Borough of Tarentum, PA Cable Television Franchise

[HISTORY: Adopted by the Borough Council of the Borough of Tarentum 10-9-1995 by Ord. No. 95-8. Amendments noted where applicable.]

§ A271-1 Grant of franchise.

In consideration of the continuing faithful performance and observance of the conditions, reservations and agreements hereinafter contained, the right is hereby granted to Comcast Cablevision of Westmoreland, Inc. (hereinafter referred to as "Comcast"), a Pennsylvania corporation, its successors and assigns, for a period of 15 years from the date hereof, to erect, maintain and operate equipment and facilities for reception, transmission and distribution of radio and television signals and audio, visual, electric or electronic signals or impulses by any feasible equipment within the Borough of Tarentum, Allegheny County, Pennsylvania (hereinafter referred to as "borough"), and any extension or expansion thereof and to locate, construct, renew, maintain, replace and operate the facilities required therefor, in, on, under, over, along, across and upon the streets, sidewalks, alleys, bridges, highways and other public ways or places in the borough. At the expiration of 15 years, this franchise shall continue from year to year unless 90 days prior to the expiration of any term either the borough or Comcast shall notify the other party in writing that there shall be no further renewal. These rights shall be exercised in accordance with the laws of the Unites States of America, of the Commonwealth of Pennsylvania and the ordinances, rules and regulations as shall be established from time to time by the borough, as well as in conformity with rights presently enjoyed by such utilities as the same now exist in the borough.

There is hereby further granted to Comcast, its successors and assigns, subject to ordinances, rules and regulations of the borough, the right, privilege and authority to lease, rent or in any other manner obtain the use of towers, poles, lines, cables and other equipment and facilities from any and all holders of public licenses or franchises within or partially within the borough and to use such towers, poles, lines, cables and other equipment and facilities. It is the intention that all other holders of public licenses and franchises within the borough shall cooperate with Comcast to allow Comcast's joint usage of their equipment and facilities whenever possible and wherever such usage does not interfere with the normal operation of such holders of public licenses and franchises so that the equipment and facilities constructed by Comcast may be minimized.

All equipment and facilities of Comcast with this borough may also be used for the reception, transmission and distribution of radio and television signals and audio, visual, electronic or electric signals or impulses to or from areas outside of the borough.

During the fifth and 10th years of the term of this franchise, the borough and Comcast may meet to review system performance. If after such review the borough believes that Comcast is not in compliance with the requirements of this franchise, it may direct Comcast to correct the areas of noncompliance in accordance with the procedures set forth in § A271-11.

§ A271-2 Equipment and facilities.

All equipment and facilities installed by Comcast pursuant hereto shall be located, erected and maintained so as not to endanger or interfere with the lives of persons or to interfere with any new improvements the borough may deem proper to make or to unnecessarily hinder or obstruct the free use of the streets, sidewalks, alleys, bridges, highways and other public ways or public places of the borough and shall be in accordance with the ordinances, rules, regulations as shall be established from time to time by the borough.

All installations shall be of a permanent, durable nature and shall be installed in accordance with good engineering practices and shall comply with all existing and future regulations, ordinances and laws so as not to interfere with the right of the public or individual property owners or other licenses and public utilities.

In the event Comcast is required to open or disturb any pavement, sidewalk or surface, Comcast shall, at its own expense and only in the manner approved by the borough, replace and restore all pavement, sidewalks or surfaces so disturbed to as good condition as before said work commenced and shall do so only under rules and regulations as shall be established from time to time by the borough.

No equipment or facilities shall be erected by Comcast upon any streets, sidewalks, alleys, bridges, highways or public ways or places under the jurisdiction of the borough unless permission is first obtained from the designated official of the borough in accordance with ordinances, rules, regulations as shall be established from time to time by the borough; provided, however, that such permission shall not be unreasonably withheld.

In the event that a change is made in the grade of public streets, sidewalks, alleys, bridges, highways or other public ways or places which shall necessitate the removal or relocation of any equipment or facilities of Comcast, Comcast shall make such changes in its facilities at its own expense.

Comcast shall comply with a request for service in any area of the borough with a minimum density of 15 homes per linear mile.

§ A271-3 Use of poles; indemnification.

Comcast shall grant the borough or its agents joint use of any and all poles owned by Comcast for any proper municipal purpose to the extent that such use does not interfere with Comcast's use and enjoyment of its equipment and facilities. All equipment or facilities of the borough on such poles shall be constructed and maintained at the sole expense of the borough, in manner satisfactory to Comcast and in accordance with Comcast's specifications.

The borough shall indemnify and hold harmless Comcast from all claims, demands, actions, judgments, costs, expenses, liabilities and damages of any kind whatsoever arising out of the use by the borough of said facilities. The borough shall not be liable to Comcast for any damages to the system that may occur as the result of some municipal activity unless such damages are occasioned to the system as the result of the negligence of an officer, agent, servant or employee of the borough.

§ A271-4 Insurance coverage.

Comcast shall, at all times, keep in effect the following types of insurance coverage:

(1)

Workmen's compensation upon its employees employed or performing services within the borough.

(2)

Property damage liability insurance in the amount of $100,000 and personal injury liability insurance in the amount of $300,000 as to any one person and $300,000 as to any one accident.

Comcast shall indemnify, protect and save harmless the borough from and against losses and physical damage to property and bodily injury or death to persons, including payments made under any workmen's compensation law, which may arise out of or be caused by the erection, maintenance, presence, use or removal of Comcast's equipment or facilities within the borough or by any act of Comcast, its agent, employees and shall carry insurance in the above-described amounts to protect the borough from and against all claims, demands, actions, judgments, costs, expenses, liabilities and damages arising or resulting directly or indirectly from or by reason of such loss, injury or damage. Comcast shall also indemnify, protect and save harmless the borough from any and all claims in law or in equity that the franchise herein granted is illegally granted by the borough and shall pay all legal expenses incurred by the borough in defending any claim that the borough acted illegally in granting the franchise.

All insurance required shall be and remain in full force and effect for the entire life of the rights granted hereunder. Said policy or policies of insurance shall be approved by the Solicitor for the borough and the policy or certificate therefor shall be deposited with the borough.

Comcast shall indemnify, protect and save harmless the borough from any losses to the borough arising out of Comcast's failure to secure consents from the owners or licensees of any programs where consents are required under applicable copyright laws, and Comcast shall repay to the borough any damages and expenses which the borough shall be compelled to pay by reason of such failure.

§ A271-5 Inspection and regulation fee.

During the term of this franchise, Comcast shall pay to the borough as an inspection and regulation fee a sum equal to 5% of Comcast's gross receipts within the borough. Gross receipts shall include all monthly charges for basic services, expanded basic service and premium and pay-per-view programming, guides and ad sales but shall not include moneys received for installation charges, reconnections, inspections, leased channel revenues, repairs or modifications of any installation or local, state or federal taxes or any other income derived from the system. Such payments by Comcast to the borough shall be in lieu of any other license tax or similar inspection fees.

Comcast shall file with the borough by the 20th day of the month following the close of each quarter a statement showing the subscription receipts as defined herein. The borough shall have the right at any reasonable time to inspect the books of Comcast relative to customers' services and fees received; provided, however, that the borough shall not make public disclosure of any information gained as a result of such inspection without prior written consent of Comcast.

Comcast shall provide one free initial installation of each school, library, municipal building and fire hall within the service area, making no charge whatsoever, either for installation or monthly rentals.

Comcast shall file with the borough a map showing the location of lines and facilities and shall provide supplements showing extensions of such lines and facilities annually if requested by the borough.

§ A271-6 Promulgation of charges and regulations.

Comcast shall have the right to charge and collect compensation from its subscribers for services rendered hereunder, including, without being limited to, monthly or other periodic service charges and compensation for connecting, reconnecting, inspecting, modifying, repairing or servicing any installation; provided, however, that copies of its subscription agreements and schedules of charges shall be filed with the borough. The charge for multiple dwellings or commercial establishments shall be on a negotiated basis with such customers.

Comcast shall have the right to make all rules and regulations governing its services, provided that the same are uniform and not inconsistent with the terms hereof and of other municipalities in this service area.

§ A271-7 Publication expenses.

Comcast shall reimburse the borough for expense incurred by it in publication of this ordinance within 30 days after the borough shall furnish Comcast with a written statement of such expense.

§ A271-8 Assignment of rights.

Comcast shall have the right to assign its rights and privileges hereunder, subject to the terms and conditions herein imposed, such assignment to become effective only upon the assignee's filing with the borough a written acceptance of the rights and privileges hereby granted, subject to the terms and conditions herein imposed.

§ A271-9 Severability.

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 herein.

§ A271-10 Maintenance of system.

Comcast will keep the system free of interference to television receivers and will provide all the necessary precautions to prevent interference; and in compliance with this ordinance, will repair and maintain the system in a trouble-free condition at no cost or charge to the subscriber or the borough.

§ A271-11 Failure to comply.

Should Comcast at any time fail to comply with any of the material terms and provisions of this franchise, the Borough Secretary shall notify Comcast in writing, setting the nature and fact of such noncompliance as she believes has occurred. If, within 30 days following receipt of such written notification, Comcast has not furnished evidence that corrective action has been commenced and is being actively pursued or evidence that the alleged default did not occur, the Borough Secretary shall give written notice of not less than 20 days of a public hearing to be held before the Borough Council. Said notice shall specify the violations alleged to have occurred.

If, after considering the Borough Secretary's request for termination of the franchise and hearing all interested parties, the Council determines that material violation has not occurred, the proceedings shall terminate. If the Council determines that the noncompliance of Comcast was with just cause, it shall direct Comcast to cure the default within a reasonable time.

In the event the Council determines that material violations exist and that Comcast has not corrected the same or has not commenced and is diligently pursuing correction, the Council may revoke and terminate this franchise.

No revocation or termination shall be effected unless the Council, at a regular or special meeting at which all interested parties including Comcast have been heard, shall have adopted a resolution setting forth the reasons for the termination.

Comcast shall not be declared at fault or be subject to any sanction under any provision of this franchise in any case in which performance of any such provision is prevented for reasons beyond Comcast's control.

§ A271-12 Filing of acceptance.

This franchise shall not become effective unless Comcast shall file its acceptance of the terms hereof within 30 days.

§ A271-13 State or federal law.

It is the intention of the borough that to the extent any provision of this ordinance is superseded or preempted by any applicable state or federal law, that the latter shall prevail.