The township finds that the streets and public
rights-of-way of the county, state and township to be used by a franchisee
for the operation of a cable system within the boundaries of the franchise
area granted by the township's issuance of a franchise are valuable
public property acquired and maintained by the county, state and township
at great expense to the taxpayers. The township further finds that
the grant of a franchise to use such streets and public rights-of-way
is a valuable property right without which a franchisee would be required
to invest substantial capital.
The administration of this ordinance and the
franchise imposes upon the township substantial and additional regulatory
responsibilities and expense. Accordingly, each franchisee receiving
the approval of the Board for the grant of a franchise shall pay to
the township a franchise fee in the amount designated by the Board
when the franchise is granted, which amount shall in no event be less
than 5% of its gross annual revenues, or the maximum amount permitted
under applicable federal law, state or local law. If such maximum
is greater than 5%, the franchisee shall pay the increased fee allowed
by law to the township within 60 days after the effective date of
a resolution or ordinance by the township authorizing the imposition
of the increased franchise fee. Immediately after its enactment, the
township shall provide the franchisee with a copy of the resolution
or ordinance authorizing the imposition of the increased franchise
fee.
A. The franchise fee is in addition to taxes and payments
that the franchisee may be required to pay under any federal, state
or local law and to any tax, fee or assessment imposed by utilities
and cable operators for the use of their services, facilities and
equipment.
B. Payment of the franchise fee made by franchisee to
the township is not and shall not be considered in the nature of a
tax.
C. Acceptance by the township. No acceptance of any payment
by the township shall be construed as a release or 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 franchisee.
D. Failure to make required payment. In the event any
franchise payment or recomputation amount is not made on or before
the date specified herein, franchisee shall pay additional compensation
and interest charges computed from such due date, at the annual rate
equal to the commercial prime interest rate of the township's primary
depository bank during the period such unpaid amount is owed.
E. Payments to be made quarterly. The franchise fee and
any other costs assessed by the township against the franchisee shall
be paid quarterly to the township and shall commence as of the effective
date of the franchise, unless otherwise specified in the franchise
agreement. The township shall be furnished at the time of each payment
with a statement verified by a financial representative of the franchisee
reflecting the total amount of gross revenues for the payment period.
Said quarterly payments shall be made to the township no later than
45 days following the end of each calendar quarter, except for the
payment for the last quarter, which shall be paid within 60 days following
the end of the calendar quarter. Quarterly computation dates are the
last days of the months of March, June, September and December.
F. The township right of inspection. The township shall
have the right to inspect and copy, exclusive of proprietary information,
the franchisee's records and the right to audit and to recompute any
amounts determined to be payable pursuant to this ordinance for a
period of four years from the date of payment. Audits shall be at
the expense of the township unless the audit discloses an underpayment
in excess of 5%, in which case the costs of the audit shall be borne
by the franchisee as a cost incidental to the enforcement of the franchise
agreement. Any additional amounts due to the township as a result
of the audit shall be paid within 30 days following written notice
to the franchisee by the township of the underpayment, which notice
shall include a copy of the audit report, unless written notice of
disagreement is filed by the franchisee with the township within such
time period. In the case of a dispute, the issue shall be resolved
through binding arbitration in accordance with the procedures of the
American Arbitration Association.
G. Franchisee financial records. Upon request by the
township, the franchisee shall provide the township with a copy of
its SEC Form 10-K Annual Report within 30 days after it is submitted
to the Securities and Exchange Commission (SEC).
In the event that the township determines that
the franchisee has violated any material provisions of the franchise,
or any material applicable federal, state or local law, the township
may make written demand on the franchisee that it remedy such violation
and that continued violation may cause revocation.
A. A public hearing shall be held by the Board upon 14
days' prior written notice to the franchisee. The notice to the franchisee
shall specify with particularity the time and place of the hearing
and shall afford the franchisee a full and complete opportunity to
be heard in person and by counsel. The grounds upon which the pending
revocation is based shall be alleged with particularity in the written
notice to the franchisee.
B. If notice is given and, at franchisee's option, a
full public proceeding is held, the township determines that a violation,
breach, failure, refusal or neglect by franchisee exists, the township
shall direct franchisee to correct or remedy the same within such
reasonable additional time, in such a manner and upon such terms and
conditions as the township may direct.
C. If, after notice is given, and, at township's option,
a full public proceeding is held, the township determines there was
a violation, breach, failure, refusal or neglect, then the township
may declare, by resolution, the franchise revoked and canceled and
of no further force or effect. The township shall have the right in
its discretion to take ownership of the cable system and all associated
equipment and facilities under ownership of the franchisee pursuant
to the township's power of eminent domain.
D. The issue of revocation shall automatically be placed
upon the Township Board agenda at the expiration of the time set by
it for compliance. The township then may terminate the franchise forthwith
upon finding the franchisee has failed to achieve the plans or may
further extend the period, at its discretion.
E. If the township, after notice is given and, at franchisee's
option, a full public hearing is held and appeal is exhausted, declares
the franchise breached, the parties may pursue their remedies pursuant
to the franchise or any other remedies, legal or equitable.
Franchisee shall post a bond issued by a bonding
company that is authorized to conduct business within the Commonwealth
of Pennsylvania with the township as security to ensure the franchisee's
faithful performance of this ordinance, the franchise agreement and
other applicable law, and compliance with all orders, permits and
directions of the township, and payment by the franchisee of any claims,
liens, fees or taxes due the township which arise by reason of the
construction, operation or maintenance of the cable system. The amount
of the bond shall be $25,000. The franchisee and the bonding company
shall be required to execute the township's standard form of performance
bond. The township shall have the right to proceed and collect under
the bond for the purpose of curing the franchisee's default of its
obligations under this ordinance, the franchise agreement or other
applicable law.