[HISTORY: Adopted by the Borough Council of the Borough of Kane 12-6-1982 by Ord. No. A-822 as Ch. 8, Part 2 of the 1982 Code. Amendments noted where applicable.]
When used in this chapter, unless context otherwise requires, the following terms and their derivatives shall have the meaning herein given (and when not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular, and words used in the singular number include the plural):
BASIC CATV SERVICE
The distribution of broadcast television signals by the company.
BASIC SUBSCRIBER REVENUES
All remuneration received directly by the company from subscriber in payment for regularly furnished basic CATV service, but not including any taxes on services furnished by the company imposed on any subscriber or user by any government, governmental unit, political subdivision, agency or instrumentality, and collected by the company.
BOROUGH
The Borough of Kane.
CATV
A cable television system.
CABLE TELEVISION SYSTEM
A system composed of, without limitation, antenna, cables, wires, lines, towers, wave guides, or any other conductors, converters, equipment, or facilities, designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable radio, television or other electronic or electrical signals to and from persons, subscribers and locations in the franchise area.
COMPANY
Centre Video Corporation, the grantee of rights under this chapter.
COUNCIL
The governing body of the borough.
FRANCHISE AREA
The area within the corporate limits of the borough as now or hereafter constituted.
PERSON
Any natural person, company or entity of any kind.
PROPERTY OF COMPANY
All property owed, installed or used by the company in the conduct of a CATV business in the borough.
STREET
The surface of and the space above and below any public street, way, place, right-of-way, road, highway, freeway, bridge, tunnel, land, path, bike-path, alley, court, sidewalk, parkway, drive, communications or utility easements, by whatever name called, now or hereafter existing as such within the franchise area.
SUBSCRIBER
Any person or entity receiving and paying for basic CATV service.
A. 
Grant of authority. Subject to the provisions of this chapter, there is hereby granted by the borough to the company the right and privilege to engage in the business of operating and providing a CATV system in the borough and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any street or streets laid out or dedicated and all extensions thereof and additions thereto in the franchise area such as poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, including but not limited to any public utility or other person.
B. 
Duration. This franchise shall commence 30 days from the final passage hereof and shall continue for a period of 12 years, unless sooner terminated as provided in this agreement, provided that within 30 days of the date hereof by agreement signed by the borough and Centre Video both parties agree to be contractually bound by the terms, provisions, rights and obligations contained herein.
C. 
Nonexclusive grant.
(1) 
Nothing in this agreement shall affect the right of the borough to grant to any other person a franchise or right to occupy and use the streets or any part thereof for the construction, operation, and maintenance of a CATV system within the borough.
(2) 
Nothing in this chapter shall be in preference or hindrance to the right of the borough to perform or carry on any public works or public improvements of any kind. In the event the CATV system interferes in any manner with the construction, maintenance or repair of any public works or improvements, the company shall, at its own cost and expense, protect or relocate its system, or any part hereof, as directed by the borough. The company shall repair or replace any borough property damaged by it.
D. 
Effect on other franchises. This chapter is not intended, nor shall it be construed or interpreted, to diminish or limit or invalidate or render void any franchise heretofore granted or effective with respect to any public utility company within the limits of the borough.
E. 
Restriction on transfer or assignment. The company shall not sell or transfer its plant or system to another, other than a person controlling, controlled by or under common control with the company, nor transfer any rights under this franchise to another without Council approval. No sale or transfer of the company's assets used in the performance of this franchise shall be effective until the vendee, assignee or lessee has filed in the office of the Borough Manager, an instrument duly executed reciting the fact of such sale, assignment of lease, accepting the terms of the franchise and agreeing to perform all the conditions thereof. Such Council approval shall not be unreasonably withheld and neither this section nor other sections of this franchise shall preclude the mortgaging, hypothecating, or assigning of rights in the system, or the pledge of stock by the company for the purpose of financing.
A. 
The borough or the company shall have the right to terminate this agreement before the end of the franchise term if any condition ordered corrected by an award of arbitration is not corrected within 30 days after notification of the parties of the arbitration award.
B. 
Right to purchase.
(1) 
If the company elects to sell all or any part of the system servicing the borough, either during the franchise term or at its conclusion, the borough shall have a right of first refusal to purchase it for its fair market value. If the borough elects to purchase the system, the company shall promptly execute all appropriate documents to transfer title to the borough of its physical plant and equipment, other assets and records wherever located, and it shall also assign all other contracts, leases, licenses, permits and other rights necessary to maintain continuity of service to the public.
(2) 
The borough shall not have the right of first refusal to purchase the system under this section if the franchise is terminated in bad faith by the borough during the franchise term or any renewal of the franchise term.
(3) 
Fair market value of the system or any part of it shall be determined by a licensed cable television system broker. If the company and borough are unable to agree in the selection of a broker, the fair market value shall be determined by a panel of three licensed cable television system brokers selected as follows: one broker shall be selected by the borough; one broker shall be selected by the company; and one broker shall be selected by the two brokers previously selected by the borough and company.
(4) 
The borough shall have 60 days from the day the company notifies the borough of the company's election to sell all or part of the system to notify the company of the borough's intent to exercise its right to purchase. If the borough notifies the company of its intent to purchase, the parties shall proceed with all reasonable speed to consummate the sale.
C. 
Removal of the system. If the borough does not elect to purchase the system, the company, upon termination of the period of this franchise or any renewal thereof, by passage of time or otherwise, at the election of the borough, shall remove its supporting structures, poles, transmission and distribution systems and other appurtenances from the streets, ways, lanes, alleys, parkways, bridges, highways, and other public places in, over, under or along which they are installed within 60 days of such election and the company shall restore the areas to their original condition. If such removal is not completed within 60 days of such election, the borough may, at its option, deem any property not removed as having been abandoned. In the event the company fails to or refuses to remove the system, or to satisfactorily restore all areas to their original condition, the borough may at its option, perform such work and collect the cost thereof from the company or by demand under the bond hereinafter required.
D. 
Renewal. The company, if it has complied with the terms and conditions of this agreement, shall have the option of renewing this franchise for an additional term of 12 years, provided the option is exercised no later than one year prior to the expiration of the initial term of this franchise.
The company shall construct, operate and maintain the system so as to provide service to all parts of the borough as now or hereafter constituted.
A. 
All wires, cables, poles, conductors, amplifiers, feeders or other apparatus, materials or facilities, all of which are sometimes hereinafter referred to as facilities, erected, constructed, maintained or operated by company for the transmission or distribution of television signals shall interfere as little as possible with the ordinary and customary use of the public streets, alleys, lanes, ways and places and so as not to impede the use of the same by persons on foot or in vehicles or incommode the public use of the same or cause any unreasonable risk of injury, danger or damage to persons or property thereon. ln the event that any facilities of company, on, over, or across any public streets, alleys, lanes, ways or places are found to interfere with public improvements, the company shall, upon notification by the borough, remove or relocate the same at its own expense to a more suitable location.
B. 
All poles erected by company shall be good, straight poles, of sufficient strength and erected in a substantial, safe and neat manner. All wires, cables or other apparatus or materials attached to or suspended from poles shall be attached to or suspended in accordance with good engineering practice at a point as near the top of the pole as practicable and in no event at a distance from the surface of the ground less than the minimum distance contained in the recommendations of the National Bureau of Standards of the United States Department of Commerce now or hereafter in existence and in all other respects all facilities of company shall be erected, constructed, located and maintained in conformity with the recommendations of said Bureau and all of the same shall conform to at least the minimum standards and specifications of the National Electrical Safety Code or to any applicable rules and regulations of the Bureau of Fire Underwriters.
C. 
Wherever practicable company shall attach or suspend its wires, cables or other apparatus of facilities to or from poles of other corporations already holding franchise within the borough for the erection, maintenance or use of poles so as to avoid erection of additional poles within the borough, subject, nevertheless, to company's obtaining permission so to do from such other corporations relating to such attachment or suspension.
D. 
The company shall obtain express prior permission from the Secretary of the borough before erecting any pole on or within the limits of any public street, alley, lane, way or place.
E. 
All wires, cables or other apparatus or materials suspended on, over, or across any public street, alley, lane, way, or place or extending from any such place over or across any private premises shall be suspended above any roofs, structures or surfaces that may be used by firemen or other persons having access thereto at a height of not less than eight feet above the surface of such roofs, structures or place.
F. 
No wires, cables or other apparatus, materials or facilities of company shall be attached to or suspended from any trees growing in, on, upon or along or overhanging the public streets, alleys, lanes, ways and places.
G. 
The right of owners of premises abutting the public streets, alleys, lanes, ways and places to grow or maintain trees, grass, shrubs, vegetation or other property within the limits of the public streets, alleys, lanes, ways and places, subject to the public use thereof shall be recognized at all times by company and there shall be no interference with removal of or destruction of any of the same without express prior permission of the abutting owner. In the erection, construction, maintenance or operation of any of its facilities company shall not remove, cut, trim or prune any tree, bush, shrub or other vegetation growing in, on, along or upon the public streets, alleys, lanes, ways and places or growing on private premises but overhanging the public streets, alleys, lanes, ways and places unless prior thereto permission of the owner or person in charge or possession thereof shall have been obtained. Any removing, cutting, trimming or pruning of trees, bushes, shrubs or other vegetation shall be done by company in accordance with the best practices for such work and shall be subject to all rights of the owners thereof or of the owners of the premises abutting the public streets, alleys, lanes, ways and places in which such removing, cutting, trimming or pruning may be done.
H. 
The company shall repair and replace in the same condition as existed before the doing of any such work by it all public streets, alleys, lanes, ways and places, roads, or parts thereof, torn up or damaged. Upon the failure of company to make such repairs or replacements, borough may, after five days written notice served on company at its office within the borough or at such other place as company may maintain an office, make such repairs or replacements, and collect the cost thereof, plus 10% of such cost by appropriate legal proceedings or by demand under the bond hereinafter provided.
I. 
The borough shall have the right to attach its fixtures to any poles of company and to place thereon wires and equipment for the borough fire alarm system, police signal system, traffic control system or such other system the borough may require wires or cables for operation thereof, at points on said poles designated by company.
J. 
The company shall file with the Secretary of the borough when requested to do so, a map showing the location of all poles erected or maintained by it or showing the location of all poles of other corporations to or from which any facilities of company are attached or suspended.
K. 
The borough reserves the right to inspect the facilities of company on, over, and across the public streets, alleys, lanes, ways and other places at such periods of time as borough deems advisable. Such inspection, however, shall not relieve company of any responsibility, obligation or liability assumed pursuant to the terms and provisions of this chapter, nor shall it impose any liability on the borough. Such inspections shall be at no expense to the company.
L. 
The company shall not require or imply any requirement that any person desiring to receive service from company must purchase, lease or otherwise procure a television receiving set.
M. 
The company shall put, keep and maintain all parts of the system in good condition throughout the term of this franchise.
[Amended 11-22-1983[1]]
A. 
Services to be provided.
(1) 
The company shall provide CATV service over a system offering a selection of 20 channels. The company reserves the right to select, change or alter channel configuration, with due regard to public opinion, in order to keep up with the state of the art of the industry. The company will not curtail services because of any dispute with the Kane Borough Council.
(2) 
The company will provide transmission of FM radio signals.
B. 
Local office/complaints. The company shall maintain a local business office 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 company. Company shall respond to each subscriber complaint within 24 hours of such notification and use all reasonable efforts to correct the problem within 48 hours.
[1]
Editor's Note: This ordinance provides that in the event that installation of a twenty-channel system throughout the service area is not completed within one year of the date of enactment, then any rate increase for CATV service granted pursuant to this chapter shall be rescinded and refunds made to subscribers. This chapter shall be effective as of the date of the contract between the company and the borough.
[Amended 11-22-1983]
A. 
Rate schedule. As part of the agreement required to be submitted pursuant to Subsection A hereof, the appendix setting forth all rates and charges to be made to subscribers for basic CATV service to be provided by the company during the term of this franchise is attached. The company shall not increase its schedule of rates or charges for basic CATV services in excess of the attached appendix without prior express approval of the Borough Council under the procedures set forth herein, except as follows: Effective December 1, 1983 each monthly rate shall be increased by $1 so that the charge for CATV service as of December 1, 1983, will be $8.40. Each subsequent rate increase will be adjusted accordingly. In addition, beginning on the first day of the month following completion of the installation of twenty-channel selection throughout the service area, the company may charge an additional $2 per month for basic CATV service.
B. 
Rate increase procedure. An application for an increase in rates and charges shall be filed with the borough and the borough solicitor. The application shall be supported by proof, indicating that the existing rate schedule is inadequate and unreasonable and that the proposed increases are required to enable the company to render service and to fulfill its obligations under this chapter and to derive a reasonable profit therefrom. If the information is found inadequate, it will be referred to an arbitration board, by which the borough will select one individual, the company will select one individual, and a third party from an independent arbitration board will also be appointed. The company and the borough will abide by the final decision of the arbitration board. The Borough Council shall not consider any valuation based upon this franchise or the company's good will and these items of value shall neither be amortized as an expense now nor shall a return be paid on them.
A. 
Computation and payment. The company shall pay the borough, on or before the end of the month following each fiscal quarter, a franchise fee of 3% of basic subscriber revenues received for cable television operations in the borough for the preceding quarter, and no other fee, charge or consideration. Sales tax or other taxes levied on a par subscription basis and collected by the company shall be deducted from the gross annual basic subscriber revenue in computing any sums due the borough. The company shall provide a quarterly summary report showing gross annual basic subscriber revenues during the preceding quarter.
Responsibility for administering the terms of this chapter shall vest in the Borough Council. The Council, however, reserves the right to assign any such duties to any Committee of Council or any employee or agent of the borough, providing at no expense to the company.
A. 
Indemnification. The company shall do all that is reasonably necessary to protect persons and property, including any premises abutting the public streets, alleys, lanes, ways or places, from injury or damage by reason of erection, construction, maintenance or operation of facilities of company. By the act of erecting, constructing or continuing to maintain or operate any of its facilities on, over or across the public streets, alleys, lanes, ways and places company assumes all risks in regard to accidents and casualties of all kinds and physical injury, including death, to persons or property which may occur by reason of its erection, construction, maintenance or operation of its facilities, or in any manner incident thereto, and agrees to indemnify, protect and save harmless the borough, and all officers of borough, from and against all injury, liability, claims, demands, actions, suits, costs, loss or expense which may arise out of the erection, construction, maintenance or operation of any of its facilities, or in any manner incident thereto, regardless of the nature thereof or whether the same be due to negligence of company, its employees, contractors or subcontractors, or to the condition or inherent nature of any of the public streets, alleys, lanes, ways and places or other premises on, over or across which facilities of company may be erected, constructed, maintained or operated. company will defend any and all suits or actions, at law or in equity, arising by reason of its erection, construction, maintenance or operation of any of its facilities on, over or across the public streets, alleys, lanes, ways and places, or in any manner incident thereto, or arising out of operations or activities of company, its agents, servants, employees, licensees, contractors, subcontractors, in which the borough or any officer, employee or agent of the borough may be named as a party and will pay and discharge any claim, obligation or verdict which hereafter may be due from or awarded against the borough, or any officer, employee or agent of the borough, by reason of the erection, construction, maintenance or operation by the company or any of its facilities.
B. 
Insurance. Prior to erection, construction, maintenance or operation by company of any facilities on, over, or across any public street, alley, lane, way or place within the limits of the Borough of Kane, company shall furnish to borough a certificate issued by an insurance company authorized to do business within the Commonwealth of Pennsylvania showing insurance in effect covering company, in accordance with the usual or standard provisions of public liability policies within the Commonwealth of Pennsylvania in a minimum amount of $100,000 for injury or death to any one person and $300,000 as to any one accident, and in the minimum amount of $50,000 property damage for any one accident or casualty. Said certificate of insurance shall include that it covers all liability assumed by company as herein provided and shall further provide that no cancellation or termination of said policy shall be effective unless borough receives not less than 15 days written notice in advance of cancellation or termination. In the event that his Part 2 shall be in effect beyond the first policy year a similar certificate shall be furnished to borough for each succeeding policy year. In addition to the aforesaid insurance coverage, company shall insure its liability in accordance with the provisions of the Workmen's Compensation Act of the Commonwealth of Pennsylvania and shall furnish to borough a similar certificate of insurance relating to such coverage. The company has the option for $1,000 deductible.
C. 
Bond. The company shall furnish to borough a bond having thereon one or more corporate sureties authorized to do business in the Commonwealth of Pennsylvania in the amount of $5,000 to guaranty the payment of all sums which may at any time become due from the company to the borough under any terms or provisions of this agreement, including, inter alia, any franchise fee, interest, assessment and civil or criminal penalty.
D. 
Failure to maintain. The failure to maintain the insurance and bond required by this section shall constitute a breach of a material provision of this chapter, and shall subject company to all claims encumbered.
A. 
Improved technology. If the borough determines that the system or any part of it should be improved or upgraded in order that the subscribers are receiving services that keep reasonable pace with systems of comparable size and locale, and with the state of scientific and technological progress, it may order such improvement or upgrading of the system or any part of it to be affected by the company within a reasonable time thereafter. Such order shall be made only after giving due regard to the technological and practical limitations involved in the system. If the company disputes any such determination or the reasonable time within which it is to be implemented it may within 20 days after the issuance of the order, demand that the matter be arbitrated pursuant to this chapter.
Any matter of dispute between the borough and the company which arises under this chapter shall be determined by a panel of three arbitrators selected as follows: One arbitrator shall be selected by the borough, one arbitrator shall be selected by the company and one arbitrator shall be selected by the arbitrators previously chosen by the borough and the company. The expenses of the arbitration shall be borne by the parties in the manner as the arbitrators provide in their award. The determination of a majority of the arbitrators shall be binding on the parties.
A. 
It shall be unlawful for the company or for any other person, firm, partnership, co-operative association, association or corporation to erect, construct, or operate a CATV.system within the limits of the Borough of Kane, except in compliance with the terms and provisions of this chapter.
B. 
Unless otherwise provided, any person convicted of violating and provision of this chapter or any rule or regulation promulgated hereunder shall, upon conviction, be fined not more than $300.00 and costs for each offense or may be imprisoned for not more than 30 days. Each day of a continuing violation shall constitute a separate and distinct offense.
C. 
Public nuisance. In addition to any penalty provided or imposed, any condition caused or permitted to exist in violation of any provision of this chapter shall be deemed to be a public nuisance and may be abated by the borough as provided in law or equity. Each day such condition continues shall constitute a separate offense.
A. 
Right to amend. The Borough Council expressly reserves the right to amend this chapter with company approval.
B. 
Action by state or federal authorities.
(1) 
The company shall comply with all federal, state and local laws.
(2) 
In the event that any material provision of this chapter is held to be invalid or pre-empted by federal and state laws, rules or regulations, the borough shall have the right to terminate or modify this chapter with company approval.
C. 
Notice. Any direction, notice or order provided for herein shall be made in writing and posted in the United State mails by first class registered mail, return receipt requested in the following manner: if to the Borough Secretary, Borough of Kane, Kane, Pennsylvania; if to the company, District Manager, Centre Video Corporation, 58 Decibel Road, State College, Pennsylvania 16801. The delivery or mailing of such notice, direction or order shall be deemed to have been given upon receipt thereof.
D. 
Materiality. Specific mention of the materiality of any provisions of this agreement is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance is material or substantial.
E. 
Remedies cumulative. The rights and remedies reserved to the parties by this chapter are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of this chapter and a waiver thereof at any time shall not affect any other time.
F. 
Publication. The company shall pay the costs of any publishing and/or advertising of this chapter or any summary thereof which may be required by the Borough Code of Pennsylvania.[1]
[1]
Editor's Note: See 53 P.S. § 45101 et seq.
G. 
Severability. If any section, provisions, sentence, clause or part of this chapter shall, for any reason, be held unconstitutional, illegal or invalid, such unconstitutionality, illegality or invalidity shall not affect or impair any of the remaining sections, provisions, sentences, clauses or parts of this chapter. It is hereby declared by the Council and the Mayor of the Borough of Kane that this chapter would have been adopted and approved had such unconstitutional, illegal or invalid section, provision, sentence, clause or part not been included therein.