[Ord. No. 121386, 11/30/1990,
§ 1]
For the purposes of this Part, the following terms, phrases,
words and abbreviations shall have the meanings below. 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.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
or other communications equipment that is designated to provide cable
service and other service to subscribers.
The Borough of Wesleyville, Erie County, Pennsylvania, or
the lawful successor, transferee or assignee thereof.
TCI of Pennsylvania, Inc., or the lawful successor, transferee
or assignee thereof.
The monthly cable service revenues received by the grantee
from subscribers of the cable system, including any revenues received
from subscribers of the cable system for any per-channel or per-program
services; provided, however, that such phrase shall not include revenues
received from any advertising carried on the cable system, nor shall
such phrase include any taxes on cable service which are imposed directly
or indirectly on any subscriber thereof by any governmental unit or
agency, which are collected by the grantee on behalf of such governmental
unit or agency.
The surface of, and the space above and below, any public
street, highway, freeway, bridge, land, path, alley, court, boulevard,
sidewalk, parkway, way, lane, 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 now or
hereafter held by the franchise authority in the Borough of Wesleyville,
which entitles the franchise authority and the grantee to the use
thereof for the purpose of installing, operating, repairing and maintaining
the cable system.
[Ord. No. 121386, 11/30/1990,
§ 2]
The Borough hereby grants to the grantee a nonexclusive franchise
to construct and operate a cable system in, along, among, upon, across,
above, over, under or in any manner connected with public ways within
the Borough and for that purpose to erect, 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.
[Ord. No. 121386, 11/30/1990,
§ 3]
The franchise granted pursuant to this Part shall take effect
upon its passage and final adoption, and shall remain in effect for
a period of 20 years thereafter.
[Ord. No. 121386, 11/30/1990,
§ 4]
All transmission and distribution structures, poles, other lines
and equipment installed or erected by the grantee pursuant to the
terms hereof shall be so located as to cause a minimum of interference
with the proper use of the public ways and with the rights and reasonable
convenience of the property owners who own property that adjoins any
of the said public ways.
[Ord. No. 121386, 11/30/1990,
§ 5]
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 own expense, replace and
restore such public way to a condition reasonably comparable to the
condition of the public way immediately prior to such disturbance.
[Ord. No. 121386, 11/30/1990,
§ 6]
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 compliance with applicable
Federal Communications Commission regulations or other federal, state
or local regulations. The cable system shall not unreasonably endanger
or interfere with the safety of persons or property in the Borough.
[Ord. No. 121386, 11/30/1990,
§ 7]
The grantee shall pay to the franchising authority a franchise
fee equal to 3% of gross revenues received by the grantee from the
operation of the cable system on an annual basis. The franchise fee
payment shall be due and payable semiannually and shall be payable
on or before September 1 for the first six months of each year and
on or before March 1 the second six months of each year. Each payment
shall be accompanied by a brief report from a representative of the
grantee showing the basis for the computation. These payments shall
be in lieu of any other tax or payment owed to the franchising authority,
now or in the future, including, but not limited to, any business
privilege or related tax.
[Ord. No. 121386, 11/30/1990,
§ 8]
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 the Cable Communications Policy Act of 1984,[1] as amended.
[1]
Editor's Note: See 47 U.S.C. § 521 et seq.
[Ord. No. 121386, 11/30/1990,
§ 9]
The grantee's right, title or interest in the franchise
shall not be sold, transferred, assigned or otherwise encumbered,
other than to an entity controlling, controlled by, or under common
control with the grantee, without the prior consent of the franchising
authority, such consent not to be unreasonably withheld. No such consent
shall be required, however, for a transfer in trust, by mortgage,
by other hypothecation, or by assignment of any right, title or interest
of the grantee in the franchise or cable system in order to obtain
indebtedness.
[Ord. No. 121386, 11/30/1990,
§ 10]
The grantee shall maintain in full force and effect, at its
own expense, during the term of the franchise, comprehensive general
liability insurance providing an amount of $1,000,000 combined single
limit for bodily injury and property damage. Any insurance shall designate
the franchising authority as an additional insured. Such insurance
shall be noncancellable except upon 30 days' prior written notice
to the franchising authority.
[Ord. No. 121386, 11/30/1990,
§ 11]
The grantee shall provide without charge and upon request one
outlet of basic cable to the franchising authority's office building,
fire station, police station and public school building that is passed
by its cable system. The outlets of basic cable shall not be used
to distribute or sell cable service in or throughout such buildings,
nor shall such outlets be located in common or public areas open to
the public. Users of such outlets shall hold the grantee harmless
from any and all liability 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 from the feeder cable to said buildings or premises
exceeds 150 cable feet, unless it is technically feasible and so long
as it will not adversely affect the operation, financial condition
or market development of the cable system to do so, or unless the
appropriate governmental entity agrees to pay the incremental cost
of a drop line in excess of 150 cable feet. In the event additional
outlets of basic cable are provided to such buildings, the building
owner shall pay the usual installation fees associated therewith,
including, but not limited to, labor and materials. Upon request of
the grantee, the building owner may also be required to pay service
fees associated with the provision of such additional basic cable
outlets related thereto.
[Ord. No. 121386, 11/30/1990,
§ 12]
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 of the exact nature of the alleged noncompliance.
The grantee shall have 30 days from the receipt of the notice to respond
to the franchise authority to cure such default or, in the event that,
by the nature of the default, such default cannot be cured within
the thirty-day period, to initiate reasonable steps to remedy such
default and notify the franchising authority of the steps that are
being taken and the projected date that they will be completed.
[Ord. No. 121386, 11/30/1990,
§ 13]
The grantee shall not be held in default of 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.
[Ord. No. 121386, 11/30/1990,
§ 14]
1.
Unless expressly otherwise agreed between the parties, every notice
or response to be served upon the franchising authority or grantee
shall be in writing and shall be deemed to have been dully given to
the required party five business days after having been posted in
a properly sealed and correctly addressed enveloped by certified or
registered mail, postage prepaid, at a post office or branch thereof
maintained by the United States Postal Service.
A.
The notices or responses to the franchising authority shall be addressed
as follows:
|
The Borough of Wesleyville
3421 Buffalo Road
Erie, Pennsylvania 16510
Attn: _____
|
B.
The notices or response to the grantee shall be addressed as follows:
|
TCI of Pennsylvania, Inc.
5651 Jordan Road
PO Box 7129
Erie, PA 16510-0129
|
C.
With a copy to:
|
TCI of Pennsylvania, Inc.
Attention: Legal Department
PO Box 5630, Terminal Annex
Denver, CO 80237
or: TCI of Pennsylvania, Inc.
Attention: Legal Department
4743 South Ulster Street
Denver, CO 80237
|
2.
The franchising authority and the grantee may designate such other
addresses from time to time by giving notice to the other.
[Ord. No. 121386, 11/30/1990,
§ 15]
If any section, sentence, paragraph, term 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, paragraph, term or
provision hereof, all of which shall remain in full force and effect
for the term of the franchise or any renewal or renewals thereof.
[Ord. No. 121386, 11/30/1990,
§ 17]
The franchising authority and the grantee agree that this Part
represents the entire agreement between the parties, and it is expressly
agreed that there are no oral or written representations existing
between the parties which have not been incorporated in this Part.
