Ordinance # 072
Granting Franchise for
Community TV System
An Ordinance granting an exclusive franchise to David A Malbet, and Raymond E. Baumbach to maintain a Community Television system in the Borough of Bolivar, Westmoreland County, Pennsylvania setting forth conditions accompanying the grant of franchise and providing for the regulation and use of the community television system.
Be it ordained, and it is hereby ordained by the Council of the Borough of Bolivar:
Section 1. This Ordinance shall be known and may be cited as the "Bolivar TV. Community Television Ordinance"
Section 2. For the purpose of this Ordinance ,the following terms, phrases, words, and their derivations, shall have the meaning herein given. When not inconsistent with the context, word, 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.
(1) Municipality is the Borough of Bolivar, Westmoreland County, Pennsylvania
(2) Licensee are the grantees of the rights under this franchise.
(3) Person is any person, firm, partnership, association, corporation, company or organization of any kind.
(4) Council, is the Council of the Borough of Bolivar.
(5) Whenever the words audio, and television appear, they shall mean a system for simultaneous reception and / or distribution of audio signals and visual images or the separate reception and / or distribution of either of them by means of electrical impulses.
Section 3. Grant or Authority There is hereby granted by the Municipality to the Licensee and exclusive right and privilege for a term of (10) ten years: at the expiration of ten (10) years, such right and privilege shall be renewed, as hereinafter set forth, so long as complete performance of the terms hereof are continued by the licensee, for successive periods of five (5) years each, 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 Municipality, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Municipality of a community antenna television system for receiving and making available to subscribers, television, radio and all other closed circuit electronic and related signals.
(1) Limitation of Grant. The right to use and occupy sais streets, alleys, public ways and places for the purpose herein set forth, shall be exclusive and the Municipality may not grant the use of said streets, alleys, public ways and places to any person at any time during the period of this franchise, for any use or purpose identical to the uses and purposes contemplated hereunder. Nothing herein contained shall in any way be construed to prohibit the Municipality from granting rights to others to use the streets, alleys, public ways and places for any uses or purposes other than those contemplated hereunder.
Section 4. Compliance with applicable laws and ordinances. The licensee shall, at all times during the life of this franchise be subject to all lawful exercise of the police power by the Municipality, and to such reasonable regulation as the Municipality shall hereafter by Resolution or Ordinance provide. In addition a, licensee's distribution system shall conform to the requirements of any state or federal law, regulation or agency, including but not limited to, the Federal Communication Commission and Public Utility Commission. this shall include requirements with respect to freedom from spurious radiation.
Section 5. Licensee Liability - Indemnification. It is expressly understood and agreed by and between the licensee and Municipality that the licensee shall save the Municipality harmless from all loss sustained by the Municipality on account of any suit, judgment, execution, claim or demand whatsoever, resulting from the conduct of operations on the part of the licensee, its servants, agents, employees or other persons hired by said licensee in the construction, operation or maintenance of their television system in the Municipality. Licensee shall carry insurance in such form and in such companies as shall be approved by the Solicitor of the Borough to protect the Borough and themselves from and against any and all claims from injury or damages to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any structure, equipment, appliances, or products authorized or used pursuant, to authority of said licensee. the amount of said insurance against liability due to damage to property shall not be less than one hundred thousand dollars and no/100 ($100,000.00) dollars as to any one person, and two Hundred thousand and no/100 ($200,000.00) dollars as to any one accident and against liability due to injury or death of persons, one hundred thousand and no/100 ($100,000.00) dollars as to any one person and three hundred thousand dollars and no/100 ($300,000.00) dollars to any one accident. The Municipality shall notify the licensee's representative in the Municipality within fifteen (15) days after the presentation of any claim or demand either by suit or otherwise made against the Municipality on account or any act as aforesaid on the part of the licensee, its agents, servants, employees or other persons hired by the licensee. The licensee shall have the right to and shall assume the defense of any such claim or demand.
Section.6. Service Standards. The licensee shall maintain and operate the system and render efficient service in accordance with such rules and regulations as are, or may be, set forth by the Municipality and any state, county, or federal government, law, rule or regulation.
(1) Notice of Interruption for Repairs. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments, or installations, the licensee shall do so at such time as will cause the least amount of inconvenience to their customers, and unless such interruption is unforeseen and immediately necessary, they shall give reasonable notice thereof to their customers.
(2) The antenna receiving and distribution equipment shall be installed and maintained so as to provide pictures on subscribers receivers throughout the system essentially of the same quality as those received at the antenna site.
(3) Installations and maintenance of equipment shall be such that standard BTSC color signals shall be transmitted to any subscriber color receiver.
(4) The system will in no way interfere with television received by the conventional antenna's.
(5) The licensee shall offer a minimum of five (5) channels of video and two channels of PM.
Section 7. Conditions of Street Occupancy.
(1) Use. All transmission and distribution structures, lines and equipment erected by the licensee shall be so located as to cause no interference with the proper use of streets, alleys and other public ways and places, and to cause no interference with rights or reasonable convenience of property owners who adjoin nay of the sail streets, alleys or public ways or places.
(2) Restoration. In the event of any disturbance, the licensee shall, at its own expense in a manner approved by the Municipality, replace and restore all paving, sidewalk, driveway or surfaces of any street or alley, in as good condition as before said work was commenced.
(3) Relocation. In the event that anytime during the period of this exclusive franchise the Municipality shall lawfully elect to alter or change the grade of any street, alley or public way, the licensee, upon reasonable notice, shall remove, relay and relocate their poles, wires, cables, underground conduits, manholes and other fixtures at their own expenses.
(4) Place of Fixtures. The licensee shall not place poles or other fixtures in such a manner as to interfere with any existing gas, electric or telephone fixture, water hydrant or main, and such shall be placed so as to best conform to existing topography, architecture and other visual and ecological standards.
(5) Tree Trimming. The Licensee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public places of the Municipality so as to prevent the branches of such trees from coming in contact with the wires and cables of the licensee, all trimming to be done under the supervision and direction of the Municipality and at the expense of the licensee, in accordance with the highest ecological standards.
Section. 8. Preferential or discriminatory practices prohibited. The licensee shall not, as to rtes, charges, services, facilities, rules regulations , or in any other respect, make of grant any preference or advantage to any person, not subject any person to any prejudice or disadvantage. Nothing herein contained shall prohibit the licensee from charging a discounted rate t subscribers using installations or outlets exceeding ten (10) in number in the same building, cite, or location. Upon request, licensee shall furnish free of charge outside connection and service to all schools located within the Borough Council; provided, however, any and all inside wiring or work shall be done at the expense of the school or Borough as the case may be.
Section 9. Approval of Transfer. The licensee shall not sell or transfer their plant or system or this franchise to another without prior approval of the Municipality. Upon such approval the transfer will, however, be ineffective until the vendee, assignee or lessee has filed in the Office of the Municipality, an instrument duly executed, reciting the fact of such sale, assignment or lease, accepting the terms of the franchise and agreeing to perform all conditions thereof, including the posting of appropriate insurance policies. Notwithstanding any act of acceptance shall be ineffective to relieve the liability of any prior holder unless the formal provisions of this section are complied with.
Section 10. Payments to the Municipality. The licensee will pay to the Municipality for the years designated, the applicable specified sums of money or the applicable percentages of the gross receipts derived from the licensee's subscribers. Such annual fees shall be computed at the end of each full year of operation commencing with the first hook up and shall be as follows:
(1.) At the end of the first year of operation an amount equal to three (3 %) percent of the gross revenue.
(2.) At the end of the second year of operation an amount equal to three and one - half (3 1/2%) percent of the gross revenue.
(3.) At the end of the third year of operation an amount equal to four (4%) percent of the gross revenue.
(4.) At the end of the fourth year and for each year thereafter an amount equal to four and one-half (4 1/2%) percent of the gross revenue. This later sum shall be applicable in the event of any renewal of this franchise excepting that the Municipality may after written notice, ninety days prior to the end of the first term of this franchise, request that the percentage rate be adjusted upward and in the event the parties are unable to agree as to such adjustment, then the issue of such adjustment shall be submitted to three arbitrators, one selected by the Municipality, one selected by the licensee and the third selected by the two so chosen; the decision of said arbitrators to be binding on all parties.
Section 11. Term of the Exclusive Franchise. The exclusive franchise and rights herein granted shall take effect and be in force and effect for a period of ten years beginning May 1, 1972. the licensee, if they have complied with all the terms and conditions of this Ordinance and exclusive franchise herein granted, shall have the right and option to renew the said exclusive franchise as hereinbefore set forth. Said option is to be exercised by the Licensee by written notice to the Municipality at least six months prior to the termination of the first ten (10) year period and at least ninety (90) days prior to the end of any additional period.
Section 12. Publication Costs. The licensee shall assume the costs of publication of this Ordinance and any other costs incurred by the Borough in the enactment of the Ordinance granting such franchise. A bill for publication costs and other costs shall be presented to the Licensee by the Municipality.
Section 13. Rates and Charges The monthly charge as set cannot exceed $4.95 a month without written consent of the council of the Borough of Bolivar unless Municipalities representing a majority of subscribers to this system or any merged or successor system have agreed to such increase.
Section 14. Penalties. Any violation by the licensee, their vendee, lessee or successor of the provisions of this exclusive franchise or any material portion thereof, or the failure to promptly perform any of the provisions thereof, shall be cause for the forfeiture of this exclusive franchise and all rights hereunder to the Municipality. Written notice shall be given to the Licensee and continuation of such violation, failure or default for a period of thirty (30) days after such written notice is mailed by the Municipality to the licensee shall be a condition precedent to such forfeiture. The licensee, vendee, lessee or successor shall not be in violation hereunder and no forfeiture shall result if they are prevented from performing their duties and obligations by an act of God, labor disputes, governmental action or other causes of like or different nature beyond the control of licensee.
Section 15. Severability. It is the intention of the parties hereto that the provisions of this Ordinance are severable and the validity of any portion shall not impair the validity of any other part.
Section 16. Entire Agreement. It is expressly understood that this Ordinance constitutes the entire agreement and understanding between the parties hereto and that no other agreement, resolution, or action taken prior to the date hereof shall in any manner be incorporated.
Enacted into an Ordinance this 7th day of August 1972.
J. Conrad Gamble
James E. Lichtenfels
Approved this 3rd day of September A.D. 1968
Frank B. Gibson
Original Ordinance in ordinance drawer in Vault