[HISTORY: Adopted by the Mayor and Council of the Borough of Closter 2-25-2009 by Ord. No. 2009:1031. Amendments noted where applicable.]
Editor's Note: This ordinance also superseded former Ch. 300, Cable Television Franchise, adopted 6-23-1999 by Ord. No. 1999:797, as amended.
For the purpose of this chapter, the following terms shall have the following meanings:
- ACT or CABLE TELEVISION ACT
- 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.
- Cablevision's application for renewal of municipal consent, which application is on file in the Borough Clerk's office and is incorporated herein by reference and made a part hereof, except as modified, changed, limited or altered by this chapter.
- The Board of Public Utilities of the State of New Jersey or its successor agency.
- The governing body of the Borough of Closter, in the County of Bergen, in the State of New Jersey.
- Cablevision of New Jersey, Inc. ("Cablevision"), the grantee of rights under this chapter.
- The Federal Communications Commission.
- FEDERAL ACT
- That federal statute relating to cable communications, commonly known as the "Cable Communications Policy Act of 1984," 47 U.S.C. § 521 et seq., and the Telecommunications Act of 1996, or as those statutes may be amended.
- FEDERAL REGULATIONS
- Those federal regulations relating to cable television services, 47 C.F.R. § 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 C.F.R. 76.3), or as such regulations may be amended.
- STANDARD INSTALLATION
- The installation of drop cable to a customer's premises where the distance from the point of entry into the building being served is less than 150 feet from the active cable television system plant.
- The State of New Jersey.
- STATE REGULATIONS
- 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. 14:18-1.1 et seq., or as such regulations may be amended.
Editor's Note: See 47 U.S.C. § 255 et seq.
A public hearing concerning the consent herein granted to Cablevision 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 municipality having received all comments regarding the qualifications of Cablevision to receive this consent, the Borough hereby finds Cablevision possesses the necessary legal, technical, character, financial and other qualifications to support municipal consent and that Cablevision's operating and construction arrangements are adequate, and feasible.
The Borough hereby grants to Cablevision 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 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 Cablevision seeks a renewal of the consent provided herein, 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 chapter to Cablevision shall apply to the entirety of the Borough and any property hereafter annexed.
Cablevision shall be required to proffer video programming service along any public right-of-way to any residents located in residentially zoned areas, without the application of a line extension policy, at tariffed rates for standard and nonstandard installation.
Cablevision shall pay to the Borough an annual franchise fee in accordance with N.J.S.A. 48:5A-30(d).
Cablevision shall, upon 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 located within the Borough.
Upon written request from the Borough, the company shall provide to state and locally accredited elementary and secondary schools and municipal public libraries in the Borough, without charge, the following; one standard installation per school or library; one cable modem per installation; and basic cable modem service for the term of this chapter for each installation. This offer shall be subject to the terms, conditions and use policies of the company, as those policies may exist from time to time.
Upon written request from the Borough, the company shall provide to the Borough, without charge, at one designated location, the following: one standard installation; one cable modem; and basic cable modem service for the term of this chapter. This offer shall be subject to the terms, conditions and use policies of the company, as those policies may exist from time to time.
Cablevision 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, as determined by the Borough's engineer under the Borough's generally applicable laws, rules and regulations.
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.
Cablevision shall comply with the technical and customer service standards established for the cable industry under applicable federal and state laws, rules and regulations.
Cablevision 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. Said 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 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. All complaints shall be reviewed and processed in accordance with N.J.A.C. 14:17-6.5.
The company shall maintain, during the life of the franchise agreement, insurance policies of the type and with the minimum limits indicated below and in a form satisfactory to the municipality. The company shall provide certificates of insurance reasonably satisfactory to the municipality, prior to the commencement of work, for review by the risk management consultant.
Policy and limit guidelines as follows:
Workers' compensation insurance in accordance with the laws of the State of New Jersey. The company shall also have and maintain employers' liability insurance.
Commercial general liability insurance coverage, written on an occurrence basis, and must not be altered by any endorsements limiting coverage.
The coverage shall include:
Contractual liability covering liability assumed under the indemnification provision contained in the agreement.
Broad form property damage liability, including completed operations.
Coverage for liability arising from explosion, collapse and underground damage, if blasting or excavation is to be done.
Personal injury coverage, including coverage for liability arising from false arrest, malicious prosecution, willful detention, libel, slander, defamation of character, invasion of privacy and wrongful egress or entry.
Products and completed operations for a period of two years from substantial completion.
Comprehensive automobile liability insurance covering the use of all owned, nonowned, hired or leased automobiles with limits of liability not less than $1,000,000 combined single limit for bodily injury and property damage. Coverage should include uninsured and underinsured motorist limits no less than the minimum statutory limits.
Umbrella liability insurance policy written on an occurrence basis with a minimum combined single limit as shown below as "follow form" excess of the company's employer's liability, commercial general liability and comprehensive automobile liability insurance policies required herein.
Additional requirements as follows:
Certificates of all insurance policies provided above satisfactory to the Borough of Closter shall be furnished upon request. Each such policy or certificate shall contain a provision that is not subject to change or cancellation unless 30 days' prior written notice via certified mail/return receipt shall have been given to the Borough of Closter by the company's insurer. These must be received 30 days prior to commencement of work.
The company agrees that it will defend, indemnify and hold harmless the Borough of Closter, its officers, agents and employees from and all liability suits, actions and demands and all damages, costs or fees on account of injuries to persons or property, including accidental death, arising out of or in connection with the work, or by reason of the operations under this agreement.
All insurance purchased and maintained by the company shall designate the Borough of Closter, its officers, officials, agents, employees and consultants as additional insureds.
Except as modified by the Borough of Closter, in writing, the insurance requirements herein shall also apply to subcontractors and to the sub-subcontractors, and the company will be responsible for supervision of the filing of insurance certificates prior to any subcontractor commencing work on the project.
The Borough of Closter shall maintain property insurance upon the entire work at the site. The insurance shall insure against the perils as provided by the Bergen JIF and its excess insurer.
The Borough of Closter and the company waive all rights against each other and the subcontractors, sub-subcontractors, agents and employees, each of the other, and the architect and separate companies, if any, and their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to Subsection B(5) or any other property insurance applicable to the work. The Borough of Closter or the company, as appropriate, shall require the architect, separate companies, subcontractors and sub-subcontractors, by appropriate agreements, written where legally required for validity, similar waivers, each in favor of all parties enumerated in this subsection.
All insurance coverage evidenced by the company in accordance with this municipal consent shall be from A.M. Best's rated A- ("A minus") VII or better insurance company licensed to do business in the State of New Jersey.
All proof of insurance submitted to the municipality shall clearly set forth all exclusions and deductible clauses. The Borough of Closter will allow certain deductible clauses which are not considered excessive, overly broad or harmful to the interest of the Borough of Closter. Standard exclusions will be allowed of any additional exclusions. This will be at the reasonable discretion of the Borough of Closter. Regardless of the allowance of exclusions or deductibles by the Borough of Closter, the company shall be responsible for the deductible limit of this policy and all exclusions consistent with the risks he assumes under this agreement and imposed by law.
In the event that the company provides evidence of insurance in the form of certificates of insurance, valid for a period of time less than the period during which the company is required by the terms of this agreement to maintain insurance, said certificates are acceptable, but the company shall be obligated to renew its insurance policies, as necessary, and to provide new certificates of insurance so that the Borough of Closter is continuously in possession of evidence of the company's insurance in accordance with the foregoing provisions.
In the event the company fails or refuses to renew its insurance policy, or the policy is cancelled, terminated or modified so that the insurance does not meet the requirements of this subsection, the Borough of Closter may refuse to make payment of any further monies due under this contract or refuse to make payment of monies due or coming due under other contracts between the company's insurance for the periods and amounts referred to above. Alternately, the Borough of Closter may default the company and direct the surety to complete the work. During any period when the required insurance is not in effect, the Borough of Closter may suspend performance of the contract. If the contract is so suspended, additional compensation or extension of contract time is not due on account thereof.
Cablevision shall obtain and maintain, at its sole cost and expense, during the entire term of this chapter, a bond, in a form acceptable to the municipality, in the amount of $25,000. Such bond shall be to insure the faithful performance of its obligations as provided in this franchise.
The rates of the company for cable television services shall be subject to regulation to the extent permitted by federal and state law.
Cablevision shall be required to have the capability to override the audio portion of the system in order to permit the broadcasting of emergency messages by the Borough pursuant to state and federal requirements. The company shall in no way be held liable for any injury suffered by the Borough 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. The Borough shall utilize the state-approved procedures for such emergency uses.
In the event that the service of another multichannel video program provider not subject to the Borough's regulatory authority within the Borough creates a significant competitive disadvantage to Cablevision, the company shall have the right to request from the Borough lawful amendments to its franchise that relieve it of the burdens which create the unfair competitive situation. Should the company seek such amendments to its franchise, the parties agree to negotiate, in good faith, appropriate changes to the franchise in order to relieve the company of such competitive disadvantages. If the parties can reach an agreement on such terms, the Borough agrees to support the company's petition to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7.
If the parties are unable to reach an agreement on appropriate amendments to the franchise, the Borough acknowledges that the company shall have the right to petition the Board directly for such amendments in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7; provided, however, that the Borough shall be under no obligation to support Cablevision's request for such relief from the Board.
In any subsequent municipal consent, the Borough shall require, at a minimum, the same terms and conditions of any other provider of multichannel video programming subject to the Borough's regulatory authority as those contained in the instant consent. In the event such subsequent consent does not contain the same terms and conditions as the instant consent, the Borough agrees to support the company's petition to the Board for modification of the consent in accordance with N.J.S.A. 48:5A-47 and N.J.A.C. 14:17-6.7 to relieve the company of competitive disadvantages identified in the company's petition.
Upon expiration, termination or revocation of this chapter, Cablevision, at its sole cost and expense and upon direction of the Board, shall remove the cables and appurtenant devices constructed or maintained in connection with the services authorized herein, unless Cablevision, its affiliated entities or assignees should, within six months after such expiration, termination or revocation, obtain certification from the FCC to operate an open video system or any other federal or state certification to provide telecommunications.
Cablevision shall continue to make available noncommercial public, educational and governmental (PEG) access as described in the application for municipal consent.
The Borough agrees that Cablevision shall retain the right to use the PEG access channel, or portion thereof, for non-PEG access programming during times when the Borough is not utilizing the channel for purposes of providing PEG access programming. In the event that the company uses said PEG access channel for the presentation of such other programming, the PEG programming shall remain the priority use, and the company's rights with respect to using the channel for non-PEG programming shall be subordinate to the Borough's provision of PEG access programming on such channel.
Upon written request by the Borough, Cablevision shall install a fiber access return feed at a municipally designated building, provided it is a standard installation, solely for the benefit of the company's cable television subscribers in the municipality. Upon completion of this installation, Cablevision shall provide the Borough, in lieu of the regional public access channel described in the application, with its own designated PEG channel available for the exclusive use of the Borough.
In consideration for the rights granted in this chapter, the company shall provide the Borough with a technology grant in the amount of $18,000. Cablevision shall provide an initial grant payment of $4,000 within the first year of the new franchise agreement. The remaining grant of $14,000 shall be provided in annual installments of $1,000, upon written request by the Borough (the "Annual Grant"). The annual grant may be used by the Borough for any cable- and/or other telecommunications-related purpose as the Borough, in its discretion, might deem appropriate. Cablevision shall not be obligated to make any additional payments beyond year 15 of the franchise. The annual grant shall be payable to the Borough within 60 days from receipt of the Borough's written request. Notwithstanding the foregoing, should Cablevision apply for a system-wide certification or otherwise convert its municipal consent to a system-wide certification in accordance with applicable law, it shall be relieved of any payments due and owing after the date of such conversion or award of a system-wide franchise. All PEG access support provided by Cablevision shall be for the exclusive use of the company's customers in the municipality.
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 Cablevision as terms and conditions of this consent. The application and any other written amendments thereto submitted by Cablevision in connection with this consent are incorporated in this chapter by reference and made a part hereof, except as specifically modified, changed, limited or altered by this chapter 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 chapter 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 chapter shall take effect upon issuance of a certificate of approval as issued by the Board of Public Utilities.