[HISTORY: Adopted by the City Council of
the City of Butler 8-15-1991 as Ord. No. 1357. Amendments noted where
applicable.]
For the purposes of this ordinance the following
terms, phrases, words and their derivations shall have the meanings
given herein. 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.
The City of Butler, Pennsylvania.
Armstrong Utilities, Inc., a Pennsylvania corporation having
its principal office in Butler, Pennsylvania.
Monthly receipts for basic and premium cable television service,
DMX and ZOOM services from subscribers within the City of Butler.
[Added 9-16-1999 by Ord. No. 1475[1]]
Consists of the poles, wires, cables, antennas and other
appliances for the reception, transmission and distribution of television
impulses and energy to be constructed, installed, maintained, repaired,
replaced, operated and removed by Armstrong Utilities, Inc., for the
television reception, transmission and distribution by what is commonly
referred to as a "Community Television Antenna System" in the City
of Butler, Pennsylvania.
The City Engineer of the City of Butler, Pennsylvania.
[1]
Editor's Note: This ordinance also provided
that it shall become effective on 10-1-1999, and that fees due for
the period commencing 4-9-1999 through 9-30-1999 shall be due and
payable 11-1-1999.
A.
The Council has found the company to have constructed
and operated its cable antenna television system in accordance with
the terms and conditions of prior ordinances adopted April 9, 1963,
February 20, 1974 and September 7, 1983 and has found that the Company
possesses the required legal, character, financial, technical and
other qualifications to continue to operate said system.
B.
There is hereby granted by the City to the Company
the right and privilege to construct, install, maintain, repair, replace,
operate and remove in, upon, along, across, above, over and under
the streets, lanes and alleys, bridges and viaducts in the City as
now laid out or dedicated and all extensions thereof, and additions
thereto, a Community Television Antenna System consisting of poles,
wires, cables, underground conduits, antennas and other appliances
for the reception, transmission and distribution for a fee or charge
to the user of television impulses and energy hereinafter referred
to in this ordinance as the system, by attachment to poles or other
structures or through conduits owned or leased by public utilities
having the right to permit such attachment or location, subject to
the terms of an agreement or agreements between Armstrong Utilities,
Inc., and such utilities. Conformed copies of such executed agreement
or agreements shall be filed with the City Engineer as a condition
precedent to the exercise of this permission.
C.
Nonexclusive grant. The right and privilege as herein
granted for the purpose herein set forth not exclusive and the city
reserves the right to grant a similar right and privilege to any person,
firm or corporation at any time during the term of this grant or any
renewal subject matter and particularly with the ordinances of the
City of Butler and shall be subject to the approval, in writing, of
the City Engineer. In order that the City Engineer may be accurately
advised of the manner and method of proposed attachments, installations,
construction, maintenance, repairs, replacements, operations or removals
of the system or any part thereof, the Company shall furnish the City
Engineer drawings, plans and explanatory addenda in sufficient detail
as to make apparent the proposed work to be done at least 20 days
before the original attachments, installations or construction is
proposed to be made and thereafter, if any change in the manner or
method of attachment, installation, construction, repair, replacement
or removal is proposed, then drawings, plans and explanatory addenda
in sufficient detail as to make apparent the proposed change, shall
be furnished the City Engineer at least 10 days before the proposed
change.
The Company shall at all times during the continuance
of the right and privilege herein granted be subject to all lawful
exercise of the police power by the City and to such reasonable regulation
as the City shall hereafter by ordinance or resolution provide, including
taxation.
Armstrong Utilities, Inc., shall investigate
all complaints regarding the quality of service, equipment malfunction
and similar matters as expeditiously as possible, which, except in
cases of emergency or in the cases outside the control of Armstrong
Utilities, Inc., shall mean within twenty-four-hour period following
the report of the complaint. Resolution of complaints will be accomplished
as expeditiously as possible; and Armstrong Utilities, Inc., will
continue to maintain a local business office for that purpose, which
office shall maintain records of any such complaints and their resolution.
In cases where existing poles or other structures,
conduits or other facilities owned or leased by public utilities having
the right to permit attachment thereto or location therein or thereon
of the system by the company are not available or are impractical
for the purpose, the proposed means of attachment, construction or
conduit shall be submitted to the City Engineer by drawings, plans
and explanatory addenda including agreements, leases or other papers
granting the right of attachment, construction or conduit as in the
case of original attachments, installations or construction at least
20 days before such proposed attachment, installation or construction
and shall be subject to approval, in writing, by the City Engineer
before commencement of such attachment, installation or construction.
A.
The company shall save the city harmless from all
loss sustained by the city on account of any suit, judgment, execution,
claim or demand whatsoever resulting from the construction, installation,
maintenance, repair, replacement, operation or removal of the system
by the company. The city shall notify the company within 10 days after
the presentation of any claim or demand either by suit or otherwise
made against the city on account of any suit, judgment, execution,
claim or demand whatsoever arising out of the construction, installation,
maintenance, repair, replacement, operation or removal of the system.
B.
Public liability and property damage insurance in
the minimum amount of $1,000,000 for injury, damage or death to one
person and in the minimum amount of $1,000,000 for injury, damage
or death to more than one person arising out of the same occurrence
and property damage insurance in the amount of $1,000,000 for damage
to property arising out of one occurrence shall be carried and maintained
by the company, the premiums thereon to be paid by the company and
certificates of such insurance to be filed with the City Clerk of
the City of Butler, Pennsylvania, before construction, installation,
maintenance, repair, replacement, operation or removal of the system
or any part thereof shall be made, done or performed by the company.
Such policy or policies shall name the city as a co-insured if the
carrier will include city as a co-insured at no increase in premium
to the company.
C.
Armstrong Utilities, Inc., will defend and indemnify
the City of Butler for any expense or costs incurred pursuant to any
lawsuit which results in the programming or program content of the
cable service.
A.
Use. The attachment, construction, installation, maintenance
repair, replacement, operation and removal of the system and all parts
thereof by the company within the city shall be 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
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 to the
pavement, sidewalk, driveway or other surfacing for which the city
is responsible, the company, at its own cost and expense and in a
manner approved by the City Engineer, shall replace and restore all
paving, sidewalk, driveway or surface so disturbed in as good condition
as before said work was commenced and shall maintain the restoration
in an approved condition for a period of one year thereafter and to
secure compliance with this agreement, the company agrees either to
deposit cash with the City Treasurer of the City of Butler, Pennsylvania,
or to file bond with sufficient surety with the City Treasurer of
the City of Butler, Pennsylvania, in an amount agreed upon between
the company and the City Engineer for the expected cost of the replacement
and restoration of such paving, sidewalk, driveway or surface so disturbed,
the same to be released to the company upon certification by the City
Engineer that such replacement and restoration has been completed
to his satisfaction.
C.
Relocation. In the event that at any time during the
existence of this right and privilege in the company, the city elects
to alter or change the grade, alignment or paved width of any street,
lane, alley, bridge or viaduct or other public way, the company upon
notice by the city and at its own expense shall remove, relay and
relocate that part of the system within 30 days of the date of the
notice or such reasonable extension thereof as may be granted by the
City Engineer considering the circumstances of the case.
D.
Placement of fixtures. The company shall not place
the system or any part thereof where the same will interfere with
any gas, electric, telephone 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 city.
E.
Temporary removal for moving. The company shall, on
the request of any person, firm or corporation holding a moving permit
issued by the city or other governmental regulatory agency having
jurisdiction of the matter by which permit building or buildings,
large pieces of equipment or structural materials or the like are
to be moved from place to place, temporarily raise or lower its system
or the portion of the system necessary for so doing, to permit the
moving of such buildings, equipment, structural materials and the
like. The expense of such temporary raising or lowering of the system
or any part thereof shall be paid by the person, firm or corporation
requesting the same. The company shall be given not less than 48 hours
advance to arrange for such temporary changes.
F.
The city shall have the right to inspect all work
of attachment, installation, construction, maintenance, repair, replacement,
operation or removal of the system or any part thereof to ensure compliance
with this ordinance and with other ordinances of the City of Butler
and all governmental regulations which inspection on the part of the
City of Butler shall be carried out by the City Engineer.
A.
The company shall maintain and operate the system
and render efficient service to the users of the service replacing
obsolescent parts thereof with such improvement as are in customary
use, and in the event that it is necessary to shut off or interrupt
service for the purpose of making repairs, adjustments or installations,
the company shall do so at such time as will cause the least amount
of inconvenience to its customers and unless such interruption is
unforeseen and immediately necessary it shall give reasonable notice
thereof to its customers.
B.
The company shall not, as to rates, charges, service
facilities, rules, regulations or in any other respect, make or grant
any preference or advantage to any person, firm or corporation using
or seeking to use the system, nor subject any person to any prejudice
or disadvantage, provided that nothing in this section shall be deemed
to prohibit the establishment of a graduated scale of charges and
classification rate schedules to which any customer coming within
such classification would be entitled, nor shall this provision of
the ordinance be construed to prohibit the company from granting to
religious or educational institutions the use of its system gratis
or at a reduced rate. The rates charged by the company for services
rendered to users shall be fair and reasonable and designed to meet
all necessary costs of the service including a fair rate of return
to the company under efficient and economical management and the company
shall be subject to all authority now or hereafter possessed by the
city or any regulatory body having jurisdiction to fix just, reasonable
and compensatory rates.
[Amended 9-16-1999 by Ord. No. 1475[1]]
The company shall pay to the City of Butler
a monthly fee equal to 5% of the gross subscriber monthly receipts
derived each month from subscribers residing within the limits of
the City of Butler. In the event that the law or applicable regulations
permit an increase beyond the aforementioned 5% of the gross subscriber
monthly receipts or should additional monthly subscriber services
become available, the monthly fees thereon, if any, shall be negotiated
between the city and Armstrong Utilities at that time. Monthly payments
shall be due and payable by the 30th day of the month for all monthly
receipts received by the company in the previous calendar month.
[1]
Editor's Note: This ordinance also provided
that it shall become effective on 10-1-1999, and that fees due for
the period commencing 4-9-1999 through 9-30-1999 shall be due and
payable 11-1-1999.
The right and privilege herein granted shall
take effect and be in force from and after the final passage of this
ordinance which shall become effective immediately upon final passage
and shall continue in force and effect for a period of 15 years from
the effective date of this ordinance; provided, however, that if the
contracts with the utility or utilities involved are not executed
and conformed copies thereof delivered to the City Engineer within
60 days of the effective date of this ordinance then the right and
privilege granted the company by this ordinance shall thereupon cease
and determine and be null and void. Upon expiration of the term, the
company shall have the right of application for continuance or renewal
by application to the City Council of the City of Butler, which shall
not be unreasonably withheld, provided that the company has complied
with all the conditions of this ordinance during the term thereof
but subject however to such additional term and conditions or changes
in the same as the Council shall at that time require.[1]
[1]
Editor's Note: Ordinance No. 1590, adopted 8-24-2006, renewed the cable television franchise to Armstrong Utilities Inc., to provide cable, internet and related services from 8-15-2006 to 8-14-2021. Said franchise was extended through 8-14-2026 on 5-24-2012 by Ord. No. 1654, which ordinance granted to Armstrong Utilities Inc. the right to construct and operate a cable television and internet system in accordance with Ch. A265; a complete copy of the ordinance is on file in the City offices.
In the event that the company shall violate
any of the terms or provisions of this ordinance or in the event of
the failure on the part of the company promptly to perform any of
the provisions of this ordinance such shall be cause for forfeiture
of the right and privilege granted to the company by this ordinance
and all rights hereunder; provided however that the city shall first
give written notice to the company of such alleged violation or failure
on the part of the company and the continuation by the company of
such violation, failure or default for a period of 10 days.
A.
The company shall not sell, assign, transfer or sublet
the system or any part thereof to any person, firm or corporation,
nor transfer any rights acquired by it under this ordinance to any
person, firm or corporation without approval, in writing, by the Council
of the City of Butler and no such sale or transfer when, as and if
approved by the Council of the City of Butler shall be effective until
the vendee, assignee or leasee has filed in the office of the City
Clerk of the City of Butler, Pennsylvania, an instrument, in writing,
duly executed reciting the fact of such sale, assignment or lease,
accepting the terms of the right or privilege granted by this ordinance
and agreeing to perform all of the conditions thereof, including but
not limited to the actual furnishing of explanatory addenda as may
by this ordinance be required.
B.
In the event that the majority shares of the Armstrong
Utilities Inc., should be sold or transferred to new owners, this
sale or transfer must be approved by the Council of the City of Butler
and such approval shall not be reasonably withheld. In the event that
this transfer is not approved by the City of Butler, this ordinance
shall be null and void and shall confer no rights hereunder upon the
company.
If any section, subsection, sentence, clause,
phrase or portion of this ordinance 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 holdings shall not affect the validity of the remaining portions
hereof.
Any subsequent changes by the Federal Communications
Commission in its rules and regulations relating to provisions in
local cable antenna system ordinances shall be incorporated into this
ordinance within one year of the modification, or at the time of the
ordinance renewal, whichever comes first.
This ordinance shall bind and ensure to the
benefit of the city and the company and their respective successors
and assigns; provided, however, that without the written consent of
the city, which consent shall not be unreasonably withheld or delayed,
the company 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
ordinance may not be amended or modified, by ordinance or otherwise,
except as agreed upon, in writing, by both parties hereto.
