[HISTORY: Adopted by the Borough Council of the Borough of Tyrone 6-8-1987 by Ord. No. 931. Amendments noted where applicable.]
In consideration of the faithful performance of the conditions, restrictions and reservations hereinafter specified, a franchise is hereby granted to SBC Cable of Pa. Limited Partnership, hereinafter called the "grantee," to construct, reconstruct, operate and maintain a cable television system in, under, over, along, across and upon the streets, sidewalks, alleys, bridges and other public places in the limits of the Borough of Tyrone, Pennsylvania, hereinafter called the "Borough," and subsequent additions thereto in accordance with the laws and regulations of the United States of America and the State of Pennsylvania and the ordinances and regulations of the Borough of Tyrone.
For the purpose of this franchise, 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 shall include the future; words in the plural include the singular; and words in the singular include the plural; and the use of any gender shall be applicable to all genders whenever the sense requires. The word "shall" is mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meanings.
- BASIC CABLE SERVICE
- Any service tier which includes the retransmission of local television broadcast signals.
- Both the Borough of Tyrone, Pennsylvania, in its present incorporated from or in any later reorganized, consolidated, enlarged or unincorporated form and its duly authorized officials or agents acting on its behalf.
- CABLE ACT
- The Cable Communications Policy Act of 1984.
- An electronic device which permits the subscriber to view channels that the cable system is capable of delivering to the subscriber.
- The present governing body of the Borough or any future board constituting the legislative body of the Borough.
- The Federal Communications Commission.
- FRANCHISE FEE
- Moneys required to be paid to the Borough by the grantee for the right and privilege to operate a cable television system in the Borough and which are allowable by the FCC or any other federal or state statute or regulation.
- SBC Cable of Pa. Limited Partnership, the recipient of the franchise rights granted hereunder.
- GROSS REVENUES
- Any and all revenues derived directly or indirectly by the grantee, its affiliates or subsidiaries from the operation of a cable television system in the Borough, including but not limited to revenue from basic subscriber service, pay television service, tier service, per-program charges, advertising revenues, multiple outlet charges, installation charges, leased channel charges and charges of any character charged, paid or in any manner received for the operation of the cable system.
- PUBLIC ACCESS
- Channel capacity designated for public, educational or governmental use and facilities and equipment for the use of such channel capacity.
- The Commonwealth of Pennsylvania or a political subdivision or agency thereof.
- Any person, firm or corporation or any entity receiving for any purpose the transmission of television service of the grantee.
The right to occupy and use said streets, alleys and sidewalks for the purpose herein set forth shall not be exclusive, and the Borough reserves the right to grant a similar use of the streets, alleys and sidewalks to any person, company or corporation or any other entity at any time during the period of this franchise.
In accepting this franchise, the grantee acknowledges that its rights hereunder are subject to the lawful exercise of the police power of the Borough to adopt and enforce general ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general laws now in effect or later enacted by the Borough pursuant to such power.
It shall be unlawful for any person to own or operate a cable television system in the Borough of Tyrone utilizing public rights-of-way except by a franchise granting such right from the Borough of Tyrone.
The failure of the Borough at any time to require performance by the grantee of any provision hereof shall in no way affect the right of the Borough hereafter to enforce the same; nor, except as provided in the Cable Act, shall the waiver of the Borough of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or a waiver of the provision thereof.
This franchise shall be in force and effect from July 1, 1987, and shall extend for a period of nine years to June 30, 1996.
The grantee shall pay to the Borough a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of this franchise within 30 days after a written statement from the Borough of such expenses. Such sum shall not exceed $150.
On the effective date of this franchise ordinance, the grantee agrees to pay a grant fee to the Borough in the sum of $6,000, which reflects the refranchising costs incurred by the Borough and shall be used for defraying the cost of preparation of proposal documents, legal fees and other costs incurred by the Borough in its study, evaluation and examination of the grantee's qualifications in granting this franchise renewal. The grantee shall exercise no rights under this franchise until such payment is made. It is further understood and agreed that this payment is in addition to the franchise fee and other fees herein and shall not be passed through to subscribers.
This franchise is for the present territorial limits of the Borough of Tyrone and any areas annexed thereto during the term of this franchise. Service rendered by the grantee shall be made available to all inhabitants of the Borough who may desire such service. The grantee shall not be required to make a standard aerial drop of more than 150 feet of cable from its existing distribution lines without additional charge. Failure to provide Borough-wide service shall constitute a material breach of this franchise and shall subject the franchise to termination.
The grantee shall extend service to any area annexed to the Borough during the life of this franchise where the density is at least 30 housing units per strand mile of overhead cable. Such service shall be initiated for new customers in any annexed area within nine months of the application of said customer.
Cable television services shall not be denied to any groups of potential residential cable subscribers because of the income of the residents of the local area in which the group resides.
If the grantee desires renewal of this franchise, it shall notify the Borough not less than 30 months prior to the expiration of this franchise and formally request the commencement of proceedings to determine if renewal will be granted. Such request shall be accompanied by a nonrefundable application fee of $2,000. Upon receipt of such request, the Borough shall establish a date on which the grantee is to file its renewal proposal and the form of the information therein. Following the filing of the proposal, the Borough will commence public proceedings consistent with the then-applicable requirements of the Cable Act to determine whether said renewal shall be granted.
The public proceeding, at which interested parties may comment, will be for the purpose of determining whether the grantee's franchise should be renewed, considering any applicable or allowable criteria. Based on the record of this proceeding and the reevaluation sessions, the Council will issue a written decision granting or denying renewal.
Any franchise granted under this ordinance shall be a privilege to be held in trust by the grantee and is nonassignable. It cannot, in any event, be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or voluntary sale, merger, consolidation or otherwise, without the prior consent of the council as expressed by resolution and then only under such conditions as described in §§ A210-15, A210-16, A210-17 and A210-18 of this ordinance.
No transfer of effective ownership or control of the cable system shall take place, whether by forced or voluntary sale, lease, mortgage, assignment, encumbrance or any other form of disposition, without prior notice to and approval by the Borough Council. The Council shall receive an application for transfer at least 60 days prior to the proposed transfer, and the notice shall include full particulars of the proposed transfer. Sixty days following receipt of an application for transfer and following a properly noticed public hearing, of which the grantee and the proposed assignee(s) or transferee(s) shall be given 10 days' written notice and at which they shall be entitled to present evidence, the Council shall act to approve or disapprove, by resolution, the proposed transaction stating therein the basis for its decision. The sixty-day period may be extended by the Council, if necessary, to include at least two regularly scheduled Council meetings. If the Council fails to act within the sixty-day period or any extension thereof, such transfer shall be deemed approved. Council approval or disapproval of the requested transfer shall be based on a determination of whether or not the proposed transferee(s) possesses the character, legal, financial and technical qualifications to operate a cable system and whether the quality of service to be expected from the proposed transferee(s) would be satisfactory to meet the needs of the subscribers. The following conditions must be met prior to the grantee's application for approval of transfer:
The grantee's franchise fees or any pro rata portion thereof must be paid in full.
All personal property taxes and other assessments levied by federal, state or local government must be paid in full or suitable provisions made for securing the same.
All violations of this ordinance must be corrected or waived by Council resolution.
The grantee shall pay to the Borough a nonrefundable transfer fee in the amount of $100 to be submitted with the application for approval of transfer.
For the purpose of this section, a "transfer of effective ownership or control" shall be taken to mean and include the acquisition, within any consecutive period of 36 months, of not more than 10% interest in the grantee's voting stock, franchise, plant, equipment or other property used in the conduct of the business, but such definition shall not include:
A pledge or hypothecation or mortgage or similar instrument transferring conditional ownership in all or part of the system's assets to a lender or creditor in the ordinary course of business so long as the lender does not thereby acquire the right to control the system's operations, but no such transfer or conditional title can be made absolute without prior approval of the Council;
The disposition of facilities or equipment no longer required in the conduct of business; or
Transfer of limited partnership interests in instances where the grantee is a limited partnership, provided that there is no change of or transfer of control in the general partner or general partnership interests.
The Borough shall have the right and first option to acquire ownership of the cable system or to effect a transfer of ownership of the system to another person if the grantee does not seek renewal and if the system is sold during the last 36 months of the franchise. Such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern, but with no value allocated to the franchise itself.
The Borough shall have the right and first option to acquire ownership of the cable system or to effect a transfer of ownership of the system to another person if a renewal is denied. Such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern, but with no value allocated to the franchise itself.
The Borough shall have the right and first option to acquire ownership of the cable system or to effect a transfer of ownership of the system to another person if the franchise is revoked for cause. Such acquisition or transfer shall be at an equitable price.
If the franchise is revoked for cause and if the Borough elects not to exercise its option to purchase, the grantee shall have the right, within 120 days thereafter, to obtain a purchaser acceptable to the Council as a grantee and to sell and transfer the same and all of the system's assets to such purchaser for an amount not to exceed fair market value. The Borough reserves the right to reject any proposed grantee which it feels is unqualified and to amend any and all of the franchise terms as it finds appropriate for such new franchise. The grantee shall first meet the requirements set forth in § A210-15A(1) through (4).
The grantee shall be obligated during the entire term of this franchise to provide continuous service to all subscribers for payment of the established fee.
The obligation of the grantee to provide such service to subscribers shall not be limited, altered or modified by any action of the grantee to overbuild, rebuild, modify or sell the system.
Upon expiration of this franchise or if a renewal is denied or if the franchise is revoked for cause, the grantee may be required by the Borough as part of this franchise, in addition to any other remedies provided herein or by law, to continue to operate the system for a period not to exceed 12 months or until such time as a permanent operator is selected, whichever is shorter.
In addition to all other rights and powers retained by the Borough under this franchise, the Borough reserves the right to revoke and terminate the franchise and all the rights and privileges of the grantee granted hereunder in the event of a substantial breach of its terms and conditions. A substantial breach shall include, but shall not be limited to:
An uncured violation of any material breach of the franchise or any rule, regulation or determination of the Borough made pursuant thereto.
An attempt to evade any material provision of the franchise or the practice of any fraud or deceit upon the cable system subscribers and customers or upon the Borough.
The failure to provide the broad categories of programming or other services specified in this franchise.
The material misrepresentation of facts in the RFP or during negotiations relating to this franchise.
The failure to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein.
The grantee becomes insolvent, unable or unwilling to pay its debts (unless such debt is to a third party and is contested in good faith) or is adjudged bankrupt.
If the FCC finds after notice and hearing that the grantee has willfully and repeatedly without good cause failed to comply with the equal employment requirement of the Cable Act.
The Borough shall make written demand that the grantee comply with any such provision, rule, order or determination under or pursuant to the franchise. If the violation by the grantee continues for a period of 30 days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued to the satisfaction of the Borough, the Borough may consider terminating the franchise; provided, however, that the grantee must be given an opportunity to appear before the Borough Council to present its arguments. Should the Borough determine, following the hearing, that the violation was the fault of the grantee and within the grantee's control, the Borough may, by resolution, declare that the franchise be revoked and terminated.
Upon expiration of the franchise or if the franchise renewal is denied or if the franchise is revoked for cause and if the system has not been sold in place pursuant to the provisions of this franchise, the grantee shall, within a period of six months and at its own expense, remove all portions of its system from all the public ways and restore such public ways to a condition satisfactory to the Borough. If the grantee fails to remove any portion of its facilities within the time prescribed and to the satisfaction of the Borough, the Borough, at its option, may perform the work or cause the work to be performed, and the grantee shall pay to the Borough the cost thereof within 30 days after receipt of an itemized account from the Borough for such work.
The grantee shall provide, upon the effective date of this franchise and at the request of the subscriber, a captioning decoding device to be attached to the subscribers set for the reception of basic service by hearing impaired individuals. Such device shall be provided at cost. There shall be no installation charge for units purchased from the grantee. Subscribers shall be permitted to purchase and install captioning decoding devices of their own without payment of any charge or fee to the grantee.
Upon request of any subscriber, the grantee shall make available for sale a lockout device which will enable the subscriber to control children's viewing of programming which is obscene or indecent and during the hours the subscriber desires. Lock boxes shall be of such quality so as to ensure, as far as practicable, that there will be no interference on adjacent channels or any other technical problems associated with the use thereof.
The grantee agrees to provide installation and basic service free of charge upon request to the following buildings:
In case of an emergency or disaster, the grantee, on request of the Borough, shall make its facilities available for emergency use during the emergency or disaster period at no cost to the Borough except to the extent of any costs incurred by the grantee from such use.
The grantee shall provide standby power generating capacity rated for at least three hours duration during normal power outages.
The parties agree and understand that the present cable television system within the Borough consists of a twenty-four-channel system. All 24 channels are presently activated, with 12 channels allocated for basic service and 12 channels designated for other optional pay services. Attachment A, attached and incorporated herein, describes the composition of services which the grantee provides on the date of this franchise. In accordance with the Cable Act, the grantee shall, for the term of this franchise, maintain the mix, quality and level of service for the broad categories of video programming as set forth in Attachment A.
Cable services that are obscene by community standards shall not be presented on the cable system.
Services offered by the grantee shall not include the repairing, servicing, selling, leasing or renting of television sets, nor shall the grantee recommend service by any other persons, except for such items as may be directly related to the cable installation and/or connection.
Channel capacity, facilities and equipment. The grantee shall designate one clear channel with no reception problems for a future public access channel. The channel shall be for the combined use of public, educational and governmental access and shall be provided as part of basic service. The grantee agrees to make its three-fourths-inch Sony videotape player or like equipment available for access use at its head end facility.
Channel use before activation. Until such time as the public access channel is required by the Council, the grantee shall have unrestricted use of the channel for provision of other cable services, provided that the grantee shall not enter into any agreement, lease or contract for the use of the channel that would prevent its use for public access. In no event is this channel to remain dark.
Channel activation procedure. The public access channel shall be activated at the request of the Council and upon 90 days' notice to the grantee. The Council may activate the channel for full-time use or for part-time use by specifying the number of hours to be made available. Commencing at the request of the Council and continuing until the activation of the channel for public access, the grantee agrees that notices will be aired on the automated channel of the system informing viewers of the availability of the channel for public access use. These notices shall be broadcast not less than once daily between the hours of 8:00 a.m. and 11:00 p.m.
Reservations. The Council reserves the right, now or at any other later time, to appoint a Cable Access Committee of interested citizens for the purpose of promoting programming of the public access channel. This committee will include one nonvoting representative of the grantee. The duties of the Committee will include:
Editorial control. The grantee shall not exercise any editorial control over any public, educational or governmental use of the channel capacity provided by this section.
The grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failure and accidents which are likely to cause damage, injuries or nuisances to the public. The grantee shall install and maintain its cables, fixtures and other equipment in such manner that they will not interfere with any installations of the Borough or of any public utility serving the Borough. All public ways shall be restored, at the grantee's expense, to their former condition as soon as practicable after the completion of any work. The grantee shall maintain a force of sufficient employees at all times to provide safe, adequate and prompt service to its facilities.
The grantee shall install, operate and maintain its system in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements and, particularly, FCC technical standards, which standards are incorporated herein. The cable system shall, at a minimum, conform to the technical standards contained in the FCC rules and any recommendations which may supersede such rules; provided, however, that if the FCC discontinues promulgation or enforcement of such technical standards, such standards shall remain in force and effect for the life of this franchise.
The grantee shall be permitted to place its cables, wires and other equipment overhead when local or state law permits overhead construction and other like facilities are overhead. The grantee shall place its cables, wires and other equipment underground when local or state law requires underground placement and where other like facilities are underground.
The grantee is prohibited from entering into any pole agreement with any person, firm or other corporation which precludes the use of such poles by any other cable operator. Copies of all pole agreements shall be filed in the office of the Borough Manager.
The grantee shall, without expense to the Borough, relocate, change or remove its facilities to accommodate such public works as the Borough, in its judgment, shall require. The grantee shall, at the request of any person holding a permit issued by the Borough, temporarily raise, lower or remove its wires to permit the improvement of property. The expense of such change shall be paid by the person requesting the same, and the grantee shall have the authority to require payment in advance. The grantee shall be given no fewer than 48 hours of advance notice to arrange such temporary wire change.
Twenty-four months after the effective date of this franchise, and every 24 months thereafter for the term of this franchise, the grantee shall provide to the Council a written report detailing the physical and technical condition of the system. The grantee has demonstrated in its RFP, marked Attachment D, attached and incorporated herein, that no rebuild or changes to the system are required or anticipated at this time. Therefore, any construction, rebuild, upgrade, overbuild, expansion or substantial change of any nature to the system during the term of this franchise shall be conducted in the following manner:
At least 90 days prior to the commencement of any construction, rebuild, upgrade, overbuild, expansion or substantial change of any nature to the system requiring a capital expenditure exceeding $100,00, the grantee shall submit to the Council for approval a detailed description of the proposed changes or alterations, cost of the improvement, evidence of satisfactory construction insurance, construction schedules, timetables for completion and such other information as the Council may request. The Council shall have the right to request additional information within 30 days of the first submission date.
Upon receipt of all information, the Council shall, within 30 days or at least two regular Council meetings (whichever is greater), act to approve or disapprove the proposed changes. If no action is taken during the specified time, the proposed changes shall be deemed approved. Council consideration to approve or disapprove shall include, but not be limited to, whether such change is reasonable to meet the cable-related needs of the community, taking into account the cost of providing such change. Such approval shall not be unreasonably withheld.
In the event that the system is rebuilt during the term of this franchise, the grantee shall extend increased service to all subscribers of the Borough simultaneously or within a reasonable time, such time not to exceed 30 days.
The Borough shall have the right to supervise or inspect all work performed by the grantee or its agents upon the public ways to ensure compliance with this franchise. In the event that such inspection reveals that the grantee has failed, in the Borough's judgment, to fulfill its obligations, the Borough shall notify the grantee, in writing, of its deficiencies. Absent commencement of corrective action by the grantee within five business days of receipt of notification, the Borough may undertake the necessary repairs or restorations at the grantee's sole expense.
The grantee shall have the right to trim trees in and overhanging the public ways, in a workmanlike manner, so as to prevent its facilities from abrasive contact. The grantee shall obtain permission of the owner of a privately owned tree or other vegetation before it trims or prunes the same.
Upon the date of this franchise, the grantee's rates for subscriber services rendered to normal residential customers are as shown in Attachment B, attached and made a part of this franchise.
The grantee shall administer any and all rates and charges so as not to give preference to or discriminate among customers of basic cable service. Nothing in the foregoing shall be deemed to prevent the grantee from establishing special reduced rates for senior citizens or for subscribers who pay promptly. Bulk customers shall be billed at the discretion of the grantee so long as its rates are not arbitrary and capricious. Bulk rates shall require a minimum of six or more units at the same building or location, and all units must be activated.
The grantee shall have the right to regulate rates for the provision of cable service subject to Section 623 of the Cable Act, provided that:
The Borough reserves the right, at any time during the term of this franchise, to petition the FCC for the right to regulate basic subscriber rates by establishing that effective competition does not exist in accordance with FCC Regulations, Section 76.33.
The Borough shall regulate any rate to any extent now or later permissible by law.
The grantee shall, to the extent now feasible or upon upgrade of the system, install equipment which permits the full utilization of cable-ready television receivers by subscribers to avoid converter usage where possible. The grantee shall permit subscribers to purchase compatible converters of their own and use them for cable reception without payment of any charge or security fee to the grantee; provided, however, that nothing herein shall permit a subscriber to obtain services over the cable system without proper authorization from the grantee and payment of the appropriate fee therefor.
Rate increases shall be nondiscriminatory and in accordance with the Cable Act. No increase in rates charged to subscribers shall be made except as provided under federal law or, if permitted, as authorized by the Council after an appropriate public proceeding affording interested parties the opportunity to comment and present testimony.
In consideration for the franchise granted herein and for the right and privilege of using the streets and public ways in the Borough of Tyrone, the grantee shall pay to the Borough annually a franchise fee in an amount equal to 5% of the grantee's annual gross revenues, as defined in § A210-2, and subject to the following conditions:
Payments due under this section shall be payable, without notice, on a semiannual basis. Payment shall be made not later than July 31 for the period from January 1 to June 30 and on January 31 for the period from July 1 to December 31.
Each such payment shall be accompanied by a completed franchise fee payment form, Attachment C, attached hereto and made a part of this franchise, and shall be certified correct by a cable comptroller of the grantee. By March 31 of each year, the grantee shall file a completed franchise fee payment form with the Borough Manager showing the total gross revenues for the previous calendar year. If that report demonstrates that the franchise fee liability for the calendar year based on actual gross revenues differed from the fees actually paid by the grantee, an appropriate adjustment shall be made within 30 days following the filing of the report.
No acceptance of any payment shall be construed as an accord that the amount paid is in fact correct. All amounts shall be subject to recomputation by the Council or audit by an independent auditor of the Borough's choice and at the Borough's expense for one year.
If the audit determines that the franchise fee paid differs from that which should have been paid by 2% or more, then the audit expense shall be paid by the grantee.
In the event that recomputation or audit results in additional fees owed, such amount shall be subject to an interest charge of 10% per annum.
In addition to the foregoing, the Borough shall have access at all reasonable hours to all the grantee's statistical, income and service records required to be kept hereunder, insofar as such records concern franchise fee payments to the Borough.
In billing subscribers for cable communication services, the grantee shall not designate the franchise fee as a tax.
The grantee shall pass through to subscribers any decrease in the franchise fee.
Nothing in this section shall be interpreted as relieving the grantee of its liability for any other properly applicable taxes.
If during the term of this franchise any court, agency or other authority of competent jurisdiction takes any action or makes any declaration that adversely affects the amount of the franchise fee set forth in this section, the Borough and the grantee shall enter into negotiations to amend this franchise to make the Borough whole in a manner consistent with said action or declaration by restoring the Borough to a position equivalent to that which it held prior to said action or declaration to the extent allowed by law. In such event, Subsection A(8) above may not apply.
The grantee shall comply with the provisions of the Cable Act regarding:
The grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum system use.
The grantee shall maintain a business office in the Borough which shall be open during the usual business hours, have a publicly listed, toll-free telephone and be so operated that complaints and requests for repairs and adjustments may be received on a twenty-four-hour basis.
The grantee shall maintain a repair and maintenance crew capable of responding and resolving subscriber complaints and requests for service within 48 hours after receipt. However, in case of complete loss of service, the grantee shall repair said loss of service within 24 hours if technically possible. No charge shall be made for this service; provided, however, that a charge may be made if the service call is the result of repeated abuse of the service or the equipment or for subscriber-caused damage.
The grantee may bill for more than one month in advance but may not require subscribers to pay for service more than one month in advance, and any billing of more than one month in advance must advise the subscriber, in prominent writing on the bill, of his option to pay only one month in advance.
If any subscriber fails to pay a properly due monthly subscriber fee or any other properly due fee, the grantee may disconnect the subscriber's service, provided that such disconnection shall not be affected until 45 days after the due date and shall include 10 days' written notice of the intent to disconnect properly mailed to the subscriber in question. Upon payment of the delinquent amount, reconnection fee and the first months' service charge, service shall be restored.
Upon termination of service to any subscriber, the grantee shall promptly remove its facilities and equipment from the premises of such subscriber upon his request.
The grantee shall maintain a maintenance service log indicating the date and time that subscriber complaints and requests for repair service are received and resolved and the nature of the complaint and resolution. This log shall be available for reasonable inspection by the Borough and kept for the life of this franchise.
If any subscriber terminates regular subscriber service prior to the end of a prepaid period, all unearned service fees in excess of $2, as of the date the grantee receives notice of said termination, shall be refunded to the subscriber promptly, such time not to exceed 45 days after termination.
At the time that the grantee enters into an agreement to provide service to a subscriber, the grantee shall provide the subscriber a written statement that clearly sets forth the following:
A complete schedule of rates, fees, charges and terms and conditions of service currently applicable.
A brief written explanation of all services offered, including but not limited to basic service, tier service, parental lockout devices, hearing impaired devices, proper use of the converter and other cable-related equipment and installation procedures.
A complete statement of the subscriber's right to privacy in conformance with 47 U.S.C. § 631.
Information concerning the procedures for making inquiries, complaints or repair requests, including the twenty-four-hour telephone number.
The address and telephone number of the Borough officer responsible for the administration of the franchise.
The grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the Borough, its officers, boards and commissions and Borough employees against any and all claims, suits, actions, liability and judgment for damages, including but not limited to expenses for reasonable legal fees and disbursements and liabilities:
To persons or property in any way arising out of or through the acts or omissions of the grantee, its servants, agents or employees or to which the grantee's negligence shall in any way contribute with respect to the construction, maintenance or operation of the grantee's system under this franchise.
From any claim for invasion of the right of privacy, for defamation of any person, firm or corporation or the violation or infringement of any copyright, trademark, trade name, service mark or patent or of any other property right of any firm or corporation arising from the construction, maintenance or operation of the grantee's system (excluding claims arising out of or relating to Borough programming).
Arising out of the grantee's failure to comply with the provisions of any federal, state or local statute, ordinance or regulation applicable to the grantee in its business hereunder.
The foregoing indemnity is conditioned upon the following: The Borough shall give the grantee prompt notice of the making of any claims or the commencement of any action, suit or other proceeding covered by the provisions of this section. Nothing herein shall be deemed to prevent the Borough from cooperating with the grantee and participating in the defense of any litigation by its own counsel at its sole cost and expense.
The grantee shall obtain, effective from the date of execution of this franchise, and shall keep in force and effect during the entire term of this agreement a policy of comprehensive general liability insurance as shall be approved by the Borough Solicitor and the Borough Manager. Such policy of insurance shall name the Borough, its officers, employees and agents as additional insureds and shall protect the Borough and all persons against liability for loss or damage for personal injury, death and property damage with respect to the construction, maintenance or operation of the grantee's system under this franchise and shall evidence minimum liability limits as follows: combined single limit for bodily injury and property damage of $3,000,000 for each occurrence and $3,000,000 aggregate.
No policy of insurance required under this franchise shall be replaced, renewed, canceled or materially changed or altered in any way, except upon 30 days' written notice to the Borough of Tyrone prior to the date said material alteration or cancellation shall become effective. All required insurance premiums shall be at the expense of the grantee. A certificate of insurance of all policies of insurance required by the franchise and all renewals thereof and written evidence of payment of required premiums shall be filed with the Borough Manager within 10 days of the granting of the franchise and maintained during the life and term of this franchise.
The grantee shall maintain and, by its acceptance of this franchise, specifically agrees that it will maintain, throughout the term of this franchise, a faithful performance bond running to the Borough of Tyrone and approved by the Borough Solicitor in the penal sum of $12,500, conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of this franchise and that, in case of any breach of condition, the amount thereof shall be recoverable from the principal and/or sureties by the Borough of Tyrone for all damages resulting from the failure of the grantee to well and faithfully observe and perform any of the provisions of this franchise. The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled nor the intention not to renew be stated until 30 days after receipt by the Borough Manager of Tyrone, Pennsylvania, by registered mail, of two copies of a written notice of such intent to cancel or not renew." A copy of said performance bond shall be filed with the Borough Manager within 10 days of the granting of this franchise and be maintained during the life of the franchise.
The Borough and the grantee may hold scheduled reevaluation sessions within 30 days following the second anniversary of the effective date of this franchise and each year thereafter during the term of the franchise. The purpose of the sessions is to ensure that the cable communications needs and interests of the subscribers are being met.
Sessions shall be open to the public and announced at least five days in advance. In addition to other notification, the grantee shall notify the public of the meeting by announcement on at least one channel of the cable system between the hours of 7:00 p.m. and 9:00 p.m. for five consecutive days prior to the scheduled meeting.
The following topics may be considered for discussion at each evaluation session: system performance, system rebuild or upgrade, programming offered, customer complaints, franchise compliance, pertinent judicial and federal rulings and franchise fees. Topics may be added by either party or by the general public.
The grantee shall fully cooperate with the Borough in providing records and reports to be used as resource and reference items at such sessions.
Special reevaluation sessions may be held at any time at the request of the grantee or the Borough and shall be held upon request of the public by presenting a petition to the Council bearing the signatures of 50 or more cable subscribers in the Borough and stating the topics to be discussed.
Nothing contained herein shall prevent either the grantee or the Borough from discussion of these subjects in meetings other than the above-described reevaluation sessions.
The grantee shall file with the office of the Borough Manager:
Annually, not later than March 1 of each year, a financial statement for the previous year, including a profit and loss statement that encompasses all revenue for the Tyrone system, with revenues separately stated for the Borough of Tyrone and certified correct by a senior officer of the company.
Copies of such rules, regulations, terms and conditions adopted by the grantee for the conduct of its business.
Copies of all petitions, applications, agreements, communications, reports, letters or other documents submitted to or received from the FCC or any other state or federal regulatory agency relating to the grantee's operation of the cable system in the Borough. This information shall be filed with the Borough Manager within five days of submission or receipt as to such agency.
A copy of the grantee's affirmative action policy.
No later than December 31 of each year, a full schedule of subscriber services offered and the rates charged for each. The schedule shall include but not be limited to basic subscriber service, pay television, leased channels, installation, multiple outlets, converter charges and any other charges made in connection with the system. The schedule shall be updated when any change is made in service or rates within five working days of such change.
Such other reasonable information as the Borough may request with respect to the grantee's properties and expenses related to its system and operations within the Borough.
The following documents shall be incorporated and made a part of this agreement:
Attachment A: Initial programming offer.
Attachment B: Initial rates.
Attachment C: Franchise fee payment form.
Attachment D: Request for proposal (RFP).
Editor's Note: These attachments are on file in the Borough offices.
The Borough Manager is designated as the local officer having primary responsibility for the continuing administration of the franchise. The Borough Manager shall have the following regulatory responsibilities:
If any section, subsection, sentence, clause, phrase or any portion of this franchise 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 holding shall not affect the validity of the remaining portions thereof.
The Borough and the grantee hereby agree that upon the taking effect of this ordinance and franchise, all ordinances or parts of ordinances which would otherwise be in effect be and the same are hereby repealed.
Captions to sections throughout this franchise are intended solely to facilitate reading and referencing and shall not affect the meaning or interpretation of this franchise.
Whenever this franchise agreement sets forth any time for any act to be performed by either of the parties, such time shall be deemed to be of the essence of this agreement.
Should the Commonwealth of Pennsylvania or the FCC or the United States Congress or any other state or federal agency require the grantee to perform or refrain from performing any act, the performance or nonperformance of which is inconsistent with any provisions of this franchise, the grantee shall so notify the Borough, and the Borough shall thereupon, if it determines that a material provision herein is affected, have the right to seek modification of any of the provisions herein to such extent as may be necessary to carry out the full intent and purpose of this franchise.
The grantee acknowledges and warrants, by acceptance of the rights, privileges and franchise granted herein, that it has carefully read and fully comprehends the terms and conditions of the franchise ordinance and is willing to and does accept all reasonable risks of the meaning of the provisions, terms and conditions herein. The grantee further acknowledges and states that it has fully studied and considered the requirements and provisions of the franchise ordinance and finds that the same are commercially practicable.
Within 10 working days after passage of this ordinance by the Tyrone Borough Council awarding a franchise, the grantee shall file with the Borough Manager its written acceptance of the franchise, together with the bond and insurance policy and all other fees required herein. Such acceptance and agreement shall be acknowledged by the grantee before a notary public and signed by a senior officer of the grantee and shall be in a form and content satisfactory to and approved by the Borough Council. If such execution is not effectuated within the time prescribed herein, this franchise shall be of no force and effect.