The following terms, phrases, words and their derivations, as used in
this franchise, shall, unless the context plainly requires otherwise, have
the following meanings:
BOARD
The Board of Supervisors of Whitpain Township, Montgomery County,
Pennsylvania, or such other legally appointed or elected successor or agency
constituting the governing body of the township.
COMMERCIAL SUBSCRIBER
A person who contracts to receive the signals amplified and distributed
by or locally originated and distributed by the company and carried, consistent
with the CATV rules of the FCC, to provide service to television sets of others,
or who exhibits programs to customers or the general public.
COMMUNITY ANTENNA TELEVISION SYSTEM, CATV OR CABLE TV SYSTEM OR SYSTEM
A facility which receives and amplifies audio and visual signals
by electrical impulses and distributes such signals to subscribing members
of the public for a fixed or periodic fee, employing wires or cables passing
along, over, under, across and upon streets, ways, lanes, alleys, parkways,
bridges, highways and other public places, including property of which the
township has an easement or right-of-way, and including facilities which,
in addition to providing such reception, amplification and distribution, are
also used to originate and distribute programs or other communication services
or materials to such subscribers.
COMPANY
The person that is awarded a franchise by the Board to construct
and operate a cable TV system, in accordance with the provisions of applicable
law, within the township.
FCC
The United States Federal Communications Commission, as presently
constituted by the United States Congress, or any successor agency.
FRANCHISE
The nonexclusive rights granted pursuant to this ordinance to construct
a cable TV system along the public ways within all or a specified area in
the township. Any such authorization, in whatever form granted, shall not
mean and include any license or permit required for the privilege of transacting
and carrying on a business within the township as may be required by other
ordinances and laws of this township now or hereafter in effect.
FRANCHISE AGREEMENT
The written contract executed by the township and the company pursuant
to this ordinance.
GROSS REVENUE
Includes all revenues derived from the supplying of any and all cable
television services to persons within Whitpain Township.
PERSON
An individual, partnership, association, organization, corporation
or any lawful successor, transferee or assignee of said individual, partnership,
association, organization or corporation.
PUBLIC HIGHWAYS
The streets, avenues, highways, parkways, concourses, boulevards,
bridges, viaducts, tunnels or any other property to which the Board can grant
a franchise for any use thereof.
SALE
Includes any offer for sale, sale, exchange or barter.
STREET
Includes each of the following which have been dedicated to the public
or hereafter dedicated to the public and maintained under public authority
or by others and located within the township: streets, roadways, highways,
avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public
ways and extensions and additions thereto, together with such other public
property and areas as the township shall permit to be included within the
definition of "street" from time to time.
SUBSCRIBER
A person who contracts to receive the signals amplified and distributed
by or locally originated and distributed by the company and carried, consistent
with the CATV rules of the FCC, to an individual dwelling unit.
TOWNSHIP
Whitpain Township, Montgomery County, Pennsylvania.
The ordinance is issued in accordance with the provisions required by
Section 76.31 of the rules of the FCC, which ordinance is intended to effect
full compliance with said section.
The company may enter into an agreement with any person or corporation,
including telephone company and other utility companies now authorized to
erect poles, overhead wires or cables and underground wires or cables, for
the purpose of sharing those facilities, subject to all existing and future
ordinances and regulations of the township.
The authorization granted by this ordinance is a nonexclusive franchise
and the township reserves the right to grant other similar or dissimilar franchises
to any other person at any time.
The franchise agreement shall be for a period of 15 years, and the company
may apply for renewal for an additional term of up to 10 years by applying
for renewal to the township, in writing, within six months prior to the expiration
of the original term of this franchise.
The company shall pay an annual franchise fee to the township in a sum
equal to 3% of the gross subscriber revenues of the company derived in the
township. The company shall file with the township within 90 days after the
expiration of any calendar year during which this franchise is in force a
statement, certified by independent public auditors, showing in appropriate
detail the total gross subscriber revenues of the company from services provided
to subscribers in the township during the preceding calendar year. It shall
be the duty of the company to pay to the township within 30 days after the
time for filing such statement the specified sum due for the calendar year
covered by such statement. A duly 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 due hereunder. Such payment shall be in
addition to any other payment, charge, permit fee, tax or bond owed to the
township by the company and shall not be construed as payment in lieu of personal
or real property taxes levied by the township or any other governmental authorities.
The annual franchise fee percentage may be amended by the township, consistent
with applicable rules of the FCC and other regulating agencies. The company
shall be notified in writing at least 30 days prior to such amendment. No
acceptance of any payment by the township shall be construed as a release
or as an accord and satisfaction of any claim the township may have for further
or additional sums payable as a franchise fee under this ordinance or for
the performance of any other obligation of the company. In the event that
any franchise payment is not made on or before the date specified herein,
the company shall pay as additional consideration:
A. An interest charge, computed from such due date, at the
annual rate of 9% per annum; and
B. A sum of money equal to 2% of the amount due in order
to defray those additional expenses and costs incurred by the township by
reason of the delinquent payment.
The company shall indemnify, protect and save harmless the township
from and against losses and physical damages to property and bodily injury
or death to persons, including payments made under the Workmen's Compensation
Law, which may arise out of or be caused by the erection, maintenance, presence
or use or removal of attachments on poles by the company within the township
or by any act of the company, its agents or employees. The company shall carry
insurance to protect the township from and against all claims, demands, actions,
judgments, costs, expenses and liabilities which may arise or result, directly
or indirectly, from or by reason of such loss, injury or damage. The amounts
of such insurance against liability due to physical damages to property shall
not be less than $100,000 as to any one accident and not less than $200,000
aggregate in any single policy year, and against liability due to bodily injury
or to death of persons, not less than $300,000 as to any one person and not
less than $600,000 as to any one accident. The company shall also carry such
insurance as it deems necessary to protect it from all claims under the Workmen's
Compensation Law.
If any provision, section, subsection, sentence, clause, phrase or other
portion of this ordinance or the application thereof to any person or circumstance
is held to be unconstitutional, illegal or in conflict by a court of competent
jurisdiction or by any federal agency, including the FCC, the remainder of
this ordinance and the application of such provisions to other persons and
circumstances shall not be affected thereby, and to this end such portion
of this ordinance shall be deemed a separate, distinct and independent provision
and not affecting the validity of the remainder of this ordinance.
Any privilege claimed under a franchise by the company in any street
or other public property shall be subordinate to any lawful occupancy of the
streets or other public property. No privilege or exemption shall be granted
or conferred by any franchise granted except those specifically prescribed
herein. Any franchise granted hereunder shall be binding upon the company
and all successors, lessees or assignees as may be approved by the Board.
Any right or power in or duty impressed upon any officer, employee,
department or board of the township shall be subject to transfer by the township
to any other officer, employee, department or board of the township.
The company awarded a franchise shall execute a franchise agreement
which shall set forth the terms and provisions of the franchise. In addition
to those matters required to be included by virtue of this ordinance, the
franchise agreement shall contain such further conditions or provisions as
may be included in the company's proposal and/or negotiated between the
township and the company, except that no such conditions or provisions shall
be such as to conflict with any provisions of this ordinance or other law.
In case of such conflict or ambiguity between any terms or provisions of the
franchise and this ordinance, the words of this ordinance shall control.
The company shall maintain throughout the period of system construction
and operation a faithful performance bond in favor of the township with a
surety approved by the township in the penal sum total of $100,000, conditioned
upon the faithful performance by the company of its obligations under this
ordinance and the franchise agreement and upon the further condition that
in the event the company shall fail to comply with any law, ordinance or regulation
governing the franchise or the company, there shall be recoverable, jointly
and severally from the principal and surety of the bond, any damages or loss
suffered by the township as a result, including the full amount of any compensation,
indemnification or cost of removal or abandonment of any property of the company,
plus a reasonable allowance for attorney's fees and costs, up to the
full amount of the bond.
Whenever this ordinance or the franchise agreement sets forth any time
for any act to be performed by or on behalf of the company, such time shall
be deemed of the essence, and the company's failure to perform within
the time allotted shall, in all cases, be sufficient grounds for the township
to invoke the remedies available under the terms and conditions of this ordinance
and the franchise agreement.