[HISTORY: Adopted by the City Council of the City of Clairton 8-25-1992 by Ord. No.
1529. Amendments noted where applicable.]
GENERAL REFERENCES
Poles and wires — See Ch. 271.
A.
AFFILIATE
BASIC CABLE
CABLE ACT
CABLE OPERATOR
CABLE SERVICE
CABLE SYSTEM
FCC
FRANCHISE
FRANCHISE AUTHORITY or FRANCHISING AUTHORITY
GRANTEE
GROSS REVENUES
PERSON
PUBLIC WAY
SERVICE AREA
SUBSCRIBER
VIDEO PROGRAMMING
For the purpose of this agreement, the following terms, phrases,
words and abbreviations shall have the meanings ascribed to them below:
An entity which owns or controls, is owned or controlled
by or is under common ownership with the grantee.
The tier of service regularly provided to all subscribers
that includes the retransmission of local broadcast television signals.
The Cable Communications Policy Act of 1984, as amended (P.L.
98-549).[1]
Any person or group of persons who provides cable service
over a cable system and directly or through one or more affiliates
owns a significant interest in such cable system or who otherwise
controls or is responsible for, through any arrangement, the management
and operation of such a cable system.
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 any other
lawful communication service.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
or other communications equipment that is designed to provide cable
service and other service to subscribers.
Federal Communications Commission or successor governmental
entity thereto.
The initial authorization or renewal thereof issued by the
franchising authority, whether such authorization is designated as
a franchise, permit, license, resolution, contract, certificate or
otherwise, which authorizes construction and operation of the cable
system for the purpose of offering cable service or other service
to subscribers.
The City of Clairton or the lawful successor, transferee
or assignee thereof.
TCI of Pennsylvania, Inc., or the lawful affiliate, successor,
transferee or assignee thereof.
All revenue derived directly or indirectly by the cable operator
from providing cable service within the City, including but not limited
to basic subscribers service monthly fees, optional service fees,
pay cable fees, installation and reconnection fees, late payment fees,
guide sales, leased channel fees, converter rentals, studio rental,
production equipment and personnel fees and a pro-rata share of South
Hills System advertising revenues based on that percentage of City
subscribers as calculated on the system whole; provided, however,
that this shall not include any taxes on services furnished by the
grantee herein imposed directly upon any subscriber or used by the
state, local or other governmental unit and collected by the grantee
on behalf of said governmental unit.
An individual, partnership, association, joint-stock company,
trust corporation or governmental entity.
The surface of and the space above and below any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle or other public right-of-way,
including but not limited to public utility easements, dedicated utility
strips or rights-of-way dedicated for compatible uses and any temporary
or permanent fixtures or improvements located thereon now or hereafter
held by the franchise authority in the service area which shall entitle
the franchise authority and the grantee to the use thereof for the
purpose of installing, operating, repairing and maintaining the cable
system. "Public way" shall also mean any easement now or hereafter
held by the franchising authority within the service area for the
purpose of public travel or for utility or public service use dedicated
for compatible uses and shall include other easements or rights-of-way
as shall within their proper use and meaning entitle the franchise
authority and the grantee to use thereof for the purposes of installing
or transmitting the grantee's cable service or other service
over poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments and other property as may be ordinarily
necessary and pertinent to the cable system.
The present municipal boundaries of the franchising authority
and shall include any additions thereto by annexation or other legal
means.
A person or user of the cable system who lawfully receives
cable services or other service therefrom, with the grantee's
express permission.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
[1]
Editor's Note: See 47 U.S.C. § 521 et seq,
B.
When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include
the singular number, and words in the singular number include the
plural number.
The franchising authority hereby grants to the grantee a nonexclusive
franchise which authorizes the grantee to construct and operate a
cable system and offer cable service and other services in, along,
among, upon, across, above, over, under or in any manner connected
with public ways within the service area and, for the purpose, to
erect, install, construct, repair, replace, reconstruct, maintain
or retain in, on, over, under, upon, across or along any public way
and all extensions thereof and additions thereto, such poles, wires,
cables, conductors, ducts, conduits, vaults, manholes, pedestals,
amplifiers, appliances, attachments and other related property or
equipment as may be necessary or appurtenant to the cable system.
The franchising authority reserves the right to grant a similar use
to any other person or firm.
The franchise granted pursuant to this agreement shall be for an initial term of 10 years from the effective date of the franchise as set forth in § A342-4, unless otherwise lawfully terminated in accordance with the terms of this agreement.
The grantee shall accept the franchise granted pursuant hereto
by signing this agreement and filing the same with the Municipal Manager
or other appropriate official or agency of the franchising authority
within 30 days after the passage and final adoption of this agreement.
Subject to the acceptance by the grantee, the effective date of this
agreement shall be January 1, 1992.
The right to use and occupy said public ways, as defined above,
for the purpose herein set forth, shall not be exclusive in the grantee.
However, the franchising authority shall require a franchise agreement
for any other person or entity, as defined above, engaging in the
cable service business within any portion of the City. In cases were
the franchising authority ignores or attempts and fails to meet its
responsibility to franchise, the grantee may exercise any rights under
the law to ensure equal protection under said law. Should the franchising
authority grant additional franchise rights to another person, then
this grantee shall immediately receive the benefits of any more favorable
terms or conditions enjoyed by another person or entity; otherwise,
this agreement and any enabling legislation may only be amended through
mutual consent of the parties hereto. In the event that such action
takes the form of an appeal made to the franchising authority, the
franchising authority shall hear the grantee's petition and shall
act upon the grantee's request through majority vote and written
notice, written within 60 days of receipt of proper notice. Consent
to the grantee's requests shall not be unreasonably withheld,
and failure of the franchising authority to act as herein prescribed
shall be deemed automatic consent.
All transmission and distribution structures, poles, other lines
and equipment installed or erected by the grantee pursuant to the
terms hereof shall be located so as to cause a minimum of interference
with the proper use of public ways and with the rights and reasonable
convenience of property owners who own property that adjoins any of
said public ways. Similarly, the grantee shall install and maintain
in such manner as to not interfere with any installation of the franchising
authority. Matters between the grantee and any public utility shall
be in compliance with contracts between these parties. The cable system
shall be constructed and operated in compliance with applicable governmental
construction and electrical codes.
If, during the course of the grantee's construction, operation
or maintenance of the cable system, there occurs a disturbance of
any public way by the grantee, it shall, at its expense, replace and
restore such public way to a condition reasonably comparable to the
condition of the public way existing immediately prior to such disturbance.
Upon its receipt of reasonable advance notice, not to be less
than five business days, the grantee shall, at its own expense, protect,
support, temporarily disconnect, relocate in the public way or remove
from the public way any property of the grantee when lawfully required
by the franchising authority by reason of traffic conditions, public
safety, street abandonment, freeway and street construction, change
or establishment of street grade, installation of sewers, drains,
gas or water pipes or any other type of structures or improvements
by the franchising authority; but, the grantee shall in all cases
have the right of abandonment of its property. In an emergency situation,
the grantee shall act immediately upon receipt of any report of such
emergency. If public funds are available to any company using such
street, easement or right-of-way for the purpose of defraying the
cost of any of the foregoing, such funds shall also be made available
to the grantee. In cases where the source of public funds for reimbursement
costs is an agency other than the franchise authority, application
for such funds must include a request made on behalf of the grantee.
Should said public fund reimbursement request to fully compensate
the grantee be denied, and should the franchising authority and the
grantee be unable to agree on an acceptable method and amount of reimbursement,
then the grantee shall be released from any obligation to provide
cable service to the affected street or area. As an option, the grantee
may arrange to continue to serve the affected street(s) or area and
achieve appropriate reimbursement by deducting a fixed amount from
the franchise fee paid to the municipality. The fixed amount shall
be determined in an itemized statement of charges which shall be submitted
to the municipality.
The grantee shall, on the request of any person holding a building
moving permit issued by the franchising authority, temporarily raise
or lower its wires to permit the moving of such building, provided
that the expense of such temporary raising or lowering of wires is
paid by said person, including, if required by the grantee, making
such payment in advance, and the grantee is given not less then 10
business days' advance written notice to arrange for such temporary
wire changes.
The grantee shall not remove any tree or trim any portion, either
above, at or below ground level, of any tree within any public place
without the prior consent of the franchising authority. In emergency
situations, this restriction shall be waived and the grantee may act
in a reasonable manner and with minimal corrective action.
Subject to any applicable state or federal regulations or tariffs,
the franchising authority shall have the right to make additional
use, for any public purpose, of any poles or conduits controlled or
maintained exclusively by or for the grantee in any public way, provided
that such use by the franchising authority does not interfere with
a current or future use by the grantee; the franchising authority
holds the grantee harmless against and from all claims, demands, costs
or liabilities of every kind and nature whatsoever arising out of
such use of said poles or conduits, including but not limited to reasonable
attorneys' fees and costs; and at the grantee's sole discretion,
the franchising authority may be required either to pay a reasonable
rental fee or otherwise reasonably compensate the grantee for the
use of such poles, conduits or equipment; provided, however, that
the grantee agrees that such compensation or charge shall not exceed
those paid by it to public utilities pursuant to the applicable pole
attachment agreement or other authorization relating to the service
area.
The grantee shall put, keep and maintain all parts of the cable
system in good and standard condition throughout the entire franchise
period. Construction, installation and maintenance of the cable system
shall be performed in an orderly and workmanlike manner. All such
work shall be performed in substantial accordance with applicable
FCC or other federal, state and local regulations. The cable system
shall not unreasonably endanger or interfere with the safety of persons
or property in the service area.
In those areas of the service area where all of the transmission
or distribution facilities of the respective public utilities providing
telephone communications and electric services are underground, the
grantee likewise shall construct, operate and maintain all of its
transmission and distribution facilities underground, provided that
such facilities are actually capable of receiving the grantee's
cable and other equipment without technical degradation of the cable
system's signal quality. In those areas of the service area where
the transmission or distribution facilities of the respective public
utilities providing telephone communications and electric services
are both aerial and underground, the grantee shall have the sole discretion
to construct, operate and maintain all of its transmission and distribution
facilities or any part thereof aerially or underground. Nothing contained
in this section shall require the grantee to construct, operate and
maintain underground any ground-mounted appurtenances such as subscriber
taps, line extenders, system passive devices (splitters or directional
couplers), amplifiers, power supplies, pedestals or other related
equipment. Notwithstanding anything to the contrary contained in this
section, in the event that all of the transmission or distribution
facilities of the respective public utilities providing telephone
communications and electric services are placed underground after
the effective date of this agreement, the grantee shall only be required
to construct, operate and maintain all of its transmission and distribution
facilities underground if it is given reasonable notice and access
to the public utilities' facilities at the time that such are
placed underground.
The cable system as constructed as of the date of the passage and final adoption of this agreement substantially complies with the material provisions hereof. The grantee is hereby authorized to extend the cable system as necessary, as desirable or as required pursuant to the terms hereof within the service area. Whenever the grantee shall receive a written request for service from at least 15 subscribers within 1,320 cable-bearing strand feet (1/4 cable mile) of its trunk cable or from 25 subscribers in underground construction areas, it shall extend its cable system to such subscribers at no cost to said subscribers for system extension, other than the usual connection fees for all subscribers, provided that such extension is technically feasible and if it will not adversely affect the operation, financial condition or market development of the cable system or as provided for under § A342-15 of this agreement. Written requests shall be numbered at a rate of one head of household per individual address.
No subscriber shall be refused service arbitrarily. However,
for unusual circumstances, such as a subscriber's request to
locate his cable drop underground, existence of more than 150 feet
of distance from distribution cable to connection of service to subscribers
or a density of less than 15 subscribers per 1,320 cable-bearing strand
feet of trunk or distribution cable (25 subscribers in underground
construction areas), cable service or other service may be made available
on the basis of a capital contribution in aid of construction, including
cost of material, labor and easements. For the purpose of determining
the amount of capital contribution in aid of construction to be borne
by the grantee and subscribers in the area in which cable service
may be expanded, the grantee will contribute an amount equal to the
construction and other costs per mile, multiplied by a fraction whose
numerator equals the actual number of potential subscribers per 1,320
cable-bearing strand feet of its trunks or distribution cable and
whose denominator equals 15 subscribers (25 subscribers underground).
Potential subscribers will bear the remainder of the construction
and other costs on a pro rata basis. The grantee may require that
the payment of the capital contribution in aid of construction borne
by such potential subscribers be paid in advance.
The grantee shall provide, without charge, one outlet of basic
service to the franchising authority's office building(s), fire
station, police station and public and nonprofit private school building
that is passed by its cable system. Channels available through such
outlets may be limited to basic service, and this service shall not
be sold in any manner. Users of such outlets shall hold the grantee
harmless from any and all liability or claims arising out of their
use of such outlets, including but not limited to those arising from
copyright liability. Notwithstanding anything to the contrary in this
section, the grantee shall not be required to provide an outlet to
such buildings where the drop line exceeds 150 cable feet; however,
the grantee may elect to complete such installation after technical
and financial analysis. The distribution of the cable system inside
above-noted buildings and the extent thereof shall be accomplished
through the advice of the grantee, with final options, responsibilities
and expenses being those of the building owner or occupant organization.
In the case of any emergency or disaster, the grantee shall,
upon request of the franchising authority, make available its facilities
for the franchising authority to provide emergency information and
instructions during the emergency or disaster period. The franchising
authority shall hold the grantee, its agents, employees, officers
and assigns hereunder harmless from any claims arising out of the
emergency use of its facilities by the franchising authority, including
but not limited to reasonable attorneys' fees and costs.
A.
The grantee shall maintain equipment capable of providing standby
power for antenna site, transportation and trunk amplifiers.
B.
The franchising authority is desirous of having incorporated into its cable television system the capacity which will permit the franchising authority, in times of emergency, to override, by remote control, the audio of all channels simultaneously. Such override capability shall be constructed and activated as provided in Subsection C. The grantee would cooperate with the franchising authority in the use and operation of the emergency alert override system. The Mayor or City Manager would be authorized to declare an emergency.
C.
In the event that the grantee shall hereinafter enter into a franchise
agreement with a municipality in the South Hills System which contains
provisions for emergency override, the grantee shall notify the franchising
authority with regard to such provision. The franchising authority
and the grantee may then negotiate terms and conditions under which
emergency override may be provided. All municipalities served by the
South Hills System must agree to have emergency override interrupt
programming unless technological exclusion of individual municipalities
is possible.
A.
The grantee shall operate and maintain its cable television system
in full compliance with the standards set forth by the Federal Communications
Commission (FCC) and the Cable Communications Policy Act of 1984,[1] and any amendments thereof, and any other state or federal
law or regulation.
[1]
Editor's Note: See 47 U.S.C. § 521 et seq,
B.
The grantee shall have no obligation to construct or extend the system
nor to provide, repair, replace, maintain or operate cable television
service for any cause beyond the grantee's control, including,
without limitation, acts of God, fire, flood, earthquakes, hurricane,
unavoidable casualty, extraordinary delays in transportation, strikes,
layoffs, boycotts, embargoes, government orders or other requirements,
acts of civil or military authorities, governmental restrictions,
regulations or controls, enemy or hostile governmental action, civil
commotion, energy shortages, acts or omissions of carriers or activities
or other emergency conditions, including weather conditions incompatible
with good quality workmanship. However, the grantee shall make every
effort to provide service in such an event.
The grantee shall, through the entire period of this agreement, provide customer service in concert with the National Cable Television Association (NCTA) Customer Service Standards. To validate agreement with these standards, the grantee shall keep maintenance service records which will indicate the nature of all service complaints, the date and time the complaint was received, the disposition of such complaints and the time and date thereof. These records shall be made available to the City Manager or a named designee in compliance with provisions of § A342-26 herein. All service complaint records shall be retained on file for a period of three years.
The grantee shall pay to the franchising authority a franchise fee equal to 5% of gross subscriber revenues, as defined in § A342-1A, and actually received by the grantee from the operation of the cable system. This payment shall be made within 45 days of the close of each calendar quarter during the term of this agreement and shall be accompanied by a brief statement of gross revenues from City subscribers during the previous quarter. Additionally, the grantee may credit against any such payments any tax or assessment of any kind imposed by franchising authority or other governmental entity on a cable operator or subscribers, or both, solely because of their status as such; any tax or assessment of general applicability which is unduly discriminatory against cable operators or subscribers (including any such tax or assessment imposed, both on utilities and cable operators and their services). Any other special City tax or fee of general applicability and relating to the normal, usual and daily conduct of the grantee with regard to its business operations shall be paid by the grantee and deducted from the fourth quarter franchise fee payment. Sales tax or other tax levied on a subscription basis and collected by the grantee shall be deducted from gross revenues in reporting franchise fees. For the purpose of this section, the twelve-month period applicable under the franchise for the computation of the franchise fee shall be a calendar year. Within 45 days of the close of each calendar year, a representative of the grantee shall present a complete, accurate and verified statement of gross revenues as defined herein and actually collected from subscribers in the City during the previous year. In no event shall franchise fee payments required to be paid by the grantee exceed 5% of gross revenue received by the grantee in any twelve-month period.
The franchising authority may not regulate the rates for the
provision of cable service and other services, including but not limited
to ancillary charges relating thereto, except as expressly provided
herein and except as authorized pursuant to federal and state law,
including but not limited to the Cable Act and FCC Rules and Regulations
relating thereto. From time to time, and at any time, the grantee
has the right to modify its rates and charges, including but not limited
to the implementation of additional charges and rates; provided, however,
that the grantee shall give notice to the franchising authority of
any such modifications or additional charges at least 30 days prior
to the effective date thereof. A full schedule of rates and charges
of the grantee shall be filed with the franchising authority, and
no rate or charge shall become effective unless adequate notice is
provided to the franchising authority as outlined above. The grantee
specifically agrees that, in the event that federal law changes mandating
municipal regulation of future increases in rates and charges, with
a date specific for implementation of such power, the grantee shall,
while retaining full rights of due process under the law, comply with
such mandate; provided, however, that such compliance shall encompass
only those requirements expressly set forth in such law. Should municipal
power to regulate future rate adjustments be contained in law as permissive
language, discussion regarding amendment of this agreement shall occur
at the request of the franchising authority or the grantee. Relative
to any future action creating rate regulation, the franchising authority
shall endorse or accept such regulation through majority vote of the
franchising authority, with written notice of such action delivered
to the grantee. The grantee shall have the right to present, and the
franchising authority shall hear, the grantee's requests for
compensatory adjustments to provide for amendment of this agreement.
The franchising authority shall act on the grantee's requests
through majority vote, reported to the grantee in writing, within
60 days. Failure of the franchising authority to act accordingly shall
be deemed as automatic consent.
A.
The franchising authority and the grantee agree that any proceedings
undertaken by the franchising authority that relate to the renewal
of the grantee's franchise shall be governed by and comply with
the provisions of Section 626 of the Cable Act[1] (as such existed
as of the effective date of the Cable Act), unless the procedures
and substantive protection set forth therein shall be deemed to be
preempted and superseded by the provisions of any subsequent provision
of federal and state law.
B.
In addition to the procedures set forth in said Section 626(a) of
the Cable Act, the franchising authority agrees to notify the grantee
of its preliminary assessments regarding the identity of future cable-related
community needs and interests, as well as the past performance of
the grantee under the then current franchise term. The franchising
authority further agrees that such a preliminary assessment shall
be provided to the grantee prior to the time that the four-month period
referred to in Subsection (c) of Section 626 of the Cable Act is considered
to begin. Notwithstanding anything to the contrary set forth in this
section, the grantee and franchising authority agree that at any time
during the term of the then current franchise, while affording the
public appropriate notice and opportunity to comment, the franchising
authority and the grantee may agree to undertake and finalize negotiations
regarding renewal of the then current franchise, and the franchising
authority may grant a renewal thereof. The grantee and the franchising
authority consider the terms set forth in this section to be consistent
with the express provisions of Section 626 of the Cable Act. A reproduction
of Section 626 of the Cable Act, as such existed as of the effective
date of the Cable Act, is attached hereto as Exhibit A and incorporated
herein by this reference.[2]
[2]
Editor's Note: Said Exhibit A is on file in the City
offices.
A.
Except to the extent expressly required by federal or state law,
if a renewal or extension of the grantee's franchise is denied
and the franchising authority either lawfully acquires ownership of
the cable system or by its actions lawfully effects a transfer of
ownership of the cable system to another party, any such acquisition
or transfer of the cable system shall be at a fair market value, determined
on the basis of the cable system valued as a going concern.
B.
The grantee and franchising authority agree that in the case of a
lawful revocation of the franchise, at the grantee's request,
which shall be made in its sole discretion, the grantee shall be given
a reasonable opportunity to effectuate a transfer of its cable system
to a qualified third party. The franchising authority further agrees
that during such a period of time, it shall authorize the grantee
to continue to operate pursuant to the terms of its prior franchise;
however, in no event shall such authorization exceed a period of time
greater than six months from the effective date of such revocation.
If, at the end of that time, the grantee is unsuccessful in procuring
a qualified transferee or assignee of its cable system which is reasonably
acceptable to the franchising authority, the grantee and franchising
authority may avail themselves of any rights they may have pursuant
to federal or state law, it being further agreed that the grantee's
continued operation of its cable system during the six-month period
shall not be deemed to be a waiver nor an extinguishment of any rights
of either the franchising authority or the grantee. Notwithstanding
anything to the contrary set forth in this section, neither the franchise
authority nor the grantee shall be required to violate federal or
state law.
The grantee's right, title or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an affiliate, without the prior consent of the franchising authority. The proposed assignees must show financial responsibility as reasonably acceptable to the franchising authority and as determined by industry standards of normalcy. Furthermore, the proposed assignee must agree to comply with all provisions of this franchise agreement. This entire section shall be subject to the provisions of § A342-37 herein, except the specified time period shall be 120 days. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation or by assignment of any rights, title or interest of the grantee in the franchise or cable system in order to secure indebtedness.
The franchising authority may perform technical tests of the
cable system during reasonable times and in a manner which does not
unreasonably interfere with the normal business operations of the
grantee or the cable system in order to determine whether or not the
grantee is in compliance with the terms hereof and applicable state
or federal laws. Except in emergency circumstances, such tests may
be undertaken only after giving the grantee reasonable notice thereof,
not to be less than two business days, and providing a representative
of the grantee an opportunity to be present during such tests. In
the event that such testing demonstrates that the grantee has substantially
failed to comply with a material requirement hereof, the reasonable
costs of such tests shall be borne by the grantee. In the event that
such testing demonstrates that the grantee has substantially complied
with such material provisions hereof, the cost of such testing shall
be borne by the franchising authority. Except in emergency circumstances,
the franchising authority agrees that such testing shall be undertaken
no more than two times a year in the aggregate and that the results
thereof shall be made available to the grantee upon the grantee's
request.
The grantee agrees that the franchising authority may review
such of its books, records, strand maps, plans and other like materials
of the grantee, during normal business hours and on a nondisruptive
basis, as is reasonably necessary to monitor compliance with the terms
hereof. Such records shall include but shall not be limited to any
public records required to be kept by the grantee pursuant to the
rules and regulations of the FCC; however, the grantee shall not be
required to violate the privacy provisions of Section 631 of the Cable
Act.[1] In addition, the City shall have the right to audit and recompute any amounts determined to be payable under this franchise; provided, however, that such audit shall take place within 36 months following the close of each of the grantee's fiscal years. Any additional amount which may be due and owing to the franchising authority as a result of such audit shall be presented to the grantee as supported by a copy of the audit report. Upon receipt of written notice requesting payment of any alleged amount due, the grantee shall have, while retaining all rights under this agreement and under applicable law, 45 days to remit any uncontested amount expressed in the audit. Disputes in this matter of franchise fees may be evaluated and disposed of according to the provision of §§ A342-30 through A342-34 herein. In the event that any franchise payment or recomputed amount, cost or penalty is not made on or before the applicable dates herein referenced or specified, interest shall be charged daily from such date at the annual rate of 15%.
[1]
Editor's Note: See 47 U.S.C. § 551.
The grantee shall maintain in full force and effect, at its
own cost and expense, during the term of the franchise, comprehensive
general liability insurance in the amount of $1,000, combined single
limit for bodily injury and property damage. Said insurance shall
designate the franchising authority as an additional insured. Such
insurance shall be noncancelable except upon 30 days' prior written
notice to the franchising authority. The grantee shall provide the
franchising authority with a certificate of insurance obtained in
compliance with this section and shall maintain the same on file with
the City Manager of the franchising authority. The grantee shall immediately
advise the franchising authority of any litigation which may develop
within the City and which would impact this insurance. The franchising
authority shall have this same obligation and shall notify the grantee.
The grantee agrees to indemnify, save and hold harmless and
defend the franchising authority, its officers, boards and employees
from and against any liability for damages and for any liability or
claims resulting from property damage or bodily injury (including
accidental death), which arise out of the grantee's construction,
operation or maintenance of its cable system, including but not limited
to reasonable attorney's fees and costs.
The grantee shall maintain and specifically agrees that it will
maintain throughout the term of this franchise agreement a faithful
performance bond running to the franchising authority, with a corporate
surety approved by the franchising authority, in the penal sum of
$50,000, conditioned that the grantee shall well and truly observe,
fulfill and perform each term and condition of this franchise agreement
and that, in each case of any breach of condition of the bond, the
amount thereof shall be recoverable from the principal and surety
thereof by the franchising authority for all damages resulting from
the failure of the grantee to well and faithfully observe and perform
any provision of this franchise agreement. Said performance bond obtained
by the grantee in compliance with this section shall be filed and
maintained with the City Manager of the franchising authority during
the term of this franchise agreement. In lieu of securing such bond,
the grantee shall supply and the franchising authority shall accept
a guarantor guarantee as entered into by Tele Communications, Inc.,
the indirect parent of the grantee.
In the event that the franchising authority believes that the
grantee has not complied with the terms of the franchise, it shall
notify the grantee, in writing, of the exact nature of the alleged
noncompliance.
The grantee shall have 20 days from receipt of the notice described in § A342-30 to respond to the franchising authority contesting the assertion of noncompliance or to cure such default or, in the event that, by the nature of default, such default cannot be cured within the twenty-day period, to initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
In the event that the grantee fails to respond to the notice described in § A342-30 pursuant to the procedures set forth in § A342-31 or in the event that the alleged default is not remedied within 45 days after the grantee is notified of the alleged default pursuant to § A342-30, the franchising authority shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the franchising authority which is scheduled at a time which is no less than five business days therefrom. The franchising authority shall notify the grantee of the time and place of such hearing and provide the grantee with an opportunity to be heard.
A.
Subject to applicable federal and state law, in the event that the
franchising authority, after such meeting, determines that the grantee
is in default of any provision of the franchise, the franchising authority
may:
(1)
Seek specific performance of any provision, which reasonably
lends itself to such remedy, as an alternative to damages.
(2)
Commence an action at law for monetary damages or seek other
equitable relief.
(3)
In the case of a substantial default of a material provision
of the franchise, declare the franchise agreement to be revoked.
(4)
Seek recovery from the corporate surety or other guarantor guaranty
for all damages resulting from the failure of the grantee to observe
and perform any provision of the franchise agreement.
B.
The grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the franchise by reason of any failure
of the franchising authority to enforce prompt compliance.
The grantee shall not be held in default or noncompliance with
the provisions of the franchise, nor suffer any enforcement or penalty
relating thereto, where such noncompliance or alleged defaults are
caused by strikes, acts of God, power outages or other events reasonably
beyond its ability to control.
The following documents shall be incorporated herein:[1]
A.
Exhibit A, Section 626, Cable Communications Policy Act of 1984 (P.L.
98-549).
B.
Exhibit B, TCI Customer First Program.
C.
Exhibit C, NCTA Customer Service Standards.
[1]
Editor's Note: Said documents, consisting of Exhibits
A, B and C, are on file in the City offices.
If the FCC or any other federal or state body or agency shall
now or hereafter exercise any paramount jurisdiction over the subject
matter of the franchise, then to the extent that such jurisdiction
shall preempt and supersede or preclude the exercise of the like jurisdiction
by the franchising authority, the jurisdiction of the franchising
authority shall cease and no longer exist.
In any action by the franchising authority or representative thereof, mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, and, in any instance where approval or consent of the franchising authority is requested, a decision is strongly encouraged within 45 days of such request. Should the franchising authority fail to respond within said time, second notice of the grantee request shall be given according to § A342-38 herein, and the franchising authority must render a decision within 15 days of receipt of the grantee request. Absent such decision, approval or consent shall be deemed granted.
Unless expressly otherwise agreed between the parties, every
notice or response to be served upon the franchising authority or
the grantee shall be in writing and shall be deemed to have been duly
given to the required party five business days after having been posted
in a properly sealed and correctly addressed envelope by certified
or registered mail, postage prepaid, at a post office or branch thereof,
regularly maintained by the United States Postal Service.
A.
The notices or responses to the franchising authority shall be addressed
as follows, with a copy to the City Attorney:
|
Office of the Municipal Manager
City of Clairton
551 Ravensburg Boulevard
Clairton, PA 15025
|
B.
The notices or responses to the grantee shall be addressed as follows:
|
General Manager
TCI of Pennsylvania, Inc.
5211 Brownsville Road
Pittsburgh, PA 15236
| |
|
With copies to:
| |
|
TCI of Pennsylvania, Inc.
Attn.: Legal Department
5619 DTC Parkway
Englewood, CO 80111
| |
|
TCI of Pennsylvania, Inc.
Attn.: Government Relations
101 Ewing Road
Carnegie, PA 15106
|
C.
The franchising authority and the grantee may designate such other
address or addresses from time to time by giving notice to the other.
The captions to sections contained herein are intended solely
to facilitate the reading thereof. Such captions shall not affect
the meaning or interpretation of the text herein.
A.
The grantee will provide one channel for PEG access. The grantee
will provide equipment to playback tapes of PEG programming. The PEG
access channel will be cablecast without charge. The grantee will
attempt to accommodate request for the specific time of showing, however
the grantee is not obligated to do so.
B.
In the event that the grantee shall hereinafter enter into a franchise agreement with a municipality in the South Hills System which contains provisions for improved PEG access (over the provisions of Subsection A) (e.g., providing a PEG channel solely for one community's use), then the grantee agrees that such provisions shall automatically be incorporated into this franchise. The grantee shall notify the franchising authority when such changes need to be incorporated into this franchise.
C.
In the event that PEG access provisions are changed, as outlined in § A342-40B and the grantee is required to provide a PEG channel solely for the franchising authority's use, then the grantee will also be required to provide to the franchising authority a character generator and all necessary equipment at the head end for the character generator within six months. It is further understood that the franchising authority's PEG channel will be provided on the lowest-priced service tier and that the grantee shall make every effort to provide advice and technical expertise to aid in the utilization of this channel.
D.
It is understood that any favorable change as indicated above may
be accompanied by other changes favorable to the grantee. Therefore,
the franchising authority and the grantee agree to negotiate all required
changes presented by the grantee, as secured in another municipality
in the South Hills System, in order to accomplish a change in the
PEG access status.
The grantee shall solicit for and provide service under provisions
of existing or future law as regards nondiscrimination and shall thereby
be evaluated and judged by any government or agency thereof having
jurisdiction in such matters. Under such jurisdiction, the grantee
may find it necessary to deny individual service in cases of chronically
delinquent payment history or in cases of real or threatened violence
toward an employee of the grantee. With regard to employment practices,
the grantee shall also be evaluated and judged by any government or
agency thereof as the same have competent jurisdiction.
The grantee shall maintain a local business office or agent
which subscribers may telephone during regular business hours without
incurring added message or toll charges, so that complaints regarding
cable television operations may be promptly reported to the grantee.
The grantee shall notify each subscriber, at the time of initial subscription
to the service of the grantee, of the procedure for reporting and
resolving complaints.
The grantee shall reimburse the franchising authority for costs
actually incurred and clearly demonstrated as being directly associated
with the renewal procedure involved with this agreement. Such costs
shall be essential and reasonable and shall not exceed $2,500 unless
otherwise agreed between the parties. The franchising authority shall
submit to the grantee, as soon as practical, an itemized statement
of costs incurred. Such statement shall be submitted via certified
mail, return receipt requested, and the grantee shall tender payment
within 30 days of receipt of such statement.
If any section, sentence, term, paragraph or provision hereof
is determined to be illegal, invalid or unconstitutional by any court
of competent jurisdiction or by any state or federal regulatory authority
having jurisdiction thereof, such determination shall have no effect
on the validity of any other section, sentence, term, paragraph or
provision hereof, all of which will remain in full force and effect
for the term of the franchise or any extension, renewal or renewals
thereof.
