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Franchise Agreement
City of Pittsburgh and TCI
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Section I |
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Section II |
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Section III |
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Section IV |
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Section V |
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Section VI |
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Section VII |
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Section VIII |
Installation, Construction, Maintenance and Commencement of Operation |
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Section IX |
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Section X |
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Section XI |
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Section XII |
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Section XIII |
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Section XIV |
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Section XV |
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Section XVI |
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Section XVII |
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Section XVIII |
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Section XIX |
A G R E E M E N T
MADE October 31, 1984. between CITY OF PITTSBURGH, a municipal corporation
of the Commonwealth of Pennsylvania, hereinafter called 'CITY',
AND
PITTSBURGH TELE-COMMUNICATIONS, INC., hereinafter collectively called 'FRANCHISEE".
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound, the parties agree as follows:
Definition of Terms
Section 1.1 Ð Definitions to be Those in Chapter 425
Unless the context clearly indicates that a different meaning is intended,
for the purposes of this Agreement all terms, phrases, words and their derivations
shall have the meaning given in Section 425.02 of the Code.
Grant of Franchise
Section 2.1 Ð Grant of Franchise
CITY hereby grants to FRANCHISEE a non-exclusive franchise to erect, install,
construct, reconstruct, operate, maintain, dismantle, test, repair and use
a cable communications system in, upon, along, across, above, over, under
or in any manner connecte d with the streets, public ways or public places
within the corporate limits of the City of Pittsburgh, as now or in the future
may exist, in strict accordance with the terms of this Agreement, the laws
of the United States of America, the Commonwealth of Pennsylvania and CITY
now existing or hereafter adopted, amended, supplemented or interpreted by
a court of competent jurisdiction.
Section 2.2 Ð Acceptance of Franchise
FRANCHISEE agrees, and by these presents does agree, with CITY to furnish
all the necessary materials, labor, plant, machinery, equipment and appliances,
and at its own risk and expense, construct, install and complete the entire
work on THE SYSTEM whi ch is the subject of this Agreement in accordance with
Chapter 425 within the time provided herein and therein, TIME BEING OF THE
ESSENCE OF THIS AGREEMENT, in accordance with the attached Request for Proposals,
this Agreement, FRANCHISEE's Proposal and D epartment of Public Works Standards
for Construction, as consideration for the award of this contract and the
grant herein of a franchise to use the streets, public ways and public places
of CITY for the erection, installation, construction, reconstructio n, operation,
maintenance, dismantling, testing, repair and use of THE SYSTEM.
FRANCHISEE further agrees to receive as full consideration from CITY under
this Agreement the award of said franchise.
Section 2.3 - Acceptance of Chapter 425
Having fully and thoroughly examined all of the provisions of Chapter 425
in effect as of the effective date of this Agreement, which governs and regulates
THE SYSTEM to be constructed and installed pursuant hereto, FRANCHISEE hereby
accepts the award of said non-exclusive franchise, and with the exception
of Sections 425.08(c), 425.12(a)(2), 425.12(a)(3), 425.12(c)(1), 425.14(d)(3),
425.16, 425.17(a), 425.17(g)(4), 425.20(a), 425.20(c), 425.23(i), 425.24(a)(7),
425.24(a)(8) and 425.24(a)(9), expressly promises and agrees to comply in
all respects with every provision of Chapter 425 as the same now exists or
is hereafter amended or supplemented, it being understood and agreed that
such chapter is regulatory in nature and is not a contract.
Section 2.4 Ð Term of Agreement
(a) This Agreement and the franchise granted hereunder shall become effective from the latter of (i) the date of its execution, on the condition that the bonds and policies of insurance required by Chapter 425 and Sections 12 and 13 hereof are properly executed and delivered, and on further condition that federal registration is completed with and appropriate waivers are received from the Federal Communications Commission (hereinafter "FCC') to the extent necessary to provide in full the consideration supporting this Agreement, or (ii) the effective date of closing of the sale from WARNER to FRANCHISEE, and shall continue for a term of fifteen (15) years from the effective date, unless sooner terminated or extended as provided herein.
(b) This Agreement shall be renewed only in the manner prescribed in Section 425.25 of the Code.
(c) This Agreement shall be terminable for violation of any provision of
Chapter 425 or for breach of any term or condition hereof.
Section 2.5 Ð Territorial Extent of Agreement
CITY hereby grants FRANCHISEE the privilege to operate THE SYSTEM within
the corporate limits of CITY as the same now or in the future may exist.
Section 2.6 Ð Non-Exclusivity of Grant
In accordance-with and pursuant to Section 425.06 of the Code, nothing in
this Agreement shall affect the right of CITY to grant to any other person
a franchise or right to occupy and use the streets, public ways or public
places or any part thereof fo r the erection, installation, construction,
reconstruction, operation, maintenance, dismantling, testing, repair or use
of cable communications system within CITY. FRANCHISEE hereby acknowledges
CITY's right to make such grants and FRANCHISEE shall not take a legal position
contesting, or otherwise contest in any manner, CITY's right or decision to
grant such other franchise or to authorize such use of the streets, public
ways or public places or any part thereof. Nothing contained in this
par agraph shall prohibit FRANCHISEE from appearing and being heard at a public
hearing on any application for the grant of such franchise or right.
Section 2.7 Ð Necessity for Cooperation in Public Works
Nothing in this Agreement shall be in preference or hindrance to the right
of CITY to perform or carry on any public works or public improvements of
any kind. In accordance with Section 425.22(e) of the Code, FPANCIIISEE
expressly agrees that it shall, at its own cost and expense, protect, support,
temporarily disconnect, relocate in the same street or other public place,
or remove from said street or other public place, any of its property when
required to do so by CITY because of street or othe r public excavation, construction,
repair, regrading or grading; traffic condition; installation of sewers, drains,
water pipes, CITY-owned power or signal lines or tracks; vacation or relocation
of streets or any other type of structure or improvement of a Public Agency,
or any other type of improvement necessary to the public health, safety and
welfare, it being the intention of CITY, in accordance with Section 425.21
of the Code, that nothing in this Agreement shall be construed as an abrogation
by CIT Y of any of its Police Powers.
Section 2.8 Ð Conditions of Occupancy of Streets
(a) FRANCHISEE agrees to comply with all requirements of Chapter 425 in all respects including, inter alia, use of the streets, public ways and public places of CITY, and all other CITY laws.
(b) FRANCHISEE shall be subject to all CITY laws now existing or as hereafter amended or adopted, or interpreted by a court of competent jurisdiction.
(c) CITY retains the absolute right to terminate this Agreement for any violation
of Chapter 425 of the Code or any term or condition hereof.
Section 9 Ð FranchiseeÕs Authorized Agent
For purposes of this Agreement, FRANCHISEE authorizes and appoints Joseph
Aman (hereinafter "MANAGING FRANCHISEE"), an individual, with offices at 1400
Penn Avenue, Pittsburgh, Pennsylvania 15283, to act as its manager, and represents
to CITY that such agent is authorized to accept notice and service on its
behalf and is further authorized to make representations to CITY and bind
FRANCHISEE with regard to day-to-day operation of THE SYSTEM. Pursuant
to Section 425.07 (b) (8) A. of the Code, MANAG ING FRANCHISEE shall be FRANCHISEE's
representative on the Cable Communications Advisory Committee.
Privacy
Section 3.1 Ð Observance of Right of Privacy
During the operation of THE SYSTEM, FRANCHISEE shall strictly observe the
privacy and property rights of subscribers.
Section 3.2 Ð Privacy Restrictions
FRANCHISEE agrees that the following restrictions shall apply to the release by FRANCHISEE or any person subject to its control of information and data;
(a) FRANCHISEE shall always indicate the number of its subscribers as a whole number and as a percentage of the potential subscribers to TIIE SYSTEM.
(b) When indicating the number of its subscribers viewing a particular channel at a particular time, FRANCHISEE shall indicate the total number of subscribers viewing during the relevant time and the percentage of all subscribers which they represent.& nbsp; In no event shall FRANCHISEE release the viewing habits or preferences of a particular subscriber.
(c) Any poll conducted by FRANCHISEE to determine subscriber preference shall indicate by a whole number those subscribers expressing a particular preference and shall never be expressed as a percentage of subscribers expressing that preference.
(d) FRANCHISEE shall at all times release both the number and the percentage of subscribers purchasing any service contemplated in Chapter 425, but not the identity of any subscriber.
(e) FRANCHISEE may maintain such records as are necessary to bill subscribers for the purchase of any cable communications service. No information maintained by FRANCHISEE for purposes of billing or locating malfunctions in THE SYSTEM shall be pu blished, utilized, disseminated or disclosed in any manner to any person without the affected subscriber's prior knowledge and written consent as prescribed in Section 425.12(c)(2) A. 7. of the Code and Section 3.2(g) hereof. To the extent that THE SYSTEM has the capability to monitor individual subscriber reception and response, any information acquired through the use of such capability shall not be published, utilized, disseminated or disclosed in any manner to any person without the affected sub scriber's consent as described above.
(f) Neither FRANCHISEE nor any other person shall initiate in any form the discovery of any information on or about a subscriber's premises without prior written authorization from the subscriber potentially affected.
(g) Valid authorization shall mean voluntary written approval and consent
obtained from a subscriber to conduct the investigation described in Section
3.2(f) hereof prior to the commencement of such investigation for a period
of time not to exceed one (1) year from the date of such authorization, and
that shall not have been obtained as a condition of cable communications service
or continuation thereof or community communications facility usage.
Section 3.3 Ð Activation of Channel from Subscriber Location
Without the authorization described in Section 3.2(g) hereof, neither FRANCHISEE
nor any other person shall in any manner activate, utilize or otherwise operate
any channel or other electronic signal from a subscriber's location.
Section 3.4 Ð Deactivation of Return Path
Every subscriber shall have the absolute right to deactivate any return path
from the subscriber's receiver at FRANCHISEE's sole cost.
Section 3.5 Ð Commercial Product Preferences
FRANCHISEE shall not tabulate any test results, nor permit the use of its
cable communications system f or such tabulation, which would reveal the commercial
product preferences or opinions of subscribers, members of their families
or their invitees, l icensees or employees.
Technical Performance and Standards
Section 4.1 - Technical Performance and Standards
All performances and technical standards governing construction, reconstruction,
erection, installation, operation, testing, use, maintenance and dismantling
of the cable communication system provided for herein shall be in accordance
with all applicab le FCC and other federal, state and local laws and regulations,
provided, however, that if the FCC discontinues promulgation or enforcement
of such technical specifications, such specifications shall remain in force
and effect until CITY exercises its rig ht hereunder to amend this Agreement
to require such standards as it shall deem necessary.
Community Communications
Section 5.1 Ð Community Communications
To the extent that FRANCHISEE indicates in its proposal that it will provide community communications services and facilities as part of the consideration supporting this Agreement and the award of a franchise hereunder, FRANCHISEE and CITY hereby agre e as follows:
(a) Any period of use of community communications facilities shall be deemed to have commenced at the moment that the video and/or audio tape upon which the material is being recorded is activated, or the live cablecast begins.
(b) Every user of any community communications production facilities shall be fully cognizant of the ethical and legal responsibilities and liabilities before using said facilities. To this end, FRANCHISEE agrees that it shall furnish all users w ith a description of the responsibilities inherent in the use of community communications production facilities prior to the use of such facilities. Nothing herein shall be construed to prohibit FRANCHISEE from requiring a damage deposit from any co mmunity communications user when said user removes equipment belonging to FRANCHISEE from any community communications facility. Nothing herein shall be construed to limit the liability of any person removing such equipment from such facilities or t o relieve such person from liability for all damages if such equipment must be repaired or replaced due to damage, theft or abuse while bailed to such person. Nothing herein shall be construed to prohibit FRANCHISEE, in its sole discretion, from ref using to lend equipment to any person who has, in the opinion of FRANCHISEE, misused the equipment, f ailed to return it timely, or in any other way abused the use of such equipment or facility.
(c) FRANCHISEE agrees to announce the date, time and location of any training workshop it may offer in the use of community communications equipment or facilities daily over THE SYSTEM for a period of fourteen (14) days prior to such workshop. No thing herein shall be construed to prohibit FRANCHISEE from requiring the attendance and satisfactory completion of training prescribed by it as a prerequisite to using community communications production facilities and equipment.
(d) Nothing herein shall be construed to prohibit FRANCHISEE, in its sole discretion, from refusing the use of its facilities to any individual reasonably appearing to be under the influence of alcohol or mind altering drugs or appearing to be at its s tudio involuntarily.
(e) All users of community communications facilities shall be responsible for obtaining appropriate authorization from the owners of intellectual property rights for their use in connection with community communications productions.
(f) Nothing herein shall be construed to render FRANCHISEE or CITY liable for the failure of any user of community communications facilities to secure and protect whatever rights such user may have in intellectual property, including, but not limited t o, securing copyright protection.
(g) FRANCHISEE hereby agrees to keep a public file available at its main office of all requests it receives for the use of community communications facilities and for the transmission of programming on community communications channels, including the n ames and the addresses of those making such requests. Such files shall be available for public inspection during normal business hours. Such files shall be maintained for a period of one year from the date of such requests and thereafter may b e destroyed.
(h) In addition to the obligations set forth under this section, all rules and regulations pertaining to community communications services, operations, channels and production facilities for the purpose of producing or originating community communicati ons programming shall be filed by FRANCHISEE with the Director of the Department of Public Works within thirty (30) days after FRANCHISEE first activates any community communications channel. Such regulations may thereafter be amended by FRANCHISEE by filing such amendments with the Director.
(i)FRANCHISEE agrees that it shall endeavor to establish fees for the use of production and channel time in such a manner as to afford CITY residents access to low-cost television production.
(j)All persons using equipment, facilities or channels owned by FRANCHISEE for the purpose of producing or originating community communications programming shall be eighteen years of age or shall be accompanied by an adult resident of CITY who shall be responsible for the super-vision of the minors involved and who shall be responsible for any liability arising from the use of THE SYSTEM under such adult's supervision.
(k)Any user of community communications equipment and facilities shall agree
in writing to hold FRANCHISEE harmless from any and all liability or other
injury including any reasonable costs of defending claims or litigation, arising
from or in connecti on with claims for failure to comply with any applicable
laws; for claims of libel, slander, invasion of privacy, or the infringement
of common law or statutory copy right; for unauthorized use of any trademark,
trade name or service mark; for breach of c ontractual or other obligations
due third parties by FRANCHISEE; for any other injury or damage in law or
equity, which claims result from the user's use of equipment and facilities.
Leased Channels
Section 6.1 Ð Leased Channels
FRANCHISEE and CITY further agree that FRANCHISEE may lease portions of its non-broadcast bandwidth not specifically designated for other uses for leased services as follows:
(a) FRANCHISEE may limit the amount of tire granted on any leased channel to any person.
(b) FRANCHISEE shall set rates for the leasing of such channels and may classify
lessees into various categories. Such rates and categories shall be
on public file in the main office of FRANCHISEE and shall be available for
public inspection duri ng normal business hours. A copy of said rates
and categories shall also be filed with the Director.
Section 6.2 Ð Lease Conditions
FRANCHISEE further agrees that the following terms and conditions shall be included in any lease or other agreement into which FRANCHISEE enters with the lessee of any leased channel:
(a) operation of said channel shall not disrupt or otherwise cause objectionable interference with any other channel of THE SYSTEM; and
(b) In the event that such interference is unavoidable the lessee shall immediately cease further operations until such interference is eliminated. Failure by the lessee to comply with the request of FRANCHISEE to cease interference or operation, whichever is applicable, shall result in the immediate termination of the lease or other agreement and any right of the lessee thereunder to use a leased channel.
(c) It shall be the responsibility of FRANCHISEE to assure that channel lessees avoid such interference and to enforce the aforesaid terms and conditions of the lease or other agreement and FRANCHISEE hereby expressly agrees to incur all costs in the e nforcement of the lease or other agreement in this respect at the request of the Director, including, but not limited tot any counsel fees, court costs or other costs incurred by CITY or it in any proceeding to enjoin said interference which FRANCHISEE an d CITY hereby declare to be a nuisance.
(d) In the event that any lease or other agreement referred to in this Section
does not comply with the provisions hereof, or in the event that FRANCHISEE
shall fail to enforce said lease or agreement or otherwise perform its responsibilities
under thi s Section, FRANCHISEE shall be liable for liquidated damages under
this Agreement in the amount of five hundred dollars ($500.00) for each day
said interference remains unabated, it being agreed by the parties that the
damage from such interference is dif ficult of exact ascertainment and that
the aforesaid amount is a reasonable amount and is not a penalty.
Section 6.3 Ð Application for Leased Channel
To qualify for the use of a leased channel, an application accompanied by
any required fee shall be submitted to FRANCHISEE. Such application
shall be furnished to prospective applicants by FRANCHISEE on request.
All applications for a leas ed channel must be returned to FRANCHISEE within
sixty (60) days of receipt to permit scheduling. All applications returned
to FRANCHISEE by an applicant more than sixty (60) days after the receipt
thereof may be returned to the applicant without fu rther consideration.
Applicants shall submit any documents in addition to the said application
which may be required by FRANCHISEE or by law.
Section 6.4 Ð Compliance with Law
(a) No program, production or presentation shall be transmitted or permitted to be transmitted on any leased channel which violates any law regarding obscenity.
(b)FRANCHISEE shall require all users to comply with all laws regarding obscenity on its leased channels. FRANCHISEE may reserve the right to schedule programs on leased channels in consideration of the children in the viewing audience.
(c)Any paid political announcement or program on a leased channel shall be
designated as such and shall indicate the person paying for the same at the
time said announcement or program is cablecast.
Local Regulatory Framework
Section 7.1 Ð Cable Communications Legislation
Nothing in this Agreement shall preclude City Council from exercising its
general taxing and police powers to enact, amend or supplement for prospective
application any law regulating cable communications within the city.
Section 7.2 Ð Mediating Disputes
FRANCHISEE agrees to mediate disputes or disagreements between itself and
a subscriber at CITY's request.
Section 7.3 Ð Review and Audit of FCC Reports
FRANCHISEE agrees to allow CITY to review and audit all reports and filings
submitted by FRANCHISEE to the FCC.
Installation, Construction, Maintenance, and Commencement of Operation
Section 8.1 Ð Construction Schedule
FRANCHISEE shall install and activate THE SYSTEM and offer cable communications services from THE SYSTEM to all residences or persons within the City in accordance with Chapter 425 or this Agreement and the following:
(a) FRANCHISEE shall install, activate, offer and provide cable communications to all residences throughout the corporate limits of CITY, exclusive of those locations or circumstances which FRANCHISEE has specifically designated in its proposal as loca tions or circumstances where it will not provide service.
(b) It is further understood and agreed between CITY and FRANCHISEE that FRANCHISEE shall only be excused from providing cable communications service to those buildings, locations or circumstances specifically designated in its proposal. Commerci al impracticability, expense or other economic reasons shall not excuse or justify FRANCHISEE's failure to provide cable communications service to any residences in the CITY that are not specifically listed in FRANCHISEE's proposal.
(c) Work under this Agreement must be prosecuted to the satisfaction of the Director of the Department Public Works.
(d) Determined by reference to the construction requirements previously agreed upon between Warner cable Corporation of Pittsburgh and Warner Amex Cable Communications, Inc. (hereinafter "WARNER") and the CITY, on or before February 28, 1985, CITY shal l inspect all maps submitted by WARNER to CITY and first identify construction problems in THE SYSTEM, and give written notice of such construction problems to FRANCHISEE and WARNER. Repairs of such construction problems shall be performed in confor mity with Warner's Construction Requirements, as approved by the CITY. Commencing February 28, 1985, all repairs and construction shall conform to the construction requirements agreed upon between the CITY and FRANCHISEE. The failure by the CI TY to initially inspect all maps and give written notice of all construction problems by February 28, 1985 shall not relieve the FRANCHISEE of its obligations to correct such construction problems. The expense or repair of such construction problems shall not be the responsibility of CITY.
(e) Immediately after the execution of this Agreement, FRANCHISEE will start and complete each principal item of work on THE SYSI'EM in accordance with the schedule set forth in response to Section 13 of the Request for Proposals. Work under this Agreement must be prosecuted to the satisfaction of the Director of the Department of Public Works. FRANCHISEE shall strictly adhere to the provisions of its schedule. Completion of the construction contemplated in this Agreement within the t ime limit prescribed is of the essence of this Agreement.
(f)It is further agreed that FRANCHISEE will make no charge or claim whatsoever,
for hindrance or delay of the work, from any cause during the progress of
the same, except for an extension of the time granted by the Mayor pursuant
to Section 425.25(e) of the code or by the Director under Section 425.08(e)
of the Code. The decision of the Mayor or the Director, as the case
may be, as to the additional time to be allowed for the completion of the
work, if any, shall be final and conclusive. F RANCHISEE further agrees
that any litigation instituted by a third party shall not suspend FRANCHISEE's
obligation to construct and install THE SYSTEM in accordance with the time
schedule herein and in Chapter 425.
Section 8.2 Ð Required Authorizations
FRANCHISEE shall register with the FCC for any necessary construction related
federal waivers, and otherwise comply fully with FCC regulations and federal
law to obtain necessary construction related registration and waivers.
Section 8.3 Ð Approval of Proposed Construction
(a) No construction reconstruction or relocation of THE SYSTEM, or any part thereof, within the streets shall be commenced unless written permits have been obtained from the proper CITY officials. In any permit so issued, such officials may impos e any condition, restriction or regulation as is necessary for the purpose of protecting any structures in the streets and for the proper restoration of such streets and structures, and for the protection of the public and the continuity of pedestrian and vehicular traffic.
(b) Upon obtaining such permits or other written approval, FRANCHISEE shall
give the appropriate director written notice of proposed construction at least
five (5) days prior to construction.
Section 8.4 Ð Pole Attachment Agreements
(a) The agreements for the use of utility poles and underground conduit with all public utility companies whose poles or conduits shall be used in or affected by the construction of THE SYSTEM which are included in FRANCHISEE's proposal shall become ef fective on the date of execution of this Agreement.
(b) Nothing in this Agreement shall be construed as authorizing FRANCHISEE
to erect and maintain new poles in areas serviced by existing poles.
FRANCHISEE shall obtain written approval from appropriate CITY departments
before erecting any new pol es or underground conduits where none exist at
the time that FRANCHISEE seeks to install THE SYSTEM.
Section 8.5 - Excavation
(a) Neither FRANCHISEE nor any other person shall open or otherwise disturb the surface or support of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining authorization to do so in the manner pre scribed in Section 8.3 hereof.
(b) FRANCHISEE shall restore any street it has disturbed in accordance with
the provisions of Ordinance No. 23 of 1977, as presently constituted or hereafter
amended or supplemented by additional legislation, and all other laws relating
to public prope rty and all other applicable law, and shall, at its own cost
and expense, restore and replace any other property disturbed, damaged or
in any way injured by or on account of its activities in a manner approved
by the owner to its condition immediately pri or to the disturbance, damage
or injury or shall pay the owner the fair market value thereof, whichever
is less. In the event FRANCHISEE fails to perform the replacement or
restoration, CITY or the owner shall have the right to do so at the sole cos
t and expense of FRANCHISEE. FRANCHISEE shall pay for such replacement
or restoration upon demand in writing by CITY or the owner.
Section 8.6 Ð Disconnection and Relocation
FRANCHISEE shall, at its own cost and expense, protect, support, temporarily
disconnect, relocate in the same street or other public place, or remove from
said street or other public place, any of its property when required to do
so by CITY because of street or other public excavation, construction, repair,
regrading or grading; traffic conditions; installation of sewers, drains,
water pipes, power or signal lines, tracks; vacation or relocation of streets
or any other type of structure or improvement of a public agency, or any other
type of improvement necessary for the public health, safety or welfare.
Section 8.7 -- Maintenance
FRANCHISEE shall maintain all wires, conduits, cables, and other real and
personal property and facilities comprising THE SYSTEM in good condition,
order and repair.
Section 8.8 - Placement of Equipment
FRANCHISEE shall not place, or cause to be placed, poles or other equipment
in such a manner as to interfere with the safety, rights or reasonable convenience
of adjoining property owners, or with any gas, electric or telephone utilities'
fixtures or p roperty, nor shall FRANCHISEE place, or cause to be placed,
said poles or equipment in the right of way between the cartway and the right
of way boundary except with the written approval of the appropriate CITY Agency.
In the event THE SYSTEM create s a hazardous or unsafe condition or an unreasonable
interference with property, FRANCHISEE, at its own expense and at no additional
cost to an affected property owner or CITYR and upon request by CITY shall
remove THE SYSTEM or any part thereof from the property in question.
Section 8.9 Ð Construction and Installation Regulations
FRANCHISEE shall comply with all FCC rules and regulations governing the
construction and installation of cable communications systems.. In the event
of any deregulation by the FCC of technical or other standards for construction,
installation, operati on or maintenance, such regulations shall remain in
force and effect pursuant to this section until the Director notifies FRANCHISEE
of their suspension and CITY reserves the right to adopt and impose such standards
as it deems necessary, it being CITY's intention to exercise its power to
promulgate regulations pursuant to Chapter 425 of the Code.
Section 8.10 -- Installation
Installation shall be made as follows:
(a) All cables and wires shall be installed parallel with existing telephone and electric utility wires whenever possible; and
(b) Multiple configurations shall be in parallel arrangement and bundled, in accordance with engineering and safety considerations; and
(c) All installations shall be underground in those areas of the CITY where both telephone and electric utilities' facilities are underground at the time of the installation of THE SYSTEM.
(d)In areas where both telephone and electric utilities' facilities are above ground at the time of the installation of THE SYSTEM, FRANCHISEE may install its service above ground, provided, however, that at such time as those facilities are placed und erground by both utility companies, FRANCHISEE shall likewise place its facilities underground at its sole cost and expense without additional charge to CITY.
(e) In areas where only one utility's facilities are above ground at the
time of the installation of THE SYSTEM, FRANCHISEE may install its service
above ground, provided, however, that at such time as the utility's facilities
are placed underground, F RANCHISEE shall likewise place its facilities underground
at its sole cost and expense, without additional charge to CITY.
Section 8.11 Ð Notice of City Construction
The Director shall give FRANCHISEE ample written notice of street improvements
where paving, regrading, grading or resurfacing of a permanent nature is involved.
Said notice shall describe the nature and character of said improvements,
the street s upon which they shall be made, the extent of the improvements
and the work schedule for the project. CITY shall allow FRANCHISEE time
to make such additions, alterations or repairs to its facilities in advance
of CITY's commencement of said improv ements so as to permit FRANCHISEE to
maintain continuity of service. FRANCHISEE shall cooperate fully with
CITY and shall promptly commence any necessary work and prosecute it to completion
and shall in no way hinder CITY's project, it being the int ention of the
parties hereto that the provision of cable communications services shall not
hinder or delay the provision of public services by CITY to its residents.
Section 8.12 Ð Moving Buildings
FRANCHISEE shall, at the request of any person holding a permit to move a building, temporarily raise or lower its wires to permit the moving of said building.
(a) Such temporary removal, raising, Or lowering of wires shall be at the cost and expense of the person requesting the same, and FRANCHISEE shall have the authority to request payment for the same in advance before complying with such request.
(b) FRANCHISEE shall be entitled to not less than five (5) days notice of the contemplated move from the person making the request.
(c) Any interruption in service occasioned by the temporary removal, raising
or lowering of FRANCHISEE's wires in accordance with this Section or Section
425.22 (1) of the Code shall not subject FRANCHISEE to any penalty provided
under the Code.
Section 8.13 Ð Tree Trimming
(a) FRANCHISEE may trim trees or other vegetation owned by CITY to prevent branches or leaves from touching or otherwise interfering with its wires, cable or other structures.
(1) All trimming or pruning provided for herein shall be done only under the supervision and direction of the appropriate CITY Agency and only with the prior written approval of the Director thereof.
(2) All trimming or pruning shall be at the expense of FRANCHISEE.
(3) FRANCHISEE may contract for said trimming or pruning services with any person approved by CITY prior to the rendering of said services. Any person engaged by FRANCHISEE to provide tree trimming or pruning services shall be deemed for purposes of the Agreement to be an employee or agent of FRANCHISEE when engaged in said activity and in no event shall such person be deemed to be an Employee or agent of CITY.
(b)FRANCHISEE shall obtain the written permission of the owner of an privately
owned tree or other vegetation before it trims or prunes the same.
Section 8.14 Ð Protection of City Property
In all matters pertaining to the installation, construction operation, maintenance,
repair and removal of the SYSTEM, FBANCIIISEE shall comply with all ordinances
and resolutions concerning CITY property.
Section 8.15 Ð Maps and Records
FRANCHISEE shall keep accurate, complete and current maps and records of
THE SYSTEM and shall furnish as soon as they are available two (2) complete
copies of such maps, records and their updates to the Director of the Department
of Public Works. Said maps shall constitute part of the consideration
supporting this Agreement.
Section 8.16 Ð Powers of the Director
The Director may extend in writing the time period for the performance of
any act required under this Section 8. With the exception of the terms and
conditions of Section 19.27, herein, no time period shall be deemed extended
unless the Director has au thorized such extension in writing.
Section 8.17 Ð Permits to be Issued Separately
Nothing in this Agreement shall be construed as a representation, promise
or guarantee by CITY that any permit or other authorization required under
any law or otherwise for the construction or installation of a cable communications
system shall be iss ued.
Section 8.18 Ð Construction Compliance Reporting
FRANCHISEE shall furnish the Director with construction reports in form approved
by the Director detailing all construction. Director shall only request
such reports when applicable.
Section 8.19 Ð Installation of Major Components
FRANCHISEE shall not install any major system component without the prior
approval and consent of the Director.
Section 8.20 - Emergency Removal of Plant
If, at any time, in case of fire or disaster in CITY, it shall become necessary
in the judgment of CITY to cut or move any of the wires, cables, amplifiers,
appliances or appurtenances thereto of FRANCHISEE, CITY shall not be liable
for such cutting or moving.
Section 8.21 - Director to Have Right to Inspect
FRANCHISEE further agrees that the Director, or those whom he may designate,
to the extent such persons do not interfere with FRANCHISEE's normal business
operations, shall at all times have free access to all parts of the work related
to the construct ion in = SYSTEM and shall have every facility rendered said
Director for the proper inspection of all materials entering into, and workmanship
executed for the work under this Agreement, but it is expressly understood
and agreed that the inspection of the work and materials by the Director will
in no way lessen the responsibility of FRANCHISEE, or release it from its
obligation to construct THE SYSTEM in accordance with FRANCHISEE'S PROPOSAL
this Agreement and Chapter 425.
Section 8.22 - Franchisee to Sustain All Losses During Construction
It is further agreed that any and all losses or damages arising out of the
nature of the construction and installation of THE SYSTEM contemplated herein,
or any damages to =, SYSI'EM itself, or any unforeseen obstructions or difficulties
which may be e ncountered in the prosecution of the same; or the action of
the elements, or any other cause, shall not be sustained nor paid by CITY.
Section 8.23 - Franchisee to Supervise
FRANCHISEE further agrees to have charge of and be responsible for the entire
installation and construction of THE SYSTEM until completed; that it will
give supervision to the faithful prosecution of the work; that it will keep
such work under its own control, and will have a competent representative
on the work, who shall have full authority to execute any order.
Section 8.24 Ð Maintaining Structures
FRANCHISEE further agrees that it will maintain the service of, shore up,
sling, support, protect and make good as directed, all water pipes, gas pipes,
service pipes, sewers and sewer connections, conduits, manholes, drains, vaults,
building tracks or other structures, and sub-structures of public utility
companies, all service lines and structures including sub-structures of private
abutting owners, that are located within the lines of construction that may
be liable to disturbance or injury during t he progress of the construction,
and that all necessary supports and all labor and material necessary to reconnect
and restore all such structures that become disturbed or damaged to their
original condition shall be provided by FRANCHISEE at its own expe nse, with
the exception of such permanent supports as may be ordered by the Director.
Section 8.25 Ð Damage to Water Lines
Where any damages are done to CITY's water lines during construction of THE
SYSTEM due to the negligence or operations of FRANCHISEE, the cost of such
repairs including all services and materials required from the Department
of Water will be billed aga inst FRANCHISEE and these charges shall be paid
immediately or CITY may immediately foreclose on the bond required by CITY.
Section 8.26 Ð Franchisee Not to Obstruct Travel
FRANCHISEE further agrees that it will not obstruct the streets, street railways,
steam railroads, passenger travel, traffic or river navigation without the
consent of the proper authorities; that it will place and at all times keep
proper guards, fenc es, barricades and watchmen, and at night suitable and
sufficient lamps for the prevention of accidents.
Service Area; Providing and Extending Service
Section 9.1 -- Franchise Territory
This Agreement shall apply to the operation of THE SYSTEM throughout CITY's
corporate limits as now or in the future may exist.
Section 9.2 Ð Areas Not to Receive Service
(a) FRANCHISEE shall offer cable communications services to all residents of the City except those living in buildings, streets, areas or other locations which FRANCHISEE has designated in its proposal as technically impossible to service, and FRANCHIS EE and CITY agree that FRANCHISEE shall be obligated to provide service throughout the corporate limits of CITY except for the aforesaid enumerated areas and locations.
(b) CITY reserves the right to amend this Agreement to enlarge beyond those
enumerated in FRANCHISEEÕs proposal the areas of the CITY or individual residences
or other buildings within an area to which FRANCHISEE shall not be obligated
to offer or prov ide services because of technical impossibility.
Section 9.3 - Handling Requests for Service
Upon a request for service from any resident of CITY, FRANCHISEE shall, within
sixty (60) days of such request, furnish the requested service, provided,
however, that the location to be serviced is within the construction guidelines
of Section 425.08, 425.09 and 425.10 of the Code and Section 9.2 of this Agreement.
Section 9.4 Ð Time Extensions
The Director may extend in writing the time period for the performance of
any Act required under this Section 9.
Section 9.5.- Extension of-Service to New Developments
FRANCHISEE shall extend cable to new developments and subdivisions and to
other areas, including but not limited to, blocks or streets, simultaneously
with the installation of electric power and telephone utility facilities.
Section 9.6 Ð Preparation for Extension
In all cases where new developments and subdivisions are to be constructed
and to be served in whole or in part by both underground power and telephone
utilities, the owner or developer of such areas shall provide FRANCHISEE the
trench, backfill and al l necessary substructures for cables in order that
FRANCHISEE may install all necessary electronic cable communications facilities.
In no event shall such undergrounding be at any cost or expense to CITY.
It shall be solely the obligation of F RANCHISEE to contract with such developer
for materials and services.
Section 9.7 Ð Provision of Cable Communications Services
Basic Service and such other cable communications services as FRANCHISEE
has indicated in its proposal it shall provide on THE SYSTEM shall be made
available to all individual dwellings, residences, including apartment, condominium,
cooperative or asso ciation buildings, institutions, organizations, business
and all other entities within the corporate limits of the City as the same
now or in the future may exist, in accordance with the provisions of Section
425.09 (b) of the Code, all laws governing rig hts of property and privacy,
and Sections 9.2 and 9.3 of this Agreement.
Section 9.8 Ð Service to Multiple-story Buildings
Installation or subscriber use of cable communications system service which
involves the retransmission of the signal to multiple reception points within
a structure shall be negotiated separately by FRANCHISEE and the owner of
the structure or the sub scriber. Service to condominium buildings shall
be on such conditions as the governing body of the tenants in common may provide.
Neither FRANCHISEE nor CITY shall be responsible or liable for any failure
to provide cable communications servic e to a leassee or condominium owner
whose lessor or governing body refuses the installation of such service.
The provision of cable communications services to any multiple--dwelling structure
shall not be conditioned upon the purchase by the owner, lessor or governing
body of such structure of any service other than cable communications services
of FRANCHISEE or any person designated by it.
Section 9.9 Ð Time of Installation
(a) Residential installation, including multiple drops, shall be offered as the feeder line passes the dwelling unit.
(b) All installation other than residential shall be initially confined to
a single drop at the port as requested by subscribers and shall occur as the
feeder line passes the structure.
Section 9.l0 Ð Attachment and Removal of Equipment
All of FRANCHISEE's cable equipment shall be removed within a reasonable time, such time not to exceed one (1) month, from a subscriber's property at the subscriber's request.
(a) Where such removal interferes with the provision of cable communications services-to another subscriber, it shall be the obligation of the subscriber so affected to secure a legal agreement which will enable FRANCHISEE to provide the subscriber the cable communications service the subscriber desires, and FRANCHISEE shall not be liable under this Agreement for its inability to provide service where the aforesaid legal agreement is not secured.
(b) Where attachment to or use of another's property is necessary for the
provision of cable communications services to a person, it shall be the obligation
of such person to secure a legal agreement which will enable FRANCHISEE to
provide the cable co mmunications service desired, and FRANCHISEE shall not
be liable under this Agreement for its inability to provide service where
the easement agreement is not secured.
Customer Service
Section 10.1 - Maintenance of City Office
FRANCHISEE shall maintain an office in the City which shall be open to the
general public during normal business hours.
Section 10.2 - Publicly Listed Phone Number
FRANCHISEE shall have a publicly listed telephone number.
Section 10.3 Call Log
FRANCHISEE shall employ an operator or maintain a telephone answering device
twenty-four (24) hours per day, each day of the year to receive subscriber
complaints. A log shall be kept by FRANCHISEE listing each and every
subscriber complaint or r equest for repair received and the disposition thereof.
Said log sha-11 be available for inspection by the Director or the Director's
designated representative upon reasonable notice, but in no case fewer than
four (4) times annually.
Section 10.4 - Maintenance and Repair Service
FRANCHISEE shall maintain a maintenance and repair service capable of responding
to subscriber complaints or requests for repairs within twenty-four (24) hours
after the receipt of the complaint or request.
Section 10.5 Ð Prohibition Against Conditioning Service
If FRANCHISEE or any of its shareholders owning at least three percentum
(3%) of its stock, or any subsidiary, parent or affiliated corporation of
FRANCHISEE engages in the business or activity of selling, leasing, repairing,
dismantling or installing television or radio receivers or master antenna
distribution systems, or accessories for such receivers, television cameras,
audio or video tape machines, video tapes, microphones, converters, modulators,
or other equipment utilized by users or subscriber s in the operation of any
cable communications system, FRANCHISEE shall not condition cable communications
service or the continuation thereof or usage of community communications facilities,
if any, under this Agreement on a person's purchase of or failu re to purchase
any of such services or equipment.
Section 10.6 Ð Pro Rata Credit for Interrupted Service
In the event that its service to subscribers is interrupted for forty-eight
(48) or more consecutive hours, except for acts of God, riots or a state of
emergency declared by the President of the United States, the Governor of
the Commonwealth of Pennsy lvania or the Mayor, FRANCHISEE shall grant affected
subscribers a pro rata credit or rebate for the full duration of the interruption.
Section 10.7 Ð Prohibition of Discrimination
FRANCHISEE shall not deny or delay service or use of community communications
facilities, if any, or otherwise discriminate against subscribers or users
on the basis of age, race, creed, color, sex, national origin or marital status.
Nothing in t his section shall be construed to prohibit the service to schools
and institutions provided in Section 15.6 hereof.
Design
Section 11.1 Ð Basic Design
FRANCHISEE shall construct THE SYSTEM in accordance with the design detailed
in its proposal and the design specifications set forth in this section.
Section 11.2 -- Channels
FRANCHISEE shall construct and install a cable communications system with
sufficient bandwidth that when used in conjunction with an appropriate device
at the subscriber's receiver shall enable the reception of a minimum of thirty
(30) downstream video channels.
Section 11.3 Ð Community Communications
THE SYSTEM shall have such community communications channels and facilities,
if any, as provided in FRANCHISEEÕs proposal.
Section 11.4 Ð Tiered Service
In addition to the capabilities of THE SYSTEM mandated above, FRANCHISEE
shall construct 'IHE SYSTEM in such a manner that when used with an appropriate
device at the subscriber's receiver, shall enable only the reception of those
local broadcast chann els whose carriage is mandated by the FCC and such community
communications channels, if any, as provided in FRANCHISEE's proposal.
Section 11-5 - Radio Signals
FRANCHISEE shall make available to all subscribers a range of FM radio signals.
Such signals shall include, but shall not be limited to, all local commercial
and educational FM radio signals available within the corporate limits of
CITY and receivable at the headend.
Section 11.6 Ð Emergency Override
THE SYSTEM shall include an Emergency Alert capability which shall permit
the Mayor or the Mayor's designated representative to override the audio on
all television channels and FM signals simultaneously, in accordance with
FCC regulations, in the case of public emergencies as determined by the Mayor.
A specific channel designated by FRANCHISEE in its proposal shall be used
for emergency broadcasts.
Section 11.7 -- Standby Power
FRANCHISEE shall maintain in constant readiness equipment capable of providing
standby powering for the headend, transportation and trunk amplifiers for
a minimum of four (4) hours. Said equipment shall be constructed so
as to revert automaticall y to a standby mode when alternating current power
returns. FRANCHISEE shall comply with all utility and other safety regulations
to prevent a standby generator from powering the "dead" utility line so as
to prevent injury to any person.
Section 11.8 -- Interconnection
Neither the FRANCHISEE, nor any other person shall connect or permit the
connection of the FRANCHISEE's cable communications system electronically
or in any other manner whatsoever with any other type of system whatsoever
including, but not limited to, a cable communications system, without the
authorization and the written approval of the Director, upon such conditions
as the Director, in the Director's sole discretion, may direct.
Section 11.9 - Operational Design
THE SYSI'EM shall be designed for operation twenty-four (24) hours per day
and shall endure service interruptions only for good cause and for a reasonable
time as determined by the Director. Permissible interruptions of service shall
be for the shortes t possible time.
Bonding
Section 12.1 - Performance Bond
A corporate surety bond in the amount of one million dollars ($1,000,000.00)
shall be in effect upon the effective date of this Agreement and conditioned
that in the event that FRANCHISEE fails to comply with any provision of Chapter
425 of the Code or this Agreement then there shall be recoverable jointly
and severally from the principals and surety any and all damages or costs
suffered or incurred by CITY or by an subscriber as a result thereof, including,
but not limited to reasonable attorney's fee s and costs of any action or
proceeding, and including the full amount of any compensation, indemnification,
cost and removal or abandonment of any property or other costs which may be
in default, up to the full principal amount of such bond; and the said condition
shall be a continuing obligation during the entire term of this Agreement
and thereafter until FRANCHISEE shall have satisfied in full any and all obligations
to CITY which arise out of or pertain to this Agreement.
Section 12.2 - No Limitation on Liability
None of the provisions of the Code or this Section 12 nor any bond accepted
by CITY pursuant thereto or hereto, nor any damages recovered by CITY thereunder,
shall be construed to excuse the faithful performance by or limit the liability
of FRANCHISEE under Chapter 425 of the Code or this Agreement or for damages
either to the full amount of said bond or otherwise.
Indemnification and Insurance
Section 13.1 Ð City to Assume No Liability
Except for the CITY's intentional and/or willful actions and negligent commissions,
CITY shall at no time be liable for any injury or damage, in law or equity,
occurring to any person or property from any cause whatsoever, including damages
from the CI TY's negligent omissions, if any, arising from the use, operation
or condition of THE SYSTEM. It is a condition of this Agreement that
CITY shall not and does not by reason of this Agreement assume any liability
whatsoever of FRANCHISEE for injury t o persons or damage to property.
Section 13.2 - Indemnification
Except for it's intentional and/or willful actions and negligent commission,
FRANCHISEE shall indemnify, save and hold harmless and defend CITY from all
liens; charges; claims, including but not limited to, libel, slander, invasion
of privacy, and unau thorized use of any copyrighted material, trademark,
trade name or service mark; demands; suits; actions; fines; penalties; losses;
costs, including but not limited to, reasonable attorneys fees and court costs;
judgments; injuries; liabilities or damages , in law or equity, from any cause
whatsoever, including damages from the CITY's negligent omissions, if any,
arising out of or in any way connected with the installation, erection, construction,
reconstruction, operation, maintenance, disconnection, remo val, repair, use
or condition of THE SYSTEM.
Section 13.3 Ð Indemnification Insurance
FRANCHISEE shall obtain and keep in force and effect during the entire term
of this Agreement, or any extension hereof, insurance coverage in a minimum
amount of one million dollars ($1,000,000.00) insuring the above indemnification
requirements for th e benefit of CITY. FRANCHISEE shall deliver to CITY
on the effective date of this Agreement a policy of insurance duly executed
by the officers or authorized representatives of a responsible and non-assessable
insurance company, evidencing this cove rage for the benefit of CII'Y, which
policy of insurance shall be noncancellable and provide for at least ninety
(90) days prior written notice to CITY of the insurer's intention not to renew
said policy, or to cancel, replace or materially alter or chang e the same,
said notice to be given as provided in Section 425.04 (a) of the Code and
Section 19.4 hereof.
Section 13.4 Ð Insurance Policies
FRANCHISEE shall obtain, effective from the date of execution of this Agreement and shall keep in force and effect during the entire term of this Agreement or any extension hereof, a policy of comprehensive general liability insurance, duly executed by the officers or authorized representatives of a responsible and non-assessable insurance company evidencing the following minimum coverages for the benefit of CITY as an additional insured, which insurance shall be non-cancellable except upon ninety (90) days prior written notice to CIIIY, said notice to be given in accordance with Section 425.04(a) of the Code and Section 19.4 hereof.
(a)Bodily Injury, including death;
$5,000,1600.00 each occurrence
$5,000,000.00 aggregate
(b)Property damage:
$2,500,000.00 each occurrence
$2,500,000.00 aggregate
Section 13.5 - Delivery of Policies
FRANCHISEE shall deliver to the Director on the date of execution of this
Agreement a copy of each policy required under Section 425.19 of the Code
and this Section 13.
Section 13.6 - Nonrenewal, Alteration or Cancellation of Policies
FRANCHISEE and its insurer shall give at least ninety (90) days prior written
notice to CITY of the insurer's intention not to renew the policies required
under Section 425.19 of the Code and under this Section 13r or not to replace
the same, or materi ally to alter or change the same, said notice to be given
in accordance with Section 425.04(a) of the Code and Section 19.4 hereof.
All premiums on said policies shall be at the expense of FRANCHISEE.
None of the provisions of Chapter 425 of t he Code or of any insurance policy
required by CI'IY thereunder or hereunder, nor the receipt of any proceeds
recovered by CIIY under any such policies, nor any term or condition of this
Agreement shall be construed to excuse FRANCHISEE from the faithful performance
of its obligation or limit its liability under any of the provisions of Chapter
425 of the Code or this Agreement.
Section 13.7-- Physical Damage Insurance
FRANCHISEE shall obtain, effective from the date of execution of this Agreement
and shall keep in force and effect during the entire term of this Agreement
or any extension hereof , physical damage insurance covering losses arising
in respect of the fo llowing realty and personalty incident to THE SYSTEM:
all buildings, offices, studios or other realty and the equipment contained
therein; the headend and subheadends; the transmission tower; all earth stations
and all vehicles. No physical damage i nsurance shall be required for
trunk, distribution, feeder or associated drop lines; converters or amplifiers.
For the initial five (5) years of the term of this Agreement the amount of
such physical damage insurance shall not be less than the repla cement value
of the property required to be covered herein, subject to a deductible in
the amount listed in FRANCHISEE's proposal. For each succeeding calendar
year during the term of this Agreement, or any extension hereof, such physical
damage ins urance shall be in such amount as the Director shall reasonably
determine to be adequate to provide the replacement value of the property
required to be covered herein, subject to such deductible amount as the Director
may determine to be reasonable, for any loss arising from any and all damage
to or destruction of the property insured. Each policy of physical damage
insurance shall name CITY as an additional insured, as its interest may appear.
For purposes of this Agreement 'physical damage insurance' shall mean insurance
covering loss arising from fire, lightning, windstorm, hail, snow, explosion,
riot and civil commotion, sake and such other perils as are customarily covered
by extended coverage insurance, including vandalism and malicious mischief.
The policy of insurance required under this Section 13.7 shall be non-cancellable
except upon ninety (90) days prior written notice to CITYÕs said notice to
be given in accordance with Section 425.04(a) of the Code and Section 19.4
hereof . At least ninety (90) days prior written notice shall be given
to CITY of the insurer's intention not to renew said policy or to replace
or materially to alter or change the same, said notice to be given as indicated
above.
Section 13.8 Ð Franchisee to Pay Premiums
With respect to each policy of insurance required to be obtained and kept
in force by FRANCHISEE and described in Section 425.19 of the Code and this
Section 13, FRANCHISEE shall be solely responsible for the payment of premiums
due for the coverage th ereunder. FRANCHISEE shall furnish written proof
of the payment of said premiums to CIIY on or before the due date.
Section Section 13.9 - Authorization Necessary for Change in Policy
No policy of insurance required under Section 425.19 of the Code or the provisions
of this Section 13, shall be replaced, renewed, cancelled or materially changed
or altered in any way except upon the express written authorization of CITY.
No cha nge shall be authorized which would violate the provisions of this
Section or which in the opinion of the Director would materially affect the
protection said policies afford CITY.
Section13.10 -- Forwarding Change Notices to City
At any time any policy of insurance required hereunder is replaced, renewed,
or intended by the insurer not to be renewed or replaced, or materially altered
or changed with or without the express written authorization of CITY, FRANCHISEE
shall obtain a nd furnish to CITY, within five (5) days of such action, such
policy, or copies of such policy, as the case may be, or the insurer's notification
of its intent not to renew or replace said policy.
Section 13.11 ÐFiling Policies
All policies of insurance required herein shall be filed with the Director
and maintained on file throughout the term of this Agreement.
Section 13.12 Ð Provision for Increases
Pursuant to Section 425.19 (c) and (d) of the Code CITY reserves the right
to increase the minimum amount of insurance coverage required under those
sections and this Agreement upon ninety (90) days written notice to FRANCHISEE.
Section 13.13 -- No Limitation on Liability
None of the provisions of this Section 13 nor any insurance policy required
herein by CITY, nor any damages recovered by CITY thereunder, shall be construed
to excuse the faithful performance by or limit the liability of FRANCHISEE
under this Agreement or for damages either to the limits of such policies
or otherwise.
Subscriber Rates
Section 14.1 Ð Council to Regulate Rates
Council expressly reserves the right to approve the rates which FRANCHISEE
charges its subscribers for Basic Service and Service 1, 2 and 3 as if Service
1, 2, and 3 were offered on a tier in which Basic Service were included as
part of the tier, for t wo (2) years from the effective date of 'The Cable
Franchise Policy and Communications Act of 1984", and thereafter as permitted
by law. FRANCHISEE shall not deny, delay, interrupt or terminate cable
communications services or the use of community c ommunications facilities,
if any, to subscribers or users because Council denies a request for a rate
increase, provide, however, that nothing herein shall be construed to limit
FRANCHISEE's right to seek judicial review of such action.
Section 14.2 Ð Prohibition Against Unauthorized Rates
No rate, fee or charge or deposit of any kind shall be charged or collected
from subscribers by FRANCHISEE for Basic Service or other regulated services
without the written authorization of Council.
Section 14.3 Ð Initial Rates
The initial rates to be charged and collected from subscribers for Basic
Service shall be those listed in FRANCHISEE's proposal.
Section 14.4 Ð Rates for New Services
The rates for any Basic Services not originally included in FRANCHISEE's
proposal, resulting from a substitution of services, or otherwise, shall also
be subject to this Agreement, and FRANCHISEE shall file the rates for them
with City Council for appr oval before such services. are offered and any
charge therefor is made or collected.
Section 14.5 Ð Rates to be on File
FRANCHISEE shall file with CITY on December 31st of each year or within five (5) working days of any change in rates a full schedule of all subscriber and user rates and all other charges including, but not limited to, Basic Service, pay TV, leased cha nnel and discrete services, made in connection with THE SYS'1'EM.
(a) Installation and service fees for the first television set of any subscriber shall be uniform for all individual dwellings, residences, including apartment, condominium cooperative or association buildings, institutions, organizations, businesses a nd all other entities within the CITY.
(b) All rates shall be published and on file in the Bureau of Cable Communications.
(c) FRANCHISEE shall not discriminate in the assessment levy, charge, imposition
or collection of rates on the basis of age, race, creed, color, religion,
national origin, sex or marital status.
Section 14.6 Ð Promotional Campaigns
Nothing in this Agreement shall be construed to prohibit the reduction or
waiving of charges in conjunction with promotional campaigns for the purpose
of attracting subscribers or users. The FRANCHISEE shall notify the
Director of any such promot ional campaigns at least ten (10) days before
their commencement and shall provide the Director with information which the
Director requests concerning such campaigns.
Section 14.7 -- Collections
(a) FRANCHISEE may require all subscribers to pay for Basic Service not more than two (2) months in advance. FRANCHISEE shall require no other advancement of payment for Basic Service, provided, however, that nothing herein shall be construed to prohibit an advancement of payment for installation of cable communications services.
(b)FRANCHISEE shall neither impose nor collect any additional charge for the disconnection of any installation or outlet.
(c) In the event that a subscriber fails to pay a properly due and owing
fee o-r charge, FRANCHISEE may disconnect the subscriber's service outlet,
upon giving ten (10) days written notice thereof. After disconnection
and upon payment of the deli nquent fee or charge and of a reconnection fee,
FRANCHISEE shall promptly reinstate a subscriber's cable service. FRANCHISEE
shall not charge any fee for disconnecting service.
Section 14.8 - Refunds
FRANCHISEE shall establish and conform to the following policy regarding refunds to subscribers and users:
(a) If FRANCHISEE collects a deposit or advance charge on any service or equipment requested by a subscriber or user, FRANCHISEE shall provide said service or equipment within thirty (30) days of the collection of the deposit or charge or it shall refu nd said deposit or charge within five (5) days thereafter. Nothing in this Agreement shall be construed to
(1) relieve the FRANCHISEE of any responsibility to subscribers or users under any contractual agreements into which it enters with them; or
(2) limit the FranchiseeÕs liability for fines or penalties which may be imposed under Chapter 425 or this Agreement for the violation or breach of any of their provisions; or
(3) limit FranchiseeÕs liability for damages because of its failure to provide
the service for which the deposit or charge was made.
Section 14.9 Ð Refunds Upon Termination of Basic Service
(a) In the event that a subscriber terminates Basic Service during the first twelve (12) months of said service because of the failure of FRANCHISEE to render the service in accordance with the requirement set forth in Chapter 425, or this Agreement, a s determined by the Director FRANCHISEE shall refund to such subscriber an amount equal to the initial applicable installation or reconnection charge paid by the subscriber.
(b) In the event that such subscriber has made an advance payment, the amount so advanced shall be refunded to such subscriber by FPANCIIISEE. Nothing in this provision shall be construed to relieve FRANCHISEE of any liability established under a ny other provision of Chapter 425 or this Agreement.
(c) In the event that a subscriber terminates Basic Service prior to the
end of a pre-paid period, the pro-rata portion of any pre-paid subscriber
fee which represents payment for services which are no longer to be rendered
shall be refunded promptly, but in no case more than thirty (30) days after
receipt of the request for termination.
Section 14.10 Security Deposits
(a) FRANCHISEE shall not charge a converter security deposit greater than said converter's actual cost to FRANCHISEE. Such cost shall be filed annually on January 2 with the Director.
(b) Any converter security deposit collected by FRANCHISEE shall be returned
to the subscriber twenty-four (24) months after the installation of such converter
or upon termination of service by the subscriber and return of such converter
undamaged, wit h allowance for reasonable wear and tear, and payment of any
outstanding balance due and payable, whichever occurs first.
Section 14.11 Basis for Rate Regulation
It is understood and agreed by FRANCHISEE and CITY that fixing just and reasonable
rates involves a balancing of the interests of FRANCHISEE's investors and
subscribers. Regulation of rates hereunder does not insure that FRANCHISEE's
business sha ll produce net revenues, but shall allow the FRANCHISEE an opportunity
to make a fair rate of return on its investment over the life of the franchise
(i.e., allow the FRANCHISEE to operate successfully, maintain its financial
integrity, attract capital an d compensate its investors for the risks assumed.)
Franchisee Fee
Section 15.1 Ð Franchise Fee
(a) As part of the consideration supporting the award of this Agreement. and CITY's permission hereunder to use the public rights of way and public places of CITY, FRANCHISEE shall pay to CITY a fee of five percentum (5%) of annual total local gross re venues, payable pursuant to Section 15.11, herein.
(b) The FRANCHISEE shall execute a financial guarantee bond in the initial
amount of One Million Three Hundred Thousand Dollars ($l,,300,000.00) to secure
payment of the entire unpaid franchise fee, defined as all past and/or present
years' unpaid fees , representing the percent of annual total local gross
revenues due the CITY, as consideration for the award of the franchise under
the provisions of Section 425.17(a) or this Franchise Agreement. Said
bond shall be increased yearly to an amount equ al or greater than the preceding
year's franchise fees, plus 10%, and shall be replenished, if necessary, to
maintain such a balance of bond limits. Said bond shall be in effect
upon the effective date of this Franchise Agreement and conditioned tha t
in the event that the FRANCHISEE fails to pay said fees, then there shall
be recoverable jointly and severally from the principal and surety all franchise
fees, unpaid and accrued to date, and damages or costs suffered or incurred
by the CITY as a resul t thereof, including, but not limited to, attorneys
fees and costs of any action or proceeding, up to the full principal amount
of such bond; and the condition shall be a continuing obligation during the
entire term of this Franchise Agreement and thereaf ter until the FRANCHISEE
shall have satisfied in full said franchise fee requirements of Chapter 425.
Section 15.2 Ð Option to Buy
As additional- consideration supporting this Agreement, CITY shall have a
first option to purchase THE SYSTEM for its fair market value at the expiration
of the term of this Agreement. FRANCHISEE agrees to maintain THE SYSTEM
for the entire term of this Franchise Agreement in good operating condition
to insure its integrity in the event the CITY wishes to exercise its option
to buy.
Section 15.3 Ð Studio Facility
As additional consideration supporting this Agreement, FRANCHISEE agrees
that when 15,000 persons have subscribed to any of FRANCHISEE's cable communications
service, or the second anniversary date of the execution of this Agreement,
whichever occurs f irst, FRANCHISEE shall install within four (4) months thereafter
a studio in the City-County Building. Such studio shall be equipped
in the manner described by FRANCHISEE in its proposal, and upon installation
of the described equipment it shall bec ome the property of CITY, and it shall
be the responsibility of CITY to maintain the same. FRANCHISEE further
agrees to install all equipment to provide direct audio and video feed capability
from an office designated by the Mayor in said building a nd Council Chambers
to such studio and from such studio to THE SYSTEM.
Section 15.4 Ð Service to Public Buildings
As further consideration supporting the award of this Agreement, FRANCHISEE
shall provide without charge for the entire term hereof a single drop and
all cable communications services, including, inter alia, basic service to
any building designated by the Director and used by CITY for a public purpose.
In addition, FRANCHISEE shall provide a return path feed line from the City--County
Building.
Section 15.5 Ð Maps as Consideration
As further consideration supporting this Agreement, FRANCHISEE expressly
agrees to furnish the maps and records required in Section 425.22(h) of the
Code. Upon delivery of said maps and records as provided therein, said maps
and records shall become th e property of CITY.
Section 15.6 -- Service to Schools as Consideration
As further consideration supporting the award of this Agreement, FRANCHISEE
shall provide for the entire term of this Agreement a single drop to all public
or non-profit elementary and secondary schools and institutions of higher
learning located withi n CITY. Installation of said drop shall be at
the sole cost and expense of the school or institution served and shall be
installed in such a manner as to minimize costs; further, FRANCHISEE shall
not charge or collect from the said schools and insti tutions any fee or other
charge whatsoever for basic services.
Section 15.7 Ð Additional Consideration
To the extent that FRANCHISEE has offered in its proposal consideration supporting
the award of this Agreement in addition to that included in Section 15.1 through
15.6 above, such consideration is incorporated herein and made a part hereof
by referenc e as if set forth at length.
Section 15.8 Ð Application for Waivers
FRANCHISEE acknowledges and accepts that a five percentum (5%) franchise
fee has been applied for by WARNER, that the FCC has granted said petition
and that WARNER has withdrawn its petition for clarification and represents
that FRANCHISEE will not, du ring the term of this franchise, petition or
file for a reduction of said five percentum (5%) fee.
Section 15.9 Ð Reasonableness of Fee
CITY and FRANCHISEE agree that the fee provided in Section 15.1 hereof will
not interfere with the effectuation of any federal regulatory goals in the
field of cable communications and that the fee is appropriate in light of
CITY's planned regulatory p rogram and THE SYSTEM contemplated by this Agreement.
Throughout the process of securing federal approval, including waivers and
thereafter as necessary, FRANCHISEE shall support and assist CITY's demonstrating
to the FCC that such fee is consistent with federal standards and is otherwise
appropriate, as indicated.
Section 15.10 Ð Consideration Passing from City to Franchisee
FRANCHISEE-; agrees to receive as full consideration from CITY under this
Agreement the use of the streets, public rights of way and public places within
the corporate limits of the City of Pittsburgh for the installation, erection,
construction, recon struction, operation, maintenance, dismantling, testing,
repair and use of THE SYSTEM.
Section 15.11 Ð Payment of the Fee
The annual fee provided for in Section 425.17 (a) of the Code and Section
15.1 hereof shall be assessed quarterly for the preceding quarter, as of March
31, June 30, September 30 and December 31 of each year. Quarterly franchise
fee payments shal l be reduced by $61,316.46 per quarterly payment, in each
of the twenty-eight (28) consecutive quarters, commencing with the 3/31/88
quarterly payment and ending with the 12/31/94 quarterly payment. Thereafter,
there shall be no reduction in quarter ly payments. Each quarterly payment
shall be payable and reportable to the City Treasurer no less than thirty
(30) days after the relevant assessment date. Each payment shall be
accompanied by a report from FRANCHISEE in a form approved by CIT Y showing
the basis for the computation and such other relevant data as may be required
by CITY. Each of said reports shall contain a notarized verification
by an officer of FRANCHISEE and such reports shall be verified annually, within
ninety (90) days of the close of business on the last day of the calendar
year, by a Certified Public Accountant selected by CITY at the expense of
FRANCHISEE.
Section 15.12 Ð Audit of Fee; Delinquency
The acceptance of any payment required hereunder by CITY shall not be construed
as an acknowledgement that the amount paid is the correct amount due, nor
shall such acceptance of payment be construed as a release of any claim which
CITY may have for ad ditional sums due and payable. All fee payments
shall be subject to audit by the City Treasurer and assessment or refund if
the payment is found to be in error. In the event that said audit results
in an assessment by and an additional payment to CITY, said additional payment
shall be subject to interest at the rate of six percentum (6%) per year and
to a penalty of six percentum (6%) per year, from the date on which such payment
was due and payable, which shall be due and payable immediately.
Section 15.13 Ð No Limitation of Liability
Nothing in this Agreement shall be construed to limit the liability of FPANCIIISEE
for all applicable federal, state and local taxes, including, inter alia,
applicable local amusement taxes. Payment of compensation made by FRANCHISEE
to CITY purs uant to the provisions of this Agreement shall not be considered
in the nature of a tax or assessment but shall be in addition to any and all
taxes and assessments which are now or hereafter required to be paid by any
law to any taxing body. In bill ing subscribers for cable communications
services FRANCHISEE shall not designate the fee as a tax.
Section 15.14 Ð Payment of Fee During Operation Following Termination or
Cancellation
In the event FRANCHISEE continues the operation of any part or all of THE
SYSTEM beyond the cancellation or expiration of this Agreement, it shall pay
to CITY the compensation as set forth in this Agreement at the rate in effect
at the time of such can cellation or expiration, and in the manner set forth
in this Agreement, together with all taxes it would have been required to
pay had its operations been duly authorized.
Restrictions Against Transfers and Assignments
Section 16.1 Ð Transfer Before Completion of Construction
FRANCHISEE shall not transfer, assign or otherwise encumber either by its
own action or by operation of law its right, title or interest, either legal
or equitable, in this Agreement or in THE SYSTEM before the completion of
construction of THE SYSTEM as certified by the Director of the Department
of Public Works.
Section 16.2 Ð Unauthorized Transfers Prohibited
Upon certified completion of construction of THE SYSTEM, FRANCHISEE shall
not transfer, assign or otherwise encumber, either through its own action
or by operation of law, its right, title or interest, either legal or equitable,
in this Agreement or in THE SYSTEM without the prior written authorization
of Council and the Mayor. For the purposes of this Agreement, a merger,
consolidation or action in Bankruptcy shall be deemed a transfer and assignment.
Section 16.3 Ð Unauthorized Transfer of Ownership Prohibited
During the term of this Agreement, FRANCHISEE shall not sell, transfer, exchange
or release, or permit the sale, transfer, exchange or release of more than
3% of the equitable ownership of 'DIE SYSTEM to a person (hereinafter 'proposed
transferee") wit hout the prior written authorization of Council and the Mayor.
FRANCHISEE shall immediately notify CITY of such proposed transaction and
request authorization for such transaction from Council and the Mayor.
FRANCHISEE shall assist CIII'Y in e very manner in any inquiry into the qualifications
of the proposed transferee. No transfer or other change of control shall
be affected unless and until Council and the Mayor shall have consented thereto
in writing. Any transfer or other chang e in control which occurs without
the written consents required herein shall be deemed to be a material breach
of this Agreement and shall subject FRANCHISEE to the penalties prescribed
herein and in Chapter 425.
Section 16.4 Ð Non-waiver of Consent
The granting, giving or waiving by Council or the Mayor of any one or more
of such consents or approvals shall not render unnecessary any other or subsequent
consents or approvals.
Section 16.5 Ð City to Maintain Control Over Public Ways and Places
The consent or approval of CITY to any assignment, lease, transfer, sublease,
mortgage or other encumbrance of this Agreement or the rights hereunder or
THE SYSTEM, shall not constitute a waiver or release of the rights of CITY
in and to the streets, p ublic ways and public places or as a release of any
of its Police Powers.
Section 16.6 Ð No Transfer to be Authorized During Last 13 Months of Term
CITY shall not approve or consent to the transfer, assignment or other alienation
of rights under this Agreement, in THE SYSTEM or in any legal or equitable
interest therein, within thirteen (13) months of the termination date of this
Agreement, in acc ordance with and pursuant to Section 425.23(d) of the Code.
Section 16.7 Ð Requirements for Authorization to Transfer
Before written authorization of council or the Mayor shall be given, FRANCHISEE shall:
(a) show, to the satisfaction of CITY, upon such written or other documentation as it shall require, whether the proposed transferee, which, in the case of a corporation, shall include all officers, directors employees and all persons having a legal or equitable interest in five percentum (5%) or more of its voting stock, or any of the proposed transferee's principals:
(1) has ever been convicted of a crime involving moral turpitude, including, but not limited to, criminal fraud, or is presently under an indictment charging such a crime; <P
(2) has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him, or them by any court of competent jurisdiction; or
(3) has pending any legal claim or lawsuit arising out of, involving or in any way connected with a cable communications system.
(b) establish, to the satisfaction of CITY, upon such written or other documentation as CITY shall require, the financial solvency of the proposed transferee, including the submission of all current financial data for the proposed transferee which FRAN CHISEE was required to or actually did submit in its application and proposal for entering into this Agreement.
(c) establish to the satisfaction of CITY, upon such written or other documentation
as it shall require that the financial standing of the proposed transferee
is sufficient to maintain and operate THE SYSTEM in accordance with Chapter
425 of the Code a nd this Agreement for the remaining term hereof.
Section 16.8 Ð Transferee to Assume FranchiseeÕs Obligations
Any approval for such a transfer or assignment given by Council and the Mayor
shall not be effective until the proposed transferee shall have executed an
Agreement in the form and containing the conditions approved by the city Solicitor
that it shall a ssume and be bound by all of the provisions, terms and conditions
of Chapter 425 of the Code, this Agreement and all federal, state and local
laws, and further that it shall be primarily liable and obligated under said
documents, provided, however, that F RANCHISEE shall continue to be liable
for all of its obligations hereunder to the extent that the proposed transferee
fails to fulfill them, and, provided further, that nothing in this Agreement
or in the Agreement executed by the proposed transferee shal l be construed
to relieve the FRANCHISEE of such liability.
Section 16.9 Ð Unauthorized Transfers and Assignments
Any act by which FRANCHISEE has:
(1) concealed, removed, or permitted to concealed or removed any part of its property, with intent to hinder, delay, or defraud its creditors or any of them, or made or suffered a transfer of any of its property, fraudulent under any provision of law; or
(2) made or suffered a preferential transfer; or
(3) suffered or permitted, while insolvent, any creditor to obtain a lien upon any-of its property through legal proceedings or distraint and not having vacated or discharged such lien within thirty (30) days from the date thereof or at least five days before the date set for any sale or other disposition of such property; or
(4) made a general assignment for the benefit of its creditors; or
(5) while insolvent or unable to pay its debts as they mature, procured, permitted, or suffered voluntarily or involuntarily the appointment of a receiver or trustee to take charge of its property; or
(6) admitted in writing its inability to pay its debts and its willingness
to be adjudged a bankrupt; or an adjudication that FRANCHISEE is bankrupt,
or placement of FRANCHISEE into receivership or the issuance of any order
to FRANCHISEE or any of its stockholders by a government agency or court of
competent jurisdiction to divest any interest related to THE SYSTEM which
is the subject of this Agreement, or the entry of an judgment against FRANCHISEE
which, in the opinion of CITY, impairs the FRANCHISE E's credit, shall be
deemed an unauthorized transfer and assignment under this Agreement.
Section 16.10 Ð Acceleration Upon Unauthorized Transfer or Assignment
Upon the occurrence of all unauthorized transfer or assignment, as defined
in Chapter 425.23 of the Code or herein, CITY, at its option, may terminate
this Agreement and accelerate all of the obligations and rights hereunder
including, inter alia-, the right of CITY to purchase THE SYSTEM at fair market
value or to award a franchise to another person.
Section 16.11 Ð Notice of Unauthorized Transfer
FRANCHISEE shall notify the Director of any occurrence which constitutes
an unauthorized transfer under the provisions of Section 425.23(f) of the
Code or Section 16.9 hereof or of the entry of any judgment against it within
twenty-four (24) hours of s uch occurrence. From and after any of the
occurrences enumerated in Section 425.23(f) of the Code or Section 16.9 hereof,
FRANCHISEE shall not make, execute or enter into any deed, deed of trust,
mortgage, contract, conditional sales contract, or an y loan, lease, pledge,
sale, pole agreement or any other or hypothecation concerning any of the facilities
or property, real or personal, constituting any part of THE SYSTEM without
the written approval of Council and the Mayor.
Section 16.12 Ð Change in Control
The assumption by any lender of the assets or operation of FRANCHISEE by
reason of its default in any loan obligation without the authorization of
CITY shall be deemed an unauthorized transfer, assignment and change of control
or ownership for purposes of this Agreement.
Reports
Section 17.1 -- Compulsory Reports
On or before March 31 of each year during the term of this Agreement, FRANCHISEE shall submit a written report to CITY, in a form approved by CITY, including, but not limited to, the following information:
(a) A summary of the previous year's or, in the case of the initial reporting year, the initial year's, activities in development of THE SYSTEM, including, but not limited to, services begun or discontinued, total number of subscribers, subscribers add ed or discontinued during the reporting year, and user participation, if any; and
(b) A financial statement including a statement of income, revenues, operating expenses, original cost of THE SYSTEM retired from service during the previous year, the original cost of THE SYSTEM added to service during the previous year, the total ori ginal cost of THE SYSTEM in service and used and useful at the end of the previous year, all annual capital expenditures, book depreciation with an attached depreciation schedule, interest paid, taxes actually paid, historic and pro forma balance sheets a nd a statement of sources and applications of funds, covering all years since the date of the execution hereof; and
(c) A current statement of costs of construction by component categories,- and
(d) A projected income statement, balance sheet, statement of sources and applications of funds and statement of projected construction for the next two years; and
(e) A reconciliation between previously projected construction and/or financial estimates as the case may be and actual results; and
(f) A summary of complaints, identifying the number and nature of complaints and their disposition; and
(g) A list of officers and members of the Board of Directors of FRANCHISEE, Tele--Communications, Inc., and any subsidiaries of FRANCHISEE; and
(h) A list of its stockholders holding three percentum (3%) or more of the voting stock of FRANCHISEE and any subsidiaries of FRANCHISEE; and
(i) A copy of its annual report of FRANCHISEE, Tele-Communications, Inc.,
and any subsidiaries of FRANCHISEE.
Section 17.2 Ð Special Reports
In addition to the reports required to be furnished to CITY under Section 17.1 hereof, city may request such other information or reports, including, but not limited to, the following special reports:
(a) An annual Opinion Survey report which identifies dissatisfaction among subscribers with cable communications services offered by FRANCHISEE. Surveys required to make said report shall be conducted in conformance with such requirements, includ ing supervision, as the Director may prescribe.
(b) An Annual Plant Survey Report which shall be a complete survey of FRANCHISEE's plant and full report thereon and which shall be submitted to CITY. The purpose of said report is hereby declared to be to assure CITY that the technical standards of the FCC or CITY, whichever are applicable, are achieved and maintained. Said report shall include, but not be limited to, an appropriate engineering evaluation, including suitable electronic measurements, and shall be conducted in conformance wi th such requirements, including supervision, as the Director may prescribe.
(c) General reports shall be prepared and furnished to CITY at the times
and in the form prescribed. Through these reports CITY shall obtain
information concerning FRANCHISEEÕs operation, business affairs, transactions
-as may be reasonably neces sary for the performance of any of the Director's
or any other CITY official's duties.
Section 17.3 Ð Reports to be on Public File
All reports required under this Section shall be available for public inspection
in the Bureau of Cable communications during normal business hours.
Section 17.4 Ð Dual Filings
FRANCHISEE shall file with CITY a copy of any document it files with the
FCC within five (5) working days of such filing or with any other regulatory
agency pertaining to the cable communications system owned and/or operated
by FRANCHISEE pursuant to t his Agreement. To the extent that such documents
contain, to the satisfaction of the Director, the information required by
other reports hereunder, the Director may suspend the requirements to file
such other reports with CITY so as to avoid duplication a nd the administrative
costs attendant thereto.
Section 17.5 Ð Accounting Obligations
FRANCHISEE shall keep complete and accurate books of account and records
of its business and operations under and in connection with this Agreement.
Section 17.6 Ð Right to Audit
The City Treasurer or any other person designated by the Mayor, shall have
access to all books of account and records of FRANCHISEE for the purpose of
ascertaining the correctness of any and all reports, accounts or payments
due or made to CITY.
Termination
Section 18.1 Ð Material Breaches of This Agreement Defined
CITY shall have the right to terminate this Agreement upon any material breach
of the terms and conditions of Chapter 425, this Franchise Agreement or FRANCHISEE's
proposal; provided, however, if the terms or conditions of chapter 425, this
Franchise a nd/or the FRANCHISEE's proposal conflict, the terms and conditions
of Chapter 425 shall prevail over and supersede this Agreement and FRANCHISEE's
proposal, and the terms and conditions of this Agreement shall prevail over
and supersede FRANCHISEE's propo sal.
Section 18.2 Ð Determination of Breach
(a) In the event that the Mayor determines that a material breach has occurred, as defined in paragraph 18.1, the Mayor may wake a written demand on FRANCHISEE that it comply with the breached term or condition. if the violation, breach, failure, refus al or neglect is not remedied within thirty (30) days following such demand, the Mayor shall determine whether or not such violation, breach, failure, refusal or neglect by FRANCHISEE was excusable pursuant to Section 19.26, herein.
(b) If the Mayor determines such violation, breach, failure, refusal or neglect by FRANCHISEE was excusable due to the above-mentioned causes, the Mayor shall direct FRANCHISEE to correct or remedy the same within such additional time and upon such ter ms and conditions as the Mayor way direct.
(c) If the Mayor determines such violation, breach, failure, refusal or neglect by FRANCHISEE was inexcusable because it was not to any declared emergency as stated above, the Mayor may declare this Agreement breached and of no further force and effect .
(d) Upon declaring this Agreement breached and of no further force and effect, the Mayor may pursue any of the following remedies:
(1) Foreclose upon FRANCHISEE's performance or other pertinent bond;
(2) Exercise CITY's option to purchase 'IIIE SYSTEM, including, inter alia, all books and records relating thereto, all private easements which FRANCHISEE has acquired for the operation there0fr all assignable contracts and such other rights as are nec essary to maintain continuity and quality of service to subscribers at a cost not to exceed its then fair market value, as certified by a Certified Public Accountant selected by CITY at FRANCHISEE's expense, less any amount for any damages incurred by CII Y in connection with such cancellation. Damages incurred by CITY shall include, but shall not be limited to, any payment made or costs incurred by CITY for the continued operation of THE SYSTEM. FRANCHISEE shall execute all documents necessary for the conveyance of THE SYSTEM and the aforesaid interests at the Director's request;
(3) Commence an action at law for money damages;
(4) Order FRANCHISEE to quit the public right of way and to disassemble and remove its system therefrom and commence appropriate legal actions to enforce such removal. FRANCHISEE hereby agrees to comply with such order of the Mayor or, in the eve nt that it does not, the Mayor is hereby authorized by FRANCHISEE to seek an equitable action in ejectment against it and all persons claiming under it.
(e) Because the damages suffered by CITY in any cancellation and termination of this Agreement resulting from a breach thereof by FRANCHISEE are difficult of ascertainment, it is hereby agreed between CITY and FRANCHISEE that the damages which CITY wou ld reasonably sustain in the event of certain breaches by FRANCHISEE are as follows:
(1) Fifty dollars per day ($50/day) for each day FRANCHISEE fails to provide any information or documents requested by the Director.
(2) Three hundred dollars per day ($300/day) for each day that FRANCHISEE denies, delays, interrupts or terminates cable communications services or the use of community communications facilities, if any, to actual or potential subscribers or users. FRA NCHISEE and CITY agree that these liquidated damages are not a penalty. FRANCHISEE and CITY agree that such liquidated damages are reasonable. Such liquidated damages shall be recoverable in assumpsit of from FRANCHISEEÕs surety under the bond s provided in Chapter 425 of the Code and Section 12 hereof.
(f) In the event that FRANCHISEE dismantles or terminates THE SYS'I'EM or is required by any provision of this Agreement or Chapter 425 to dismantle or terminate the same, FRANCHISEE shall, at the direction of the Director of the Department of Public W orks, restore any property, public or private, to the condition in which it existed prior to the installation or construction of THE SYSTEM, including any improvements made to such property subsequent to the said installation and construction. Resto ration of CITY property, including, but not limited to, streets, shall be in accordance with the directions and specifications of all affected directors and agencies of CITY and all applicable laws. FRANCHISEE, at the option and direction of the Dir ector of the Department of Public Works, shall restore the same at its sole expense.
(g) If all or any part of the streets, public ways, and public places within
CITY are closed or discontinued for any reason whatsoever, then all the rights
and privileges granted to FRANCHISEE under this Agreement with respect to
the aforesaid location s or any part thereof so closed or discontinued, shall,
at the election of CITY, cease and terminate upon the date of their closing
or discontinuance. FRANCHISEE shall not be entitled to any damages from
CITY due to the closing or the discontinuance of the aforesaid places or for
injury to any part of THE SYSTEM in the streets or for its removal or relocation.
Section 18.3 -- Condemnation
In the event THE SYSTEM is taken or condemned pursuant to law, the rights
and privileges under this Agreement shall, at the option of CITY, cease and
terminate on the date of the vesting of title pursuant to such condemnation
or taking. It is her eby agreed between CITY and FRANCHISEE that any
award to FRANCHISEE in connection with any taking or condemnation shall be
determined in accordance with the evaluation standards of Section 18.4.
Section 18.4 Ð Right to Purchase Upon Default
Upon termination of this Agreement by reason of the default of FRANCHISEE,
CITY may exercise its option to purchase THE SYSTEM, including, all books
and records relating thereto, all private easements which FRANCHISEE has acquired
as part thereof, all assignable contracts and such other rights as are necessary
to maintain the continuity and quality of service to subscribers, at a cost
not to exceed its then fair market value as certified by a Certified Public
Accountant selected by CITY at the expense of FRANCHISEE, reduced by any damages
incurred by CITY in connection with such termination. Damages incurred
by CITY shall include, but shall not be limited to, any payment made by CITY
for the continued operation of THE SYSTEM. Upon terminati on of the
Agreement by reason of the default of the FRANCHISEE, CITY may direct FRANCHISEE
to cease operation and FRANCHISEE agrees to do so immediately. If CITY
elects to exercise its option to purchase THE SYSTEM at fair market value,
then it is h ereby agreed between FRANCHISEE and CITY that the transfer shall
be deemed to have been made and title to THE SYSTEM shall vest in CITY upon
delivery to FRANCHISEE of CITY's written notice of its exercise of option
under this Section, and to this end, the Agreement and CITY's written notice
may be recorded by CITY. CITY shall take possession of the aforesaid
property comprising THE SYSTEM upon tender of its fair market value calculated
as of the date of termination as determined by such accountant.& nbsp; If
CITY elects to exercise its option to purchase THE SYSTEM, FRANCHISEE shall
promptly execute all additional documents which CITY dews necessary to commemorate
such transfer to title of FRANCHISEE's realty, personalty and choses in action
constitu ting THE SYSTEM to CITY and such other rights as are necessary to
maintain the continuity and quality of service to subscribers including, inter
alia, any documents required because this transfer constitutes a bulk sale.
FRANCHISEE shall cooperate f ully with CITY or with any other person authorized
or directed by CITY to operate THE SYSTEM for a temporary period, not to exceed
six (6) months, in maintaining continuity of service. Nothing herein
is intended as a waiver of any rights CITY may ha ve, including equitable
remedies, to enforce this Agreement.
Section 18.5 Ð Right to Purchase Upon Expiration of Term
Pursuant to Section 425.17(b) of the Code and Section 15.2 hereof, CITY holds
the first option to buy THE SYSTEM for its fair market value at the termination
of the term hereof and FRANCHISEE agree s to sell THE SYSTEM to CITY upon
its exercise of such option. Therefore, it is understood and agreed
between CITY and FRANCHISEE that upon receipt by FRANCHISEE Of CITY'S notification
that CITY has elected to exercise its option to purchase THE SYSTEM, title
to all tangible and intangible property; co mprising, THE SYSTEM, including,
by way of illustration and not limitation, all books and records thereof wherever
located, the entire physical plant and all equipment, private easements and
all other interests in realty which FRANCHISEE acquired or used for the operation
thereof, and all assignable contracts, shall be transferred to and vest in
CITY, and this Agreement and CITY's written notification may be recorded by
CITY to commemorate such transfer. The purchase price shall be the fair
market v alue of the aforesaid property as determined by an audit of FRANCHISEE,
which audit shall be performed by a Certified Public Accountant elected by
CITY at FRANCHISEE's expense. CITY shall take possession of the aforesaid
property comprising THE SYST EM upon tender of such fair market value
calculated as of [October 31, 1999], the date of termination hereof,
by such accountant. FRANCHISEE agrees to execute promptly all additional
documents which the City Solicitor deems necessary to commemorate such transfer
and vesting of title to the above property and to maintain continuity and
quality of service to subscribers. FRANCHISEE shall cooperate with CITY
or with any other person authorized or directed by CITY to operate THE SYSTEM
for a temporary period, not to exceed six (6) months. CITY shall pay
to FRANCHISEE all reasonable and necessary costs incurred by FRANCHISEE on
account of said operation and CI'IY shall receive all profits and suffer all
losses from the same. Said costs and profits or losses shall be dete
rmined by an audit of FRANCHISEE which audit shall be performed by a Certified
Public Accountant selected by the Director of the Department of Public Works
with the approval of the City Treasurer at the expense of CITY.
Section 18.6 Ð Removal of The System
In the event that FRANCHISEE dismantles or terminates THE SYSTEM or is required
by any provision of Chapter 425 or this Agreement to dismantle or terminate
THE SYSTEM, FRANCHISEE, at the direction of the Director, shall remove its
supporting structures , poles, transmission and distribution system and other
appurtenances, fixtures or property from the streets, public ways and public
places, in, over, under, along or through which they are installed within
six (6) months of being notified to do so. FRANCHISEE shall also restore
any property, public or private, to the condition in which it existed prior
to the installation, erection or construction of THE SYSTEM, including any
improvements made to such property subsequent to the construction of THE SYSTEM,
or pay the fair market value therefor, whichever is less. Restoration
of CITY property, including, but not limited to, streets, shall be in accordance
with the directions and specifications of all affected Directors and Agencies
of CITY, and all applicable laws. FRANCHISEE, at the option and direction
of the Director, shall restore the same at its sole expense. If such removal
and restoration is not completed within six (6) months of the notice of the
Director, all property remaining s hall, at the option of the Director delivered
in-writing to FRANCHISEE, be deemed abandoned and shall at the option of CITY,
become its property. In the event FRANCHISEE fails or refuses to remove
THE SYSI'EM or satisfactorily restore all areas to t heir original condition,
CITY, at its option, may perform such work and collect the costs thereof from
FRANCHISEE. No surety on any bond hereunder shall be discharged until
the Director has certified to FRANCHISEE in writing that THE SYSTEM has been
dismantled, removed, and all other property restored, to the satisfaction
of the Director.
Sundry Provisions
Section 19.1 -- Obscenity
FRANCHISEE and all other persons using or making use of THE SYSTEM shall
comply in all respects with all federal, state and local laws regarding obscenity.
Section 19.2 Ð Pennsylvania Law Controls
It is further agreed by FRANCHISEE and CITY that in all matters not herein
specified, this Agreement shall be subject to the provisions of the Acts of
Assembly of the Commonwealth of Pennsylvania, and the ordinances and Resolutions
of the City of Pitts burgh now in force or hereafter amended, supplemented
or adopted so far as they are applicable hereto, and the interpretations thereof
by any court of competent jurisdiction.
Section 19.3 Ð No Abrogation of Police Powers
Nothing in this Agreement shall be construed as an abrogation by CITY of
any of its police powers.
Section 19.4 Ð Service of Notice
All notices or other written communications required to be given to CITY
under any provision of this Agreement shall be deemed served when delivered
by hand in writing to the Superintendent, or to any adult person in charge
of the Bureau of Cable Commu nications during normal business hours.
All notices required to be given to FRANCHISEE under any provision of this
Agreement shall be deemed served when delivered by hand in writing to the
person designated in Section 2.09 hereof to receive service or when regularly
mailed to such person at FRANCHISEE's address as designated in Section 2.09
of this Agreement.
Section 19.5 Ð Prohibition Against Discrimination
FRANCHISEE shall strictly adhere to the Equal Employment Opportunity regulations
of the FCC and to all federal, state and local laws, and executive orders
pertaining to discrimination, equal employment opportunity and affirmative
action, including, but not limited to, the Executive order issued September
26, 1978 by Richard S. Caliguiri, Mayor, and The Pittsburgh Code, Title VI,
Conduct, Article V, Discrimination.
Section 19.6 Ð DirectorÕs Delegation of Authority
It is understood and agreed that the Director of the Department of Public
Works may delegate responsibility for any action he is authorized to take
hereunder to the Superintendent of the Bureau of Cable Communications or such
other person as the Direct or may designate. It is further understood
and agreed that any action which the Superintendent is authorized to take
under Chapter 425 is subject to the control of the Director.
Section 19.7 Ð Documents Incorporated In and Made Part of This Agreement
It is further agreed by FRANCHISEE and CITY that the following documents and plans shall be incorporated in and made a part of this Agreement, and that they shall supplement each other:
(a) The OFFICIAL ADVERTISEMENT for proposals as published in the daily papers.
(b) The REQUEST FOR PROPOSALS.
(c) The PROPOSAL made by FRANCHISEE
(d) The Department of Public Works' Standard Specifications for Materials and Construction dated November 1938, with supplements and revisions dated 1962, and supplemental specifications for concrete pavement and base course, dated March 1978, an d specifications for bituminous concrete mixtures dated 1978, and current standards for construction.
It is understood by the parties that Chapter 425 of the Code regulates cable
communications within the city and unless excepted by Section 2.3 hereof,
its provisions apply to this Agreement.
Section 19.8 - Resolution of Disputes and Interpretation of Agreement
It is expressly covenanted and agreed that in the event of any disagreement
or controversy arising between FRANCHISEE and CITY as to the interpretation
of the Request for Proposals, or the interpretation of proper execution and
performance of this Agre ement, or as to any settlement thereunder, or in
the event of any disagreement as to any question or matter whatsoever which
may arise or be in dispute under this Agreement, including all documents constituting
a part hereof, or of the terms or conditions thereof, such disagreement, controversy
or dispute shall be immediately inquired into and decided by the Director
of the Department of Public Works, whose decision shall be based upon the
reasonable exercise of the discretion granted herein. FRANCH ISEE waives
no rights to dispute the decision of the Director.
Section 19.9 Ð FranchiseeÕs Declaration of Understanding
FRANCHISEE, or. the person executing this Agreement on its behalf, declares
that he or she has read each and every clause in the Advertisement, Request
for Proposals, Specifications and Agreement relating to installation and construction
of THE SYSTEM, and fully understands the meaning of the same, and hereby agrees
that it, he or she on behalf of FRANCHISEE will comply with all the terms,
covenants and agreements herein set forth; also that it, he or she has thoroughly
examined the plans for the work to be done under this Agreement; that it,
he or she has examined the locations of the proposed construction and fully
understands the character of the work to be done under this Agreement.
Section 19.10 Ð Wages To Be Paid By Franchisee
FRANCHISEE further agrees that it and each of its subcontractors will pay
not less than minimum wages to laborers and mechanics. Minimum wages
stipulated shall not be construed to affect interference with usual trade
practices. Wages paid t o laborers and technicians engaged on construction
under this Agreement shall be made in full (less deductions wade mandatory
by law), and shall be paid not less often than once each month.
Section 19.11 Ð Employment Rights
In addition, FRANCHISEE and each of its subcontractors shall submit monthly
a report showing the total number of persons directly employed under this
Agreement together with their classification and wages paid. Such reports
are to be made directl y to the Director not later than the 5th day following
the end of each month, and shall be in accordance with instructions and on
forms to be supplied by CITY.
Section 19.12 Ð Standard Specifications for Materials and Construction
FRANCHISEE hereby acknowledges that it has received a copy of the Standard
Specifications for Materials and Construction as described in Section 19.8
(d) hereof, and agrees that the Standard Specifications for Materials and
Construction, referred to an d the separate copies thereof on file in the
office of the Mayor and Director of Public Works by reference hereto, shall
be wade a part of this Agreement as fully as if attached hereto, and that
FRANCHISEE will comply with all the terms, stipulations and covenants set
forth therein.
Section 19.13 Ð Restoration of Property
All work done and material furnished in construction on or restoration to
any damaged or injured CITY property shall be in accordance with the Standards
listed in Section 19.7 (d) hereof.
Section 19.14 Ð WorkmenÕs Compensation Act
FRANCHISEE hereby certifies that it has accepted the provisions of the Workmen's
Compensation Act of 1915, and any supplements or amendments thereto, insofar
as the work covered by this Agreement with CITY is concerned, and has insured
itself from liab ility thereunder, in accordance with the term of said Act.
Section 19.15 Ð Execution Within 7 Days of Award
This Agreement shall be executed by FRANCHISEE within seven (7) working days
from (a) FRANCHISEE's receipt of notification of CITY's acceptance of its
proposal, or (b) the closing date of the sale from WARNER to FRANCHISEE, whichever
occurs later. ; The CITY's acceptance shall be made in writing by the
Director and delivered in the manner prescribed in Section 6 of Chapter 425
to the offices designated in FRANCHISEE's proposal to receive such notices.
If such execution is not effectuated with in the time prescribed herein, this
Agreement shall be of no force and effect and the CITY may execute against
any applicable bonds provided for in this Agreement.
Section 19.16 Ð Subsequent Action by the Commonwealth or Federal Authorities
Should the Commonwealth of Pennsylvania or the FCC or other federal agency
require FRANCHISEE to perform or refrain from performing any act, the performance
or non-performance of which is inconsistent with any of the provisions of
this Agreement, FRANC HISEE shall so notify CITY and CITY shall thereupon,
if it determines that a material provision herein is affected, have the right
to seek modification of any of the provisions herein to such reasonable extent
as may be necessary to carry out the full int ent and purpose of this Agreement.
Section 19.17 - Successors and Assigns Bond
All the provisions of this Agreement shall apply to FRANCHISEE, its successors,
and assigns.
Section 19.18 - Remedies
(a) The rights and remedies reserved to CITY by this Agreement are cumulative and shall be in addition to and not in derogation of any other rights or remedies which CITY may have with respect to the subject matter of this Agreement, and a waiver there of at any time shall not affect any other time.
(b) Specific mention of the materiality of any of the provisions herein is
not intended to be exclusive of any other for the purpose of determining whether
any failure of compliance hereunder is material and substantial.
Section 19-19 - Right to Intervene in Suits
CITY hereby reserves to itself, and FRANCHISEE hereby grants to CITY, the
right to intervene in any suit, action or proceeding involving any provision
of this Agreement or THE SYSTEM.
Section 19.20 Ð Severability
If any provision of this Agreement or the particular application thereof,
shall be held invalid by a Court of competent jurisdiction, the remaining
provisions, and their application, shall not be affected thereby.
Section 19.21 Ð No Oral Modification
This Agreement shall not be changed, modified or amended in whole or in part
except in writing signed by all the parties.
Section 19.22 Ð Merger Clause
This Agreement constitutes the entire contract between the parties hereto
and there are no other understandings, oral or written, relating to the subject
matter hereof.
Section 19.23 Ð Obligations to Continue Throughout Term
Unless specifically designated otherwise, all of FRANCHISEE'S obligations
under this Agreement shall continue throughout the entire term or any extension
hereof.
Section 19.24 Ð Cooperation in Obtaining and Implementing Grants
FRANCHISEE agrees to cooperate fully with CITY in obtaining or implementing
any federal or state grants or other funds to be applied to THE SYSTEM or
to its development as a community resource.
Section 19.25 Ð Headings
Section headings used in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
Section 19.26 Ð Force Majeure
The FRANCHISEE shall not be deemed in violation of this Agreement and/or
Chapter 425 for the delayed performance or the failure to perform, in whole
or in part, its obligations under said documents, and will not be subjected
to penalties, fines or the imposition of any remedies or procedures thereunder
or hereunder where such delayed or prevented performance is due solely to
strikes, war or act of war (whether an actual declaration is made or not),
insurrection, riot, act of public enemy, catastrophe, fire, flood or other
act of God. FRANCHISEE shall promptly notify the Mayor in writing of
any event covered by this Section. Furthermore, FRANCHISEE, in such
notice, shall indicate the anticipated extent of such delay and the obligations
under Chapter 425 or this Agreement that may be affected thereby.
Section 19.27 Ð Modification
During the period a franchise is in effect and during such time as Section
625 of 'The Cable Franchise Policy and Communications Act of 1984' is in effect,
provided however, if such Section 625 is altered, deleted or inconsistent
herewith, its present or new language shall substitute this Section 19.27,
FRANCHISEE may obtain from the CITY modifications of the requirements in such
Franchise Agreement as follows: (A) in the case of any such requirement for
facilities or equipment, including public, educa tional or governmental access
facilities or equipment, if the FRANCHISEE demonstrates that (i) it is commercially
impracticable for the FRANCHISEE to comply with such requirement, and (ii)
the proposal by the FRANCHISEE for modification of such requiremen t is appropriate
because of commercial impracticability; or (B) in the case of any such requirement
for services, if the FRANCHISEE demonstrates that the mix, quality, and level
of services required by the Franchise Agreement at the time it was granted
wi ll be maintained after such modification. For purposes of this Section,
the term 'commercially impracticable' means with respect to any requirement
applicable to a FRANCHISEE, that it is commercially impracticable for FRANCHISEE
to comply with such requirement as a result of a change in conditions which
is beyond the control of the FRANCHISEE and the non-occurrence of which was
a basic assumption on which the requirement was based.
Section 19.28 Ð Maintenance of Books of Account and Chief Place of Business
FRANCHISEE will keep proper books of record and account in which complete
and correct entries will be made of all of its business and financial transactions
(including, without limitation, such books of record and account covering
the accounts receivab le and the money due and to become due thereunder),
such entries to be made in accordance with generally accepted accounting principles
consistently applied in the case of financial transactions. To the extent
required by CITY, all such books of rec ord and account shall be made available
at the chief place of business of FRANCHISEE, Located in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania, at FRANCHISEE'S address
stated in this Franchise Agreement or at such other place w ithin the continental
limits of the United States as CITY shall leave approved in writing prior
to the change of location of FRANCHISEE's chief place of business. If
such chief place of business is not in the City of Pittsburgh, then FRANCHISEE
shal l pay the expenses of CITY auditors incurred by reason of their travel
to and accommodations in such other locations during the conduct of any audit
by reason of this Franchise Agreement.
Section 19.29 Ð Notice of Default
FRANCHISEE will promptly notify CITY in writing (i) of any default, of which
it has knowledge, in the observance or performance of this Franchise Agreement
and (ii) of the existence of any condition or event of which it has knowledge
which constitutes a default or which after notice or lapse of time, or both,
would constitute a default, in which case specifying the nature of such default,
condition and event and the action being taken with respect thereto.
Section 19.30 Ð Financial Statements
FRANCHISEE will furnish or cause to be furnished to CITY (1) within 120 days
after the close of each fiscal year, the balance sheet of FRANCHISEE as of
the close of such fiscal year and its statement of income and retained earnings
for such fiscal year , certified by independent public accountants acceptable
to CITY as having been prepared in accordance with generally accepted accounting
principles consistently applied, together with a letter of such accountants
stating that in the course of their audit undertaken in connection with such
financial statements, they have obtained no knowledge that a default or an
event which, with notice or lapse of time or both, would constitute a default,
has occurred and is continuing, or if, in the opinion of such acc ountants,
a default or such an event has occurred and is continuing, a statement as
to the nature thereof; provided, however, that such accountants shall not
be liable to CITY on account of their failure to obtain any such knowledge;
(2) within 90 days af ter the close of each of the first three quarters of
each fiscal year, the balance sheet of FRANCHISEE as of the close of such
quarter, certified by an officer of FRANCHISEE as having been prepared in
accordance with generally accepted accounting principl es consistently applied
subject to changes resulting from year-end adjustments; (3) concurrently with
the delivery of the financial statements referred to in clause (1) above,
a certificate by an officer of FRANCHISEE stating that, to the best of -his
kno wledge, no condition or event exists which constitutes a default or which
after notice or lapse of time, or both, would constitute a default, or if
such condition or event does exist, or did exist during such fiscal year,
specifying the nature thereof and the action being taken with respect thereto;
and (4) such other information concerning the business and affairs and financial
condition of FRANCHISEE as CITY may from time to time request.
Section 19.31 -- Inspection
FRANCHISEE agrees that CITY shall have the right to visit and inspect any
of the properties belonging to FRANCHISEE, to examine and make copies of and
take extracts from its books and records and to discuss its affairs, finances
or accounts with FRANCH ISEE's officers, all at such times and intervals as
CITY may reasonably request, and shall have the right to make all investigations,
and to receive all reports, certificates, statements and other documents and
all information, which CITY shall be entitle d to make or receive under the
Franchise Agreement or Chapter 425 of the Pittsburgh Code.
Section 19.32 Ð Authorization to Execute Agreement
(a) This Agreement is entered into by CITY pursuant to Chapter 425 of the Pittsburgh Code and Resolution No. 928, approved October 25, 1984, effective October 25, 1984 and recorded in Resolution Book Volume 118, Page 925.
(b)This Agreement is entered into by FRANCHISEE pursuant to [Resolution of the Board of Directors of Franchisee Dated October 29, 1984.
IN WITNESS WHEREOF, the parties have set their hands and seals on the date
first above written.
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ATTEST |
THE CITY OF PITTSBURGH |
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__________________________ |
BY:__________________________ |
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Secretary to the Mayor |
Richard S. Caliguiri, Mayor |
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WITNESS: |
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__________________________ |
_____________________________ |
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Louis R. Gaetane, Director |
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Department of Public Works |
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WITNESS: |
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__________________________ |
_____________________________ |
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George W. Jacoby, Director |
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Department of General Services |
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WITNESS |
PITTSBURGH |
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TELE-COMMUNICATIONS, INC. |
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__________________________ |
BY:__________________________ |
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(Corporate Seal) |
John J. Sie |
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Senior Vice President |
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EXAMINED BY: |
_____________________________ |
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Assistant City Solicitor |
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APPROVED AS TO FORM: |
____________________________ |
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City Solicitor |
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COUNTERSIGNED: |
____________________________ |
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City Controller |