[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.
- GROSS SUBSCRIBER MONTHLY RECEIPTS
- 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]
- 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.
- CITY ENGINEER
- The City Engineer of the City of Butler, Pennsylvania.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
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.
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.
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.
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.
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.