Township of Middlesex, PA
Butler County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Supervisors of the Township of Middlesex as indicated in article histories. Amendments noted where applicable.]

ARTICLE I
Agreement With North Pittsburgh Telephone Company (§ A177-1 — § A177-23) 

ARTICLE II
Agreement With Armstrong Utilities (§ A177-24 — § A177-45) 

Article I Agreement With North Pittsburgh Telephone Company

§ A177-1 Definitions.

§ A177-2 Grant of franchise.

§ A177-3 Construction and maintenance activities.

§ A177-4 Conditions on use and occupancy of streets.

§ A177-5 Fees and reports.

§ A177-6 Safety measures.

§ A177-7 Voluntary subscriptions.

§ A177-8 System services.

§ A177-9 Operation and maintenance.

§ A177-10 Service standards.

§ A177-11 Subscriber rates and charges.

§ A177-12 Discriminatory practices prohibited.

§ A177-13 Liability and indemnification.

§ A177-14 Effective date and term.

§ A177-15 Federal regulation.

§ A177-16 Severability.

§ A177-17 Interpretation.

§ A177-18 Grantee's inability to perform.

§ A177-19 Favored nations.

§ A177-20 Binding effect.

§ A177-21 Assignment or transfer.

§ A177-22 Repealer.

§ A177-23 Community service.

Article II Agreement With Armstrong Utilities

§ A177-24 Definitions.

§ A177-25 Grant of franchise.

§ A177-26 Construction and maintenance activities.

§ A177-27 Conditions on use and occupancy of streets.

§ A177-28 Fees and reports.

§ A177-29 Safety measures.

§ A177-30 Voluntary subscriptions.

§ A177-31 System services.

§ A177-32 Operation and maintenance of system.

§ A177-33 Service standards.

§ A177-34 Subscriber rates and charges.

§ A177-35 Discrimination practices prohibited.

§ A177-36 Insurance.

§ A177-37 Effective date and term of franchise.

§ A177-38 Federal regulation.

§ A177-39 Severability.

§ A177-40 Interpretation.

§ A177-41 Conflict of interest.

§ A177-42 Defaults; arbitration.

§ A177-43 Grantee's inability to perform.

§ A177-44 Binding effect.

§ A177-45 Community service.

[Adopted 1-16-2008 by Ord. No. 115
Editor's Note: This ordinance also superseded former Ch. A177, Cable Television Franchise, adopted 12-17-2003 by Ord. No. 98, and named North Pittsburgh Telephone Company of Gibsonia, Pennsylvania, as the grantee of this franchise.
]

§ A177-1
Definitions. 

§ A177-2
Grant of franchise. 

§ A177-3
Construction and maintenance activities. 

§ A177-4
Conditions on use and occupancy of streets. 

§ A177-5
Fees and reports. 

§ A177-6
Safety measures. 

§ A177-7
Voluntary subscriptions. 

§ A177-8
System services. 

§ A177-9
Operation and maintenance. 

§ A177-10
Service standards. 

§ A177-11
Subscriber rates and charges. 

§ A177-12
Discriminatory practices prohibited. 

§ A177-13
Liability and indemnification. 

§ A177-14
Effective date and term. 

§ A177-15
Federal regulation. 

§ A177-16
Severability. 

§ A177-17
Interpretation. 

§ A177-18
Grantee's inability to perform. 

§ A177-19
Favored nations. 

§ A177-20
Binding effect. 

§ A177-21
Assignment or transfer. 

§ A177-22
Repealer. 

§ A177-23
Community service. 

§ A177-1 Definitions.

For the purpose of this ordinance, each of the following terms shall have the meaning ascribed below. When not inconsistent with the context, words used in the present tense include the plural and singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.

BOARD OF SUPERVISORS
The present governing body of the Township or any future board constituting the legislative body of the Township.
CABLE SERVICE
The one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
CABLE SYSTEM
A facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes, among other things, video programming and which is provided to multiple subscribers within the Township, but such term does not include: 1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; 2) a facility that serves subscribers without using any public rights-of-way; 3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility shall be considered a cable system [other than for purposes of Section 621(c) of the Cable Act] to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; 4) an open video system that complies with federal laws; or 5) any facilities of any electric utility used solely for operating its electric utility system. The foregoing definition of cable system shall not be deemed to circumscribe or limit the valid authority of the Township to regulate or franchise the activities of any other communications system or provider of communications services as permitted by law.
GRANTEE
The person, firm or corporation to whom or to which a franchise under this ordinance is granted by the Board of Supervisors and the lawful successor and assignee of such person, firm or corporation.
GROSS REVENUES
All revenue derived directly or indirectly by the grantee or by any affiliate that is a cable operator from the operation of the grantee's cable television system to provide cable services. Gross revenues shall include, but are not limited to, the following: basic service fees; fee(s) charged to subscribers for any type of cable service in addition to basic service; fee(s) charged to subscribers for any optional, premium, per-channel or per-program cable services; charge(s) for installation, additional outlet(s), relocation, disconnection, reconnection and changes in service; fee(s) for leasing of channels; fee(s) for video-on-demand; charge(s) for rental of any and all cable service equipment, including, but not limited to, converters and remote controls; revenues based on the sale or lease of cable system or fiber capacity for cable services; revenues from the insertion of local commercial advertising availabilities; revenues from home shopping channels sales generated in the franchise area; Internet or cable modem service fees to the extent such services may be characterized as a cable service under applicable law; sales of program guides; fee(s) for any and all music services; late payment fees; revenue from data transmissions (to the extent such transmissions are considered cable services under applicable law); and revenue from interactive services (to the extent that such services are considered cable services under applicable law). Gross revenues shall not include bad debts or any taxes on services furnished by the franchise and imposed directly on any subscriber or user by the Township or other state or federal governmental unit, nor shall it include amounts collected from subscribers for support of public, educational and governmental access or for support of institutional networks as set forth in this ordinance.
PERSON
Any person, firm, partnership, association, corporation, company or organization of any kind.
SUBSCRIBER
An authorized recipient lawfully receiving cable service.
TOWNSHIP
Middlesex Township, Butler County, Pennsylvania.
TOWNSHIP ENGINEER
A professional engineer, duly registered by the Commonwealth of Pennsylvania, employed by the Township or engaged as a consultant thereto.
TOWNSHIP IMPROVEMENT DESIGN STANDARDS
The officially adopted Improvement Design Standards Ordinance of the Township and all subsequent amendments thereto.
Editor's Note: Editor's Note: See Ch. 101, Improvement Design Standards.

§ A177-2 Grant of franchise.

A. 

In consideration of the within undertakings by the grantee, the Township agrees that the grantee shall have, and hereby confirms and grants unto the grantee, the right, license and privilege to construct and reconstruct, to install, maintain, repair, replace and remove, and solicit and sell customers, subscribers, users and advertisements for, and otherwise to own, promote and operate, a cable system with the Township.

B. 

The right, license and privileges hereby granted shall not be exclusive, and the Township reserves the right to grant similar rights, licenses and privileges to any person at any time.

C. 

The right, license and privilege herein granted and confirmed shall be deemed to include a continuing right to enter upon and to use and occupy the surface, subsurface and space above any public streets, lanes, alleys, paths, ways, bridges and viaducts within the Township when and to the extent necessary to carry out the intent and purposes of this ordinance, subject, however, to limitations and qualifications herein contained.

D. 

In exercising the right, license and privilege granted and confirmed hereby, the grantee shall be and remain subject to and shall comply with all federal, state and local laws, rules and regulations applicable to it in the conduct of the activities contemplated hereby.

§ A177-3 Construction and maintenance activities.

In cases where existing poles or other structures, conduits or other facilities owned or leased by public utilities or other third parties having the right to permit attachment thereto or location therein or thereon of the system by the grantee are not available or are impractical for that purpose, then the proposed means of attachment, construction or conduit shall be submitted to the Board of Supervisors or designated person by drawings, plans and explanatory addenda at least 30 days before such proposed attachment, installation or construction and shall be subject to his approval in writing before commencement of such attachment, installation or construction, and such approval shall not be unreasonably withheld, and the Board of Supervisors or designated person shall advise the grantee of its determination within 20 days after receipt of the grantee's proposed means of attachment, construction or conduit.

§ A177-4 Conditions on use and occupancy of streets.

A. 

Use. Pole attachments and the construction, installation, repair and replacement of basic system hardware and the operation and removal of the system and all parts thereof by the grantee within the Township shall be conducted in such manner as to cause minimum interference with the proper use of streets, lanes, alleys, bridges and viaducts and other public places and to cause minimum interference with the rights or reasonable convenience of the property owners, tenants or occupants who adjoin any of said streets, lanes, alleys, bridges, viaducts and other public places.

B. 

Restoration. In the event of any disturbance caused by the grantee's activities hereunder to the pavement, sidewalk, driveway or other surfacing as to which the Township is responsible, the grantee, at its own cost and expense, shall replace and restore all such paving, sidewalk, driveway or surface so disturbed in a good and workmanlike manner and to as functionally sound a condition as before said activities were commenced, and it shall be completed within 60 days of the disturbance, or such longer period as may be approved by the Board of Supervisors. All such replacement and restoration by the grantee shall be installed in accordance with the Township Improvement Design Standards and subject to inspection by the Township Engineer or other designated person, and such approval shall not be unreasonably withheld.

C. 

Relocation. In the event that, at any time during the existence of the within right, license and privilege in the grantee, the Township elects to alter or change the grade, alignment or paved width of any street, lane, alley, bridge or viaduct or other public way, the grantee, upon notice by the Township, at its own expense, shall remove and relocate any affected part of the system within 30 days of the date of notice or such reasonable extension thereof as may be granted, in writing, by the Board of Supervisors.

D. 

Placement of fixtures. The grantee shall not place the system or any part thereof where the same will interfere with any gas, electric, telephone or telegraph line or fixture, water hydrant or main, nor in such manner as would interfere with the usual travel on the streets, lanes, alleys, bridges and viaducts and other public places of the Township.

E. 

Temporary removal. Upon the request of any person, firm or corporation holding a moving permit issued by the Township or other governmental regulatory agency having jurisdiction of the matter, by which permit any building or buildings, large pieces of equipment or structural materials or the like are to be moved from place to place, the grantee shall temporarily raise or lower its system as and to the extent necessary to permit the moving of such buildings, equipment, structural materials and the like, provided the expense of such temporary raising or lowering of the system or any part thereof shall have been paid or tendered by the person, firm or corporation requesting the same. However, payment from the Township for temporarily moving the cable system shall not be required. The grantee shall be given not less than 10 days' advance notice to arrange for such temporary changes to its system.

F. 

Protective barriers. Any opening or obstruction in the streets or other public ways made by the grantee in the course of the installation, operation, maintenance or removal of equipment, structures, facilities, apparatus and appurtenances shall be guarded and protected at all times by the placement of adequate barriers, fences or boarding, or as otherwise directed by the Township, including but not limited to the installation of steel plates to allow a public way to remain usable while openings or obstructions exist.

G. 

Tree trimming. The grantee shall have the authority to trim trees which are located on or which overhang streets, alleys, sidewalks and public places of the Township. All trimming shall be at the expense of the grantee.

H. 

Underground requirements. The grantee shall place its cables, wires or other like facilities underground, as may be required by the provisions of the laws of the Commonwealth of Pennsylvania, the ordinances of the Township, as they may be amended, any pertinent subdivision restrictions and the applicable section(s) of the officially adopted electrical code of the Township, as revised. The Township acknowledges that as of the effective date of this ordinance, the grantee's existing cables, wires and other like facilities are in compliance with this provision. For all new residential structures in which undergrounding is required by the Township, the builder, subdivider or developer of such structure, at his sole cost and expense, shall provide, in accordance with grantee's current specifications, all conduits and trenches to the structure's point of entry from the boundary of the development, and provide for the backfill and restoration of trench areas.

I. 

Moving of system for traffic, safety or other utilities. The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other streets or remove from the street any property of the grantee when required by the Township by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, power lines, signal lines and tracks and other types of improvements by the Township or public agencies.

J. 

Inspection. The Township shall have the right to inspect all pole attachments, installation, construction, repair and replacement of basic system in hardware, and the removal of the system or any part thereof to insure compliance with Subsection A of this section.

§ A177-5 Fees and reports.

A. 

In consideration of the right, license and privilege granted hereby and in order to defray any costs and expenses of the Township in connection with the execution, delivery, performance and administration of this ordinance, the grantee shall pay to the Township, within 30 days after the end of each calendar quarter, an amount equal to 5% of the gross revenues of the grantee. The Township reserves the right to increase the annual fee upon 90 days' written notice to the grantee. Any such increase shall comply with all federal and state laws and all federal and state regulations.

B. 

The Township and the grantee may subsequently agree that the fee be paid on a prepaid or deferred basis. However, the sum so paid may not exceed the amount, including the line value of money, which would have lawfully been collected if such fees had been paid per annum. Should the Township elect to be paid on a prepaid or deferred basis, such election shall be made in writing and submitted to the grantee by December 31 of the year preceding the year the election is to take effect.

C. 

Not later than 60 days after the close of each fiscal quarter, the grantee shall file with the Township a written report, certified by the grantee's chief accounting officer, setting forth the amount of basic subscriber service receipts and premium subscriber service receipts paid to the grantee during such fiscal year, which amount equals the gross revenues of the grantee.

D. 

The Township shall have the right to inspect and audit the grantee's records from which the payments hereunder are computed and to recompute the amount of such payments to correct errors in the computation and reporting of same and to correct errors in the amount due to the Township as disclosed by the audit.

§ A177-6 Safety measures.

A. 

Construction and maintenance of the system shall be in accordance with the provisions of the officially adopted electrical code of the Township and of the National Board of Fire Underwriters and such other applicable laws of the Commonwealth of Pennsylvania, County of Butler, and regulations of the Township which may be lawfully in effect from time to time.

B. 

All structures, lines, equipment and connections in, over, under and upon the streets of the Township, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.

§ A177-7 Voluntary subscriptions.

All subscriptions for services under any agreement shall be on a voluntary basis and may be terminated at any time by the customer.

§ A177-8 System services.

A. 

The grantee, at all times, shall provide subscriber service as and to the extent required to be provided by applicable federal and state rules and regulations from time to time in effect.

B. 

If the grantee operates a citizens awareness channel or similar programming option, it shall post free of charge any notices properly submitted by the Board of Supervisors.

C. 

Additional services may, at the sole discretion of the grantee, be provided by the grantee, including services for which a per-program, per-service or per-channel charge is made consistent with applicable federal and state rules and regulations.

§ A177-9 Operation and maintenance.

The grantee shall make reasonable efforts to assess subscriber need and viewing preferences. If any existing service becomes unavailable, the grantee shall endeavor to provide substitute programming; grantee may combine programming into composite channels to improve efficiency of channel utilization or to attract a larger viewing audience.

§ A177-10 Service standards.

A. 

The grantee will investigate and resolve all subscriber complaints regarding the quality of service, equipment malfunctions and similar matters expeditiously and in accordance with the following procedure:

(1) 

The grantee shall have qualified personnel available during normal working hours to investigate and resolve subscriber complaints.

(2) 

The grantee shall maintain a telephone answering service during times other than normal business hours with a qualified technician on call 24 hours a day to respond to emergencies.

(3) 

Upon notification of a service complaint, the grantee shall dispatch a qualified employee to investigate the complaint and adjust, repair or replace grantee equipment as necessary to resolve the complaint. The grantee shall not be responsible for malfunctions of any television receivers or other equipment owned or operated by any subscriber.

(4) 

All complaints shall be investigated and resolved within 24 hours after initial notification to the grantee (absent unusual circumstances).

(5) 

The grantee shall maintain a service log in which an entry shall be made of each complaint, the date of notification thereof, the nature of the complaint and the means by which it was resolved. The Township reserves the right to inspect the log at any time.

B. 

In the construction, maintenance and operation of the system, the grantee shall, at a minimum, at all times, fully comply with technical standards which have been or which hereafter may be adopted by the Federal Communications Commission, including (without limitations), if applicable, requirements relating to channel capacity, bandwidth and periodic testing. Further, should any federal, state or local governmental unit with jurisdiction establish technical standards that exceed those of the Federal Communications Commission, the grantee will comply therewith when and to the extent required by such governmental unit, unless to require the grantee to do so would be held invalid by the Federal Communications Commission or a court or administrative tribunal of competent jurisdiction. The technical quality of the service provided by the grantee shall be sufficient to provide subscribers with uniformly high quality television reception. The grantee shall maintain the system in good repair and working order at all times.

§ A177-11 Subscriber rates and charges.

A. 

Rates and charges for installation, monthly service fees, equipment rental, additional outlets, moves, changes and any other rates charged by the grantee to its subscribers and users shall be regulated according to current and subsequent Federal Communications Commission rules and regulations.

B. 

The grantee shall offer the services of the system within the Township on terms and conditions which are uniform and nondiscriminatory.

C. 

The rates and charges for all system services (specifically including but not limited to basic subscriber service and additional service provided pursuant to § A177-8, or any connection, maintenance or similar service) and equipment shall be subject to adjustment from time to time, at the sole discretion of the grantee.

§ A177-12 Discriminatory practices prohibited.

The grantee shall not, as to rates, charges, service, service facilities, rules, regulations, or in any other respect, make or grant unlawful undue preference or advantage to any person, nor subject any person to any unlawful prejudice or disadvantage, provided that nothing in this ordinance shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled. Connection and/or service charges may be waived or modified during promotional campaigns of the grantee.

§ A177-13 Liability and indemnification.

A. 

Indemnification.

(1) 

The grantee shall indemnify, defend, save and hold harmless the Township, its officers, agents and employees from any and all claims for injury, loss, liability, cost or expense arising in whole or in part from, incident to or connected with any act or omission of the grantee or its officers, agents or employees, arising out of or in any way connected to, but not limited to, the construction, installation, reconstruction, operation, maintenance or removal of the cable system or any other equipment or facilities. The obligation to indemnify, defend, save and hold the Township harmless shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, attorneys' fees, expert fees, court costs and all other reasonable costs of such indemnification.

(2) 

The Township shall not at any time be liable for any injury or damage to persons or property from any cause whatsoever arising from or in any way connected to the construction, installation, reconstruction, operation, maintenance or removal of the cable system or any other equipment or facilities by the grantee or its employees, agents, representatives, contractors and subcontractors.

B. 

Insurance.

(1) 

The grantee shall maintain insurance throughout the term of this franchise, with the Township as an additional insured, with an insurance company which is authorized to conduct business in Pennsylvania and which has an A.M. Best rating (or equivalent) no less than "A," indemnifying the Township from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, installation, reconstruction, operation, maintenance or removal of the cable system by grantee or any of its contractors, subcontractors, agents or employees in the following amounts:

(a) 

The amount of such insurance against liability for damage to property shall be no less than $1,000,000 as to any one occurrence.

(b) 

The amount of such insurance against liability for injury or death to any person shall be no less than $1,000,000.

(c) 

The amount of such insurance for excess liability shall be $5,000,000 in umbrella form.

(d) 

The amount of such insurance against all claims arising out of the operation of motor vehicles and general tort or contract liability shall be $1,000,000.

(e) 

The grantee shall maintain workers' compensation insurance on all employees engaged in the installation or service of its equipment.

(2) 

All insurance coverage shall be maintained throughout the period of this franchise. All insurance policies shall contain a provision that the Township will receive 30 days' written notice prior to any changes or cancellation of the policy. All expenses incurred for said insurance shall be at the sole expense of the grantee.

(3) 

A certificate evidencing the insurance coverage required herein shall be provided by the grantee to the Township within 30 days of the effective date of this franchise.

§ A177-14 Effective date and term.

A. 

The right and privilege herein granted shall take effect and be in force from and after February 1, 2008, and shall continue in force and effect for a period of eight years from the effective date of this ordinance. At the end of the initial term, the grantee may renew the franchise by giving written notice to the Township not less than 90 days prior to the expiration hereof. In determining whether to grant a renewal, the Township shall consider those factors prescribed by applicable law and, among other things: 1) whether the grantee has substantially complied with the material terms of this franchise and with applicable law; 2) the extent and quality of the grantee's service; 3) whether the grantee remains financially, legally and technically qualified; and 4) whether the grantee's renewal would reasonably meet the future cable-related community needs and interest. Any renewal of the initial term hereof shall be for an additional five years. In reviewing or declining to renew the franchise, the Township shall comply with applicable federal, state and local laws.

B. 

Notwithstanding the foregoing, the Township shall have the right to terminate this franchise for cause upon 90 days' written notice to the grantee and upon the grantee's failure to correct any deficiencies within 45 days from said written notice from the Township. For purposes of this section, the term "for cause" shall mean the grantee's substantial noncompliance with the material terms of the ordinance or with applicable law, the extent or quality of the grantee's services are below industry standards, the grantee is financially, legally or technically unqualified, or the grantee is unable to meet the future cable-related community needs and interests.

§ A177-15 Federal regulation.

In the event and to the extent that the terms and provisions hereof shall be superseded and preempted by or become inconsistent with state law or federal law (including rules and regulations promulgated by the Federal Communications Commission), then and in each such event, it shall be the right of each party hereto to take such action (including the execution and delivery of written instruments and the adoption of ordinances and resolutions) within 60 days after such event as shall be reasonably necessary and may be reasonably requested to so amend or modify, in writing, this franchise and to preserve the written contract for rights and benefits of the grantee and fulfill the intent and purposes of this ordinance.

§ A177-16 Severability.

Subject to the provisions of § A177-12 hereof, if any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court or administrative tribunal 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.

§ A177-17 Interpretation.

Notwithstanding any provision of this ordinance to the contrary, the Township agrees that in the event of any ambiguity with respect to the provisions of this ordinance, or dispute as to meaning, the Township shall make a good faith effort to establish the meaning of such term or condition in a manner consistent with the original intent of the language.

§ A177-18 Grantee's inability to perform.

In the event the grantee's performance of any of the terms, conditions, obligations or requirements of this franchise is prevented or impaired due to any cause beyond its control or not foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided that the grantee has notified the Township in writing within 30 days of its discovery of the occurrence of such an event. This section shall not be construed to relieve the grantee of the obligation for adjustments contained in § A177-11. Such causes beyond the grantee's control or not foreseeable shall include, but shall not be limited to, acts of God, civil emergencies, and possible labor unrest or strikes, including by telephone or power owners of said poles.

§ A177-19 Favored nations.

In the event the Township enters into an agreement, permit, license, or authorization of any kind with any other person or entity other than the grantee for the purpose of constructing or operating a cable system or providing cable service to any part of the franchise area, and such agreement, permit, license, or authorization contains terms which are more favorable than this franchise, the grantee may request that the Township Board of Supervisors amend this franchise, so as to give the grantee the benefit of any such more favorable terms. The Township shall rule on such request using its reasonable discretion and grant such franchises on terms comparable to this agreement in all material respects.

§ A177-20 Binding effect.

This franchise shall bind and inure to the benefit of the Township and the grantee, and their respective successors and assigns; provided, however, that without the written consent of the Township, which consent shall not be unreasonably withheld or delayed, the grantee shall not assign the right, license or privilege herein granted to any person, firm or corporation other than a person, firm or corporation affiliated with it. The terms and provisions of this franchise may not be amended or modified, by ordinance or otherwise, except as agreed upon in writing by both parties hereto.

§ A177-21 Assignment or transfer.

The right and privilege given to the grantee shall not be assigned or transferred without the prior written approval of such transfer by the Township.

§ A177-22 Repealer.

All ordinances or parts of ordinances inconsistent herewith are hereby repealed to the extent of such inconsistency only.

§ A177-23 Community service.

Upon the approval of this agreement by the Township, the grantee will, at no charge to the Township, schools, and Volunteer Fire Department, provide basic cable services and one broadband/high-speed internet connection to the Township buildings, school buildings, public library, police stations and fire stations located in the Township and which are also located within 150 feet of the grantee's existing cable system. The buildings into which the grantee shall provide basic cable service under this § A177-23 are identified in Exhibit A attached hereto and made part hereof.

Editor's Note: Editor's Note: Exhibit A is on file in the Township offices.

[Adopted 3-20-2013 by Ord. No. 126]

§ A177-24
Definitions. 

§ A177-25
Grant of franchise. 

§ A177-26
Construction and maintenance activities. 

§ A177-27
Conditions on use and occupancy of streets. 

§ A177-28
Fees and reports. 

§ A177-29
Safety measures. 

§ A177-30
Voluntary subscriptions. 

§ A177-31
System services. 

§ A177-32
Operation and maintenance of system. 

§ A177-33
Service standards. 

§ A177-34
Subscriber rates and charges. 

§ A177-35
Discrimination practices prohibited. 

§ A177-36
Insurance. 

§ A177-37
Effective date and term of franchise. 

§ A177-38
Federal regulation. 

§ A177-39
Severability. 

§ A177-40
Interpretation. 

§ A177-41
Conflict of interest. 

§ A177-42
Defaults; arbitration. 

§ A177-43
Grantee's inability to perform. 

§ A177-44
Binding effect. 

§ A177-45
Community service. 

§ A177-24 Definitions.

For the purpose of this agreement, each of the following terms shall have the meaning ascribed below. 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. The word "shall" is always mandatory and not merely directory.

CABLE SERVICE
The one-way or two-way transmission to or from subscribers of video programming or other programming services (including music), and subscriber interaction, if any, which is required for the selection of such video programming or other programming service, and the installation and rental of equipment necessary for the receipt to transmission thereof.
CABLE SYSTEM or SYSTEM
A system of poles, wires, cables, fibers, lines, underground conduits, converters, equipment, appliances and/or facilities designed, constructed or used for the purpose of producing, receiving, amplifying, transmitting and distributing radio, television, telephone, data and two-way interactive impulses and energy and other information, related services, products or matters to residential and commercial customers of the grantee within the Township.
GRANTEE
Armstrong Utilities, Inc. or its successors and assignees.
GROSS RECEIPTS
For the purpose of the calculation of the franchise fee, any and all revenues of any kind or nature including, without limitation, cash, credits, property and in-kind contributions received directly or indirectly by the grantee or its affiliated entities from any source whatsoever arising from, attributable to or in any way derived from the provision of cable service within the Township. Gross receipts will include the following: basic service fees; fees charged to subscribers for any programming service other than basic service; fees charged to subscribers for any optional, per-channel or per-program services; installation, additional outlets, relocation, disconnection, reconnection and change-in-service fees; fees for control devices and antennas; fees for any and all music services. Gross receipts will not include bad debts or any taxes on services furnished by the grantee and imposed directly upon any subscriber or user by the Township, state, federal or other governmental unit.

§ A177-25 Grant of franchise.

A. 

In consideration of the within undertakings by the grantee, the Township agrees that the grantee shall have, and hereby confirms and grants unto the grantee, the right, license and privilege to construct and reconstruct, to install, maintain, repair, replace and remove, and solicit and sell customers, subscribers, users and advertisements for, and otherwise to own, promote and operate, a cable system throughout the Township.

B. 

The right, license and privilege hereby granted shall not be exclusive, and the Township reserves the right to grant a similar franchise to any person at any time. The Township will not enter into a franchise agreement, permit, license, authorization or any other agreement with another person or entity to construct a similar system or provide cable, internet or telecommunication services in any part of the franchise area which grants more favorable terms and conditions.

C. 

The right, license and privilege herein granted and confirmed shall be deemed to include a continuing right to enter upon and to use and occupy the surface, subsurface and space above or below any public streets, lanes, alleys, paths, ways, bridges and viaducts within the Township, when and to the extent necessary to carry out the intent and purposes of this agreement, subject, however, to limitations and qualifications herein contained.

D. 

In exercising the right, license and privilege granted and confirmed hereby, the grantee shall be and remain subject to and shall comply with all federal, state and local laws, rules and regulations applicable to it in the conduct of the activities contemplated hereby.

§ A177-26 Construction and maintenance activities.

A. 

In cases where existing poles or other structures, conduits or other facilities owned or leased by public utilities or other third parties having the right to permit attachment thereto or location therein or thereon of the system by the grantee are not available or are impractical for that purpose, then the proposed means of attachment, construction or conduit shall be submitted to the Township representative or designated person by drawings, plans and explanatory addenda at least 30 days before such proposed attachment, installation or construction, and shall be subject to his approval in writing before commencement of such attachment, installation or construction, and such approval shall not be unreasonably withheld and the Township representative or designated person shall advise the grantee of its determination within 20 days after receipt of the grantee's proposed means of attachment, construction or conduit.

B. 

The grantee shall extend the cable system into all areas of the Township where there is a minimum of 20 dwelling units per linear mile of aerial cable, and 30 dwelling units per linear mile of underground cable, calculated from the nearest trunk line. To be counted for purposes of this section, dwelling units must be located within 200 feet of the to-be-built cable system extension.

§ A177-27 Conditions on use and occupancy of streets.

A. 

Pole attachments and the construction, installation, repair and replacement of basic system hardware and the operation and removal of the system and all parts thereof by the grantee within the Township shall be conducted in such manner as to cause minimum interference with the proper use of streets, lanes, alleys, bridges and viaducts and other public places, and to cause minimum interference with the rights or reasonable convenience of the property owners, tenants or occupants who adjoin any of said streets, lanes, alleys, bridges, viaducts and other public places.

B. 

In the event of any disturbance caused by the grantee's activities hereunder to the pavement, sidewalk, driveway or other surfacing as to which the Township is responsible, the grantee, at its own cost and expense, shall replace and restore all such paving, sidewalk, driveway or surface so disturbed in a good and workmanlike manner and to as functionally sound a condition as before said activities were commenced, and shall be completed within 30 days of the disturbance or such longer period as may be approved by the Township. All such replacement and restoration by the grantee shall be subject to the approval of the Township Engineer or designated person and such approval shall not be unreasonably withheld.

C. 

In the event that at any time during the existence of the within right, license and privilege to the grantee, the Township elects to alter or change the grade, alignment or paved width of any street, lane, alley, bridge or viaduct or other public way, the grantee, upon notice by the Township, at its own expense, shall remove and relocate any affected part of the system within 30 days of the date of notice or such reasonable extension thereof as may be granted by the Township representative considering the circumstances of the case.

D. 

The grantee shall not place the system or any part thereof where the same will interfere with any gas, electric, telephone or telegraph line or fixture, water hydrant or main, nor in such manner as would interfere with the usual travel on the streets, lanes, alleys, bridges and viaducts and other public places of the Township.

E. 

Upon the request of any person, firm or corporation holding a moving permit issued by the Township or other governmental regulatory agency having jurisdiction of the matter, by which permit any building or buildings, large pieces of equipment or structural materials or the like are to be moved from place to place, the grantee shall temporarily raise or lower its system as and to the extent necessary to permit the moving of such buildings, equipment, structural materials and the like, provided the expense of such temporary raising or lowering of the system or any part thereof shall have been paid or tendered by the person, firm or corporation requesting the same. The grantee shall be given not less than 15 days advance notice to arrange for such temporary changes to its system.

F. 

Any opening or obstruction in the streets or other public ways made by the grantee in the course of the installation, operation, maintenance or removal of equipment, structures, facilities, apparatus and appurtenances shall be guarded and protected at all times by the placement of adequate barriers, fences or boarding or as otherwise directed by the Township representative. Whenever it is deemed necessary by the Township, the grantee shall install steel plates to allow a public way to remain usable while openings or obstructions exist.

G. 

The grantee shall have the authority to trim trees which are located on or which overhang streets, alleys, sidewalks and public places of the Township to the extent that such trimming activities are minor in nature or required to be performed without delay due to the risk of danger to personal or property damage arising by reason of the location of such trees. The grantee shall have the authority to perform all other tree trimming activities only with the prior approval of the Township, and such approval shall not be unreasonably withheld. All trimming shall be at the expense of the grantee.

H. 

In such sections, if any, of the Township in which all cables, wires and other like facilities of public utilities are required to be and are placed underground, the grantee shall place its cables, wires and other like facilities underground.

I. 

The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other streets or remove from the street any property of the grantee when required by the Township by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, power lines, signal lines and tracks and other types of improvements by the Township or public agencies.

J. 

The Township shall have the right to inspect all pole attachments, installation, construction, repair and replacement of basic system hardware, and the removal of the system or any part thereof to ensure compliance with this section of this agreement.

§ A177-28 Fees and reports.

A. 

In consideration of the right, license and privilege granted hereby and in order to defray any costs and expenses of the Township in connection with the execution, delivery, performance and administration of this agreement, the grantee shall pay to the Township, with respect to each calendar quarter, on or before the 30th day following the end of such calendar quarter during the term of this agreement, an amount equal to 5% of the gross receipts.

B. 

If the grantee is required to pay a fee to the Township pursuant to this section, not later than 60 days after the close of each fiscal year of the grantee during the term of this agreement, the grantee shall file with the Township representative a written report, certified by the grantee's chief accounting officer, setting forth the amount of gross receipts as defined in § A177-24, paid to the grantee during such fiscal year.

C. 

If the grantee is required to pay a fee to the Township pursuant to this section, the Township shall have the right to inspect and audit the grantee's records from which the payments hereunder are computed and to recompute the amount of such payments to correct errors in the computation and reporting of same. The grantee's records shall be made available at the grantee's headquarters. Such requests to inspect the records shall be made in writing by the Township and scheduled by the grantee's corporate accounting staff.

§ A177-29 Safety measures.

A. 

Construction and maintenance of the system shall be in accordance with the provisions of the National Electric Safety Code of the National Board of Fire Underwriters, and such other applicable laws of the Commonwealth of Pennsylvania, Butler County, and regulations of the Township which may be lawfully in effect from time to time.

B. 

All structures, lines, equipment and connections in, over, under and upon the streets of the Township, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.

§ A177-30 Voluntary subscriptions.

All subscriptions for services under any franchise shall be on a voluntary basis, and may be terminated at any time by the customer except in circumstances whereby a mutually agreed upon contract has been executed.

§ A177-31 System services.

A. 

The grantee, at all times, shall provide all subscriber service as and to the extent required to be provided by applicable federal and state rules and regulations from time to time in effect.

B. 

If the grantee operates a Citizens Awareness Channel, or similar programming option, it shall post free of charge any notices properly submitted by the Township.

C. 

Additional services may, at the sole discretion of the grantee, be provided by the grantee, including services for which a per-program, per-service or per-channel charge is made consistent with applicable federal and state rules and regulations.

§ A177-32 Operation and maintenance of system.

The grantee shall make reasonable efforts to assess subscriber need and viewing preferences. If any existing service becomes unavailable, or the grantee decides to discontinue a service, the grantee shall endeavor to provide substitute programming. The grantee may combine programming into composite channels to improve efficiency of channel utilization or to attract a larger viewing audience.

§ A177-33 Service standards.

A. 

The grantee will investigate and resolve all subscriber complaints regarding the quality of service, equipment malfunctions and similar matters expeditiously and in accordance with the following procedure:

(1) 

The grantee shall have qualified personnel available during normal working hours to investigate and resolve subscriber complaints;

(2) 

The grantee shall maintain a telephone answering service during times other than normal business hours with a qualified technician on call 24 hours a day to respond to emergencies;

(3) 

Upon notification of a service complaint, the grantee shall dispatch a qualified employee to investigate the complaint and adjust, repair or replace grantee equipment as necessary to resolve the complaint. The grantee shall not be responsible for malfunctions of any television receivers or other equipment owned or operated by any subscriber;

(4) 

All complaints shall be investigated and resolved in accordance with the Cable Television Consumer Protection Act of 1992; and

(5) 

The grantee shall maintain a service log in which an entry shall be made of each complaint, the date of notification thereof, the nature of the complaint and the means by which it was resolved.

B. 

In the construction, maintenance and operation of the system, the grantee shall, at a minimum, at all times, fully comply with technical standards which have been or which hereafter may be adopted by the Federal Communications Commission ("FCC"), including (without limitations), if applicable, requirements relating to channel capacity, bandwidth and periodic testing. Further, should any federal, state or local governmental unit with jurisdiction establish technical standards that exceed those of the FCC, the grantee will comply therewith when and to the extent required by such governmental unit, unless to require the grantee to do so would be held invalid by the FCC or a court of administrative tribunal of competent jurisdiction. The technical quality of the service provided by the grantee shall be sufficient to provide subscribers with uniform quality television reception. The grantee shall maintain the system in good repair and working order at all times.

§ A177-34 Subscriber rates and charges.

A. 

Installation charges, monthly service rates and any other residential rates charged by the grantee related to the basic service tier, as defined by the FCC, may be regulated under this franchise only to the extent permitted by the Communications Act of 1934, as amended in 1984, 1992 and 1996 and applicable FCC rules and regulations. Commercial installation charges and monthly service rates are negotiable and not covered by federal regulations.

B. 

The grantee shall offer the services of the system within the Township on terms and conditions which are uniform and nondiscriminatory to the fullest extent practicable. The provisions of this Section will not apply in any area of the Township in which another multi-channel video distributor provides cable, internet or telecommunication services, whereby the parties agree such action constitutes effective competition.

C. 

The rates and charges for all services of the system (specifically including but not limited to basic subscriber service, any additional service provided pursuant to this section, or any connection, maintenance or similar service) and equipment shall be subject to adjustment from time to time, at the sole discretion of the grantee.

§ A177-35 Discrimination practices prohibited.

The grantee shall not, as to rates, charges, service, service facilities, rules, regulations, or, in any other respect, make or grant unlawful undue preference or advantage to any person, nor subject any person to any unlawful prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled. Connection and/or service charges may be waived or modified during promotional campaigns of the grantee. The Township acknowledges that the offering of different programming and service rates by the grantee in portions of the Township also served by another multi-channel video distributor shall not constitute an act of discrimination prohibited by this section.

§ A177-36 Insurance.

A. 

The grantee shall maintain insurance throughout the term of this agreement with the Township as an additional insured, with an insurance company which is authorized to conduct business in Pennsylvania and which has an A.M. best rating (or equivalent) no less than "A", indemnifying the Township from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, installation, reconstruction, operation, maintenance or removal of the cable system by the grantee or any of its contractors, subcontractors, agents or employees in the following amounts:

(1) 

The amount of such insurance against liability for damage to property shall be no less than $1,000,000 as to any one occurrence.

(2) 

The amount of such insurance against liability for injury or death to any person shall be no less than $1,000,000.

(3) 

The amount of such insurance for excess liability shall be $5,000,000 in umbrella form.

(4) 

The amount of such insurance against all claims arising out of the operation of motor vehicles and general tort or contract liability shall be $1,000,000.

(5) 

The grantee shall maintain workers' compensation insurance on all employees engaged in its installation or service of its equipment.

B. 

All insurance coverage shall be maintained throughout the period of this agreement. All expenses incurred for said insurance shall be at the sole expense of the grantee.

§ A177-37 Effective date and term of franchise.

The right and privilege herein granted shall take effect and be in force from and after the effective date and shall continue in force and effect for a period of 10 years from the effective date of this agreement. Upon the expiration of said period and provided that the grantee has complied with the terms and conditions hereof, the grant and provisions hereof shall be renewed under the provisions of the Cable Communications Act of 1984, Section 626. In the event the term expires without a renewed agreement, the parties agree hereto that the grantee shall be permitted to continue to operate the cable system and collect the franchise fees until a formal agreement is reached.

§ A177-38 Federal regulation.

In the event and to the extent that the terms and provisions hereof shall be superseded and preempted by or become inconsistent with state law or federal law (including rules and regulations promulgated by the FCC), then and in each such event, it shall be the right of the grantee to take such action within 60 days after such event as shall be reasonably necessary and may be reasonably requested to so amend or modify in writing this agreement and to preserve the written contract for rights and benefits of the grantee and fulfill the intent and purposes of this agreement.

§ A177-39 Severability.

Subject to the provisions of this section hereof, if any section, subsection, sentence, clause, phrase or portion of this agreement is for any reason held invalid or unconstitutional by any court or administrative tribunal 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.

§ A177-40 Interpretation.

Notwithstanding any provision of this agreement to the contrary, the Township agrees that in the event of any ambiguity with respect to the terms and conditions of this franchise, or dispute as to meaning, the Township shall, in conjunction with the grantee, make a good faith effort to establish the meaning of such terms and conditions in a manner consistent with the parties' original intent of the language.

§ A177-41 Conflict of interest.

The grantee shall not engage in the business of selling, leasing or repairing television or radio receivers in connection with the operation of its cable system; nor shall the grantee and its employees require or attempt to direct its customers to deal with any particular firm or person engaged in such business.

§ A177-42 Defaults; arbitration.

A. 

In the event that the Township determines that grantee is in violation of the terms and conditions of this agreement, the Township shall provide the grantee with written notice, which describes the violation for which such notice is being issued, of such determination. The grantee shall have 60 days from the date of the Township's written notice to either cure the violation or, for violations which cannot reasonably be cured within such sixty-day period, demonstrate to the Township that the grantee is using its reasonable best efforts to cure such violation. If the Township provides the grantee with written notice under this section and the grantee fails to either cure or demonstrate that it is using its reasonable best efforts, the Township shall have the right to invoke the arbitration procedure set forth in this section hereof.

B. 

In the event of any dispute arising under this agreement, as the same may be amended or supplemented, such dispute shall be submitted to arbitration upon request of any one or more of the disputants, who shall notify each of the other disputants in writing of such request. Each of the disputants shall confer with the other disputants for the purpose of selecting by unanimous agreement an independent arbitrator. Failing such agreement within 30 days of the earliest such notice, upon request of any one or more of the disputants, such selection shall be made through the services and facilities of the regional office of the American Arbitration Association located, geographically, nearest to the cable system and in accordance with the rules thereof. The decision and award of the arbitrator shall be final and binding upon the disputants. The costs of the arbitration proceeding, including the fees of the arbitrator, shall be borne by the non-prevailing party in such arbitration.

§ A177-43 Grantee's inability to perform.

In the event the grantee's performance of any of the terms, conditions, obligations or requirements of this agreement is prevented or impaired due to any cause beyond its control or not foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided the grantee has notified the Township in writing within 30 days of its discovery of the occurrence of such an event. This section shall not be construed to relieve the grantee of the obligation for adjustments contained in § A177-38. Such causes beyond the grantee's control or not foreseeable shall include, but shall not be limited to, acts of God, civil emergencies and possible labor unrest or strikes including by telephone or power company owners of said poles.

§ A177-44 Binding effect.

This agreement shall bind and inure to the benefit of the Township and the grantee, and their respective successors and assigns; provided, however, that without the written consent of the Township, which consent shall not be unreasonably withheld or delayed, the grantee shall not assign the right, license or privilege herein granted to any person, firm or corporation other than a person, firm or corporation affiliated with it. Township consent shall not be required for the collateral assignment of a grant of security interest in this agreement for purposes of securing indebtedness. The terms and provisions of this agreement may not be amended or modified, by ordinance or otherwise, except as agreed upon in writing by both parties hereto.

§ A177-45 Community service.

The grantee will, at no charge to the Township, provide basic cable service to the Township buildings, public school buildings, public library, police stations and fire stations located in the Township and which are also located within 150 feet of the grantee's existing cable system. The buildings into which the grantee shall provide basic cable service under this section are identified in Exhibit A attached hereto and made part hereof.

Editor's Note: Exhibit A is on file in the Township offices.