[HISTORY: Adopted by the Borough Council of the Borough of Economy 3-25-1992
by Res. No. 261. This resolution also superseded former Ch.
A190, Cable Television Franchise, adopted 9-9-1983 by Ord.
No. 245A. Amendments noted where applicable.]
A. For the purpose of this agreement, the following terms,
phrases, words and abbreviations shall have the meanings ascribed to them
below:
AFFILIATE
An entity which owns or controls, is owned or controlled by or is
under common ownership with the grantee.
BASIC CABLE
The tier of service regularly provided to all subscribers that includes
the retransmission of local broadcast television signals.
CABLE ACT
The Cable Communications Policy Act of 1984, as amended.
CABLE SERVICE
The one-way transmission to subscribers of video programming or other
programming service, and subscriber interaction, if any, which is required
for the selection of such video programming or any other lawful communication
service.
CABLE SYSTEM
A facility, consisting of a set of closed transmission paths and
associated signal generation, reception and control equipment or other communications
equipment that is designed to provide cable service and other service to subscribers.
FCC
The Federal Communications Commission or the successor governmental
entity thereto.
FRANCHISE
The initial authorization or renewal thereof issued by the franchising
authority, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate or otherwise, which authorizes
construction and operation of the cable system for the purpose of offering
cable service or other service to subscribers.
GRANTEE
TCI of Pennsylvania, Inc., or the lawful successor, transferee or
assignee thereof.
GROSS SUBSCRIBER REVENUE
The monthly cable service revenue actually received from subscribers
who receive basic cable service through that portion of the cable system located
within the Borough. Included also are monthly charges for all premium channels
and all other required, recurring monthly charges. Excluded are any taxes
on cable service which are imposed directly or indirectly on any Borough subscriber,
by any governmental unit or agency and which are collected by the grantee
on behalf of such governmental unit or agency.
PERSON
An individual, partnership, association, joint stock company, trust,
corporation or governmental entity.
PUBLIC WAY
The surface of and the space above and below any public street, highway,
freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way,
lane, public way, drive, circle or other public right-of-way, including public
utility easements, dedicated utility strips or rights-of-way dedicated for
compatible uses and any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the franchise authority in the service area
which shall entitle the franchise authority and the grantee to use thereof
for the purpose of installing, operating, repairing and maintaining the cable
system. "Public way" shall also mean any easement now or hereafter held by
the franchise authority within the service area for the purpose of public
travel or for utility or public service use dedicated for compatible uses
and shall include other easements or rights-of-way as shall within their proper
use and meaning entitle the franchise authority and the grantee to use thereof
for the purpose of installing or transmitting the grantee's cable service
or other service over poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments and other property as may be
ordinarily necessary and pertinent to the cable system.
SERVICE AREA
The present municipal boundaries of the franchising authority, and
shall include any additions thereto by annexation or other legal means.
SUBSCRIBER
A person or user of the cable system who lawfully receives cable
services or other service therefrom with the grantee's express permission.
VIDEO PROGRAMMING
Programming provided by or generally considered comparable to programming
provided by a television broadcast station.
B. When not inconsistent with the context, words used in
the present tense include the future tense, words in the plural number include
the singular number and words in the singular number include the plural number.
The Borough hereby grants to the grantee a nonexclusive franchise which
authorizes the grantee to construct and operate a cable system and offer cable
service and other services in, along, among, upon, across, above, over, under
or in any manner connected with public ways within the service area and for
that purpose to erect, install, construct, repair, replace, reconstruct, maintain
or retain in, on, over, under, upon, across or along any public way and all
extensions thereof and additions thereto, such poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments
or other related property or equipment as may be necessary or appurtenant
to the cable system.
The franchise granted pursuant to this agreement shall be for an initial term of 10 years from the effective date of the franchise as set forth in §
A190-4.
The grantee shall accept the franchise granted pursuant hereto by signing
this agreement and filing the same with the Borough Secretary or other appropriate
official or agency of the franchising authority within 60 days after official
action by the Borough. Subject to acceptance by the grantee, the effective
date of this agreement shall be the date of final and official Borough action.
The right to use and occupy said public ways, as defined above, for
the purpose herein set forth shall not be exclusive to the grantee. However,
the franchise authority shall require a franchise agreement for any other
person or entity, as defined above, engaging in the cable service business
within any portion of the Borough. The grantee shall receive the benefits
of any more favorable terms or conditions enjoyed by another person or entity
and otherwise, this agreement and any enabling legislation shall only be amended
through mutual consent. In cases of future conflict between the provisions
of this agreement and any ordinance, resolution, rule or regulation of the
Borough, this agreement shall be the superseding document.
All transmission and distribution structures, poles, other lines and
equipment installed or erected by the grantee pursuant to the terms hereof
shall be located so as to cause a minimum of interference with the proper
use of public ways and with the rights and reasonable convenience of property
owners who can own property that adjoins any of said public ways.
If during the course of the grantee's construction, operation or
maintenance of the cable system there occurs a disturbance of any public way
by the grantee, it shall, at its expense, replace and restore such public
way to a condition which existed immediately prior to such disturbance.
Upon its receipt of reasonable advance notice, not to be less than five
business days, the grantee shall, at its own expense, protect, support, temporarily
disconnect, relocate in the public way or remove from the public way any property
of the grantee when lawfully required by the franchising authority by reason
of traffic conditions, public safety, street abandonment, freeway and street
construction, change or establishment of street grade, installation of sewers,
drains, gas or water pipes or any other type of structures or improvements
by the franchising authority, but the grantee shall in all cases have the
right of abandonment of its property. If public funds are available to any
company using such street, easement or right-of-way for the purpose of defraying
the cost of any of the foregoing, the franchising authority shall make application
for the same on behalf of the grantee, and such funds shall also be made available
to the grantee. Should said public fund reimbursement request to fully compensate
the grantee be denied, and should the franchising authority and the grantee
be unable to agree on an acceptable method and amount of reimbursement, then
the grantee shall be released from any obligation to provide cable service
to the affected street or area.
The grantee shall, on the request of any person holding a building moving
permit issued by the franchising authority, temporarily raise or lower its
wires to permit the moving of such building, provided that the expense of
such temporary raising or lowering of wires is paid by said person, including,
if required by the grantee, making such payment in advance, and the grantee
is given not less than 10 business days' advance written notice to arrange
for such temporary wire changes.
The grantee shall have the authority to trim trees or other natural
growth overhanging any of its cable system in the service area so as to prevent
branches from coming in contact with the grantee's wires, cables or other
equipment. The grantee shall be permitted to charge persons who own or are
responsible for such trees or natural growth for the cost of such trimming,
provided that similar charges are assessed by and paid to the utilities or
the franchising authority for tree trimming. The grantee shall reasonably
compensate the franchising authority or property owner for any damages caused
by such trimming or shall, in its sole discretion and at its own cost and
expense, reasonably replace all trees or shrubs damaged as a result of any
construction of the cable system undertaken by the grantee. Such replacement
shall satisfy any and all obligations the grantee may have to the franchise
authority or property owner pursuant to the terms of this section.
Subject to any applicable state or federal regulations or tariffs, the
franchising authority shall have the right to make additional use, for any
public purpose, of any poles or conduits controlled or maintained exclusively
by or for the grantee in any public way, provided that such use by the franchising
authority does not interfere with a current or future use by the grantee,
and the franchising authority holds the grantee harmless against any and from
all claims, demands, costs or liabilities of every kind and nature whatsoever
arising out of such use of said poles or conduits, including but not limited
to reasonable attorneys' fees and costs, and, at the grantee's sole
discretion, the franchising authority may be required either to pay a reasonable
rental fee or otherwise reasonably compensate the grantee for the use of such
poles, conduits or equipment; provided, however, that the grantee agrees that
such compensation or charge shall not exceed those paid by it to public utilities
pursuant to the applicable pole attachment agreement or other authorization
relating to the service area.
Construction, installation and maintenance of the cable system shall
be performed in an orderly and workmanlike manner. All such work shall be
performed in substantial accordance with applicable safety code or technical
requirements, including but not limited to the National Electrical Safety
Code (National Bureau of Standards); the National Electrical Code (National
Bureau of Fire Underwriters); and applicable FCC or other federal and state
regulations. The cable system shall not unreasonably endanger or interfere
with the safety of persons or property in the service area. In particular,
the grantee shall comply with all state or federal laws or regulations which
govern cable plant signal leakage or interference with communications media.
Any antenna structure used in the cable system shall comply with all construction,
marking and lighting of antenna structure requirements of the United States
Department of Transportation (Federal Aviation Administration) and the FCC.
In those areas of the service area where all of the transmission or
distribution facilities of the respective public utilities providing telephone
communications and electric services are underground, the grantee likewise
shall construct, operate and maintain all of its transmission and distribution
facilities underground, provided that such facilities are actually capable
of receiving the grantee's cable and other equipment without technical
degradation of the cable system's signal quality. In those areas of the
service area where the transmission or distribution facilities of the respective
public utilities providing telephone communications and electric services
are both aerial and underground, the grantee shall have the sole discretion
to construct, operate and maintain all of its transmission and distribution
facilities, or any part thereof, aerially or underground. Nothing contained
in this section shall require the grantee to construct, operate and maintain
underground any ground-mounted appurtenances, such as subscriber taps, line
extenders, system passive devices (splitters and directional couplers), amplifiers,
power supplies, pedestals or other related equipment. Notwithstanding anything
to the contrary contained in this section, in the event that all of the transmission
or distribution facilities of the respective public utilities providing telephone
communications and electric services are placed underground after the effective
date of this agreement, the grantee shall only be required to construct, operate
and maintain all of its transmission and distribution facilities underground
if it is given reasonable notice and access to the public utilities facilities
at the time that such are placed underground.
The cable system as presently constructed is hereby approved as to extent
of the service area. The grantee is hereby authorized to extend the cable
system as necessary, as desirable or as required pursuant to the terms hereof
within the service area. Whenever the grantee shall receive a written request
for service from at least 15 potential subscribers within 1,320 cable-bearing
stand feet [one-fourth (1/4) cable mile] of its aerial trunk cable or from
25 potential subscribers in underground construction areas, it shall extend
its cable system to such subscribers at no cost to said subscribers for system
extension, other than the usual connection fees for all subscribers, provided
that such extension is technically feasible and if it will not adversely affect
the operation, financial condition or market development of the cable system.
Written requests shall be numbered at a rate of one head of household per
individual address.
No subscriber or potential subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as requests for underground cable where aerial installation is the standard, or where there is more than 150 feet of distance from distribution cable to connection of service to subscribers or a density of less than that stated in §
A190-14, the grantee may establish a special fee. Existing subscribers who request replacement of aerial line with underground installation may also be subject to this special fee. Service may be made available on the basis of cost of material, labor and easements, as a special fee, in order that existing subscribers shall not be unfairly burdened.
The grantee shall provide without charge one outlet of basic cable service
to each of the franchise authority's office buildings, fire station,
police station and public elementary and secondary school building that is
passed by its cable system. The outlets of basic service shall not be used
to distribute or sell cable services in or throughout such buildings, nor
shall such outlets be located in common or public areas open to the public.
Users of such outlets shall hold the grantee harmless from any and all liability
or claims arising out of their use of such outlets, including but not limited
to those arising from copyright liability. Not withstanding anything to the
contrary set forth in this section, the grantee shall not be required to provide
an outlet to such buildings where the drop line from the feeder cable to said
buildings or premises exceeds 150 cable feet unless it is feasible and if
it will not adversely affect the operation, financial condition or market
development of the cable system to do so or unless the appropriate governmental
entity agrees to pay the incremental cost of such drop line in excess of 150
cable feet. In the event that additional outlet(s) of basic service are provided
to such buildings, the building owner shall pay the usual installation and
service fees associated therewith.
In the case of any emergency or disaster, the grantee shall, upon request
of the franchising authority, make available its facilities for the franchising
authority to provide emergency information and instructions during the emergency
or disaster period. The franchising authority shall hold the grantee, and
its agents, employees, officers and assigns hereunder, harmless from any claims
arising out of the emergency use of its facilities by the franchising authority,
including but not limited to reasonable attorneys' fees and costs.
All performance and technical standards governing construction, reconstruction,
installation, operation, testing, maintenance and dismantling of the cable
system provided herein shall be in accordance with all applicable FCC and
other federal, state and local laws and regulations.
The grantee shall pay to the franchising authority a franchise fee equal to 5% of gross revenues, as defined by "gross subscriber revenue" in §
A190-1A, received by the grantee from the operation of the cable system. Franchise fee payments due the franchising authority under this section shall be computed quarterly. The quarterly franchise fee payments shall be due and payable 60 days after the close of the preceding calendar quarter. For the purpose of franchise fee accounting, the applicable period shall be a calendar year, and, within 60 days of the close of each calendar year, a representative of the grantee shall prepare and deliver a brief report showing the basis for computation of franchise fees. In no event shall the franchise fee payments required to be paid by the grantee exceed 5% of gross revenues received by the grantee in any twelve-month period. The franchise fee payment shall be the sole compensation due, and no other fee, charge, tax or other consideration shall be paid by the grantee. Sales tax or other tax levied on a per-subscription basis and collected by the grantee shall be deducted from gross revenues in computing any sum due.
The franchising authority may not regulate the rates for the provision
of cable service and other services, including but not limited to ancillary
charges relating thereto, except as authorized pursuant to federal law, including
but not limited to the Cable Act and FCC rules and regulations relating thereto.
The grantee shall have the right to modify rates from time to time and to
implement additional charges and rates.
A. The franchising authority and the grantee agree that
any proceedings undertaken by the franchising authority that relate to the
renewal of the grantee's franchise shall be governed by and comply with
the provisions of Section 626 of the Cable Act (as such existed as of the
effective date of the Cable Act), unless the procedures and substantive protections
set forth therein shall be deemed to be preempted and superseded by the provisions
of any subsequent provisions of federal or state law.
B. In addition to the procedures set forth in said Section
626(a), the franchising authority agrees to notify the grantee of its preliminary
assessments regarding the identity of future cable-related community needs
and interests, as well as the past performance of the grantee under the then-current
franchise term. The franchising authority further agrees that such a preliminary
assessment shall be provided to the grantee prior to the time that the four-month
period referred to in Subsection (c) of Section 626 is considered to begin.
Notwithstanding anything to the contrary set forth in this section, the grantee
and franchising authority agree that at any time during the term of the then-current
franchise, while affording the public appropriate notice and opportunity to
comment, the franchising authority and grantee may agree to undertake and
finalize negotiations regarding renewal of the then-current franchise, and
the franchising authority may grant a renewal thereof. The Grantee and the
Franchising Authority consider the terms set forth in this section to be consistent
with the express provisions of Section 626 of the Cable Act. A reproduction
of Section 626 of the Cable Act as such existed as of the effective date of
the Cable Act is attached hereto as Exhibit A and incorporated herein by this
reference.
A. Except to the extent expressly required by federal or
state law, if a renewal or extension of the grantee's franchise is denied
or if the franchise is lawfully terminated, and the franchising authority
either lawfully acquires ownership of the cable system or by its actions lawfully
effects a transfer of ownership of the cable system to another party, any
such acquisition or transfer shall be at a fair market value, determined on
the basis of the cable system valued as an ongoing concern.
B. The grantee and franchising authority agree that in the
case of a lawful revocation of the franchise, at the grantee's request,
which shall be made in its sole discretion, the grantee shall be given a reasonable
opportunity to effectuate a transfer of its cable system to a qualified third
party. The franchising authority further agrees that during such a period
of time, it shall authorize the grantee to continue to operate pursuant to
the terms of its prior franchise; however, in no event shall such authorization
exceed a period of time greater than six months from the effective date of
such revocation. If, at the end of that time, the grantee is unsuccessful
in procuring a qualified transferee or assignee of its cable system which
is reasonably acceptable to the franchising authority, the grantee and franchising
authority may avail themselves of any rights they may have pursuant to federal
or state law, it being further agreed that the grantee's continued operation
of its cable system during the six-month period shall not be deemed to be
a waiver nor an extinguishment of any rights of either the franchising authority
or the grantee. Notwithstanding anything to the contrary set forth in this
section, neither the franchise authority nor the grantee shall be required
to violate federal or state law.
The grantee's right, title or interest in the franchise shall not
be sold, transferred, assigned or otherwise encumbered, other than to an affiliate,
without the prior consent of the franchising authority, such consent not to
be unreasonably withheld. In cases where consent of the franchising authority
is requested, in this or other matters, the grantee shall be given notice
of the decision of the franchising authority, in writing and by registered
or certified mail, within 45 days of franchising authority receipt of such
request. Absence of notice within the specified time shall mean that the request
is automatically granted without official action by the franchising authority.
No such consent shall be required, however, for a transfer in trust, by mortgage,
by other hypothecation or by assignment of any rights, title or interest of
the grantee in the franchise or cable system in order to secure indebtedness.
The franchising authority may perform technical tests of the cable system
during reasonable times and in a manner which does not unreasonably interfere
with the normal business operations of the grantee or the cable system in
order to determine whether or not the grantee is in compliance with the terms
hereof and applicable state or federal laws. Except in emergency circumstances,
such tests may be undertaken only after giving the grantee reasonable notice
thereof, not to be less than two business days, and providing a representative
of the grantee an opportunity to be present during such tests. In the event
that such testing demonstrates that the grantee has substantially failed to
comply with a material requirement hereof, the reasonable costs of such tests
shall be borne by the grantee. In the event that such testing demonstrates
that the grantee has substantially complied with such material provisions
hereof, the cost of such testing shall be borne by the franchising authority.
Except in emergency circumstances, the franchising authority agrees that such
testing shall be undertaken no more than two times a year in the aggregate
and that the results thereof shall be made available to the grantee upon the
grantee's request.
The grantee agrees that the franchising authority may review such of
its books and records, during normal business hours and on a nondisruptive
basis, as is reasonably necessary to monitor compliance with the terms hereof.
Such records shall include, but shall not be limited to, any public records
required to be kept by the grantee pursuant to the rules and regulations of
the FCC. Notwithstanding anything to the contrary set forth herein, the grantee
shall not be required to disclose information which it reasonably deems to
be proprietary or confidential in nature. The franchising authority agrees
to treat any information disclosed by the grantee to it as confidential and
only to disclose it to employees, representatives and agents thereof that
have a need to know or in order to enforce the provisions hereof. Notwithstanding
anything to the contrary stated herein, the grantee shall not be required
to violate the provisions of Section 631 of the Cable Act, Protection of Subscriber
Privacy.
The grantee shall maintain in full force and effect, at its own cost
and expense, during the term of the franchise, comprehensive general liability
insurance in the amount of $1,000,000 combined single limit for bodily injury
and property damage. The insurance carrier for the grantee shall be solvent
and authorized to conduct business in the Commonwealth of Pennsylvania. Any
insurance policy issued in connection with this franchise shall designate
the franchising authority as an additional insured. The grantee shall provide
the franchising authority with a certificate of insurance to show compliance
with the provisions of this section. Such insurance shall be noncancelable
except upon 30 days prior written notice to the franchising authority.
The grantee agrees to indemnify, save and hold harmless and defend the
franchising authority, its officers, boards and employees, from and against
any liability for damages and for any liability or claims resulting from property
damage or bodily injury (including accidental death), which arise out of the
grantee's construction, operation or maintenance of its cable system,
including but not limited to reasonable attorney's fees and costs.
The grantee shall not be required to obtain or maintain bonds or other
surety as a condition of being awarded the franchise or continuing its existence.
The franchising authority acknowledges that the legal, financial and technical
qualifications of the grantee are sufficient to afford compliance with the
terms of the franchise and enforcement thereof.
In the event that the franchising authority believes that the grantee
has not complied with the terms of the franchise, it shall notify the grantee,
in writing, by certified or registered mail, of the exact nature of the alleged
noncompliance.
The grantee shall have 30 days from receipt of the notice described in §
A190-29 to respond to the franchising authority contesting the assertion of noncompliance or to cure such default or, in the event that by the nature of default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
In the event that the grantee fails to respond to the notice described in §
A190-29 pursuant to the procedures set forth in §
A190-30 or in the event that the alleged default is not remedied within 60 days after the grantee is notified of the alleged default pursuant to §
A190-29, the franchising authority shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the franchising authority which is scheduled at a time which is no less than five business days therefrom. The franchising authority shall notify the grantee of the time and place of such hearing and provide the grantee with an opportunity to be heard.
A. Subject to applicable federal and state law, in the event
that the franchising authority, after such hearing, determines that the grantee
is in default of any provision of the franchise, the franchising authority
may:
(1) Seek specific performance of any provision, which reasonably
lends itself to such remedy, as an alternative to damages;
(2) Commence an action at law for monetary damages or seek
other equitable relief; or
(3) In the case of a substantial default of a material provision
of the franchise, declare the franchise agreement to be revoked.
B. The grantee shall not be relieved of any of its obligations
to comply promptly with any provision of the franchise by reason of any failure
of the franchising authority to enforce prompt compliance.
The grantee shall not be held in default or noncompliance with the provisions
of the franchise, nor suffer any enforcement or penalty relating thereto,
where such noncompliance or alleged defaults are caused by strikes, acts of
God, power outages or other events reasonably beyond its ability to control.
The following documents shall be incorporated herein:
A. Exhibit A, Section 626, Cable Act of 1984.
B. Exhibit B, Special Cable System Extension.
C. Exhibit D, Construction Map.
If the FCC or any other federal or state body or agency shall now or
hereafter exercise any paramount jurisdiction over the subject matter of the
franchise, then to the extent such jurisdiction shall preempt and supersede
or preclude the exercise of the like jurisdiction by the franchising authority,
the jurisdiction of the franchising authority shall cease and no longer exist.
In any action by the grantee and the franchising authority or representative
thereof mandated or permitted under the terms hereof, such party shall act
in a reasonable, expeditious and timely manner. Furthermore, in any instance
where approval or consent is required under the terms hereof, such approval
or consent shall not be unreasonably withheld.
Unless expressly otherwise agreed between the parties, every notice
or response to be served upon the franchising authority or grantee shall be
in writing and shall be deemed to have been duly given to the required party
five business days after having been posted in a properly sealed and correctly
addressed envelope by certified or registered mail, postage prepaid, at a
post office or branch thereof regularly maintained by the United States Postal
Service.
A. The notices or responses to the franchising authority
shall be addressed as follows:
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The Office of the Borough Secretary
Borough of Economy
2856 Conway-Wallrose Road
Baden, PA 15005
The Borough may copy the Solicitor.
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B. The notices or responses to the grantee shall be addressed
as follows:
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TCI of Pennsylvania, Inc.
1718 Mt. Nebo Road
Sewickley, PA 15143-8563
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With copies to:
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TCI of Pennsylvania, Inc.
ATTENTION: Government Relations
101 Ewing Road
Carnegie, PA 15106
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TCI of Pennsylvania, Inc.
ATTENTION: Legal Department
Denver, CO 80217
P.O. Box 5630
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The captions to sections contained herein are intended solely to facilitate
the reading thereof. Such captions shall not affect the meaning or interpretation
of the text herein.
The grantee shall at all times during the life of this agreement be
subject to all lawful exercise of the police power by the franchise authority.
The franchise authority reserves the right to adopt from time to time, in
addition to the provisions herein contained, such ordinances as may be necessary
in the exercise of police power. Such regulation shall be reasonable and not
in derogation of the rights herein granted, nor in conflict with the laws
of the state or other local or federal laws or regulations.
All ordinances and resolutions, and any parts of either thereof, which
are inconsistent herewith, shall be and the same are hereby repealed.
If any section, sentence, paragraph, term or provision hereof is determined
to be illegal, invalid or unconstitutional by any court of competent jurisdiction
or by any state or federal regulatory authority having jurisdiction thereof,
such determination shall have no effect on the validity of any other section,
sentence, paragraph, term or provision hereof, all of which will remain in
full force and effect for the term of the franchise or any renewal or renewals
thereof.