Township of Girard, PA
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Supervisors of the Township of Girard 7-10-1979 by Ord. No. 39 (Ch. A120 of the 1987 Code). Amendments noted where applicable.]
A202a Cable Franchise Agreement
This ordinance shall be known and may be cited as the "Cable Antenna Television Franchise Ordinance."
A. 
When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall is always mandatory and not merely directory.
B. 
For the purposes of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein:
COMMUNITY ANTENNA TELEVISION SYSTEM (HEREINAFTER REFERRED TO AS "CATV SYSTEM" OR "SYSTEM")
A system of coaxial cables or other electrical conductors and equipment used or to be used primarily to receive television and/or radio signals directly or indirectly off the air and transmit them to subscribers for a fee and/or to provide other lawful services to subscribers for a fee through facilities as herein contemplated.
GRANTEE
The party to which a permit and franchise is granted by this ordinance, as well as any lawful successor or assignee of said "grantee."
GROSS OPERATING REVENUES
Any and all compensation, fees, charges or receipts obtained from and as a result of the operation of the cable system by the grantee, except that said term shall not include:
(1) 
The amount of any refunds, credits or other payments made to subscribers or users.
(2) 
Any taxes on services furnished by the grantee, imposed directly or indirectly on any subscriber or user by any municipal corporation, political subdivision, state or other governmental unit and collected by the grantee for the governmental unit.
(3) 
Receipts for the sale or transfer of tangible property.
(4) 
Receipts for the sale or transfer of the system or any part thereof.
(5) 
Receipts by the grantee from subscribers and other sources outside of the Township of Girard.
(6) 
Neither the rental charge as set forth in § A202-17 nor any charge presently enacted or to be enacted in the future or any of the above shall operate to discharge the grantee from payment of any tax under the Local Tax Enabling Act or any other legally enacted tax, interest or charge.
(7) 
No privilege or exemption shall be granted or conferred by any franchise granted under this ordinance except that specifically prescribed herein.
(8) 
Pay television service charges.
(9) 
All installation charges.
(10) 
Deposits which are refundable to subscriber.
(11) 
Advertising expenses as required for promotion of the service within the community and which are subject to approval by the Supervisors.
PERSON
Any person, firm, partnership, association, corporation, company or organization of any kind.
STREET
The surface of, and the space above and below, any public street, road, highway, freeway, right-of-way, easement, alley, court, sidewalk, parkway, drive or other public property hereafter existing as such within the Township.
SUBSCRIBER
Any person or entity receiving for any purpose the CATV system services of the grantee herein.
SUPERVISORS
The elected Supervisors of the Township of Girard, Erie County, Pennsylvania.
TOWNSHIP
The Township of Girard, Erie County, Pennsylvania.
A. 
Under the conditions hereinafter set forth in this ordinance, any nonexclusive franchise granted pursuant to the provisions of this ordinance shall authorize and permit the grantee to engage in the business of operating and providing a CATV system within the Township and, for that purpose, 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 Township, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Township of a CATV system for the interception, sale and distribution of television and radio signals or other lawful services by cable to subscribers for a fee, subject to the terms, conditions and provisions contracted herein.
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 Township reserves the right to grant other uses of said streets, alleys, public ways and places to any person at any time.
C. 
The Supervisors or their designee shall have the final control as to whether or not the Supervisors will permit the construction, erection and/or replacement of poles, wires, cables, underground conduits, manholes, television conductors, fixtures and all other equipment and items used by grantee upon, along, across, above, over and under the streets, alleys, public ways and public places. The location and installation of all such items, apparatus and appurtenances hereunder shall be subject to the final approval of the supervisors and their designee.
D. 
The grantee shall have no recourse whatsoever against the Township for any loss, cost, expense or damage arising out of any provision or requirement of this ordinance or its enforcement, other than wrongful termination of a franchise granted hereunder.
E. 
The grantee shall be and is hereby subject to all requirements of Township ordinances heretofore or hereafter enacted.
This franchise relates to the present territorial limits of the Township and to any area henceforth added thereto during the term of the franchise. The grantee shall not be required to extend service, however, other than as provided in the contract contemplated hereunder.
A. 
In the event of an emergency or disaster, the grantee shall, upon request of the Supervisors and/or their designee, make available its facilities to the Township at no cost for emergency use during the period of such emergency or disaster and shall provide at no cost such personnel as necessary to properly operate under the circumstances.
B. 
The grantee shall provide one outlet to each municipally owned building, fire station, police station and public or private school that is passed by its cable. Said outlets shall be conventional viewing outlets of the type supplied to subscribers and shall be supplied without installation charges or monthly service charge. If more than one outlet is requested at any of said locations, the grantee shall install same at the cost of time and materials only and without any service charge.
C. 
The Township shall have the right, at its own cost, to make attachments to facilities owned by the grantee in connection with its fire or police signal systems or other Township use, such attachments to be installed and maintained in accordance with the requirements of the applicable electrical codes and only after written notice to the grantee. There shall be no monthly service charge at such locations. The grantee shall assume no liability or expense in connection with the Township's use of the grantee's facilities, and the Township's use thereof shall be in such a manner as not to unreasonably interfere with the cable television operations of the grantee, except in cases of emergency.
D. 
The Township, in its use and maintenance of such wires and fixtures installed for fire and police signal systems, shall at all times comply with all the technical specifications and the rules and regulations of the grantee in order that there be a minimum danger of contact or conflict between the wires and fixtures of the grantee and the wires and fixtures used by the Township. Any adjustments of equipment or fixtures made by the Township must be compatible with the system.
A. 
All transmission and distribution structures, lines and equipment erected by the grantee within the Township shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places.
B. 
In case of disturbance of any street, sidewalk, alley, public way or paved area, the grantee shall obtain all necessary permits applicable and, at its own cost and expense, replace and restore such street, sidewalk, alley, public way or paved area in accordance with all Township codes, regulations and ordinances and in a condition commensurate with the present zoning requirements and specifications for that type of street, alley or sidewalk and under and subject to the final approval of the Supervisors. The grantee shall maintain, repair and keep in good condition for a period of one year following such disturbance all portions of any sidewalk, street, alley, public way or paved area disturbed by it or its agents, provided that such maintenance and repair shall be made necessary because of defective workmanship or materials supplied by the grantee.
C. 
If at any time during the period of this franchise the Township shall lawfully elect to alter or change the grade of any street, sidewalk, alley or other public way, the grantee, upon reasonable notice by the Township, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes, other fixtures and equipment at its own expense.
D. 
Any poles or other fixtures placed in any public way by the grantee shall be placed in such manner as not to interfere with the usual travel on such public way.
E. 
The grantee shall, on the request of any person holding a building or moving permit issued by the Township, temporarily move, raise or lower its wires to permit the erection or moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the persons requesting the same, and the grantee shall be given not less than 48 hours' advance notice to arrange for such temporary wire changes. Nothing herein shall limit the right of the grantee to seek reimbursement from persons who damage or destroy its facilities.
F. 
The grantee, after notice and written approval of the Supervisors, shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public ways and places of the Township so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee. All necessary permits shall be first obtained before any repairs and maintenance.
It shall be lawful for the grantee, after public hearing by the Supervisors in relation to rates, services, conditions and the like, to provide pay television or Home Box Office or similar services as an option to its subscribers through the use of the system.
A. 
The grantee shall:
(1) 
Produce a picture, whether in black and white or in color, that is undistorted, free from ghost images and accompanied with proper sound on typical standard production television sets in good repair and as good as the state of the art allows. The grantee shall comply with the requirements of 76.605 and 76.605a of the Federal Communications Commission Standards, effective March 31, 1977, and all other rules of the Federal Communications Commission to the extent said provisions are applicable to the grantee's system.
(2) 
Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing cross modulation in the cables and/or interference with other electrical or electronic systems.
(3) 
Limit failures to a minimum by locating and correcting malfunctions promptly.
(4) 
Reasonably demonstrate by instruments and otherwise to subscribers that a signal of adequate strength and quality is being delivered.
B. 
Notwithstanding the above requirements, the grantee shall not be responsible for picture and/or sound deficiencies which relate to the receipt of inadequate signals at its towers or other shortcomings outside of its control.
C. 
Grantee shall, at all times during the term of any franchise granted under this ordinance, at its own cost and expense, properly and in good workmanlike manner install and maintain adequate shielding, filtering and grounding at affected installations within the CATV system to eliminate television interference encountered from outside sources.
The grantee shall render efficient service, make repairs immediately and interrupt service only for good cause and for no longer than 24 hours. If the interruption is longer than 24 hours, public notice shall be given in a publicly circulated daily newspaper.
The grantee shall not, as to maximum allowable rates or charges, service, service facilities or rules and regulations, make or grant any undue preference or advantage to any person, nor subject any person to undue prejudice or disadvantage. The provisions herein providing for school and municipal facilities shall not be deemed violative of this section.
Upon termination of service to any subscriber, the grantee shall promptly remove, at no cost, all its facilities and equipment which relate exclusively to that subscriber from the premises of such subscriber upon the request of the owner of the premises.
A. 
This franchise shall be a privilege to be held in personal trust by the grantee. This franchise shall not be assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein pass or vest in any person either by the act of a grantee or by operation of law, without the express written consent of the Supervisors. The granting, giving or waiving of any one or more of such consents shall not render unnecessary any subsequent consent or consents.
B. 
The consent or approval of the supervisors to any assignment, lease, transfer sublease or mortgage of the franchise shall not constitute waiver or release of the rights of the Township in and to the streets.
C. 
Prior approval of the Supervisors shall be required where ownership or control of more than 10% of the right of control of grantee is acquired by a person or group of persons acting in concert, none of whom already own or control 10% or more of such right of control, singularly or collectively, at the date the franchise is granted. By its acceptance of the franchise, a grantee specifically agrees that any such acquisition occurring without prior approval of the Supervisors shall constitute a violation of this ordinance by the grantee.
D. 
If at any time during the continuance of this agreement and/or franchise or any renewal thereof, prefer notice shall be first given to the Supervisors if there is an attempt to remove or in the case of judicial seizure or sale of said property of said grantee, or if grantee shall take an assignment for the benefit of creditors or application is made for appointment of a receiver for said grantee, or in the case of petition for adjudication of grantee as a voluntary or involuntary bankrupt shall be filed, or upon the failure of grantee to pay any fees due or to keep all the covenants or provisions of this ordinance, then the ordinance, agreement and contract with the grantee shall be deemed null and void and all rights thereunder forfeited by grantee. This section can be waived by the Supervisors if it at any time interferes with the proper financing of the system.
E. 
Should the Supervisors fail to accept said offer to purchase the grantee's facilities by giving the required notice as set forth hereinabove, the grantee shall be free to accept the third-party offer and may transfer its facilities and franchise in accordance with the terms of said offer, subject to approval of the responsibility of this transfer by the Supervisors, which approval shall not be unreasonably withheld. Said purchaser shall hold the facilities and franchise, subject to all the terms and conditions of this ordinance.
A. 
The grantee shall at all times employ the highest and best accepted standards in the industry and shall install and maintain its equipment using the highest and best standards in the industry for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
B. 
The grantee shall install and maintain its wires, cables, fixtures and other equipment in such a manner that they will not interfere with any installations of the Township or of a public utility serving the Township.
C. 
The grantee shall see that all structures and all lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys and public ways or places of the Township, wherever situated or located, shall at all times be kept and maintained in a safe, suitable substantial condition and in good order and repair.
D. 
The grantee shall maintain a force of one or more agents or employees at all times and shall have sufficient employees to provide safe, adequate and prompt service for its facilities.
E. 
The grantee shall, at its own cost and expense, protect, support, temporarily disconnect, relocate in the same street, alley or public place or remove from the street, alley or public place any property of the grantee when required to do so by the Supervisors by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks or any type of structure or improvements by governmental agencies when acting in a governmental or proprietary capacity, or other structures or public improvements.
F. 
The grantee shall comply with all Township ordinances and regulations.
Copies of all petitions, applications and formal communications submitted by the grantee 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 also be submitted simultaneously to the Supervisors, provided that the Supervisors make such request to the grantee. Each party hereto shall promptly supply the other with any complaint, other than service call requests, received from subscribers relating to cable television service within the Township of Girard during the term of this franchise. The Supervisors shall have the authority to receive all complaints regarding the CATV system and its services.
A. 
This franchise and the rights, privileges and authority hereby granted shall take effect and be in force from and after final passage hereof as provided by law and shall continue in force and effect for a term of 10 years, provided that concurrently with the signing of this ordinance, a contract shall be signed between the parties wherein the grantee shall promise to comply with and abide by all provisions, terms and conditions of this ordinance. Such acceptance and promise shall be in the form of a contract between the Township and the grantee and shall be in writing, duly executed and sworn to by or on behalf of the grantee before a notary public or other officer authorized by law to administer oaths.
B. 
Should the grantee fail to comply with Subsection A above, it shall acquire no rights, privileges or authority whatever under this franchise.
C. 
Supervisors may at any time establish a review committee made up of interested citizens and Supervisors to review the performance of the grantee in relation to this franchise. After it is found by the Supervisors that the grantee has not complied with the terms of this agreement, the Township shall notify the grantee and take the proper steps for correction as provided in § A202-19 of this ordinance.
A. 
The following rates and charges are hereby authorized for service to single-family residences within the Township of Girard under this franchise and shall not be changed by the grantee without prior approval by the Supervisors:
(1) 
Initial tap-in and connection charges shall not exceed $15 per single-family residence.
(2) 
Monthly and seasonal rates shall be established in the contract.
(3) 
Additional connections for single-family residences shall be an installation fee at the rate of $8.50 plus a service charge of $1.50 per month. However, if said additional connections are made at the time of initial tap-in, no additional fee should be charged.
B. 
The rates applicable to establishments other than single-family residences shall be filed with the Township but shall be subject to approval by the Supervisors.
C. 
If in the future the State of Pennsylvania or any federal agency regulates the rates of the grantee for the service provided for in this franchise, this section shall be of no effect during such state or federal regulation to the extent of any conflict therewith.
D. 
No increases in rates charged to subscribers shall be made except after a public proceeding affording due process and written authorization from the Supervisors.
During the term of this franchise and any extension thereof, the grantee shall pay to the Township a percentage of the annual gross operating revenue as determined by the Township; provided, however, that the percentage shall not exceed that allowable by federal regulations. Payment shall be made on a quarterly basis, that is, March 31, June 30, October 31 and December 31. Time shall be of the essence in regard to all payments to be made by grantee. If such payments shall not be made on time, grantee shall be deemed in default of this ordinance and contract with the Township. The Township has the right to inspect the books and financial statements of the grantee to determine the accuracy of the payments.
A. 
The grantee shall, at all times during the term of this franchise, comply with all applicable rules and regulations of the Federal Communications Commission and other federal and/or state authorities which may have jurisdiction over the grantee's facilities.
B. 
Each grantee shall be prepared to show, on request of the Township, that the grantee's system does, in fact, comply with the rules of the Federal Communications Commission and does comply and has been designed, installed and operated in a manner that fully complies with the provisions and technical standards of the Federal Communications Commission.
A. 
In addition to all the rights and powers reserved or pertaining to the Township, the Township reserves, as an additional and as a separate and distinct power, the right to terminate this franchise and all rights and privileges of the grantee herein in any of the following events or for any of the following reasons:
(1) 
If the grantee shall, by act or omission, violate any term or condition of this ordinance and shall, within 30 days following written demand by the Township to effect compliance, fail to bring its activities into compliance; and/or
(2) 
If a grantee attempts or does practice any fraud or deceit in its conduct or relations under the franchise with the Township or subscribers or potential subscribers; this clause shall indemnify and save all harmless to the Township.
B. 
No termination shall be effective unless or until the Supervisors shall have adopted a resolution setting forth the causes and reasons for the termination and the effective date thereof. Such a resolution shall not be adopted without 30 days' prior notice thereof to the grantee and an opportunity for the grantee to be heard upon the proposed action of said resolution. After the above-mentioned hearing, the Supervisors' findings of fact and revocation shall be conclusive and binding for all purposes.
C. 
The grantee shall not be declared in default or be subject to any sanction under any provision of this resolution in any case in which performance of any such provision is prevented for reasons beyond its control.
D. 
In the event that the use of any part or all of the CATV system is discontinued for any reason for a continuing period of six months, or in the event such system or property has been installed in any street or public place without complying with the requirements of this franchise, or the franchise has been terminated, cancelled or expired, the grantee shall promptly, upon being given notice, remove from the streets, alleys, public ways and public places all such property and poles of such system other than any which the Township may permit to be abandoned in such place and shall also remove house distribution cables and connections. In the event of such removal, the grantee shall promptly restore the street or any other area from which such property has been removed to a condition satisfactory to the Supervisors or the homeowner.
A. 
Immediately upon the granting of the franchise and at all times during the term of the franchise, grantee shall obtain, pay all premiums for and file with the Supervisors executed duplicate copies and receipts evidencing the payment of premiums for the following:
(1) 
A general comprehensive public liability insurance policy indemnifying defending and saving harmless the Township, its officers, boards, commissions, agents or employees from any and all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of a grantee under the franchise herein granted or alleged to have been so caused or occurred, with a minimum liability of $500,000 per personal injury or death of any one person and $1,000,000 for personal injury or death of any two or more persons in any one occurrence.
(2) 
Property damage insurance indemnifying, defending and saving harmless the Township, its officers, boards, commissions, agents and employees from and against all claims by any person whatsoever for property damage occasioned by the operations of grantee under the franchise herein granted or alleged to have been so caused or occurred, with a minimum liability of $250,000 for property damage to any one person and $500,000 for property damage to two or more persons in any one occurrence.
B. 
Such insurance as provided for in this section shall be kept in full force and effect by a grantee during the existence of and until after the removal of all poles, wires, cables, underground conduits, manholes and other conductors and fixtures incident to the maintenance and operation of the CATV system as defined in the franchise.
C. 
All of the foregoing insurance contracts shall be in form satisfactory to the Solicitor and shall be issued and maintained by companies authorized to do business in the Commonwealth of Pennsylvania, and they shall require 30 days' written notice of any cancellation to both the Township and a grantee herein, and copies of said policies shall be filed with the Township.
D. 
The Township of Girard shall be listed as a named insured on all insurance policies as set forth above.
A. 
The Township may require, at its sole discretion, from a grantee to whom the franchise created by this ordinance shall be awarded, within 10 days after the franchise becomes operative, executed to the Township of Girard, with good and sufficient securities, a bond to be approved by the Supervisors in the sum of $10,000, conditioned upon the faithful performance and discharge of the obligations imposed by § A202-6 of the ordinance from the date thereof, and which shall remain in force and effect during the life of this franchise.
B. 
A grantee shall pay all premiums chargeable for the bond and shall keep the same in force and effect at all times throughout the term of the franchise, including the removal of all poles, wires, cables, underground conduits, manholes and other conductors and fixtures incident to the maintenance and operation of the CATV system as defined in the franchise.
C. 
The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to 30 days after written notice to that effect is given to the Township and a grantee herein.
D. 
The bond shall be in a form satisfactory to the Solicitor and a duplicate copy of it, along with written evidence of payment of the required premiums, shall be filed with the Township during the term of the franchise.
A. 
Grantee shall and does agree to indemnify and hold harmless the Township, it officers, boards, commissions, agents, servants and/or employees for and in respect of any and all damages, losses, obligations liabilities, claims, deficiencies, costs and expenses, including but not limited to reasonable attorney's fees and other costs and expenses, incident to any suit, action, investigation, claim or proceeding whatsoever on account of injury to or the death of a person or persons or property damages occasioned by the operations of grantee under the franchise herein granted or alleged to have been so caused. Without limiting the generality of the foregoing, the beforementioned indemnity and hold-harmless agreement is to inure to the benefit of the Township, its officers, boards, commissions, agents, servants and/or employees suffered, sustained, incurred or required to be paid by the Township as a result of the installation, maintenance, operation, repairs and all activities of grantee pursuant to the franchise agreement and contract with the Township in regard to the coaxial system and its operation.
B. 
If the Township shall receive notice of any claim or alleged claim asserting the existence of a liability or obligation as to which the Township may be indemnified hereunder, the Township shall promptly notify the grantee of said claim or alleged claim. With respect to any suit, action, investigation, claim or proceeding for which indemnification is claimed by the Township, the grantee shall immediately defend, contest, settle, compromise or otherwise protect the Township against any such suit, action, investigation, claim or proceeding at the grantee's own cost and expense.
C. 
The Township shall have the right, but not the obligation, to participate at its own expense in a defense by counsel of its own choosing. If the grantee requests that the Township participate in a defense of a claim and if the Township so elects, the grantee shall reimburse the Township for its expense of providing assistance at its request, including but not limited to reasonable attorney's fees and investigation expenses. In the event that the grantee shall fail timely to defend, contest or otherwise protect against any suit, action, investigation, claim or proceeding, the Township shall have the right, but not the obligation, to defend, contest or otherwise protect against the same and make any compromise or settlement thereof and recover the entire cost thereof from the grantee, including but not necessarily limited to reasonable attorney's fees, disbursements and all amounts paid as a result of such suit, action, investigation, claim or proceeding or the compromise or settlement thereof.
D. 
In addition to and without limiting the generality of the foregoing indemnity agreement, said indemnity agreement shall specifically be applicable to any claim of copyright or patent infringement. This indemnity agreement shall be binding and in full force and effect during the existence of and until the removal of all poles, wires, cables, underground conduits, manholes, conductors, fixtures, equipment and the like incident to the maintenance and operation of the CATV system as defined in this franchise and/or during the statute of limitations within which a person must bring a cause of action against the Township, whichever time is greater.
Grantee shall immediately adopt procedures for the investigation and resolution of all complaints regarding cable television operations and shall maintain a local business office or agent for that purpose. The Township will have the primary responsibility for the continuing administration of the franchise and implementation of complaint procedures. The grantee shall see that notice of the procedures for reporting and resolving complaints will be given to each subscriber at the time of the initial subscription to the cable system.
The grantee's legal character, financial, technical and other qualifications and the adequacy and feasibility of its constructions and arrangements must be approved by the Township prior to the consummation of a contract or agreement with the grantee.
Upon failure of the grantee to complete any work required by law or by the provisions of this ordinance to be done in any street within the time prescribed and to the satisfaction of the Township, the Township may cause such work to be done and the grantee shall pay to the Township the cost thereof in the itemized amounts reported by the Township to the grantee within 30 days after receipt of such itemized report.
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.