[HISTORY: Adopted by the Borough Council of the Borough of Oakmont 2-8-1999 by Ord. No. 05-99, which ordinance also superseded former Part V, Cable Television, adopted 8-13-1984 by Ord. No. 025-84. Amendments noted where applicable.]
In consideration of the continuing faithful performance and observance of the conditions, reservations and agreements hereinafter contained, the right is hereby granted to Comcast Cablevision of Westmoreland, Inc. (hereinafter referred to as "Comcast"), a Pennsylvania Corporation, its successors and assigns, for a period of 15 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 Borough of Oakmont, Allegheny County, Pennsylvania (hereinafter referred to as the "borough"), 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 the borough. At the expiration of 15 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 the borough, as well as nonconformity with rights presently enjoyed by such utilities as the same now exist in the borough.
There is hereby further granted to Comcast, its successors and assigns, subject to ordinances, rules and regulations of the borough, 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 the borough and to use such towers, poles, lines, cables and other equipment and facilities. It is the intention that all other holders of public licenses and franchises within the borough shall cooperate with Comcast to allow Comcast's joint usage of their equipment and facilities whenever possible wherever such usage does not interfere with the normal operation of such holders of public licenses and franchises so that the equipment and facilities constructed by Comcast may be minimized.
All equipment and facilities of Comcast within this borough may also be used for the reception, transmission and distribution of radio and television signals and audio, visual, electric or electronic signals or impulses to or from areas outside of the borough.
All equipment and facilities installed by Comcast 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 the borough 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 the borough and shall be in accordance with the ordinances, rules and regulations as shall be established from time to time by the borough.
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.
In the event that Comcast is required to open or disturb any pavement, sidewalk or surface, Comcast shall, at its own expense and only in the manner approved by the borough, 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 the borough.
No equipment or facilities shall be erected by Comcast upon any streets, sidewalks, alleys, bridges, highways or public places or places under the jurisdiction of the borough unless permission is first obtained from the designated official of the borough in accordance with ordinances, rules and regulations as shall be established from time to time by the borough; provided, however, that such permission shall not be unreasonably withheld.
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 Comcast, Comcast shall move its facilities at its own expense.
Comcast shall provide cable service along any public way to any business or residence located in the service area within 180 days of receipt of a written request to do so. Cable service shall be provided to all persons whose installation shall be 150 feet or less of actual cable to the nearest borough roadway to the subscriber or potential subscriber at no cost to said subscriber or potential subscriber, other than the usual installation/connection fee for all subscribers. In the event that such installation shall be in excess of 150 feet, the subscriber or potential subscriber shall pay the incremental cost of such installation.
In order to prevent damage to underground utility facilities in the franchise area, in the event any of the company's facilities are located or subsequently placed underground, and prior to performing any excavation in the public rights-of-way, the company shall participate in the PA One Call Notification System.
The borough shall not be liable to Comcast 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 the borough.
Insurance coverage required.
Comcast shall carry insurance throughout the term of this agreement and any removal period naming the borough as an additional insured, with an insurance company authorized to conduct business in Pennsylvania, providing coverage for the borough and Comcast from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, installation, operation, maintenance or removal of its cable system. The amount of such insurance against liability for damage to property shall be no less than $1,000,000 as to any one occurrence. The amount of such insurance for liability for injury or death to any person shall be no less than $1,000,000. The amount of such insurance for excess liability shall be $5,000,000 in umbrella form. The policy will contain a provision that the borough will receive 30 days' written notice prior to any cancellation.
Comcast shall carry insurance against all claims arising out of the operation of motor vehicles and general tort or contract liability in the amount of $500,000. The policy will contain a provision that the borough will receive 30 days' written notice prior to any cancellation.
All insurance coverage, including workers' compensation, shall be maintained throughout the period of this agreement. All expenses incurred for said insurance shall be at the sole expense of Comcast. The policy will contain a provision that the borough will receive 30 days' written notice prior to any cancellation.
Comcast shall provide the borough with certificates of insurance for all policies required herein on an annual basis, and such certificates shall evidence that the borough is an additional insured.
Comcast shall indemnify, protect and save harmless the municipality from and against losses and physical damage to property and bodily injury or death to persons, including payments made under any workers' compensation law, which may arise out of or be caused by the erection, maintenance, presence, use or removal of Comcast's equipment or facilities within the borough or by any act of Comcast, its agent or employees and shall carry insurance in the above-described amounts to protect costs, expenses, liabilities and damages arising or resulting directly or indirectly from or by reason of such loss, injury or damage. Comcast shall also indemnify, protect and save harmless the borough from any and all claims in law or in equity that the franchise herein granted is illegally granted by the borough and shall pay all legal expenses incurred by borough in defending any claim that the borough acted illegally in granting the franchise.
All insurance required shall be and remain in full force and effect for the entire life of the rights granted hereunder.
Comcast shall indemnify, protect and save harmless the borough from any losses to the borough arising out of Comcast's failure to secure consents from the owners or licensees of any programs where consents are required under applicable copyright laws, and Comcast shall repay to the borough any damages and expenses which the borough shall be compelled to pay by reason of such failure.
During the term of this franchise, Comcast shall pay to the borough, as a franchise fee, a sum equal to 5% of Comcast's gross revenues received within the borough from the operation of the cable system for which a franchise is required pursuant to federal law. Such payments by Comcast to the borough shall be in lieu of any other license tax or similar inspection fees. In the event that applicable law changes during the term of this franchise, so as to permit a percentage greater than 5%, or if the five-percent limit currently allowed is reduced or declared unconstitutional, then the parties shall negotiate whether a change in the franchise fee is warranted and, if so, the amount.
Comcast shall file with the borough by the 20th day of the month following the close of each quarter a statement showing the gross revenues received, as defined herein. The borough shall have the right at any reasonable time to inspect the books of Comcast relative to customers' services and fees received, provided that the borough shall not make public disclosure of any information gained as a result of such an inspection without prior written consent of Comcast.
Comcast 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.
Comcast shall file with the borough a map showing the location of lines and facilities and shall provide supplements showing extensions of such lines and facilities annually if requested by the borough.
Within two years of the effective date hereof, Comcast Cablevision of Westmoreland, Inc., shall begin a rebuild of its system so that it is capable of offering not fewer than 80 channels of programming. The rebuild shall be completed within 42 months of the effective date hereof.
Comcast 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 the borough.
Comcast shall have the right to make all rules and regulations governing its services as subject to applicable law.
Upon request, Comcast Cablevision of Westmoreland, Inc., shall provide, without charge, a converter or other parental control device to any subscriber whose service consists solely of a converterless tier of service, in order to allow the subscriber to disable certain authorized channels.
Comcast shall reimburse the borough for expenses incurred by it in publication, as well as solicitor's legal fees, for preparation and review of this ordinance within 30 days after the borough shall furnish Comcast with a written statement of such expenses. Such total documented reimbursement shall not exceed $2,500.
Comcast 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 the borough a written acceptance of the rights and privileges hereby granted, subject to the terms and conditions herein imposed.
Comcast 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 costs or charge to the subscriber or the borough.
Should Comcast at any time fail to comply with any of the material terms and provisions of this franchise, the Borough Manager shall notify Comcast, in writing, setting the nature and facts of such noncompliance as he or she believes has occurred. If, within 30 days following receipt of such written notification, Comcast 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 Borough Manager shall give written notice of not less than 20 days of a public hearing to be held before the Borough Council of the Borough of Oakmont (hereinafter referred to as "Council"). Said notice shall specify the violations alleged to have occurred.
If, after considering the 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 Comcast was with just cause, it shall direct Comcast to cure the default within a reasonable time.
In the event that the Council determines that material violations exist and that Comcast has not corrected the same or has not commenced and is not diligently pursuing correction, the Council may revoke and terminate this franchise.
No revocation or termination shall be effected unless the Council, at a regular or special meeting at which all interested parties, including Comcast, have been heard, shall have adopted a resolution setting forth the reasons for termination.
Comcast 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 Comcast's control.
It is the intention of the borough that to the extent any provision of this ordinance is superseded or preempted 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 remain portions herein.
All ordinances or resolutions or parts thereof conflicting with the provisions of this ordinance are hereby repealed to the extent of such conflict.