[HISTORY: Adopted by the Borough Council
of the Borough of Upland 8-7-1979 as indicated in article histories. Amendments noted where
applicable.]
[Adopted 8-7-1979 by Ord. No. 2-1979]
This ordinance shall be known and may be cited
as the "Borough of Upland Community Television Company Franchise Ordinance."
For the purpose of this ordinance, the terms
set forth below are defined as follows:
The Borough of Upland.
The grantee of rights under this franchise.
The Council of the Borough of Upland.
Any and all payments made to or compensation received by
Comcast or its affiliates, from subscribers of cable service in connection
with the operation of the cable system within the franchise area.
Gross annual receipts shall include fees charged to subscribers for
basic cable service; fees charged to subscribers for any premium,
per-channel or per-program services; charges for installation, additional
outlets, relocation, disconnection, reconnection and change-in-service
fees for video or audio programming; rental or sales of any and all
equipment, including converters and remote control devices; advertising
revenues, including national, regional, amid local advertising received
by the area system (excluding agency commissions) and commissions
received from home shopping channel sales generated in the franchise
area, and cable modem (Internet access) service only to the extent
that the company lawfully offers such service as a cable service.
Gross annual receipts shall not include non-cable service items such
as late payment fees; NSF check charges; converter deposits; bad debts
or any taxes on services furnished by Comcast and imposed directly
upon any subscriber or user by the Borough, state, federal or other
governmental unit.
[Amended 10-9-2001 by Ord. No. 6-2001]
Any natural person, firm, partnership, association, corporation,
company, trust, estate or organization of any kind.
Any person or entity receiving for any purpose the CATV service
from a CATV system of the company herein.
The franchise granted herein shall be nonexclusive.
A.
There is hereby granted by the Borough to the company
the right and privilege 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 Borough, poles, wires, cables
and underground conduits, as directed by the Borough, manholes and
other television conductors and fixtures necessary for the maintenance
and operation in the Borough of a CATV system for the reception and
distribution of television and audio signals.
B.
The right to use and occupy said streets, alleys,
public ways and places for the purposes herein set forth shall not
be exclusive, and the Borough reserves the right to grant similar
use of said streets, alleys, public ways and places to any other person
during the term of the franchise.
The company shall at all times during the initial
and renewal terms of this ordinance comply with and adhere to all
provisions of this ordinance and all other ordinances of the Borough,
laws of the United States of America and of the Commonwealth of Pennsylvania
and rules and regulations of all federal and state departments, bureaus,
commissions and boards of the United States of America and the Commonwealth
of Pennsylvania, including rules and regulations of the Federal Communications
Commission and the Department of Labor and Industry of the Commonwealth
of Pennsylvania.
This franchise shall extend throughout the territorial
limits of the Borough either as presently constituted or as hereafter
adjusted.
A.
The company shall indemnify, hold harmless and defend
the Borough from and against any and all costs, expenses (including
reasonable counsel fees), liabilities, losses, damages, suits, actions,
fines, penalties, claims or demands of any kind asserted by or on
behalf of any person or governmental agency or authority arising out
of or in any way connected with, and the Borough shall not be liable
to the company on account of any of the following:
(1)
Any failure by the company to abide by, keep or perform
any of the terms, conditions or provisions of this franchise;
(2)
Any failure by the company to comply with any statutes,
ordinances, regulations or orders of any governmental authority;
(3)
Any bodily injury (including death) or property damage
arising with respect to this franchise; or
(4)
Any act or activity relating to the granting of this
franchise to the company or to the operations conducted thereunder.
B.
In connection with any suit or other proceeding in
which the Borough shall be made a part, involving this franchise or
any act or activity conducted thereunder or relating thereto and which
may have any direct effect upon the Borough, the company, upon the
written request of the Borough, shall come in and defend such suit
on behalf of the Borough and shall bear all of the costs and expenses
relating thereto.
C.
Throughout the term of this franchise, the company shall, at its own cost and expense, maintain comprehensive general liability insurance insuring the Borough and the company with regard to all liabilities and contingencies mentioned in Subsection A herein in the minimum amounts of:
[Amended 10-9-2001 by Ord. No. 6-2001]
D.
The company shall maintain, during the period of construction,
a performance bond in favor of the Borough, with a good and sufficient
surety approved by the Borough, in the sum of $25,000, conditioned
upon the company's well and truly performing its several obligations
as set forth in this franchise, with regard to the construction phase
of this franchise. Said bond shall be to insure the faithful performance
of all undertakings of the company as represented in its application
for municipal consent incorporated herein.
E.
The insurance policy and bond obtained by the company,
in compliance with this section, must be approved by the Council,
which approval shall not reasonably be withheld, and such insurance
policy and bond shall be filed and maintained with the Council during
the term of this franchise.
F.
Neither the provisions of this section, nor any bond
accepted by the Borough pursuant thereto, shall be construed as excusing
faithful performance by the company or as otherwise limiting the liability
of the company under this franchise.
A.
The company shall render efficient service, make repairs
promptly and interrupt service only for good cause and for the shortest
time reasonably possible. Such interruptions, insofar as possible,
shall be preceded by notice and shall, insofar as possible, occur
during period of minimum use of the system.
B.
During the term of this franchise and any renewal
thereof, the company shall maintain a local business office or agent
for the purpose of receiving, investigating and resolving all complaints
regarding the quality of service, equipment malfunctions and similar
matters. Such local business office shall be open during normal business
hours and in no event less than between the hours of 9:00 a.m. and
5:00 p.m., Monday through Friday.
[Amended 10-9-2001 by Ord. No. 6-2001]
A.
Cable service to governmental and institutional buildings.
The company shall, upon request, provide free installation of one
outlet and complimentary basic cable service to each municipal administrative
building (e.g., Borough Hall, Police Station, Public Works Garage,
fire and ambulance facilities), schools (K-12) and public libraries
located in the franchise area within 125 feet of the company's distribution
cable.
B.
Cable modem service to schools and library buildings.
The company shall, upon request, provide free installation of one
outlet and complimentary cable modem service to schools (K-12) and
public libraries located in the franchise area within 125 feet of
the company's distribution cable.
C.
The company shall not be required to provide an outlet
to such buildings where a nonstandard installation beyond 125 feet
is required, unless the Borough or building owner/occupant agrees
to pay the incremental cost of any necessary cable system extension
and/or nonstandard installation. If additional outlets of cable service
or cable modem service are to be provided, the building owner/occupant
shall pay the usual installation and service fees associated therewith.
A.
In the use and occupation of the surfaces, subsurfaces
and spaces above, below and adjoining the streets, public ways and
places of the Borough, the company's equipment and plant and their
construction, operation and maintenance shall be in accordance with
the provisions of the following:
(1)
The National Electrical Code of the National
Board of Fire Underwriters;
(2)
The Standards and Practices Code of the National
Community Television Association; and
(3)
Such applicable ordinances, codes, laws and
regulations of the Borough, County of Delaware, State of Pennsylvania
and the United States of America, which are now in effect or hereafter
enacted.
B.
The company's equipment and plant shall be kept and
maintained in a safe, suitable and substantial condition and in good
order and repair so as not to endanger the lives or interfere unreasonably
with the rights of persons or to cause physical damage to property
or to interfere with improvements the Borough may deem proper to make
or to hinder or obstruct unnecessarily pedestrian or vehicular traffic
on streets, public ways and places.
C.
Where the Borough or a public utility serving the
Borough desires to make use of the poles or other wire-holding structures
of the company but agreement therefor with the company cannot be reached,
the Council may require the company to permit such use for such consideration
and upon such terms as the Council shall determine to be just and
reasonable if it is determined by the Council that the use would enhance
the public convenience and would not unduly interfere with the company's
operations.
D.
The company shall, upon not less than five working
days' advance notice, temporarily raise, lower or relocate its wires
and cables to permit the moving of buildings, and the expenses incurred
by the company in such raising, lowering or relocation shall be paid,
in advance, by the person or concern requesting the same.
E.
The company shall, at its own cost and expense, replace,
restore or repair any street, sidewalk, alley, public way or paved
area destroyed or damaged by the company or its agents, employees
or servants.
F.
If, at any time during the term of this franchise,
the Borough shall elect to alter or change the grade of any street,
sidewalk, alley or other public way or, when required by reason of
traffic conditions, public safety, street vibration, freeway and street
construction, installation of sewers, drains, water pipes, power lines,
signal lines and tracks or any other type of structure or improvements
when acting in a governmental or proprietary capacity, the company,
upon reasonable notice by the Borough, shall remove, relay and relocate
its poles, wires, cables, underground conduits, manholes and other
fixtures at its own cost and expense.
G.
The company has the right, at its own cost and expense,
to set their own poles if necessary for the proper, efficient and
economical establishment of the cable television system. The setting
of said poles shall be with the approval of the Borough.
It shall be the policy of the Borough to liberally
amend this franchise, upon application of the company, when necessary
to enable the company to take advantage of any developments in the
field of transmission of television and radio signals which will afford
it an opportunity to more effectively, efficiently or economically
service its customers; provided, however, that this section shall
not be construed to require the Borough to make any amendment or to
prohibit it from unilaterally changing its policy stated herein.
A.
In the event that the use of any part or all of the
CATV system is discontinued for any reason for a continuous period
of 12 months or that such system or property has been installed in
any street or public place without complying with the requirements
of this franchise or that the franchise shall have been terminated,
canceled or expired for any reason, the company, upon notice, shall
promptly remove from the streets or public places all such property
and poles of such system other than any which the Council may permit
to be abandoned in such place and shall also remove house distribution
cables and connections. In the event of any such removal, the company
shall promptly restore the street or other area from which such property
has been removed to a condition satisfactory to the Council.
B.
Upon termination of service to any subscriber, the
company shall promptly remove all of its facilities and equipment
from the premises of such subscriber upon his or her request. Failure
to return said equipment may result in criminal charges for theft
being brought against the subscriber, since said facilities and equipment
are the property of the company and remain the property of the company
even after the termination of the service.
Upon failure of the company to complete any
work required by law or by provision of this ordinance to be done
in any street within the time prescribed and to the satisfaction of
the Council, the Borough may cause such work to be done, and the company
shall pay to the Borough the cost thereof in the itemized amounts
reported by the Director of Streets and Public Improvements to the
company, within 30 days after receipt of such itemized report.
The company shall not, as to rates, charges,
service, facilities, rules, regulations or in any other respect, make
or grant any preference or advantage to any person, nor subject any
person to any prejudice or disadvantage, provided that nothing in
this franchise shall be deemed to prohibit the establishment of a
graduated scale of charges and classified rate schedules to which
any customer coming within such classification would be entitled.
A.
The company shall not transfer this franchise to another
person, nor shall the identity of the general partner of this company
be changed, without the prior written approval of the Borough, which
approval shall not be unreasonably withheld.
B.
The company shall file forthwith with the Council
a list of the names and addresses of all of its present limited partners.
The company shall also inform the Council in writing of the names
and addresses of any other persons who shall thereafter become limited
partners in the company, either by original purchase from the company
or transfer, within 15 days after such person acquires his limited
partnership interest.
Copies of all petitions, applications and communications
submitted by the company to the Federal Communications Commission,
Securities and Exchange Commission or any other federal or state regulatory
commission or agency having jurisdiction in respect to any matters
affecting CATV operations authorized pursuant to this franchise shall
be made available to the Borough if requested. The company and Borough
shall fully cooperate with each other in obtaining approval from the
Federal Communications Commission in all respects.
A.
The right is hereby reserved to the Council to adopt,
in addition to the provisions contained herein and in existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of the police power.
B.
The Borough shall have the right to inspect the books,
records, maps, plans and other like materials of the company at any
time during normal business hours.
C.
The Borough shall have the right, during the terms
of this franchise, to install and maintain free of charge upon the
poles of the company any wire and pole fixtures necessary for a police
and/or fire alarm system on the condition that such wire and pole
fixtures do not interfere with the CATV operations of the company.
An annual summary report showing gross receipts
received by the company from its operations within the Borough during
the preceding year, and such other information as the Borough shall
reasonably request with respect to properties and expenses related
to the company's service within the Borough, shall be filed with the
Borough by the company on or before April 4 of each year.
[Amended 10-9-2001 by Ord. No. 6-2001]
A.
The company shall pay to the Borough of Upland, on
an annual basis throughout the term of this franchise, a sum totaling
5% of gross annual receipts received by Comcast from its operation
of the cable system within the Borough. Such amount shall be paid
by the company to the Borough in quarterly installments due no later
than 45 days following the end of calendar quarters ending March 31,
June 30, and September 30; and 60 clays following the end of the calendar
year, ending December 31.
B.
Upon the request of the Borough, the company shall
submit a report of gross annual receipts for such calendar year certified
by a representative of Comcast. Upon 20 business days' written notice,
the Borough shall have the right to conduct an independent audit of
the company's financial records that are directly relevant to the
payment of the franchise fee. All audits shall be at the expense of
the Borough unless the audit reveals an underpayment of more than
5% in the amount of the franchise fee due the Borough, in which event
the cost of the audit shall be borne by the company.
C.
In the event that federal law is amended, notwithstanding § A188-19A herein above, Comcast shall pay the maximum franchise fee percentage amount permitted by law during the term of the franchise. Any increase in the franchise fee shall be pursuant to formal action by the governing body and shall be implemented as soon as practicable, but no later than 60 days following receipt of written notice from the Borough to Comcast requesting the increase. A copy of the resolution or ordinance authorizing the rate increase shall accompany such written notice.
The company agrees not to oppose intervention
by the Borough in any suit or proceeding to which the company is a
party and which may have a predictable direct affect on the company's
operations within the Borough.
A.
The consent herein granted shall expire 20 years from
the effective date of this ordinance.
B.
The consent granted herein shall be subject to renewal
for a period of 20 years at the expiration of the present term. Said
franchise shall automatically renew itself under the present terms
and conditions, upon the failure of either the Borough or the company
to give the other party 180 days' notice in writing of its intention
to terminate said franchise or to renegotiate said franchise. In the
event that either party desires to renegotiate said franchise, there
shall be a review of the performance of the company and the adequacy
of the terms of the present franchise in a determination of any extension
or renewal of said franchise.
[Amended 10-9-2001 by Ord. No. 6-2001]
All rates, fees, charges, deposits and associated
terms and conditions to be imposed by the company or any affiliated
person for any cable service shall be in accordance with the FCC's
rate regulations. Before any new or modified rate, fee, charge, deposit
or associated term or condition may be imposed, the company must follow
the applicable FCC notice requiremnents and rules amid notify affected
customers, which notice may be by any means permitted under applicable
law. The preceding requirement shall not prevent the company from
using bulk, commercial, promotional and other rates as acceptable
by federal law.
The company shall begin construction no later
than six months after the receipt by the company of all Federal Communications
Commission permits and approvals, all state and local permits and
approvals and the signing of all joint-use agreements for the necessary
public utility companies and after all necessary rearrangement of
existing utility poles has been completed in order that they are put
in compliance with the National Electric Safety Code. Said construction
will continue by the company until all construction is completed.
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 holding shall not affect the validity of the remaining portions
hereof.
The Borough and the executive officers of said
Borough shall issue to the company, in the name of the Borough, all
permits necessary or convenient to evidence the grant of the franchise
herein and to implement the provisions of this ordinance.
In the event that this ordinance is inconsistent
with or not in conformity with any ordinance in Delaware County to
which Southeastern Cable Vision Company is a party or signatory, the
premises of said other ordinance shall control in all cases where
the provisions of that ordinance are more favorable to the municipality
than the present ordinance.
All ordinances or parts of ordinances conflicting
with the provisions of this ordinance are hereby repealed to the extent
of such conflict.
All of the written commitments contained in
the written application, except as modified herein, are to be considered
to be binding upon the applicant as the terms and conditions of this
consent, and that application shall be annexed hereto and made a part
hereof by reference.[1] Any portion of said application in conflict with the provisions
of Federal Communications Commission Rules and Regulations, Section
76.1 et seq. (1972), as amended and as clarified, Federal Communications
Commission clarification of rules, 39 Federal Register 14288 through
14300 (April 1974) and report and order adopted July 22, 1977, released
September 30, 1977, in the matter of amendment of Subparts b and c
of Part 76 in the Commission's rules pertaining to applications for
certifications of compliance of federal-state/local regulatory relationships,
and which exceeds any Federal Communications Commission rules, shall
not be considered effective or enforceable.
[1]
Editor's Note: A copy of the application is
on file in the office of the Borough Secretary.
The company agrees to pay the Borough any and
all responsible attorney fees, engineering fees and other professional
fees incurred by Borough in the adoption of this ordinance by the
Borough and in the implementation of the franchise herein granted.
This municipal ordinance shall become effective
as of the date upon which the municipality received written notification
that the company accepts the terms and conditions herein.
[Adopted 6-24-2008 by Ord. No. 6-2008]
The Borough of Upland hereby authorizes the
entering into of a cable franchise agreement with Verizon Pennsylvania,
Inc., to construct, install, maintain, extend and operate a cable
communications system, the specific terms of which, agreeable to both
parties, shall be memorialized in said agreement.
If any sentence, clause, section or part of
this ordinance is, for any reason, found to be unconstitutional, illegal
or invalid, such unconstitutionality, illegality or invalidity shall
not affect or impair any of the remaining provisions, sentences, clauses,
sections or parts hereof. It is hereby declared as the intent of the
Borough of Upland Council that this ordinance would have been adopted
had such unconstitutional, illegal or invalid sentence, clause, section
or part thereof not been included herein.
All ordinances or parts of ordinances conflicting
with any provisions of this ordinance are hereby repealed insofar
as the same affects this article.
This amendment shall be effective five days
following adoption, as by law provided.
