[Adopted 1-20-2000 by Ord. No. 17]
This ordinance shall be known and may be cited
as the "Kidder Township Cable Television Franchise Ordinance."
For the purpose of this ordinance, the following
terms, phrases, words and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in
the present tense shall include the future, words in the plural number
shall include the singular number, and words in the singular number
shall include the plural number. Terms otherwise defined in this ordinance
shall have the meaning ascribed to them in such other sections of
the ordinance. The word "shall" is always mandatory and not merely
directory.
Any broadband telecommunications service that is received
and retransmitted or originated at a primary control center and distributed
to a point of reception at the premises of the cable subscriber. Included
within this definition are those retransmitted signals of Federal
Communications Commission licensed television broadcast stations.
Antennas, coaxial cables, amplifiers, drop lines, other conductors,
and other equipment or facilities not limited to the foregoing, including
any of the same, and any services performed by the use of same furnished
by any public utility or other person or entity, whether pursuant
to tariffs or any other arrangement, necessary for or incidental to
the receiving of television signals or the transmission thereof to
customers at the selection of the company for a consideration, or
as a public service.
Gans Multimedia Partnership, a Pennsylvania general partnership,
grantee of the franchise pursuant to the terms of this ordinance.
The Board of Supervisors of Kidder Township, County of Carbon
and Commonwealth of Pennsylvania.
Kidder Township, County of Carbon and Commonwealth of Pennsylvania.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
Includes all public streets, ways, alleys and parkways owned
by the municipality.
The municipality hereby grants the right and
privilege to the company to construct, erect, operate and maintain
in, upon, along, across, above, over and under the streets, alleys,
public ways and public places now laid out or dedicated, and all extensions
thereof, and additions thereto, in the municipality, poles, wires,
cables, underground conduits, manholes and other television conductors
and fixtures necessary for the maintenance and operation in the municipality
of the community antenna television system for cable services.
A.
Nonexclusive grant. The franchise granted to the company is to be nonexclusive but otherwise in accordance with all the privileges and authorities granted by the agreement in this ordinance. The municipality covenants and agrees with the company that it shall not during the term as set forth in § A183-21 below grant to any other person, firm or entity a franchise, right or privilege to maintain and/or operate a community antenna television system for cable service within the municipality unless such franchise imposes on any such person, form or entity all the same terms, conditions and requirements as imposed upon the company under the terms of this ordinance.
B.
Use of existing utility facilities. It is hereby granted
to the company, its successors and assigns, subject to ordinances,
rules, regulations of the municipality, the right, privilege and authority
to lease, rent, or in any other manner obtain the use of the towers,
poles, lines, cables and other equipment and facilities from any and
all present and future holders of public licenses of franchises within
or partially within the municipality, and to use such towers, poles,
lines, cables and other equipment and facilities.
C.
Use of equipment and facilities. All equipment and
facilities of the company within the municipality may also be used
for the reception, transmission and distribution of radio and television
signals and audio, visual, electronic or electric signals or impulses
to or from areas outside of the municipality.
D.
State Highway Department permits. All rights and privileges
granted to the company by the municipality pursuant to this ordinance
are subject to the provisions of the Second Class Township Code of
the Commonwealth of Pennsylvania. Where a state highway is involved,
such construction shall be made under the conditions, restrictions
and regulations as may be prescribed in the permit to be obtained
from the Department of Transportation of the Commonwealth of Pennsylvania.
E.
Grant of prescribed rights. All rights and privileges
granted to the company pursuant to this ordinance further shall be
subject to the company obtaining any and all necessary easements,
rights-of-way and other grants from any and all property owners who
may be affected by the construction, operation and maintenance of
the aforesaid conductors and fixtures.
A.
The company shall at all times keep in effect the
following types of insurance coverage:
(1)
Workmen's compensation upon its employees employed
or performing services within the municipality.
(2)
Property damage liability insurance and personal injury
liability insurance in the aggregate amount of $1,000,000 as to any
one occurrence. Both the property damage and personal injury liability
insurance policies shall be in the name of the company and the municipality
as their interests may appear.
B.
The company does hereby agree to indemnify, defend,
protect and save harmless the municipality from and against losses
and physical damage to property and bodily injury or death to persons,
including payments made under any Workmen's Compensation Law and attorney's
fees which may arise out of or be caused by the erection, maintenance,
presence, use or removal of the company's equipment or facilities
within the municipality or by an act of the company, its agents or
employees, and shall carry insurance in the amount hereinafter set
forth to protect the municipality from and against all claims, demands,
actions, judgments, costs, expenses, liabilities and damages arising
or resulting directly or indirectly from or by reason of any such
loss, injury or damage. The company shall also indemnify and save
harmless the municipality from any and all claims in law or in equity
and shall pay all legal expenses incurred by the municipality in defending
any claim that the municipality acted illegally in granting the franchise
and adopting this ordinance. In case legal actions shall be filed
against the municipality, either independently or jointly with the
company, to recover for any claim or damages, the company, upon notice
to and by the municipality, shall defend the municipality, its agents
and employees against said action, and in the event of a final judgment
being obtained against the municipality, either independently or jointly
with said company, the company shall pay such judgment and all costs
and hold the municipality harmless therefrom.
A.
The company shall operate and maintain the community
antenna television system so that all customers shall receive signals
of good technical quality and a full range of available services.
Any complaints as to the quality of the signals or service shall be
promptly and satisfactorily investigated by the company, and adjustments
required to correct situations disclosed by such investigations shall
be made forthwith. It is hereby agreed by and between the company
and municipality that all installations by the company shall be of
a permanent and durable nature and installed in accordance with good
engineering practices and comply with existing and future ordinances
and regulations of the municipality so as not to interfere in any
manner with the rights of the public or individual property owners.
The community antenna television system shall not interfere with the
travel and use of public places or facilities by the public, nor shall
it obstruct or impede traffic.
B.
The company shall at all times keep at its office
full and complete maps, plans and records showing the location of
all franchise equipment and facilities installed in the streets, alleys
and other public places within the corporate limits of the municipality.
The company shall make available a telephone number to the customers
so that emergency interruptions to the service may be reported.
The company shall pay to the municipality for
the privilege of operating its community antenna television system
under this franchise the sum of 3% of its gross revenues derived within
the municipality (including revenues from all services furnished within
the municipality, for example, basic cable, expanded basic service,
premium channels consisting of HBO, Cinemax, The Movie Channel, and
Showtime, and Pay TV revenues). The company shall make payments within
60 days after the end of each calendar year. An annual summary report
showing such gross revenues received by the company shall be filed
with the Secretary of the municipality and a copy shall be kept in
the office of the company. This report shall be sworn to by either
the president, vice president, treasurer, or other finance officer
of the company. The municipality shall have the right to inspect at
reasonable times the records of the company relating thereto to the
extent necessary to verify the payments to which it is entitled. The
said sums of money to be paid to and accepted by the municipality
are in full payment for the privilege of using public thoroughfares
of the municipality for the purpose of carrying out this franchise,
except as other fees and charges may be required and made by laws
of the United States of America or the Commonwealth of Pennsylvania.
The term of this franchise shall be for 15 years,
commencing upon the execution of this ordinance. This ordinance shall
be renewable by the company for an additional fifteen-year term with
the approval of the municipality.
The franchise or privilege granted hereunder
shall be fully and freely assignable by the company, but no assignment
to any person, firm or corporation shall be effective unless the company
gives the municipality 60 days' prior written notice of its intent
to assign the franchise. Written notice shall be sent to the municipality
in care of its Secretary.
This grant is made on the express condition
that the company, within 30 days after this ordinance takes effect
and becomes operative, shall file with the Secretary of the municipality
a written acceptance of the same, and when this ordinance shall have
been accepted by the company, such ordinance and acceptance shall
constitute a contract between the municipality and company for all
the uses, services, and purposes set forth in this ordinance, and
the company, by its acceptance of the provisions of this ordinance,
binds itself to provide the necessary community antenna television
system and to establish, operate and maintain the local community
antenna television system contemplated by this ordinance, continuing
without substantial interruption except for causes beyond its control
until the expiration of the term of this grant. In the event that
the company fails to file written acceptance within the period herein
specified, this grant, together with any rights or liabilities arising
out of the franchise for furnishing an adequate community antenna
television system for the benefit of inhabitants of the municipality,
and the acceptance of such proposal by the municipality, shall be,
at the municipality's option, of no force or effect.
Should any federal or state agency hereafter
exercise jurisdiction over the subject matter of this franchise ordinance,
then, to the extent such jurisdiction shall preempt or preclude the
exercise of like jurisdiction by the municipality, the jurisdiction
of the municipality shall cease and terminate.
The municipality may at any time declare a forfeiture
of this grant for violation or default by the company of any of the
terms hereof, provided that none of the terms of this grant shall
be deemed to be violated so as to permit such forfeiture unless the
company shall first be given written notice by the municipality of
such violation or default and of the attempt to declare a forfeiture,
and thereafter such violation or default shall continue uncured (or
such cure being diligently pursued) for a period of more than 90 days,
all of the rights and privileges of the company under the provisions
of this ordinance shall be forthwith declared forfeited and revoked.
If any action shall be instituted or prosecuted directly or indirectly
by the company or by its stockholders or creditors to set aside or
have declared void any terms of this grant, the whole of this grant
may be thereupon forfeited and annulled at the option of the municipality
to be expressed by ordinance; provided, however, that the company
shall not be deemed to be in default of performance of any provision
of this grant, nor shall any forfeiture be invoked for any violation
of or failure to perform any provision hereof due to strikes, lockouts,
insurrections, acts of God or any cause beyond the control of the
company. Individual subscribers may sue the company if default as
aforesaid occurs. Notwithstanding anything to the contrary, if the
company shall fail to make any payment required hereunder within 30
days after the same is due, any privilege, franchise or permission
granted under this ordinance shall at the municipality's option become
null and void, and all rights and privileges of the company hereunder
shall cease and terminate.
If any article, section, subsection, provision,
regulation, limitation, restriction, sentence, clause, phrase, or
word in this ordinance is for any reason declared to be illegal, unconstitutional
or invalid by any court of competent jurisdiction, such decision shall
not affect or impair the validity of the ordinance as a whole, or
any other article, section, subsection, provision, regulation, limitation,
restriction, sentence, clause, phrase, word or remaining portion of
the within ordinance. The municipality hereby declares that it would
have adopted the within ordinance and each article, section, subsection,
provision, regulation, limitation, restriction, sentence, clause,
phrase and word thereof, irrespective of the fact that any one or
more of the sections, subsections, provisions, regulations, limitations,
restrictions, sentences, clauses, phrases or words may be declared
illegal, unconstitutional or invalid.
