[HISTORY: Adopted by the Board of Supervisors of the Township of
Concord 4-7-1987 by Ord. No. 155. Amendments
noted where applicable.]
In consideration of the faithful performance and observance of the terms,
conditions and reservations hereinafter specified, the Board of Supervisors
of the Township of Concord, hereinafter referred to as "township," grants
a nonexclusive franchise to Suburban Cable TV Co., hereinafter referred to
as "company," to install, construct, own, operate and maintain a community
antenna cable television system, said entire system to have two-way transmission
capabilities as hereinafter set forth, and to erect, maintain and operate
television transmission and distribution facilities and additions thereto
in, under, over, along, across and upon the streets, lanes, avenues, sidewalks,
alleys, bridges and other public places in the Township of Concord, Delaware
County, Pennsylvania, for the purpose of the transmission and distribution
of audio and visual impulses and television energy in accordance with the
laws and regulations of the United States of America and the Commonwealth
of Pennsylvania, appropriate agencies and the Federal Communications Commission
rules and regulations and the ordinances and regulations of the Township of
Concord now in effect or hereafter enacted. The company shall observe the
following conditions and terms.
A.
No poles or wires shall be erected, constructed or maintained
by the company along public highways which contain neither aerial telephone
nor aerial electric facilities or from which both aerial telephone and aerial
electric facilities are hereafter removed. Where all other utilities are underground,
the company's cable facilities shall be placed underground.
B.
Where the wires and other aerial facilities of the company
are erected, constructed, maintained or operated along or over public highways
which contain an aerial electric or telephone pole line or a joint-use electric
and telephone pole line, the wires and other facilities of the company shall
be supported by attachment to such pole line, but nothing in this paragraph
shall relieve the company of the duty of securing the consent of such attachment
of the owner of such pole line.
C.
Poles, ducts and other facilities of the company shall
be so erected, constructed and maintained as not to interfere with the traffic
over the public highways. No new poles shall be erected without prior approval
of the Township of Concord, which approval shall not be unreasonably withheld.
No new poles of the company shall be located upon private property and no
damage shall be inflicted to private property without the knowledge and consent
of the private property owner.
D.
Poles, lines, cables, ducts and other facilities of the
company shall be removed by the company when no longer used or useful for
their intended purpose or whenever required by the township in connection
with any public improvements or other reasonable cause at the the company's
expense.
E.
Any public highways, sidewalks and abutting property
disturbed or damaged in the erection, construction, maintenance or operation
of the facilities of the company shall be promptly repaired by the company
to the reasonable satisfaction of the Township Engineer.
F.
The company's rights and privileges shall be subordinated
to any prior lawful use or occupancy of the streets or other public property
and shall be so exercised as not to interfere with existing improvements or
with new improvements the township may deem proper to make or to hinder or
obstruct the lawful use of the streets, alleys, bridges or other public property.
In the event that any equipment or facilities of the company shall so interfere
with any such existing improvement or improvement intended to be made by the
township, the company shall, upon notice from township, forthwith relocate
said equipment and facilities at the company's expense so as to eliminate
said interference.
G.
Construction and maintenance of the transmission distribution
system shall be in accordance with the provisions of the National Electrical
Safety Code, Sixth Edition, or any amendments or revisions thereof and in
compliance with any applicable rules, regulations or orders now in effect
or hereafter issued by any federal or state commission or any other public
authority having jurisdiction.
H.
All installations of equipment shall be durable and of
a permanent nature and shall be installed in accordance with good engineering
practices as outlined by the National Bureau of Standards, American Institute
of Electrical Engineers and American Society of Mechanical Engineers. The
company shall comply with all federal and state laws and ordinances and regulations
of the township now existing or hereafter enacted and so as not to interfere
with the rights of the public of individual property owners and so as not
to unduly interfere with the rights of the public during the construction,
repair or removal of its equipment.
I.
In the installation of its equipment and the maintenance
thereof and in the operation of its business, the company shall comply with
all requirements of the township ordinances, resolutions, rules and regulations
heretofore or hereafter enacted or established. The township shall have the
right, at the expense of the company, to employ experts of its selection to
determine the company's compliance with the installation and maintenance
requirements of this ordinance.
J.
The granting of the franchise by this ordinance does
not eliminate the necessity for the company to secure any other franchise,
license or permit which may be required by law or ordinance or regulation.
The company shall commence installation of its equipment and facilities
within the township within 90 days of the effective date of this ordinance
and shall substantially complete the installation of its equipment and facilities
within the township within 12 months thereafter. An energized trunk cable
shall be extended to at least 20% of the franchised area within four months
of the effective date of this ordinance and shall be extended to an additional
20% of the franchised area within each two month period thereafter, with the
entire franchised area being so extended to all township residents within
12 months of the effective date of this ordinance.
The duration of the rights, privileges and authorities hereby granted
shall be 15 years from the date of adoption of this ordinance. The company
shall have the option of extending this franchise for an additional period
of five years upon application by the company not later than one year prior
to the expiration date of the initial fifteen-year franchise, unless the township
shall have given to the company at least one year's written notice of
its intent not to renew this franchise. The renewal of this franchise is specifically
conditioned upon review and approval by the Township of Concord at a public
proceeding of the company's qualifications and performance, the adequacy
of the franchise provisions and its consistency with the rules and regulations
of the Federal Communications Commission and any other regulatory body.
This franchise is conditioned and contingent upon the company filing
with the township its unconditional acceptance of this franchise as set forth
in this ordinance and the company's promise to comply with and abide
by all the provisions, terms and conditions of this ordinance and the execution
by the company of a franchise agreement acceptable to the township. Such acceptance
and promise and agreement shall be in writing, duly executed and sworn to
by and on behalf of the company before a notary public or other officer authorized
by law to administer oaths and delivered to the Secretary of the township
within 30 days after passage of this ordinance.
A.
The company shall indemnify, hold harmless and defend
the township, its agents, officers, servants and employees from and against
any and all costs, expenses (including reasonable counsel fees), liabilities,
losses, damages, suits, actions, fines, penalties, claims or demands of any
kind asserted by or on behalf of any person or governmental agency or authority
arising out of or in any way connected with any of the following, and the
township, its agents, servants, officers and employees shall not be liable
to the company on account of any of the following:
(1)
Any failure by the company to abide by, keep or perform
any of the terms, conditions or provisions of this franchise.
(2)
Any failure by the company to comply with any statutes,
ordinances, regulations or orders of any governmental authority.
(3)
Any bodily injury (including death) or property damage
arising out of the installation, operation or maintenance of the equipment
or the facilities of the company or out of the conduct of its community antenna
cable television system.
(4)
Any act or activity relating to the granting of this
franchise to the company or to the operations conducted thereunder.
(5)
The granting of this franchise.
B.
In connection with any suit or other proceeding, in which
the township, its agents, servants, officers and employees shall be made a
part, involving this franchise or any act, omissions or activity conducted
thereunder or relating thereto and which may have any direct or indirect effect
upon the township, its agents, servants and employees, the company, upon the
written request of the township, shall appear in and defend such suit on behalf
of the township, its agents, servants and employees and shall bear all of
the costs and expenses relating thereto and shall pay any verdict or judgment
rendered or settlement arrived at.
C.
Insurance.
(1)
The company shall provide and continuously maintain throughout the term of this franchise and any renewals thereof general liability insurance insuring the township and the company with regard to all liabilities and contingencies mentioned in Subsection A herein in the minimum amounts of:
(a)
$800,000 for bodily injury or death to any one person.
(b)
$500,000 for personal injury in any one single accident.
(c)
$200,000 property damage for any one single accident.
(d)
Excess liability coverage, either straight excess or umbrella excess, covering excess of Subsection C(1)(a), (b) and (c) above, to be maintained in force so that the total coverage available under each of the aforementioned subsections, including this subsection, is not less than $1,000,000 for any one occurrence and $1,000,000 in the aggregate per annum for personal injury and $1,000,000 for any one occurrence and $1,000,000 in the aggregate per annum for property damage and $1,000,000 for any one occurrence and $1,000,000 in the aggregate per annum for copyright infringement.
(2)
All such policies shall provide, to the extent obtainable,
that coverage shall not be reduced or canceled without 30 days prior written
notice to the township.
(3)
The township shall have the right, from time to time,
to employ an Insurance Consultant. The policies of insurance required by this
section shall be in such amounts and contain such provisions as comply with
the requirements of this section or as shall have been recommended, in writing,
by the Insurance Consultant, if higher.
D.
The company shall maintain throughout the term of this
franchise a performance bond in favor of the township, with a good and sufficient
surety approved by the township, in the sum of $50,000 conditioned upon the
company's well and truly performing its several obligations as set forth
in this franchise and providing that in the event of any failure by the company
to so perform, the township may proceed against the surety either to obtain
proper performance of such obligations of the company or to be recompensed
for the failure of the company to render such proper performance.
E.
The insurance policies and bond obtained by the company
in compliance with this section shall be issued by responsible insurance or
fidelity bonding companies, acceptable to the township and any Township Insurance
Consultant qualified to do business in the Commonwealth of Pennsylvania and
qualified under the laws of the commonwealth to assume risks covered by such
policies or bond, and shall be nonassessable and must be approved by the township,
which approval shall not unreasonably be withheld. Such insurance policies
and bond shall be filed and maintained with the township during the term of
this franchise.
F.
Neither the provisions of this section nor any bond accepted
by the township pursuant thereto shall be construed as excusing faithful performance
by the company or as otherwise limiting the liability of the company under
its franchise.
A.
The company shall so operate its equipment and facilities
as to produce a television picture that is undistorted, free from ghost images
and accompanied with proper sound and as good as the state of the art permits.
The company shall transmit signals of adequate strength to produce said pictures
and sound at all home outlets without interfering with other electrical or
electronic systems or equipment or with television reception in existence
in the area.
B.
The company shall render efficient service, make repairs
promptly, and interruptions, insofar as possible, shall be preceded by notice
and shall occur during minimum use of the system. Upon receipt of a complaint
of the quality of service, equipment malfunctions and similar matters, the
company shall promptly investigate such complaints. Where possible, the company
shall investigate such complaints within 24 hours of their receipt. Resolution
of such service complaints shall be made promptly. For the purpose of investigation
and resolution of regular service complaints, the company shall maintain an
agent or a local business office convenient to the township and in operation
during normal business hours. In addition, the company shall maintain a toll-free
business telephone for the receipt of complaints and requests for repairs
or adjustment.
The company agrees and, upon request of the township or the institution
involved, shall extend without charge one primary or standard line and monthly
service to each fire station, police station, public school, private school,
parochial school, public library, municipal building and such public auditorium
and institutions as are requested by the township in the township. Such service
shall consist of one television outlet within the building or, in the case
of a group of buildings, within the main building of the group, providing
service to one television receiver. The company shall not be required to install
additional outlets at its expense but shall, at the request of the township,
install such additional outlets or other facilities as may be requested, and
the township or the institution involved shall pay the company on a time and
material basis for such additional installation and shall pay the company
in accordance with its schedule of rates as set forth in this ordinance for
such additional service.
A.
In the use and occupation of the surfaces, subsurfaces,
space above, below and adjoining the streets, public ways and places of the
township, the company's equipment and plant and their construction, operation
and maintenance shall be in accordance with the provisions of the following:
(1)
The National Electrical Code of the National Board of
Fire Underwriters, Sixth Edition, or any amendments or revisions thereto.
(2)
The Standards and Practices Code of the National Cable
Television Association; and
(3)
Such applicable ordinances, codes, laws and regulations
of the Township of Concord, County of Delaware, Commonwealth of Pennsylvania,
and the United States of America which are now in effect or hereafter enacted.
B.
The company's equipment and plant shall be kept
and maintained in a safe, suitable and substantial condition and in good order
and repair so as not to endanger the lives or interfere unreasonably with
the rights of persons or to cause physical damage to property or to interfere
with improvements the township may deem proper or to hinder or obstruct unnecessarily
pedestrian or vehicular traffic on streets, public ways and places.
C.
Where the township or a public utility serving the township
desires to make use of the poles or other wire-holding structures of the company
but agreement therefor with the company cannot be reached, the township may
require the company to permit such use for such consideration and upon such
terms as the township shall determine to be just and reasonable if it is determined
by the township that the use would enhance the public convenience and would
not unduly interfere with the company's operations.
D.
The company shall, upon not less than 72 hours'
advance notice, temporarily raise, lower or relocate its wires and cables
to permit the moving of buildings or any other item of bulk, and the expenses
incurred by the company in such raising, lowering or relocation shall be paid,
in advance, by the person or concern requesting the same.
E.
The company shall, at its own cost and expense, replace,
restore or repair any private property, street, sidewalk, alley, public way
or paved area destroyed or damaged by the company or its agents, employees
or servants.
F.
If at any time during the term of this franchise the
township shall elect to alter or change the grade of any street, sidewalk,
alley or other public way or when required by reason of traffic conditions,
public safety, street vibration, freeway and street construction, installation
of sewers, drains, water pipes, power lines, signal lines and tracks or any
other type of structure or improvements, when acting in a governmental or
proprietary capacity, the company, upon reasonable notice by the township,
shall remove, relay and relocate its poles, wires, cables, underground conduits,
manholes and other fixtures at its own cost and expense.
It shall be the policy of the township to liberally amend this franchise,
upon application of the company, when necessary to enable the company to take
advantage of any developments in the field of television and radio signals
which will afford it an opportunity to more effectively, efficiently or economically
service its customers; provided, however, that this section shall not be construed
to require the township to make any amendment or to prohibit it from unilaterally
changing its policy stated herein.
A.
In the event that:
(1)
The use of any part or all of the community antenna cable
television system is discontinued for any reason for a continuous period of
12 months;
(2)
Such system or property has been installed in any street
or public places without complying with the requirements of this franchise;
or
(3)
The franchise shall have been terminated, canceled or
expired for any reason, the company, upon notice, shall promptly remove from
the streets or public places all such property and poles of such system other
than any which the township may permit to be abandoned in such place and shall
also remove house distribution cables and connections. In the event of such
removal, the company shall promptly restore the street or other areas from
which such property has been removed to a condition satisfactory to the township.
B.
Upon termination of service to any subscriber, the company
shall promptly remove all of its facilities and equipment from the premises
of such subscriber upon his request, without charge to the subscriber.
The company shall abide by all applicable ordinances of the township
relating to street and sidewalk work and shall make application accompanied
by the required fees for permits to perform any and all such work before commencing
the same. Upon failure of the company to complete any work required by law
or by the provisions of this ordinance to be done in any street within the
time prescribed and to the satisfaction of the township, the township may
cause such work to be done, and the company shall pay to the township the
cost thereof, in the itemized amounts reported by the township to the company,
within 30 days after receipt of such itemized report.
The company shall not, as to rates, charges, service, facilities, rules,
regulations or in any other respect, make or grant any preference to advantage
to any person nor subject any person to any prejudice or disadvantage.
A.
The franchise right given to the company is a privilege
to be held in personal trust by Suburban Cable TV Co., the original grantee.
It may not be transferred, leased, assigned, sold or disposed of as a whole
or in part by forced sale, merger, consolidation or otherwise without the
prior consent of the township expressed by ordinance and, in such event, only
in accordance with such conditions as may be therein prescribed. Such consent
shall not be unreasonably withheld.[1]
B.
Any transfer attempted by the company in the absence
of such consent shall be ineffective, and the right given hereby shall thereby
be rendered null and void.
Copies of all petitions, applications and communications submitted by
the company to the Federal Communications Commission, Securities and Exchange
Commission or any other federal or state regulatory commission or agency having
jurisdiction in respect to any matters affecting community antenna cable television
operations authorized pursuant to this franchise shall be made available to
the township at the time of filing or receipt.
A.
The right is hereby reserved to the township to adopt,
in addition to the provisions contained herein and in existing applicable
ordinances, such additional regulations as it shall find necessary in the
exercise of the police power.
B.
The township shall have the right to inspect the books,
records, maps, plans and other like materials of the company at any time during
normal business hours.
C.
The township shall have the right, during the term of
this franchise, to install and maintain, free of charge, upon the poles of
the company, any wire and pole fixtures necessary for a police/fire alarm
system or lighting fixtures or any other proper township purpose on the condition
that such wire and pole fixtures do not interfere with the community antenna
cable television operation of the company.
The company's charges for installation of all television cable
connections and services for all cable service shall be as established by
the township from time to time and specified in written agreement between
the township and the company.
A.
For the use of the street and other facilities of the
township for the operation of the community antenna television system and
for the municipal supervision thereof, the company shall pay to the township
annually during the term hereof that amount of money which is equal to 5%
of the gross revenues received by said the company and derived from the operation
of the cable system under this franchise, including any and all revenues from
advertising and from shopping commissions. The term "gross revenues" shall
include any and all compensation and other consideration received by the company
from subscribers from the sale of its services and facilities within the limits
of the township and shall include the original installation charges, reconnection
charges, service charges and charges for inspection, repair or modification
of installations and any and all revenues from advertising and from shopping
commissions.
[Amended 6-7-1988 by Ord. No. 167]
B.
The company shall file with the township, within 90 days
after the expiration of any fiscal year of the company during the term of
this franchise, a gross receipt report certified by an independent certified
public accountant, in accordance with Statement on Auditing Standards #14,
as issued by the Auditing Standards Executive Committee of the American Institute
of Certified Public Accountants, showing in appropriate detail the total gross
receipts, as defined herein, of the company, its successors or assigns during
the preceding fiscal year. It shall be the duty of the company to pay to the
township within 15 days after the time for filing such statements the balance
of the specified sum due for the fiscal year covered by such statement. The
auditor of the township or his authorized agent or other authorized representative
of the township shall have the authority to examine the books and records
of the company to verify the accuracy of the payments made hereunder.
C.
The company shall file with the township quarterly reports
within 15 days of the end of each quarter and a gross receipt report, certified
by a the company officer, showing in appropriate detail the total gross receipts,
as defined herein, of the company, its successors or assigns during the preceding
quarter. It shall be the duty of the company to pay to the township within
15 days after the time for filing such statement a sum equal to 90% of the
fee due the township for that quarter, and each successive quarterly fee shall
include the 10% not paid the previous quarter.
The company agrees not to oppose intervention by the township in any
suit or proceeding to which the company is a party and which may have a substantial
adverse effect on the company's operations within the township.
The company shall provide a minimum service offering as follows:
A.
Channel capacity. The company shall construct a system
with a minimum channel capacity of 35 television channels and shall maintain
a plant having technical capacity for nonvoice return communications.
B.
Signals to be carried. The company shall carry on its
system the signals of all stations significantly viewed in the Township of
Concord, Delaware County, Pennsylvania, including all local network and educational
VHF stations and local UHF stations, and the signals of no fewer than two
distant independent commercial stations, as well as the signals of such distant
educational stations as may be feasible and permitted under the rules and
regulations of the Federal Communications Commission.
C.
Access channels. The company shall maintain all access
channels as required by the Federal Communications Commission. As a minimum,
however, unless prohibited by law, the company shall provide separate public,
governmental and educational channels to the township not to be shared by
others.
D.
The company shall not engage in the sale or rental of
television or radio receivers, the furnishing of television or radio receiver
repair service or the solicitation or referral to particular persons or classes
of persons for such sale, rental or service. The facilities of the company
shall not be constructed or operated so as to necessitate the use of a receiver
of a unique type for optimum reception of signals. However, nothing contained
herein shall be interpreted to prohibit the use of converters or descramblers
on the community antenna television system.
E.
Program origination. The grantee shall conduct program
origination cable casting as required by the Federal Communications Commission.
A.
The performance by the company hereunder is subject to
the limitations, restrictions or requirements now existing or which may henceforth
be imposed by law, rules or order of the Federal Communications Commission
or any other government, board, commission or authority of any kind.
B.
Should the Federal Communications Commission modify or
amend the provisions of Section 76.31 of its rules and regulations entitled
"Franchise Standards," such modifications or amendments shall be incorporated
into this franchise within one year of the adoption of the modification or
amendment.
A.
The township shall have the right to rescind or revoke
the rights herein granted upon any violation by the company of any of the
obligations and requirements contained herein after written notice by the
township to the company.
(1)
Such written notice to the company shall specify the
manner in which the company is in violation, failure or default with respect
to the franchise.
(2)
The notice given by the township shall give the company
a specified, reasonable amount of time within which to correct violation,
failure or default, but in no event shall the time period be less than 30
days from the date of receipt of the notice to the company.
B.
The township shall have the right to rescind or revoke
the rights herein granted in the event that the company becomes insolvent,
unable or unwilling to pay its debts or is adjudged a bankrupt.
C.
The company agrees that it does hereby release the township
from any and all claims the company might have against the township by reason
of the rescission or revocation of this franchise.
Each section, subsection, sentence, clause, phrase or portion of this
ordinance is a vital and necessary term or provision of the grant of the franchise,
and if any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held invalid or unconstitutional by any court
of competent jurisdiction, then in such event the entire ordinance shall be
considered invalid and the franchise granted hereby shall be automatically
terminated.
The township and the proper officers of said township and the departments
and bureaus of the township shall issue to the company, in the name of the
township, all permits necessary or convenient to evidence the grant of the
franchise herein and to implement the provisions of this ordinance.
The company shall make application to the township and pay all fees
for any and all street work permits as required by township ordinances.
The company shall supply the township annually with a letter signed
by the president of the company, certifying compliance with Federal Communications
Commission regulations and with this ordinance.
This ordinance and the rights granted to the company hereunder shall
become effective upon the execution of a written agreement by and between
Concord Township and the franchisee providing for the implementation of the
provisions of this ordinance.
All ordinances or parts of ordinances conflicting with the provisions
of this ordinance are hereby repealed to the extent of such conflict.
