[HISTORY: Adopted by the Borough Council
of the Borough of Lake City 4-9-2018 by Ord. No. 428-18.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. A81,
Cable Television Franchise, adopted 2-15-2011 by Ord. No. 399-11.
As used in this chapter, the following terms shall have the
meanings indicated:
Any corporation, partnership or other business entity that
owns or controls, is owned or controlled by, or is under common ownership
or control with Charter.
That service tier which shall include at least the retransmission
of local broadcast television signals.
Over-the-air transmission by a television or radio station.
The Cable Communications Policy Act of 1984, P.L. 98-549,
47 U.S.C. § 521 Supp., as it may be amended or superseded.
As set forth in the Cable Act.
Any written communication by a subscriber, or by the Borough
on behalf of groups of subscribers, expressing dissatisfaction with
any aspect of Charter's business or the operation of its cable
system.
The coaxial or fiber optic or other means that connects a
home or building to the cable system.
The Federal Communications Commission.
The authorization granted hereunder of a franchise, privilege,
permit, license or otherwise to construct, operate and maintain a
cable system within the service area.
All revenue received by Charter, or its affiliated entities,
arising from, attributable to, or in any way derived from the operation
of Charter's cable system in the Borough to provide cable services
as calculated in accordance with generally accepted accounting principles
("GAAP"). Gross revenues shall include, but are not limited to, the
following:
Basic service fees;
Fees charged to subscribers for any cable service tier other
than basic service;
Fees charged for premium cable services;
Fees charged to subscribers for any optional, per-channel, or
per-program cable services;
Fees charged for video-on-demand;
Revenue from the provision of any other cable service;
Fees for service calls;
Change-in-service fees for video programming;
Service plan protection fees related to cable service;
Fees for payments made to customer service representatives directly;
Fees for leased access channels;
Rental of any and all cable services equipment, including converters
and remote control devices;
Any and all locally-derived advertising revenues less commissions
paid to third parties that are not affiliated entities;
Revenues or commissions from locally derived home shopping channels;
Broadcast and/or sports programming fees;
Late payment fees related to cable service; and
Franchise fees.
"Gross revenues" shall not include bad debts, program launch
fees, investment income, refunded deposits, revenue from annexations
prior to notice and implementation, any taxes or fees on services
furnished by Charter and imposed directly upon any subscriber or user
by the Borough, state, federal or other governmental unit, and any
PEG fees recovered from subscribers.
An interior receptacle that connects a television set or
converter box to the cable system.
An individual, partnership, association, organization, corporation,
trust or governmental entity.
Programming provided by, or generally considered comparable
to, programming provided by a television broadcast station.
The geographic boundaries of the Borough.
The loss of picture or sound on one or more channels.
Installations to residences and buildings that are located
up to 125 feet from the point of connection to Charter's existing
distribution system.
The surface and the area across, in, over, along, under and
upon the public streets, public roads, public lanes, public avenues,
public alleys, public sidewalks, public bridges, public highways and
other public rights-of-way, including public utility easements, dedicated
utility strips, or rights-of-way dedicated for compatible uses now
or hereafter held by the Borough in the service area.
Any person lawfully receiving any cable service from Charter.
A.
Authority.
(1)
Pursuant to the Cable Act, the regulations of the FCC and Pennsylvania
law, the Borough hereby grants a nonexclusive franchise to Charter,
authorizing and permitting Charter to construct, operate, and maintain
a cable system in the Borough's streets.
(2)
Subject to the terms and conditions contained herein, the Borough
hereby grants Charter the right to construct, extend, install, operate,
maintain, upgrade and rebuild a cable system, including such wires,
cables, fiber, conductors, ducts, conduits, amplifiers, pedestals,
antennas, attachments and other property and equipment as are necessary
and appropriate to the operation of the cable system in, under, over,
along, across and upon the streets. Nothing in this franchise shall
be construed to prohibit Charter from offering any service over its
cable system that is not prohibited by federal or state law.
B.
Term. The term of this Agreement shall be for a period of 10 years,
commencing on April 9, 2018, (the Effective Date) and expiring on
April 9, 2018, unless this franchise is terminated prior to the expiration
date in accordance with the terms and conditions of this Agreement.
C.
Nonexclusivity. Charter acknowledges and agrees that the Borough
reserves the right to grant one or more additional franchises to construct,
operate, and maintain a cable system within the Borough.
D.
Subject to federal, state and local laws.
(1)
This franchise is subject to and shall be governed by all lawful
and applicable provisions of federal, state and generally applicable
local laws and regulations. Without waiving any of its police powers,
the Borough agrees that, to the extent any terms of this franchise
are inconsistent with the terms of any local ordinance or regulation,
this franchise shall control.
(2)
Further, Charter's rights under this franchise are subject to
the police powers of the Borough to adopt and enforce generally applicable
laws and regulations necessary for the safety and welfare of the public
provided such regulations are reasonable, not materially in conflict
with the privileges granted in the franchise and consistent with all
federal and state laws, rules, regulations and orders. Such laws and
regulations are separate and distinct from the terms and conditions
contained in this franchise.
E.
Cable system franchise required. No cable system shall be allowed
to occupy, use, or operate in the streets of the service area or be
allowed to provide cable service without a cable system franchise.
F.
Procedures for renewal. The Borough and Charter agree that any proceedings
undertaken by the Borough that relate to the renewal of Charter's
franchise shall be governed by and comply with the provisions of Section
626 of the Cable Act, or any such successor statute.
G.
No waiver of rights. No course of dealing between the Borough and
Charter, nor any delay on the part of either party in exercising any
rights hereunder, shall operate as a waiver of any such rights or
acquiescence in the actions of the other party in contravention of
such rights, except to the extent expressly waived.
A.
Franchise fees. Charter shall pay to the Borough an amount equal
to 5% of the gross revenues, transmitted by electronic funds transfer
to a bank account designated by the Borough.
B.
Quarterly payments. Franchise fee payments to the Borough under Subsection A shall be computed at the end of each calendar quarter. Such payments shall be made no later than 45 days following the end of each calendar quarter. Specifically, payments shall be due and payable on or before May 15 (for the first quarter), August 15 (for the second quarter), November 15 (for the third quarter), and February 15 (for the fourth quarter). In the event that any franchise fee payment is not made on or before the date by which it is due, then interest shall be added at the annual rate of prime plus 1% of the amount of undisputed franchise fee revenue due to the Borough, computed from the last day of the fiscal year in which payment was due. No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any payment be construed as a release of any claim the Borough may have for additional sums payable under this Agreement.
C.
Quarterly reports. Each franchise fee payment shall be accompanied
by a written report containing an accurate statement of Charter's
gross revenues received for each calendar quarter in connection and
a description of the basis for computation of fees.
D.
Audits.
(1)
No more than once every three years during the term of the Agreement,
the Borough shall have the right to conduct an independent audit or
franchise fee review of Charter's records reasonably related
to the sources, amounts and computation of gross revenues in accordance
with generally accepted accounting principles. The period of limitation
for recovery of any franchise fee payable hereunder shall be four
years from the date on which payment by Charter was due. Upon request,
Charter shall provide to the Borough the financial records related
to the franchise fee audit or review.
(2)
No auditor engaged by the Grantor shall be compensated on a success-based
formula (e.g., payment based on a percentage of an underpayment, if
any).
E.
Bundled services. Charter shall make such allocation in accordance
with generally accepted accounting principles, but in no event shall
Charter allocate gross revenues between cable services and non-cable
services where such services are bundled together in a discounted
package offered to subscribers for the purpose of evading its franchise
fee obligations under this franchise.
A.
Technical requirements. Charter shall operate, maintain, construct
and extend the cable system so as to offer reliable delivery of cable
services throughout the Borough. The video signals provided by the
cable system shall be delivered in accordance with FCC standards.
The cable system shall meet or exceed any and all generally applicable
technical performance standards of the FCC. Charter shall comply with
the National Electrical Safety Code.
B.
Area to be served.
(1)
Charter shall extend the cable system into all areas within the Borough
where there is a minimum of 35 residences per cable mile of aerial
cable. The cable length shall be measured from the closest technologically
feasible tie-in point that is actively delivering cable service as
of the date of such request for service. The total cable length shall
exclude the drop cable necessary to serve individual subscriber premises.
Charter's obligation hereunder shall be subject to the timely
performance of walk-out, make ready and location of all underground
utilities and ability to obtain easements on reasonable terms and
conditions.
(2)
Any residence within 125 feet aerial distance from the point of connection
to Charter's existing distribution system shall be entitled to
a standard installation rate.
(3)
Notwithstanding the foregoing, Charter shall have the right, but
not the obligation, to extend the cable system into any portion of
the service area where another operator is providing cable service
or into any annexed area which is not contiguous to the service area.
Charter shall not be obligated to provide service to any area where
it is financially or technically infeasible to do so. Charter at its
discretion may make cable service available to businesses within the
service area.
(4)
No subscriber shall be refused service arbitrarily. However, if an
area does not meet the density requirements of this section, Charter
shall only be required to extend the cable system to subscribers in
that area if the subscribers are willing to share the capital costs
of extending the cable system. Charter may require that payment of
the capital contribution in aid of construction borne by such potential
subscribers be paid in advance. Subscribers shall also be responsible
for any standard/non-standard installation charges to extend the cable
system from the tap to the residence.
(5)
Charter's facilities shall be installed underground in those
service areas where existing telephone and electric services are both
underground at the time of system construction. In areas where either
telephone or electric utility facilities are installed aerially at
the time of system construction, Charter may install its facilities
aerially with the understanding that at such time as the existing
aerial facilities are required to be placed underground by the Borough,
Charter shall likewise place its facilities underground. In the event
the Borough or any agency thereof directly or indirectly reimburses
any utility for the placement of cable underground or the movement
of cable, Charter shall be similarly reimbursed.
C.
Service to multiple dwelling units. Charter and the Borough hereto
acknowledge and agree that installation and provision of cable service
to multiple dwelling units are subject to a separate negotiation between
the landlord, owner or governing body of any such unit and Charter,
which negotiations shall, when applicable, be conducted in accordance
with the procedures set forth in the Communications Act of 1934,[1] as amended, applicable FCC regulations and applicable
state law.
[1]
Editor's Note: See 47 U.S.C. § 151 et seq.
D.
Permits. Charter shall apply to the Borough for all required permits of general applicability and shall not undertake any activities in the streets subject to a permit without receipt of such permit; provided, however, such permits shall not be unreasonably delayed or denied. Charter shall be required to pay any fees required for such permits. Notwithstanding the foregoing, Charter may set off any administrative permit fees or other fees required by the Borough related to Charter's use of the streets against the franchise fee payments required under § A81-3A.
E.
Repairs and restoration.
(1)
Charter shall, at its own expense, restore any damage or disturbance
caused to the streets as a result of its operation, construction,
or maintenance of the cable system to a condition reasonably comparable
to the condition of the streets immediately prior to such damage or
disturbance. If Charter fails to repair, replace, or otherwise correct
a street following 30 days' written notice by the Borough, the
Borough may complete any repair, replacement, restoration or other
correction and invoice Borough for reasonable cost of such repair,
replacement, restoration or other correction and be reimbursed for
the same.
(2)
Charter's operating, construction, repair and maintenance personnel,
including all agents and subcontractors, shall be thoroughly trained
in the use of all equipment and the safe operation of vehicles. Charter's
operating, construction, repair and maintenance personnel shall follow
all safety procedures required by all applicable federal and state
laws and regulations. Charter shall install and maintain its wires,
cables, fixtures, and other equipment in such a manner as shall not
interfere with any installations of the Borough. Should a public safety
emergency occur as a result of, incident to, or connected with operation,
construction, repair, or maintenance activities by Charter personnel,
including all agents and subcontractors, then such personnel shall
immediately contact the applicable public safety emergency dispatcher
(e.g., 9-1-1).
(3)
Whenever Charter or any agent, including any subcontractor, shall
disturb any street to perform any underground activity, it shall utilize
the Pennsylvania One Call System prior to any such disturbance. Charter
also shall adhere to any additional requirements which the Commonwealth
may establish in the future. Charter shall also adhere to all requirements
of the Pennsylvania Underground Utility Line Protection Act.
(4)
All structures and all lines, equipment and connections in, over,
under, and upon streets, wherever situated or located, shall at all
times be kept and maintained in a safe, nonhazardous and suitable
condition and in good order and repair in accordance with customary
industry standards and practices.
F.
System monitoring. Charter shall conduct testing or periodic signal
monitoring in accordance with the requirements of the FCC.
G.
Service area maps. Upon written request from Borough, Charter shall
provide for inspection at a mutually agreed upon location a complete
set of service area strand maps, on which will be shown those areas
in which its facilities exist and the location of all streets. The
Borough agrees to treat as confidential such maps as they constitute
proprietary information.
H.
Building moves for third parties. Charter shall, on the request of
any person holding a lawful permit issued by the Borough, protect,
support, raise, lower, temporarily disconnect, relocate in or remove
from the street as necessary any property of Charter, provided that
the expense of such is paid by any such person benefiting from the
relocation and Charter is given reasonable advance written notice
to prepare for such changes. Charter may require such payment in advance.
For purposes of this subsection, "reasonable advance written notice"
shall be no less than 90 days in the event of a temporary relocation
and no less than 120 days for a permanent relocation.
I.
Disconnection and relocation.
(1)
Charter shall, at no cost to the Borough, protect, support, temporarily
disconnect, relocate or remove from any street any of its property
as required by the Borough or its designee by reason of traffic conditions,
public safety, street construction, change or establishment of street
grade, site distance visibility, or the construction of any public
improvement or structure.
(2)
In requiring Charter to protect, support, temporarily disconnect,
relocate or remove any portion of its property, the Borough shall
treat Charter the same as and require no more of Charter than any
entity that occupies the streets, including, but not limited to, telephone,
power and water, including costs associated with relocating facilities.
(3)
If funds are available to any person using the streets for the purpose
of defraying the cost of any of the foregoing, the Borough shall reimburse
Charter in the same manner in which other persons affected by the
requirement are reimbursed. If the funds are controlled by another
governmental entity, the Borough shall make application for such funds
on behalf of Charter.
J.
Emergency removal of equipment.
(1)
If, at any time, in case of fire or other disaster in the Borough,
it shall be necessary, in the reasonable judgment of the Borough or
its agent, to cut or move any of the wires, cable or equipment of
the cable system, no charge shall be made by Charter against the Borough
for restoration and repair, unless such acts amount to gross negligence
by the Borough.
(2)
In cutting or moving any of the wires, cable or equipment of the
cable system in the event of fire or other disaster, the Borough shall
treat Charter the same as, and require no more of Charter than, any
other entity, including but not limited to, telephone, power and water.
K.
Tree trimming. Charter, or its agents, including subcontractors,
shall have the authority to trim trees upon and overhanging the streets
so as to prevent the branches of such trees from coming in contact
with the wires, cables or other equipment of Charter. Except for incidental
trimming done by Charter employees in the course of performing their
other duties, Charter shall make good faith efforts to notify grantor
prior to engaging in any such activity.
Cable system. Charter shall maintain a cable system with a bandwidth
no less than 750 MHZ which shall meet or exceed the technical performance
standards of the FCC.
Services to community facilities. Subject to applicable law,
Charter shall provide, without charge, standard installation and one
outlet and equipment of basic cable service to the locations listed
in Exhibit A.[1] The cable service provided pursuant to this § A81-6 shall not be used for commercial purposes. The Borough shall take reasonable precautions to prevent any inappropriate use or loss or damage to Charter's cable system.
[1]
Editor’s Note: Appendix A is on file in the Borough
offices.
A.
Right to inspect.
(1)
The Borough shall have the option, upon 20 business days' written notice and during normal business hours, to inspect at the notice location for Charter specified in § A81-13C below, all documents, records and other pertinent information maintained by Charter as is reasonably necessary to ensure Charter's compliance with the material terms of the franchise. Such notice shall specifically reference the subsection of the franchise that is under review so that Charter may organize the necessary books and records for easy access by the Borough. Charter shall not be required to maintain any books and records for franchise compliance purposes longer than three years, except that Charter will maintain records related to the payment of franchise fees for four years. Charter shall not be required to provide subscriber information in violation of Section 631 of the Cable Act. The Borough agrees to treat as confidential any books, records or maps that constitute proprietary or confidential information to the extent Charter make the Borough aware of such confidentiality. If the Borough believes it must release any such confidential books, records, or maps in the course of enforcing this franchise, or for any other reason, it shall advise Charter in advance so that Charter may take appropriate steps to protect its interests. Until otherwise ordered by a court or agency of competent jurisdiction, the Borough agrees that, to the extent permitted by state and federal law, it shall deny access to any of Charter's books, records, or maps marked confidential, as set forth above, to any person.
(2)
In addition, Charter shall maintain for inspection by the public
and the Borough all records required by 47 CFR 76.305, as amended.
B.
Reserved authority. Charter agrees to comply with the terms of any
lawfully adopted generally applicable local ordinance necessary to
the safety, health, and welfare of the public, to the extent that
the provisions of the ordinance do not have the effect of limiting
the benefits or expanding the obligations of Charter that are granted
by this franchise. This franchise is a contract and except as to those
changes which are the result of the Borough's lawful exercise
of its general police power, the Borough may not take any unilateral
action which materially changes the mutual promises in this contract.
A.
Quarterly franchise fee report. In accordance with § A81-3C of this franchise, Charter shall provide a quarterly report with each quarterly franchise fee payment to the Borough.
B.
Government reports. Upon written request, Charter shall provide to
the Borough, no later than 30 days after such written request, copies
of any and all nonconfidential communications, reports, documents,
pleadings and notifications of any kind which Charter has submitted
to any federal, state or local regulatory agencies if such documents
relate to Charter's cable system within the Borough.
A.
Violations and opportunity to cure.
(1)
If the Borough has reason to believe that Charter violated any material
provision of this Agreement, it shall notify Charter in writing of
the nature of such violation and the section of this Agreement that
it believes has been violated. If the Borough does not notify Charter
of any violation of this Agreement, it shall not operate as a waiver
of any rights of the Borough hereunder or pursuant to applicable law.
(2)
Charter shall have 30 days from receipt of the written notice to
i) respond to the Borough, contesting the assertion of noncompliance,
or ii) to cure such default, or iii) if, by the nature of default,
such default cannot be cured within the thirty-day period, initiate
reasonable steps to remedy such default and notify the Borough of
the steps being taken and the projected date that they will be completed.
B.
Revocation.
(1)
Prior to revocation or termination of the franchise, the Borough shall give written notice to Charter of its intent to revoke the franchise on the basis of a pattern of noncompliance by Charter, including one or more instances of substantial noncompliance with a material provision of the franchise. The notice shall set forth the exact nature of the noncompliance. Charter shall be given at least 30 days' prior written notice of such public hearing, specifying the time and place of such hearing and stating its intent to revoke the franchise. The hearing, notice of which shall be published by the Clerk of the Borough in a newspaper of general circulation within the service area in accordance with § A81-13D hereof. At the hearing, the Council shall give Charter an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to Charter within 10 business days. The decision of the Council shall be made in writing and shall be delivered to Charter. Charter may appeal such determination to an appropriate court, which shall have the power to review the decision of the Council de novo. Charter may continue to operate the cable system until all legal appeals procedures have been exhausted.
(2)
Notwithstanding the above provisions, Charter reserves all of its
rights under federal law or regulation.
(3)
Upon revocation of the franchise, Charter may remove the cable system
from the streets of the Borough, or abandon the cable system in place.
C.
Minor violations. The parties hereby agree that it is not the Borough's
intention to subject Charter to forfeitures or revocation of the franchise
for violations of the franchise where the violation was a good faith
error that resulted in no or minimal negative impact on the subscribers
within the service area, or where strict performance would result
in practical difficulties or hardship to Charter which outweighs the
benefit to be derived by the Borough and/or subscribers.
D.
Action of the parties. In any action by the Borough or Charter that
is 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.
E.
Equal protection. If any other provider of cable services or video
services (without regard to the technology used to deliver such services)
is lawfully authorized by the Borough or by any other state or federal
governmental entity to provide such services using facilities located
wholly or partly in the public rights-of-way of the Borough, the Borough
shall, within 30 days of a written request from Charter, modify this
franchise to insure that the obligations applicable to Charter are
no more burdensome than those imposed on the new competing provider.
If the Borough fails to make modifications consistent with this requirement,
Charter's franchise shall be deemed so modified 30 days after
Charter's initial written notice. As an alternative to the franchise
modification request, Charter shall have the right and may choose
to have this franchise with the Borough be deemed expired 30 days
after written notice to the Borough. Nothing in this franchise shall
impair the right of Charter to terminate this franchise and, at Charter's
option, negotiate a renewal or replacement franchise, license, consent,
certificate or other authorization with any appropriate government
entity. Nothing in this section shall be deemed a waiver of any remedies
available to Charter under federal, state or municipal law, including
but not limited to Section 625 of the Cable Act, 47 U.S.C. § 545.
A.
Channels. Charter shall meet or exceed programming and channel capacity
requirements required by federal law and regulations.
B.
Signal scrambling. Charter shall at all times comply with FCC regulations
regarding scrambling or other encryption of audio and video signals.
C.
Continuity of service. It shall be the right of all subscribers to
receive service from Charter provided their financial and other obligations
to Charter are honored.
D.
Parental control capability. Upon request, Charter shall provide
subscribers with the capability to control the reception of any video
and/or audio channel on the cable system pursuant to federal law.
A.
Indemnification. Charter shall, by acceptance of the franchise granted
herein, defend the Borough, its officers, boards, commissions, agents,
and employees for all claims for injury to any person or property
caused by the negligence of Charter in the construction or operation
of the cable system and in the event of a determination of liability
shall indemnify and hold the Borough, its officers, boards, commissions,
agents, and employees harmless from any and all liabilities, claims,
demands, or judgments growing out of any injury to any person or property
as a result of the negligence of Charter arising out of the construction,
repair, extension, maintenance, operation or removal of its wires,
poles or other equipment of any kind or character used in connection
with the operation of the cable system, provided that the Borough
shall give Charter written notice of its obligation to indemnify the
Borough within 10 days of receipt of a claim or action pursuant to
this section. In the event any such claim arises, the Borough shall
tender the defense thereof to Charter and Charter shall have the right
to defend, settle or compromise any claims arising hereunder and the
Borough shall cooperate fully herein. If the Borough determines in
good faith that its interests cannot be represented by Charter, Charter
shall be excused from any obligation to represent the Borough. Notwithstanding
the foregoing, Charter shall not be obligated to indemnify the Borough
for any damages, liability or claims resulting from the willful misconduct
or negligence of the Borough or for the Borough's use of the
cable system.
B.
Insurance.
(1)
Charter shall maintain insurance throughout the term of this Agreement
with the Borough as an additional insured, with an insurance company
which is authorized to conduct business in Pennsylvania and which
has an A.M. Best rating (or equivalent) no less than "A-" in the following
amounts:
(a)
The amount of such insurance against liability for damage to
property shall be no less than $1,000,000 as to any one occurrence.
(b)
The amount of such insurance against liability for injury or
death shall be no less than $1,000,000 per occurrence.
(c)
The amount of such insurance for excess liability shall be $3,000,000
in umbrella form.
(d)
The amount of such insurance against all claims arising out
of the operation of motor vehicles and general tort or contract liability
shall be $1,000,000.
A.
Transfer, assignment or change in control. The franchise granted
hereunder shall not be assigned, other than by operation of law or
to an entity controlling, controlled by, or under common control with
Charter, without the prior consent of the Borough, such consent not
to be unreasonably withheld or delayed. 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 Charter in the
franchise or cable system to secure indebtedness. Within 30 days of
receiving a request for transfer, the Borough shall notify Charter
in writing of any additional information it reasonably requires to
determine the legal, financial and technical qualifications of the
transferee. If the Borough has not taken action on Charter's
request for transfer within 120 days after receiving such request,
consent by the Borough shall be deemed given.
B.
Renewal. The Borough and Charter agree that any proceedings or activities
that relate to the renewal of Charter's franchise shall be governed
by applicable federal and state law.
A.
Force majeure. If for any reason of force majeure Charter is unable
in whole or in part to carry out its obligations hereunder, Charter
shall not be deemed in violation of this Agreement during the continuance
of such inability. The term "force majeure" as used herein shall mean
any cause beyond the control of Charter including, but not limited
to: acts of God; acts of public enemies, including terrorist attacks;
orders of any kind of the government of the United States of America
or of the Commonwealth of Pennsylvania or any of their departments,
agencies, political subdivisions, or officials, or any civil or military
authority; insurrections; riots; labor strikes; epidemics; landslides;
lightning; earthquakes; fires; hurricanes; volcanic activity; storms;
floods; washouts; droughts; explosions; unavailability of materials
or equipment, and partial or entire failure of utilities.
B.
Removal of system.
(1)
Upon lawful denial of renewal or revocation of this Agreement, Charter
may remove its supporting structures, poles, transmissions and distribution
systems and other appurtenances from the streets, ways, lanes, alleys,
parkways, bridges, highways, and other public and private places in,
over, under, or along which they are installed and shall restore the
areas to their original condition. If such removal is not completed
within six months of such lawful denial of renewal or revocation,
the Borough or property owner may deem any property not removed as
having been abandoned and the Borough may remove it.
(2)
During the term of the Agreement, if Charter decides to abandon or
no longer use all or part of its cable system, it shall give the Borough
written notice of its intent at least 90 days prior to the announcement
of such decision, which notice shall describe the property and its
location. If Charter does not remove the property, the Borough shall
have the right to transfer ownership of the property to the Borough's
designee provided fair market value is paid to Charter.
(3)
The obligations to remove above do not apply to buried cable, the
abandonment of which causes no material damage.
C.
Notice.
(1)
Every notice or payment to be served upon or made to the Borough
shall be sent to:
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Borough of Lake City
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2350 Main Street
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Lake City, PA 16423
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Every notice to be served upon Charter shall be sent to:
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Chris Thomas
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Director - Government Affairs
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530 South Main Street, Ste. 1741
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Akron, OH 44311
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With copies to:
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Charter Communications
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Attn: Vice President, Government Affairs
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12405 Powerscourt Drive
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St. Louis, MO 63131
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(2)
Unless otherwise provided by federal or state law, all notices pursuant
to this franchise shall be in writing and shall be deemed to be sufficiently
given upon delivery to a person at the address set forth above, or
by U.S. certified mail, return receipt requested, nationally or internationally
recognized courier service such as Federal Express or electronic mail
communication to the designated electronic mail address provided above.
Charter shall provide 30 days' written notice of any changes
in rates, programming services or Channel positions using any reasonable
written means. Such addresses may be changed by either party upon
notice to the other party given as provided in this section. In addition,
either party may agree to receive certain notices, reports or demands
by e-mail at an e-mail address which it provides to other party.
D.
Public notice.
(1)
Minimum public notice of any public meeting relating to this franchise
or any such grant of additional franchises, licenses, consents, certificates,
authorizations, or exemptions by the Borough to any other person(s)
to provide cable services, video services, or other television services
utilizing any system or technology requiring use of the public rights-of-way
shall be by publication at least once in a newspaper of general circulation
in the area at least 10 days prior to the meeting and a posting at
the administrative buildings of the Borough.
(2)
Borough shall provide written notice to Charter within 10 days of Borough's receipt from any other person(s) of an application or request for a franchise(s), license(s), consent(s), certificate(s), authorization(s), or exemption(s) to provide cable services, video services, or other television services utilizing any system or technology requiring use of the public rights of way. Any public hearings to consider such application or request shall have the same notice requirement as outlined in Subsection C above.
E.
Headings. The headings for sections throughout this Agreement are
intended solely to facilitate reading and reference to the sections
and provisions of this Agreement. Such headings shall not affect the
meaning or interpretation of this Agreement.
F.
Governing law. This Agreement shall be governed and construed by
and in accordance with the laws of the Commonwealth of Pennsylvania
and the United States of America. If suit is brought by a party to
this Agreement, the parties agree that trial of such action shall
be vested exclusively in the state courts of Pennsylvania, County
of Erie, or in the United States District Court for the Western District
of Pennsylvania.
G.
Entire agreement. This written instrument contains the entire agreement
between the parties, supersedes all prior agreements or proposals
whether written or oral except as specifically incorporated herein,
and cannot be changed without written amendment approved by both the
Borough and Charter. This Franchise Agreement supersedes all prior
agreements or ordinances.
H.
Severability. If any section, provision or clause of this Agreement
is held by a court of competent jurisdiction to be unlawful, invalid
or unenforceable, or is pre-empted by federal or state laws or regulations,
such section, provision or clause shall be deemed to be severable
from the remaining portions of this Agreement and shall not affect
the legality, validity or enforceability of the remaining portions
of this Agreement.
I.
Change of law. In the event there is a change in a federal or state
statute or regulation applicable to the cable system or to this Agreement,
the Borough or Charter may notify the other party of its desire to
amend this Agreement in order to comply with the change in statute
or regulation. The Borough and Charter may amend this Agreement to
comply with such change in statute or regulation provided such amendment
is approved by the Borough and Charter. However, notwithstanding any
other provision in this franchise, in the event any change to state
or federal law occurring during the term of this franchise eliminates
the requirement for any person desiring to provide video service or
cable service in the service area to obtain a franchise from the Borough,
then Charter shall have the right to terminate this franchise and
operate the system under the terms and conditions established in applicable
law. If Charter chooses to terminate this franchise pursuant to this
provision, this franchise shall be deemed to have expired by its terms
on the effective date of any such change in law, whether or not such
law allows existing franchise agreements to continue until the date
of expiration provided in any existing franchise.
J.
Applicability of agreement. All of the provisions in this Agreement
shall bind Charter, the Borough and their respective successors and
assigns. This Agreement is authorized by the Borough of Lake City,
Ordinance No. 428-18, April 9, 2016.
