[HISTORY: Adopted by the Board of Supervisors
of the Township of Middlesex as indicated in article histories. Amendments
noted where applicable.]
[Adopted 1-16-2008 by Ord. No. 115[1]]
[1]
Editor's Note: This ordinance also superseded former Ch.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.
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.
The present governing body of the Township or any future
board constituting the legislative body of the Township.
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.
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.
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.
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.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
An authorized recipient lawfully receiving cable service.
Middlesex Township, Butler County, Pennsylvania.
A professional engineer, duly registered by the Commonwealth
of Pennsylvania, employed by the Township or engaged as a consultant
thereto.
The officially adopted Improvement Design Standards Ordinance
of the Township and all subsequent amendments thereto.[1]
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.
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.
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.
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.
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.
All subscriptions for services under any agreement shall be
on a voluntary basis and may be terminated at any time by the customer.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
All ordinances or parts of ordinances inconsistent herewith
are hereby repealed to the extent of such inconsistency only.
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.[1]
[1]
Editor's Note: Editor's Note: Exhibit A is on file
in the Township offices.
[Adopted 3-20-2013 by Ord. No. 126]
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.
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.
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.
Armstrong Utilities, Inc. or its successors and assignees.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.[1]
[1]
Editor's Note: Exhibit A is on file in the Township offices.
