subscribers for lost, stolen or damaged converters. In the event that such equipment is lost, stolen or damaged and the cable television company seeks to charge the subscriber for such equipment, the company shall give written, dated notice to the subscriber of the amount sought and the subscriber's opportunity to refer the matter to the Commission in accordance with the provisions of Section 590.5 of this subtitle.[1] If referral is not made to the Commission within 30 days of the date of the notice, the company may commence its collection procedures.
[1]
Editor's Note: See 9 NYCRR Part 590.
I. 
Right of entry.
(1) 
The operator shall inform all persons in advance of the date, a.m. or p.m., its employee or agents shall enter onto such person's property for the purpose of installing cable service.
(2) 
Employees of the operator will not enter a customer's home except when requested to by the customer.
(3) 
Each representative or employee of the operator entering upon private property shall be required to wear an employee identification card issued by the operator, bearing a picture of said representative.
(4) 
The operator shall provide a standard identification document to all employees, including employees of subcontractors, who will be in contact with the public. Such documents shall include a telephone number that can be used to verify identification. In addition, the operator shall use its best efforts to clearly identify all personnel, vehicles and other major equipment that are operating under the authority of the operator.
J. 
The operator shall respond to all written inquiries of subscribers within one week.
K. 
The operator shall prepare and provide to subscribers, at the time of initial installation and upon request, clearly understood and detailed information written in plain English pertaining to the manner and degree in which devices likely to be used in conjunction with the cable system, such as but not limited to cable ready and cable compatible television sets and video cassette recorders, can be efficiently and harmoniously operated in connection with the cable system.
L. 
At the time an installation or service agreement is to be signed, the operator shall furnish to each subscriber a simple but thorough written explanation of all services offered; the fees, charges, terms and conditions of such services, information regarding billing and service calls and the filing of service complaints; information regarding the availability of parental control devices; and a complete statement of the subscriber's right to privacy in conformance with 47 U.S.C. § 631. Thereafter, the operator shall provide subscribers with privacy information at least once a year and other service-related information at anytime upon request and at times mandated by federal and state law or regulation and the terms of this agreement.
A. 
"Basic service" means any service tier which includes the retransmission of television broadcast signals required to be carried under federal law.
B. 
The operator shall offer a selection of pay television services.
C. 
The operator shall offer access in accordance with Exhibit B.[1]
[1]
Editor's Note: Exhibit B is on file in the Clerk's office.
A. 
The operator shall exercise all reasonable diligence in expeditiously applying for and doing all that is necessary and proper to obtain all permits, licenses, certifications, etc., necessary for the expansion of the system.
B. 
Whenever the operator damages or destroys public or private property in the conduct of its business, it shall promptly restore the property to a serviceable condition as good as before.
C. 
The operator shall, in areas where public utilities are not located within the boundaries of public roads, follow the same course and way as the now existing easements of power and telephone. This franchise does not relieve the operator of any obligation involved in obtaining sole space from any department of the town, the utility companies or from others maintaining poles in roads.
D. 
Any privilege claimed under this franchise by the operator in any road shall be subordinate to any prior lawful occupancy of the roads or the public property.
E. 
The operator is subject to all requirements of town ordinances, resolutions, local laws, rules, regulations and specifications of the town herein before enacted or established and all such requirements hereafter enacted not inconsistent with this franchise, including but not limited to those concerning road work, road excavations, use, removal and relocation of property within a road or other road work.
F. 
The operator agrees to do the minimum trimming of trees necessary, conforming to the same standards as public utilities.
G. 
The operator shall not block any public way without town consent and shall keep the town informed in advance of the time and place of construction.
H. 
The operator agrees to construct, operate and maintain the cable system in compliance with:
(1) 
All applicable provisions of the codes and standards promulgated by the EIA, the FAA, the Federal Communications Commission, the NEC, the NCTA, the NTSC, the Commission (set forth in Exhibit A[1] and incorporated herein), and the Occupational Safety and Health Administration;
[1]
Editor's Note: Exhibit A is on file in the Clerk's office.
(2) 
The town's building codes; and
(3) 
Good engineering practice, as recognized in practice by the cable communications industry.
I. 
The operator agrees to maintain a system with a minimum capacity of 36 channels in designated areas in the Town of New Hartford and shall make reasonable efforts in good faith to maximize the number of energized channels available to subscribers.
J. 
The operator shall commence construction of a system with 550 megahertz no later than October 12, 1993, and shall complete the construction on or before October 12, 1996. The operator shall complete at least 1/3 of the required construction in each of the three years following October 12, 1993. After completion, the operator shall energize a minimum of 40 channels.
The operator agrees to provide service to line extension areas in accordance with the rules of the New York State Commission on Cable Television.
A. 
The primary service area shall include each of the following within the franchised area:
(1) 
Those areas where the cable television plant has been built without a contribution in aid of construction by subscribers.
(2) 
Those areas, if any, where the operator is obligated by the terms of its franchise to provide cable television service without a contribution in aid of construction by subscribers.
(3) 
Any area adjoining the primary service area having a density of 35 homes per linear mile or a density equal to the average number of dwelling units per linear mile of cable in the areas described in Subsection A(1) and (2) above, whichever is lower.
B. 
The operator agrees that cable television service will not be denied to potential subscribers residing in line extension areas who are willing to contribute to the cost of construction in accordance with the following formula:
C
LE
CA
P
=
SC
Where:
C
=
The cost of construction of the new plant.
CA
=
The average cost of construction per mile in the primary service area.
P
=
The minimum number of dwelling units per mile which would require the operator to provide service in the primary service area.
LE
=
The number of dwelling units requesting service in the line extension area.
SC
=
The subscriber contribution in aid of construction in the line extension area.
(1) 
Whenever a potential subscriber located in a line extension area requests service, the operator shall, within 30 days of the request, conduct a survey to determine the number of potential subscribers located in the line extension area and shall inform each potential subscriber of the contribution in aid of construction who may be charged. The operator may require prepayment of the contribution in aid of construction. The operator shall apply for pole attachment licenses within 30 days of its receipt of the contribution in aid of construction. Cable television services must be made available to those who made a contribution in aid of construction within 90 days from the receipt of pole attachment agreements by the cable television company.
(2) 
The contribution in aid of construction shall be in addition to the installation rate set forth in the franchise.
(3) 
During a five-year period commencing at the completion of a particular line extension, pro rata refunds shall be paid to previous subscribers as new subscribers are added to the particular line extension; the amount of the refund, if any, shall be determined by application of the formula each time a new subscriber is added. The refunds shall be paid annually to subscribers or former subscribers entitled to receive them.
C. 
Cable television service shall be provided to any subscriber residing in any line extension area who demands service and who is located within 150 feet of aerial feeder cable, and the charge for the installation for any subscriber so situated will not be in excess of the installation charge for any subscriber in the primary service area.
A. 
The operator shall not, as to rates, charges, service or service facilities, make or grant any undue preference or advantage to any party, nor subject any party to undue prejudice or disadvantage; provided, however, that the operator may establish reasonable classifications of customers.
B. 
Nothing in this agreement prohibits the reduction or waiving of charges by the operator in connection with promotional campaigns for the purpose of attracting subscribers to its system.
C. 
The operator shall follow the notice requirements of Section 590.69 of the state rules and regulations.
A. 
The operator shall defend, indemnify and hold harmless the town for and hold it harmless from all liability, damage, cost or expense arising from claims of injury to person(s) or damage to property occasioned by reason of any conduct undertaken pursuant to this agreement.
B. 
The operator shall continuously carry liability insurance satisfactory in terms to the town, including all subcontractors, employees and agents of the operator, insuring the operator's obligations under the indemnification clause above in not less than the following amounts:
(1) 
One million dollars each occurrence and aggregate, bodily injury and property damage combined single limit.
(2) 
Automobile liability: $1,000,000 combined single limit, bodily injury and property damage.
C. 
The operator shall continuously carry sufficient insurance to protect the parties from any claim under the Workers' Compensation Law. All insurance required by this section shall remain in force throughout the duration of this agreement. Policies of this insurance or certified copies thereof shall be delivered to the town and kept on file and up to date in the offices of the town. Upon any renewal of this franchise, the town may require the operator to provide additional insurance coverage in such reasonable amounts as may appear reasonably necessary.
The operator shall maintain in full force and affect for the term of this agreement, at its expense, a corporate performance bond in the amount of $5,000.
A. 
The performance bond shall be provided and regulated in accordance with the provisions of this section.
B. 
The performance bond shall be provided within 30 days of the effective date of this agreement.
C. 
The performance bond shall provide that there shall be recoverable by the municipality, jointly and severally from the principal and surety, any and all fines and penalties due to the municipality and any and all damages and any reasonable losses, costs and expenses suffered or incurred by the municipality resulting from the failure of the operator to:
(1) 
Faithfully comply with the provisions of this agreement.
(2) 
Comply with all lawful orders, permits and directives of any municipal agency or body having jurisdiction over its acts or defaults.
(3) 
Pay fees due to the municipality.
(4) 
Pay any claims due to the municipality as resulting from judicial action.
(5) 
Pay any claims, liens or taxes due the municipality which arise by reason of the construction, operation, maintenance or repair of the cable system.
(6) 
Pay losses and reasonable costs and expenses, including but not limited to attorney's fees and other expenses associated with enforcement of this agreement.
D. 
The total amount of the bond shall be forfeited in favor of the municipality in the event that the operator:
(1) 
Abandons the cable system at any time during the term of this agreement.
(2) 
Assigns this franchise without the express written consent of the town.
E. 
Upon written application by the operator, the municipality may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond. Reductions granted or denied upon application by the operator shall be without prejudice to subsequent applications or to the municipality's right to require the full bond at any time thereafter. However, no application shall be made by the operator within one year of any prior applications.
F. 
Prior to drawing upon the performance bond for the purposes described in this section, the municipality shall notify the operator, in writing, that payment is due, and the operator shall have 30 days from the receipt of such written notice to make a full and complete payment.
(1) 
If the operator does not make the payment within 30 days, the municipality may, upon determination of a breach of this agreement pursuant to this section, withdraw the amount, with interest and penalties, from the performance bond.
(2) 
Within three days of a withdrawal from the performance bond, the municipality shall send to the operator, by certified mail return receipt requested, written notification of the amount, date and purpose of such withdrawal.
(3) 
No later than 30 days after mailing to the operator by certified mail notification of a withdrawal pursuant to this section, the operator shall replenish the performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the performance bond shall constitute a substantial violation of this agreement and the municipality may commence revocation proceedings.
G. 
The performance bond required herein shall be in a form satisfactory to the municipality and shall require 30 days written notice of any nonrenewal, alteration or cancellation to both the municipality and the operator. The operator shall, in the event of any such cancellation notice, obtain, pay all premiums for and file the replacement bond or policies within 30 days following receipt by the municipality or operator of any such notice of cancellation.
H. 
The municipality shall not seek recovery from the performance bond until it has provided the operator with at least 30 days to cure any defaults.
A. 
For the violation of any of the provisions of this agreement, the municipality shall notify the operator, in writing, of the violation, and the operator shall be allowed not less than 30 days or such greater amount of time as the municipality may specify to correct such violation. In the event that the operator fails to correct the violation, the municipality will be entitled to collect liquidated damages according to the schedule listed below. Such liquidated damages, if not paid by the operator, shall be changeable, to the extent available, to the performance bond. These liquidated damages shall be in addition to and not a limitation upon the other penal provision of this agreement and applicable law, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies.
(1) 
For failure to complete construction, installation, activation and use of the cable system in accordance with this agreement: $100 per day for each day such noncompliance continues.
(2) 
For failure to submit reports or supply data to the municipality in accordance with this agreement: $50 per day for each day that such noncompliance continues.
(3) 
For failure to test, analyze and report on the performance of the cable system in accordance with this agreement and for violations pertaining to the service quality provisions of this agreement: $50 per day for each day that such noncompliance continues.
(4) 
For failure to provide the capital equipment and facilities and services for public, educational and governmental access, as specified in this agreement: $75 per day for each day that such noncompliance continues.
(5) 
For violations pertaining to the rights of consumers under this agreement, including failure to keep a service appointment without just cause: $25 per day for each day that such noncompliance continues.
B. 
The municipality retains the right, at its sole option, to reduce or waive any of the penalties listed in this section where extenuating circumstances or conditions beyond the control of the operator are deemed to exist. No decision by the municipality to invoke any remedy under this agreement or under any statute, law or regulation shall preclude the availability of any other such remedy.
A. 
Upon receipt of a written request from the town, the operator shall either defend or pay all costs of defense in any action or proceeding which results from any alleged act or omission on the part of the operator or its subcontractors, employees or agents.
B. 
The operator shall have no recourse whatsoever against the town or any loss, cost, expense or damage arising out of any provision or requirement of this franchise or its enforcement, except for any actionable tort or violation of law of the town, its agents or employees.
C. 
The operator shall, on an annual basis, pay the town a franchise fee equal to 5% of the operator's gross revenue for cable service within the town, less any amount required to be paid to the Commission. The operator shall remit said franchise fee on or before April 15 of each calendar year for the preceding January 1 through December 31. The operator shall simultaneously submit a certified statement showing its gross revenues in appropriate detail.
D. 
The operator shall reimburse the town for restoration or other corrective action taken by the town after notice to the operator.
E. 
The operator shall design, construct, maintain and operate the system such that all users shall have the full expectation of privacy as provided in 47 U.S.C. § 551.
F. 
The operator shall make measurements of leakage, as required by Section 76.609 of the Federal Communications Commission rules and Part 596 of the Commission rules.
G. 
The operator shall provide multiple drops to schools without charge.
H. 
The operator shall, upon reasonable request of the town, attend meetings of the Town Board no more frequently than once per year or following any notice of rate increase or for good cause shown.
I. 
Examination of property.
(1) 
The operator shall permit the fiscal officer of the town and the Town Engineer, at least once a year or for good cause shown, to examine all the property of the operator relating to the cable television system situated within the town and examine and transcribe any and all relevant maps and records kept or maintained by the operator or under its control which pertain to its operations, affairs, transactions or property. If any of such maps or records are not kept in the town or, upon reasonable request, are not made available in the town and if the Treasurer or like fiscal officer and the Town Engineer shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the operator.
(2) 
The operator shall prepare and furnish to the Town Engineer, at the times and in the form prescribed by the Town Engineer, such reports with respect to its operations, affairs, transactions or other property as may be reasonably necessary or appropriate to the performance of any of the duties of the town or any of its officers and employees in connection with this franchise agreement.
(3) 
The operator shall, at all times, make and keep in the town full and complete plans, maps and records showing the exact location of all cable television system equipment installed or in use by the operator in roads, alleys and public places in the town.
A. 
All notices to be sent pursuant to this section shall be in writing and shall be mailed by certified mail with return receipt requested to verify delivery.
(1) 
Notice to the town shall be given to:
Supervisor, Town of New Hartford
Butler Hall, 48 Genesee Street
New Hartford, New York 13413
Town Clerk, Town of New Hartford
Butler Hall, 48 Genesee Street
New Hartford, New York 13413
(2) 
Notice to the operator shall be given to:
Harron Communications Corp.
Attention: Executive Vice President
70 East Lancaster Avenue
Frazer, Pennsylvania 19355
(3) 
Either party may advise the other, in writing, of any change in address or designated agency for receipt of notice.
B. 
Noncompliance notice. Notice of noncompliance may be issued to the operator by the town when it appears to the town that the operator has failed to comply with any provision of this agreement. Notice may also state that after a specified date which shall afford the operator a reasonable opportunity for cure, the town will take corrective action at the operator's expense, in which case the town may take the necessary sum from the operator's bond, and the operator shall immediately replenish the bond to the stipulated level.
C. 
Formal warning notice. If it appears to the town that any ground(s) for revocation of this agreement may exist, the town may issue a formal warning notice to the operator. This warning shall specify the apparent ground(s) for revocation, shall state a place and time for a full due process revocation hearing before an impartial judicial officer, which shall be at least 15 weekdays, excluding holidays, subsequent to the mailing, and shall ask the operator to show cause why this agreement should not be revoked.
The town may revoke this agreement on one or more of the following grounds:
A. 
Materially false or misleading statements or omissions in the operator's proposal or reports to the town.
B. 
Transfer of this franchise outside the procedure in § A121-16 below.
C. 
Receivership or bankruptcy of the operator or its parent.
D. 
Failure after a formal warning notice and full due process hearing before an impartial judicial officer to correct a nonexcusable failure to substantially comply with the material terms of this agreement.
E. 
Failure to maintain a bond or insurance as required by this agreement.
A. 
Review.
(1) 
During the six-month period which begins with the 36th month before the franchise expiration, the town may, on its own initiative, and shall, at the request of the operator, commence proceedings for the purpose of:
(a) 
Identifying the future cable-related community needs and interest which may not be established on the basis of facilities, equipment or services which another party has indicated it is willing to provide.
(b) 
Reviewing the performance of the operator under the franchise during the current franchise term.
(c) 
Specifying the material to be submitted with a proposal for renewal.
(2) 
Such proceeding shall be completed within 12 months of its commencement.
B. 
At any time after the 36th month before franchise expiration, but not prior to completion of any ongoing proceeding under Subsection A, the operator seeking renewal of the franchise may, on its own initiative or at the request of the town, submit a proposal for renewal. Upon submittal by the operator of a proposal to the town for the renewal of the franchise, the town shall provide prompt public notice of such proposal and, during the four-month period which begins upon submittal of the renewal proposal, renew the franchise or issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding in accordance with this subsection, to consider whether:
(1) 
The operator has substantially complied with the material terms of the existing franchise and with applicable law.
(2) 
The quality of the operator's service, including signal quality, response to consumer complaints and billing practices but without regard to the mix, quality or level of cable services or other services provided over the system, has been reasonable in light of community needs.
(3) 
The operator has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in the operator's proposal.
(4) 
The operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.
C. 
The town may not declare the operator's proposal unreasonable and deny renewal nor may community needs be established on the basis of facilities, equipment or services which another party has indicated it is willing to provide. The completion of an upgrade or rebuild of the system to a minimum capacity of 77 channels (550 megahertz) shall provide the operator with a reasonable expectation of renewal of this franchise. Completion of such upgrade shall be deemed reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests; and fully satisfy the facilities and equipment requirements for a renewal term of 10 years from the completion date of said upgrade or rebuild. Upon completion of the rebuild and before the renewal period commences, the operator and the town shall meet to renegotiate the franchise as to criteria set forth in Subsection B. The town shall be entitled to assure compliance with the rebuild requirement and the operator shall cooperate in such compliance proceedings.
D. 
Notice; full participation.
(1) 
In a proceeding under Subsection B, the operator shall be afforded adequate notice and the operator and the town or its designee shall be afforded fair opportunity for full participation, including the right to introduce evidence, including evidence related to issues raised in the proceeding under Subsection A, to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.
(2) 
A proceeding under this subsection shall be completed within 12 months of its commencement, within which time the town shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the operator. Such decision shall state the reasons therefor.
E. 
Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in Subsection B, pursuant to the record of the proceeding thereunder. The town may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under Subsection B(1) or on events considered under Subsection B(2) unless the town, having knowledge of such failure, has provided the operator notice and the opportunity to cure or in any case in which the town has waived its right to object or has effectively acquiesced.
F. 
The operator expressly reserves its rights of appeal pursuant to 47 U.S.C. § 546(e). In addition to such rights, this franchise shall remain in effect at all times during which a renewal proceeding or appeal remains pending.
G. 
Notwithstanding the provisions of Subsections A through F, the operator may submit a proposal for the renewal of the franchise at any time, and the town may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time, including after proceedings pursuant to this section have commenced. The provisions of Subsections A through F shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with Subsections A through F.
This franchise may not be sold or otherwise assigned or transferred without the written consent of the town, which may not unreasonably withhold its consent. Advance notice of intent to transfer must be given to the town at least 90 days before the town is to be asked to give consent, and the operator shall provide acceptable evidence that the proposed new operator is qualified, together with such other information as is properly requested by the town. Upon transfer, the new operator shall be bound fully by all provisions of this agreement, excepting only that which may be mutually agreed upon, in writing, between the town and the new operator; and the town's having not exercised any provision hereof prior to the transfer shall be no bar to its exercise thereafter.
The parties agree to act in good faith to maintain good communication between them. Barring emergency, the town will give to the operator reasonable advance notice of the cable system being on the agenda of the Town Board. The operator will have the right of notice of meetings on cable and the right of representation thereat, and the operator will inform and consult with the town when any questions of compliance with this agreement may be raised by change(s) in its operation.
Nothing in this agreement shall be construed to limit any right(s) or authority of the town to sue for damage caused by any material and uncorrected breach or to carry out its other lawful functions. Any right or power in or duty impressed upon any officer, employee, department or board of the town is subject to transfer by the town to any officer, employee, department or board of the town.
A. 
Upon request by the town at the time of termination of this agreement or any extension thereof, whether by expiration, revocation or otherwise, the operator shall remove all poles, cable and apparatus from the roads and public places in, over, under or along which they were installed by the operator or to be installed by the operator and shall restore the areas to a condition as good as before within six months after termination.
B. 
During the period of removal or transition, the operator shall maintain in force the bond, indemnification and liability insurance defined in §§ A121-9 and A121-10.
A. 
Any dispute hereunder between the town and the operator may be resolved by arbitration conducted as follows:
(1) 
The operator and the town each shall, within 15 days of the decision to proceed to arbitration, appoint one arbitrator experienced in the cable television business, which arbitrators shall mutually select a third arbitrator of similar qualifications.
(2) 
Within 30 days after appointment of all arbitrators and upon 15 days written notice to the parties to the arbitration, the arbitrators shall commence a hearing on the dispute.
(3) 
The hearing shall be recorded and may be transcribed at the request of either the town or the operator.
(4) 
At the close of the hearings and within 30 days, the arbitrators shall prepare written findings and serve such decision upon the town and the operator.
(5) 
The decision of a majority of the arbitrators shall be binding upon the parties to the arbitration.
B. 
Either party may seek judicial relief to the arbitrators' decision under the following circumstances:
(1) 
Either party fails to select an arbitrator.
(2) 
The arbitrators fail to select a third arbitrator.
(3) 
One or more arbitrator is unqualified.
(4) 
Designated time limits have been exceeded.
(5) 
The arbitrators have not proceeded expeditiously.
(6) 
Based upon the record, the arbitrators' decision is arbitrary, capricious, unsupported by substantial evidence, an abuse of discretion or based upon a mistake of law.
C. 
All costs of arbitration shall be borne equally by the parties to the arbitration unless otherwise ordered by the arbitrators.
This agreement shall be binding on and inure to the benefit of the parties hereto and to their respective heirs, assigns, successors and representatives.
This agreement may be modified by a mutual agreement of the parties, put into writing, duly executed and signed by both parties and attached hereto and made a part of this agreement. This agreement may also be modified as provided by federal law.
If any section, sentence, clause, phrase, paragraph or part of this agreement is for any reason held illegal, invalid or unconstitutional by any court of competent jurisdiction or by any other governmental agency having appropriate jurisdiction, such portion shall be deemed a separate, distinct and independent provision; and all other provisions of this agreement shall remain valid and in full force.
Prevention or delay of any performance under this agreement due to circumstances beyond the control of the operator or the town, unforeseen circumstances or acts of God shall not be deemed noncompliance with or a violation of this agreement.
All new rulemaking of the New York State Commission on Cable Television promulgated and effective in January 1990 shall be followed, whether or not specifically set forth herein.
This franchise shall be effective July 8, 1989, after adoption by the town and execution by the duly designated agent for the operator.
The Community Television System Franchise to do business, dated July 8, 1964, is hereby repealed as of the effectiveness of this franchise.