Borough of Millersville, PA
Lancaster County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Borough Council of the Borough of Millersville 6-27-2006 by Ord. No. 2006-1. Amendments noted where applicable.]
GENERAL REFERENCES
Public property — See Ch. 278.
Streets and sidewalks — See Ch. 320.

§ A390-1 Definition of terms.

For the purposes of this Franchise Agreement, capitalized terms, phrases, words, and abbreviations shall have the meanings ascribed to them in the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. §§ 521-613 (the "Cable Act"), unless otherwise defined herein.
CUSTOMER
A Person or user of the Cable System who lawfully receives Cable Service therefrom with the Grantee's express permission.
EFFECTIVE DATE
The date on which all persons necessary to sign this Agreement in order for it to be binding on both parties have executed this Agreement as indicated on the signature page(s), unless a specific date is otherwise provided in the "Term" section herein.
FCC
The Federal Communications Commission or successor governmental entity thereto.
FRANCHISE
The initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes the construction and operation of the Cable System.
FRANCHISE AGREEMENT or AGREEMENT
This Agreement and any amendments or modifications hereto.
FRANCHISE AREA
The present legal boundaries of the Borough as of the Effective Date, and shall also include any additions thereto, by annexation or other legal means.
FRANCHISING AUTHORITY
The Borough or the lawful successor, transferee, designee, or assignee thereof.
GRANTEE
Comcast of Southeast Pennsylvania, LLC.
GROSS REVENUE
The revenue derived by the Grantee from the operation of the Cable System in the Franchise Area to provide Cable Services, calculated in accordance with Generally Accepted Accounting Principles ("GAAP"), including monthly basic, premium and pay-per-view service fees (but excluding any portion of such revenues paid by Grantee to suppliers of such services), installation fees, equipment rental, home shopping commissions and advertising revenue (excluding agency commissions) and franchise fees. Gross Revenue shall not include refundable deposits, bad debt, investment income, nor any taxes, fees or assessments imposed and/or assessed by any governmental authority.
PERSON
Any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for profit or not for profit, but shall not mean the Franchising Authority.
PUBLIC WAY
The surface of, and the space above and below, any public street, highway, freeway, bridge, land, path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle or other public right-of-way, including but not limited to 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 Franchising Authority in the Franchise Area, which shall entitle the Grantee to the 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 Franchising Authority within the Franchise 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 Grantee to the use thereof for the purposes of installing, operating, and maintaining the Grantee's Cable System 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."

§ A390-2 Grant of authority.

A. 
The Franchising Authority hereby grants to the Grantee under the Cable Act a nonexclusive Franchise authorizing the Grantee to construct and operate a Cable System in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Franchise 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, and other related property or equipment as may be necessary or appurtenant to the Cable System. Nothing in this Franchise shall be construed to prohibit the Grantee from offering any service over its Cable System that is not prohibited by federal or state law.
B. 
Term of Franchise. The term of the Franchise granted hereunder shall be 15 years, commencing upon the Effective Date of the Franchise, unless the Franchise is renewed or is lawfully terminated in accordance with the terms of this Franchise Agreement and the Cable Act.
C. 
Renewal. Any renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended (47 U.S.C. § 546).
D. 
Reservation of authority. Nothing in this Franchise Agreement shall abrogate the right of the Franchising Authority to perform any public works or public improvements of any description, be construed as a waiver of any codes or ordinances of general applicability promulgated by the Franchising Authority, or be construed as a waiver or release of the rights of the Franchising Authority in and to the Public Ways.
E. 
Competitive equity.
(1) 
The Grantee acknowledges and agrees that the Franchising Authority reserves the right to grant one or more additional franchises to provide Cable Service within the Franchise Area; provided, however, that no such franchise agreement shall contain terms or conditions more favorable or less burdensome to the competitive entity than the material terms and conditions herein, including but not limited to franchise fees; insurance; system build-out requirements; performance bonds or similar instruments; public, education and government access channels and support; customer service standards; required reports and related recordkeeping; and notice and opportunity to cure breaches. If any such additional or competitive franchise is granted by the Franchising Authority which, in the reasonable opinion of the Grantee, contains more-favorable or less-burdensome terms or conditions than this Franchise Agreement, the Franchising Authority agrees that it shall amend this Franchise Agreement to include any more-favorable or less-burdensome terms or conditions.
(2) 
In the event an application for a new cable television franchise is filed with the Franchising Authority proposing to serve the Franchising Area, in whole or in part, the Franchising Authority shall serve or require to be served a copy of such application upon any existing Grantee or incumbent cable operator by registered or certified mail or via nationally recognized overnight courier service.

§ A390-3 Construction and maintenance of cable system.

A. 
Permits and general obligations. The Grantee shall be responsible for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain or repair the Cable System, or any part thereof, prior to the commencement of any such activity. Construction, installation, and maintenance of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by the Grantee for use in the Cable System in accordance with the terms and conditions of this Franchise Agreement shall be located so as to minimize the interference with the proper use of the Public Ways and the rights and reasonable convenience of property owners who own property that adjoins any such Public Way. This requirement shall not be interpreted or construed in any way to require the Grantee to obtain from the Franchising Authority prior approval, authorization, permits, or licenses to perform standard installations, routine maintenance or repair on any part of the Cable System.
B. 
Conditions on street occupancy.
(1) 
New grades or lines. If the grades or lines of any Public Way within the Franchise Area are lawfully changed at any time during the term of this Franchise Agreement, then the Grantee shall, upon reasonable advance written notice from the Franchising Authority (which shall not be less than 10 business days) and at its own cost and expense, protect or promptly alter or relocate the Cable System, or any part thereof, so as to conform with any such new grades or lines. If public funds are available to any Person using such street or public right-of-way for the purpose of defraying the cost of any of the foregoing, the Franchising Authority shall, upon written request of the Grantee, make application for such funds on behalf of the Grantee.
(2) 
Relocation at request of third party. The Grantee shall, upon reasonable prior written request of any Person holding a permit issued by the Franchising Authority to move any structure, temporarily move its wires to permit the moving of such structure; provided that the Grantee may impose a reasonable charge on any Person for the movement of its wires, and such charge may be required to be paid in advance of the movement of its wires; and that the Grantee is given not less than 10 business days' advance written notice to arrange for such temporary relocation.
(3) 
Restoration of public ways. If, in connection with the construction, operation, maintenance, or repair of the Cable System, the Grantee disturbs, alters, or damages any Public Way, the Grantee agrees that it shall, at its own cost and expense, replace and restore any such Public Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to the disturbance.
(4) 
Safety requirements. The Grantee shall, at its own cost and expense, undertake all necessary and appropriate efforts to maintain its work sites in a safe manner in order to prevent failures and accidents that may cause damage, injuries or nuisances. All work undertaken on the Cable System shall be performed in substantial accordance with 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 Franchise Area.
(5) 
Trimming of trees and shrubbery. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Franchise Area so as to prevent contact with the Grantee's wires, cables, or other equipment. All such trimming shall be done at the Grantee's sole cost and expense. The Grantee shall be responsible for any damage caused by such trimming.
(6) 
Aerial and underground construction. If all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable Systems' transmission and distribution facilities underground; provided that such underground locations are actually capable of accommodating the Grantee's cable and other equipment without technical degradation of the Cable System's signal quality. In any region(s) of the Franchise Area where the transmission or distribution facilities of the respective public or municipal utilities are both aerial and underground, the Grantee shall have the discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground. Nothing in this Section shall be construed to require the Grantee to construct, operate, or maintain underground any ground-mounted appurtenances such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment.

§ A390-4 Service obligations.

A. 
General service obligation.
(1) 
The Grantee shall make Cable Service available to every residential dwelling unit within the Franchise Area where the minimum density is at least 30 dwelling units per mile for aerial plant and 50 homes per mile for underground plant and is within one mile of the existing Cable System. Subject to the density requirement, Grantee shall offer Cable Service to all new homes or previously unserved homes located within 125 feet of the Grantee's distribution cable.
(2) 
The Grantee may, in its sole discretion, elect to provide Cable Service to areas not meeting the above density and distance standards. The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop-in or line extension in excess of the above standards. Any such additional charge shall be computed on a time-plus-materials basis to be calculated on that portion of the installation that exceeds the standards set forth above.
B. 
Programming. The Grantee shall offer to all Customers a diversity of video programming services.
C. 
No discrimination. Neither the Grantee nor any of its employees, agents, representatives, contractors, subcontractors, or consultants, nor any other Person, shall discriminate or permit discrimination between or among any Persons in the availability of Cable Services provided in connection with the Cable System in the Franchise Area. It shall be the right of all Persons to receive all available services provided on the Cable System so long as such Person's financial or other obligations to the Grantee are satisfied.
D. 
New developments. The Franchising Authority shall provide the Grantee with written notice of the issuance of building or development permits for planned developments within the Franchise Area requiring underground cable facilities. The Franchising Authority agrees to require the developer, as a condition of issuing the permit, to give the Grantee access to open trenches for deployment of cable facilities and at least 10 business days' written notice of the date of availability of open trenches. The Developer shall be responsible for the digging and backfilling of all trenches. The Grantee shall be responsible for engineering and deployment of labor applicable to its cable facilities.
E. 
Prohibition against reselling service. No Person shall resell, without the express prior written consent of the Grantee, any Cable Service, program or signal transmitted over the Cable System by the Grantee.

§ A390-5 Fees and charges to customers.

All rates, fees, charges, deposits and associated terms and conditions to be imposed by the Grantee or any affiliated Person for any Cable Service as of the Effective Date shall be in accordance with applicable FCC's rate regulations. Before any new or modified rate, fee, or charge is imposed, the Grantee shall follow the applicable FCC notice requirements and rules and notify affected Customers, which notice may be by any means permitted under applicable law.

§ A390-6 Customer service standards; customer bills; privacy protection.

A. 
Customer service standards. The Franchising Authority hereby adopts the customer service standards set forth in Part 76 of the FCC's rules and regulations (47 CFR 76.309). The Grantee shall comply in all respects with the customer service requirements established by the FCC.
B. 
Customer bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to Customers, and in a way that is not misleading and does not omit material information. Notwithstanding anything to the contrary in Subsection A above, the Grantee may, in its sole discretion, consolidate costs on Customer bills as may otherwise be permitted by Section 622 (c) of the Cable Act [47 U.S.C. § 542 (c)].
C. 
Privacy protection. The Grantee shall comply with all applicable federal and state privacy laws, including Section 631 of the Cable Act (47 U.S.C. § 551) and regulations adopted pursuant thereto.

§ A390-7 Oversight and regulation by franchising authority.

A. 
Franchise fees. The Grantee shall pay to the Franchising Authority a franchise fee in an amount equal to 5% of annual Gross Revenues received from the operation of the Cable System to provide Cable Service in the Franchise Area; provided, however, that the Grantee shall not be compelled to pay any higher percentage of franchise fees than any other cable operator providing service in the Franchise Area. The payment of franchise fees shall be made on a quarterly basis and shall be due 45 days after the close of each calendar quarter and 60 days after the close of the calendar year. Each franchise fee payment shall be accompanied by a report prepared by a representative of the Grantee showing the basis for the computation of the Franchise Fees paid during that period. The report shall contain a line item for every source of revenue received from each source.
B. 
Franchise fees subject to audit.
(1) 
Upon reasonable prior written notice, during normal business hours, at the Grantee's principal business office, the Franchising Authority shall have the right to inspect the Grantee's financial records used to calculate the Franchising Authority's franchise fees; provided, however, that any such inspection shall take place within two years from the date the Franchising Authority receives such payment, after which period any such payment shall be considered final.
(2) 
Upon the completion of any such audit by the Franchising Authority, the Franchising Authority shall provide to the Grantee a final report setting forth the Franchising Authority's findings in detail, including any and all substantiating documentation. In the event of an alleged underpayment, the Grantee shall have 30 days from the receipt of the report to provide the Franchising Authority with a written response agreeing to or refuting the results of the audit, including any substantiating documentation. Based on these reports and responses, the parties shall agree upon a "Final Settlement Amount." For purposes of this Section, the term "Final Settlement Amount(s)" shall mean the agreed upon underpayment, if any, to the Franchising Authority by the Grantee as a result of any such audit. If the parties cannot agree on a Final Settlement Amount, the parties shall submit the dispute to a mutually agreed upon mediator within 60 days of reaching an impasse. In the event an agreement is not reached at mediation, either party may bring an action to have the disputed amount determined by a court of law.
(3) 
Any Final Settlement Amount(s) due to the Franchising Authority as a result of such audit shall be paid to the Franchising Authority by the Grantee within 30 days from the date the parties agree upon the Final Settlement Amount. Once the parties agree upon a Final Settlement Amount and such amount is paid by the Grantee, the Franchising Authority shall have no further rights to audit or challenge the payment for that period. The Franchising Authority shall bear the expense of its audit of the Grantee's books and records.
C. 
Oversight of Franchise. In accordance with applicable law, the Franchising Authority shall have the right to oversee, regulate and, on reasonable prior written notice and in the presence of the Grantee's employees, periodically inspect the construction, operation and maintenance of the Cable System in the Franchise Area, and all parts thereof, as necessary to monitor Grantee's compliance with the provisions of this Franchise Agreement.
D. 
Technical standards. The Grantee shall comply with all applicable technical standards of the FCC as published in Subpart K of 47 CFR 76. To the extent that those standards are altered, modified, or amended during the term of this Franchise, the Grantee shall comply with such altered, modified or amended standards within a reasonable period after such standards become effective. The Franchising Authority shall have, upon written request, the right to obtain a copy of tests and records required to be performed pursuant to the FCC's rules.
E. 
Maintenance of books, records, and files.
(1) 
Books and records. Throughout the term of this Franchise Agreement, the Grantee agrees that the Franchising Authority, upon reasonable prior written notice to the Grantee, may review such of the Grantee's books and records regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor the Grantee's compliance with the provisions of this Franchise Agreement at the Grantee's business office, during normal business hours, and without unreasonably interfering with the Grantee's business operations. Such books and records shall include any records required to be kept in a public file by the Grantee pursuant to the rules and regulations of the FCC. All such documents pertaining to financial matters that may be the subject of an inspection by the Franchising Authority shall be retained by the Grantee for a minimum period of three years.
(2) 
File for public inspection. Throughout the term of this Franchise Agreement, the Grantee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations.
(3) 
Proprietary information. Notwithstanding anything to the contrary set forth in this Section, 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 as confidential and only to disclose it to those employees, representatives, and agents of the Franchising Authority that have a need to know in order to enforce this Franchise Agreement and who agree to maintain the confidentiality of all such information. The Grantee shall not be required to provide Customer information in violation of Section 631 of the Cable Act (47 U.S.C. § 551) or any other applicable federal or state privacy law. For purposes of this Section, the terms "proprietary or confidential" include but are not limited to information relating to the Cable System design, customer lists, marketing plans, financial information unrelated to the calculation of franchise fees or rates pursuant to FCC rules, or other information that is reasonably determined by the Grantee to competitively sensitive. In the event that the Franchising Authority receives a request under a state "sunshine," public records or similar law for the disclosure of information the Grantee has designated as confidential, trade secret or proprietary, the Franchising Authority shall promptly notify the Grantee of such request and cooperate with the Grantee in its efforts to protect its rights.

§ A390-8 Transfer of cable system or franchise.

Neither the Grantee nor any other Person may transfer the Cable System or the Franchise without the prior written consent of the Franchising Authority, which consent shall not be unreasonably withheld or delayed. No consent shall be required, however, for a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or in the Cable System in order to secure indebtedness, or a transfer to an entity directly or indirectly owned or controlled by Comcast Corporation. Within 30 days of receiving a request for consent, the Franchising Authority shall, in accordance with FCC rules and regulations, notify the Grantee in writing of the additional information, if any, it requires to determine the legal, financial and technical qualifications of the transferee or new controlling party. If the Franchising Authority has not taken action on the Grantee's request for consent within 120 days after receiving such request, consent shall be deemed given.

§ A390-9 Insurance and indemnity.

A. 
Insurance. Throughout the term of this Franchise Agreement, the Grantee shall, at its own cost and expense, maintain Comprehensive General Liability Insurance and provide the Franchising Authority certificates of insurance designating the Franchising Authority and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the Grantee has obtained the insurance required in this Section. Such policy or policies shall be in the minimum amount of $3,000,000 for bodily injury or death to any one person, and $3,000,000 for bodily injury or death of any two or more persons resulting from one occurrence, and $1,000,000 for property damage resulting from any one accident. Such policy or policies shall be noncancelable except upon 30 days' prior written notice to the Franchising Authority. The Grantee shall provide workers' compensation coverage in accordance with applicable law. The Grantee shall indemnify and hold harmless the Franchising Authority from any workers' compensation claims to which the Grantee may become subject during the term of this Franchise Agreement.
B. 
Indemnification. The Grantee shall indemnify, defend and hold harmless the Franchising Authority, its officers, employees, and agents from and against any liability or claims resulting from property damage or bodily injury (including accidental death) that arise out of the Grantee's construction, operation, maintenance or removal of the Cable System, including but not limited to reasonable attorneys' fees, provided that the Franchising Authority shall give the Grantee written notice of its obligation to indemnify and defend the Franchising Authority within 10 business days of receipt of a claim or action pursuant to this Section. If the Franchising Authority determines that it is necessary for it to employ separate counsel, the costs for such separate counsel shall be the responsibility of the Franchising Authority.

§ A390-10 System description and service.

A. 
System capacity. During the term of this Agreement, the Grantee's Cable System shall be capable of providing a wide variety of video programming choices, including two-way interactive service, with reception available to its customers in the Franchise Area in accordance with FCC technical standards.
B. 
Service to school buildings. The Grantee shall provide free "Basic" and "Expanded Basic" tier Cable Service and free installation at one outlet to each public K-12 school and each non-public K-12 school that receives funding pursuant to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq., as amended, not including "home schools," located in the Franchise Area within 125 feet of the Grantee's distribution cable.
C. 
Service to governmental and institutional facilities. The Grantee shall provide free "Basic" and "Expanded Basic" tier Cable Service and free installation at one outlet to each municipal building located in the Franchise Area within 125 feet of the Grantee's distribution cable, including fire companies. "Municipal buildings" are those buildings owned or leased by the Franchising Authority for government administrative purposes and shall not include buildings owned by the Franchising Authority but leased to third parties or buildings such as storage facilities at which government employees are not regularly stationed. The Grantee shall provide commercial high-speed Internet access to the main municipal office, so long as it is located within 125 feet of the Grantee's distribution cable.

§ A390-11 Enforcement and termination of franchise.

A. 
Notice of violation or default. In the event that the Franchising Authority believes that the Grantee has not complied with the material terms of the Franchise, it shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default.
B. 
Grantee's right to cure or respond. The Grantee shall have 45 days from the receipt of the Franchising Authority's written notice to respond to the Franchising Authority, contesting the assertion of noncompliance or default; or to cure such default; or, in the event that, by nature of the default, such default cannot be cured within the forty-five-day period, to 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.
C. 
Public hearings. In the event that the Grantee fails to respond to the Franchising Authority's notice or in the event that the alleged default is not remedied within 60 days of the date projected by the Grantee, the Franchising Authority may schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the Franchising Authority that is scheduled at a time that is no less than 10 business days therefrom. The Franchising Authority shall notify the Grantee in writing of the time and place of such meeting and provide the Grantee with a reasonable opportunity to be heard.
D. 
Enforcement. Subject to applicable federal and state law, in the event that the Franchising Authority, after such public 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 that reasonably lends itself to such remedy as an alternative to damages, or seek other equitable relief; or
(2) 
In the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with the following:
(a) 
The Franchising Authority shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have 90 days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event that the Franchising Authority has not received a response from the Grantee or upon receipt of the response does not agree with the Grantee's proposed remedy, it may then seek termination of the Franchise at a public hearing. The Franchising Authority shall cause to be served upon the Grantee, at least 10 days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise.
(b) 
At the designated hearing, the Franchising Authority shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record, and a written transcript shall be made available to the Grantee within 10 business days. The decision of the Franchising Authority shall be in writing and shall be delivered to the Grantee by certified mail. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Franchising Authority "de novo" and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within 60 days of the issuance of the determination of the Franchising Authority.
E. 
Technical violation. The Franchising Authority agrees that it is not its intention to subject the Grantee to penalties, fines, forfeitures or revocation of the Franchise for so-called "technical" breach(es) or violation(s) of the Franchise, which shall include but not be limited to the following:
(1) 
In instances or for matters where a violation or a breach of the Franchise by the Grantee was a good-faith error that resulted in no or minimal negative impact on the Customers within the Franchise Area; or
(2) 
Where there existed circumstances reasonably beyond the control of the Grantee and which precipitated a violation by the Grantee of the Franchise or which were deemed to have prevented the Grantee from complying with a term or condition of the Franchise.

§ A390-12 Miscellaneous provisions.

A. 
Force majeure. The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate the Cable System, governmental, administrative or judicial order or regulation or another event that is reasonably beyond the Grantee's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee's cable or equipment is attached, as well as unavailability of materials or qualified labor to perform the work necessary.
B. 
Notice. All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows:
To the Franchising Authority:
Millersville Borough
10 Colonial Avenue
Millersville, PA 17551
To the Grantee:
Comcast
1004 Cornerstone Boulevard
Downingtown, PA 19335
Attn.: Government Affairs
With a copy to:
Comcast
1500 Market Street
Philadelphia, PA 19102
Attn.: Government Affairs Department
C. 
Entire agreement. This Franchise Agreement, including all Exhibits, embodies the entire understanding and agreement of the Franchising Authority and the Grantee with respect to the subject matter hereof and supersedes all prior understandings, agreements and communications, whether written or oral. All ordinances or parts of ordinances that are in conflict with the provisions of this Franchise Agreement are superseded by this Franchise Agreement.
D. 
Severability. If any section, subsection, sentence, clause, phrase, or other portion of this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.
E. 
Governing law. This Franchise Agreement shall be deemed to be executed in the Commonwealth of Pennsylvania and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with the laws of the Commonwealth of Pennsylvania as applicable to contracts entered into and performed entirely within the Commonwealth.
F. 
Modification. No provision of this Franchise Agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the Franchising Authority and the Grantee, which amendment shall be authorized on behalf of the Franchising Authority through the adoption of an appropriate resolution or order by the Franchising Authority, as required by applicable law.
G. 
No third-party beneficiaries. Nothing in this Franchise Agreement is or was intended to confer third-party beneficiary status on any member of the public to enforce the terms of this Franchise Agreement.
H. 
No waiver of rights. Nothing in this Franchise Agreement shall be construed as a waiver of any rights, substantive or procedural, the Grantee may have under federal or state law unless such waiver is expressly stated herein.

§ A390-13 Educational and governmental access.

Use of channel capacity for noncommercial educational and governmental ("EG") access programming shall be provided by the Grantee in accordance with the Cable Act, Section 611, and as further set forth below. The Grantee does not relinquish its ownership of or ultimate right of control over a channel by designating it for EG use. An EG access user, whether an individual, educational or governmental user, acquires no property or other interest by virtue of the use of a channel so designated and may not rely on the continued use of a particular channel number, no matter how long the same channel may have been designated for such use. The Grantee shall not exercise editorial control over any public, educational, or governmental use of channel capacity, except that the Grantee may refuse to transmit any public access program or portion of a public access program that contains obscenity, indecency, or nudity. The Franchising Authority shall be responsible for developing, implementing, interpreting and enforcing rules for EG Access Channel use which shall ensure that EG Access Channel(s) and EG Access Equipment will be available on a first-come nondiscriminatory basis.
A. 
Educational access. An "Educational Access Channel" is a channel designated for noncommercial use by educational institutions, such as public or private schools, but not "home schools," community colleges, and universities. The Grantee shall designate capacity on one channel for educational access video programming provided by the Franchising Authority or designated educational institution. Unused capacity may be utilized by the Grantee, subject to the provisions for "fallow time" below.
B. 
Government access. A "Governmental Access Channel" is a channel designated for noncommercial use by the Franchising Authority for the purpose of showing the public local government at work. The Grantee shall designate capacity on one channel for government video programming provided by the Franchising Authority. Unused capacity may be utilized by the Grantee subject to the provisions for "fallow time" below.
C. 
Grantee use of fallow time. Because blank or underutilized EG channels are not in the public interest, in the event that the Franchising Authority or other EG access user elects not to fully program its Channel, a Grantee may program unused time on those channels, subject to reclamation by the Franchising Authority upon no less than 60 days' notice.
D. 
Indemnification. The Franchising Authority shall indemnify the Grantee for any liability, loss, or damage it may suffer due to violation of the intellectual property rights of third parties on any PEG channel and from claims arising out of the Franchising Authority's rules for or administration of access.