[HISTORY: Adopted by the City Council of the City of New Kensington as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-4-2022 by Ord. No. 1-22[1]]
[1]
Editor's Note: This ordinance also superseded former Art. I, Comcast Cablevision, adopted 8-12-2010 by Ord. No. 2-10.
The City Council does hereby approve the cable franchise agreement negotiated with Comcast, including all of the terms and conditions contained therein, and does hereby authorize the execution of such agreement.[1]
[1]
Editor's Note: A copy of the current agreement is on file in the office of the City Clerk.
[Adopted 4-14-2003 by Ord. No. 3-03]
A. 
In consideration of the continuing faithful performance and observance of the conditions, reservations, and agreements hereinafter contained, the right is hereby granted to PCOM Communications Company (hereinafter referred to as "PCOM"), a Pennsylvania corporation, its successors and assigns, for a period of 10 years from the date hereof, to erect, maintain and operate equipment and facilities for reception, transmission and distribution of radio and television signals and audio, visual, electric or electronic signals or impulses by any feasible equipment within the City of New Kensington, Westmoreland County, Pennsylvania (hereinafter referred to as "New Kensington"), and any extension or expansion thereof, and to locate, construct, renew, maintain, replace and operate the facilities required therefor, in, on, under, over, along, across, and upon the streets, sidewalks, alleys, bridges, highways and other public ways or places in New Kensington, at the expiration of 10 years, this franchise shall continue, consistent with applicable law. These rights shall be exercised in accordance with the laws of the United States of America, of the Commonwealth of Pennsylvania, and the ordinances, rules and regulations as shall be established from time to time by New Kensington, as well as, conformity with rights presently enjoyed by such utilities as the same now exist in New Kensington.
B. 
There is hereby further granted to PCOM its successors and assigns, subject to ordinances, rules and regulations of New Kensington, the right, privilege and authority to lease, rent, or in any other manner obtain the use of towers, poles, lines, cables and other equipment and facilities from any and all holders of public licenses or franchises within or partially within New Kensington and to use such towers, poles, lines, cables and other equipment and facilities. It is the intention of New Kensington that all other holders of public licenses and franchises within New Kensington shall cooperate with PCOM to allow PCOM's joint usage of their equipment and facilities whenever possible and wherever such usage does not interfere with the normal operation of such holders of public licenses and franchises so that the cost of the equipment and facilities constructed by PCOM may be minimized.
C. 
All equipment and facilities of PCOM may also be used for the reception, transmission, and distribution of radio and television signals and audio, visual, electronic, or electric, or electric signals or impulses to or from areas outside of New Kensington.
D. 
If New Kensington believes that PCOM is not in compliance with the requirements of this franchise, it may direct PCOM to correct the areas of noncompliance in accordance with the procedures set forth in § A245-23.
A. 
All equipment and facilities installed by PCOM pursuant hereto shall be located, erected and maintained so as not to endanger or interfere with the lives of persons, or to interfere with any new improvements New Kensington may deem proper to make, or to unnecessarily hinder or obstruct the free use of the streets, sidewalks, alleys, bridges, highways, and other public ways, or public places of New Kensington and shall be in accordance with the ordinances, rules, regulations as shall be established from time to time by New Kensington.
B. 
All installations shall be of a permanent, durable nature and shall be installed in accordance with good engineering practices, and shall comply with all existing and future regulations, ordinances and laws so as not to interfere with the right of the public or individual property owners, or other licenses and public utilities.
C. 
In the event PCOM is required to open or disturb any pavement, sidewalk or surface, PCOM shall, at its own expense and only in the manner approved by New Kensington, replace and restore all pavement, sidewalks or surfaces so disturbed to at least as good condition as before said work commenced, and shall do so only under rules and regulations as shall be established from time to time by New Kensington.
D. 
No equipment or facilities shall be erected by PCOM upon any streets, sidewalks, alleys, bridges, highways, or public ways or places under the jurisdiction of New Kensington unless permission is first obtained from the designated official of New Kensington in accordance with ordinances, rules, regulations as shall be established from time to time by New Kensington; provided, however, that such permission shall not be unreasonably withheld.
E. 
In the event that a change is made in the grade of public streets, sidewalks, alleys, bridges, highways, or other public ways or places which shall necessitate the removal or relocation of any equipment or facilities of PCOM, PCOM shall move its facilities at its own expense.
F. 
PCOM shall comply with a request for service in any area of New Kensington with a minimum density of seven homes per linear mile.
New Kensington shall not be liable to PCOM for any damages to the system that may occur as the result of some municipal activity unless such damages are occasioned to the system as the result of the negligence of an officer, agent, servant or employee of New Kensington.
A. 
PCOM 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 New Kensington.
(2) 
Property damage liability insurance in the amount of $300,000 and personal injury liability insurance in the amount of $500,000 as to any one accident.
B. 
PCOM shall idemnify, protect and save harmless 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, which may arise out of or be caused by the erection, maintenance, presence, use or removal of PCOM's equipment or facilities within New Kensington or by any act of PCOM, its agent or employees, and shall carry insurance in the above described amounts to protect New Kensington from and against all claims, demands, actions, judgments, costs, expenses, liabilities and damages arising or resulting directly or indirectly from or by reason of such loss, injury or damage. PCOM shall also indemnify, protect and save harmless New Kensington from any and all claims in law or in equity that the franchise herein granted is illegally granted by New Kensington and shall pay all legal expenses incurred by New Kensington in defending any claim that New Kensington acted illegally in granting the franchise.
C. 
All insurance required shall be and remain in full force and effect for the entire life of the rights granted hereunder. Upon request PCOM shall provide New Kensington with evidence of insurance coverage.
D. 
PCOM shall indemnify, protect and save harmless New Kensington from any losses to New Kensington arising out of PCOM's failure to secure consents from the owners or licensees of any programs where consents are required under applicable copyright laws, and PCOM shall repay to New Kensington any damages and expenses which New Kensington shall be compelled to pay by reason of such failure.
A. 
During the term of this franchise, PCOM shall pay to New Kensington as a franchise fee, a sum equal to 7% of PCOM's gross revenues received within New Kensington from the operation of its satellite/fiber optic system. Such payments by PCOM to New Kensington shall be in lieu of any other license tax or similar inspection fees.
B. 
PCOM shall file with New Kensington by the 20th day of the month following the close of each quarter, a statement showing the subscription receipts as defined herein. New Kensington shall have the right at any reasonable time to inspect the books of PCOM relative to customer's services and fees received; provided, however, that New Kensington shall not make public disclosure of any information gained as a result of such inspection without prior written consent of PCOM.
C. 
PCOM shall provide one free initial installation for each school, library, municipal building, and fire hall within the service area, making no charge whatsoever, either for installation or monthly rentals for converterless basic services.
D. 
PCOM shall file with New Kensington a map showing the location of lines and facilities and shall provide supplements showing extensions of such lines and facilities annually if requested by New Kensington.
A. 
PCOM shall have the right to charge and collect compensation from its subscribers for services rendered hereunder, including, without being limited to, monthly or other periodic service charges, and compensation for connecting reconnecting, inspecting, modifying, repairing or servicing any installation; provided, however, that copies of its subscription agreements and schedules of charges shall be filed with New Kensington.
B. 
PCOM shall have the right to make all rules and regulations governing its services as subject to applicable law.
PCOM shall reimburse New Kensington for expense incurred by it in publication of this ordinance within 30 days after New Kensington shall furnish PCOM with a written statement of such expense.
PCOM shall have the right to assign its rights and privileges hereunder, subject to the terms and conditions herein imposed, such assignment to become effective only upon the assignee's filing with New Kensington a written acceptance of the rights and privileges hereby granted, subject to the terms and conditions herein imposed.
PCOM will keep the system free of interference to television receivers and will provide all the necessary precautions to prevent interference; and in compliance with the articles of this ordinance will repair and maintain the system in a trouble-free condition at no cost or charge to the subscriber or New Kensington.
A. 
Should PCOM at any time fail to comply with any of the material terms and provisions of this franchise, the City of New Kensington Manager shall notify PCOM in writing, setting the nature and facts of such noncompliance as he/she believes have occurred. If within 30 days following receipt of such written notification PCOM has not furnished evidence that corrective action has been commenced and is being actively pursued, or evidence that the alleged default did not occur, the City of New Kensington Manager shall give written notice of not less than 20 days of a public hearing to be held before the City of New Kensington Council ("Council"). Said notice shall specify the violations alleged to have occurred.
B. 
If, after considering the City of New Kensington Council's request for termination of the franchise and hearing all interested parties, the Council determines that material violation has not occurred, the proceedings shall terminate. If the Council determines that the noncompliance of PCOM was with just cause, it shall direct PCOM to cure the default within a reasonable time.
C. 
In the event the Council determines that material violations exist and that PCOM has not corrected the same or has not commenced and is diligently pursuing correction, the Council may revoke and terminate this franchise.
D. 
No revocation or termination shall be effected unless the Council, at a regular or special meeting at which all interested parties, including PCOM, have been heard, shall have adopted a resolution setting forth the reasons for the termination.
E. 
PCOM shall not be declared at fault or be subject to any sanction under any provision of this franchise in any case in which performance of any such provision is prevented for reasons beyond PCOM's control.
It is the intention of New Kensington that to the extent any provision of this ordinance is superseded or prempted by any applicable state or federal law, that the latter shall prevail.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holdings shall not affect the validity of the remaining portions herein.