A.
Grant.
(1)
Pursuant to the authority of the Pennsylvania Constitution,
the Pennsylvania Revised Statutes and local ordinances and subject to the
terms and conditions set forth herein, the township can grant revocable and
nonexclusive franchises, acting pursuant to the township's applicable
Charter provisions, ordinances, rules and regulations, to construct and operate
a cable communications system in, under, over, along, across or upon the streets
and public grounds within the Township of Upper Merion for the purpose of
reception, transmission, collection, amplification, origination, distribution
or redistribution of audio, video, data or other signals and for the development
of cable communication services in accordance with the laws of the township
of Upper Merion, the Commonwealth of Pennsylvania and the United States of
America. In exercising rights pursuant hereto, the grantee shall not endanger
or interfere with the lives of persons, interfere with any installations of
the township, any public utility serving the township or any other person
permitted to use the streets and public grounds nor unnecessarily hinder or
obstruct the free use of the streets and public grounds. The grant of one
franchise does not establish priority for use over the other present or future
permit or franchise holders or the township's own use of the streets
and public grounds. The township shall at all times control the distribution
of space in, over, under or across all streets or public grounds occupied
by the cable communications system. All rights granted for the construction
and operation of the cable communications system shall be subject to the continuing
right of the township to require such reconstruction, relocation, change or
discontinuance of the appliances used by the cable communications system in
the streets, alleys, avenues and highways of the township, as shall in the
opinion of the township be necessary in the public interest. Nothing in this
section shall be interpreted as requiring an existing grantee to accept an
inferior pole position in order to accommodate subsequent grantees or to require
an existing grantee to bear the cost of any make-ready or facilities rearrangement
required to accommodate subsequent grantees.
(2)
No grant of any franchise shall affect the right of the
township to grant to any other person a right to occupy or use the streets,
or portions thereof, for the construction and operation of a cable communications
system within the township or the right of the township to permit the use
of the streets or public grounds of the township for any purpose whatever.
By accepting a franchise, the franchisee thereby acknowledges the township's
right to make such grants and permit such uses. No privilege or power of eminent
domain is bestowed on the grantee by the grant of a franchise.
(3)
All rights granted herein to provide cable service shall
not be construed to include telephone services, as defined and regulated by
Pennsylvania law and as required by the township to be obtained by separate
franchise, but, upon application of any grantee for a telephone franchise,
any portion of the rights granted herein may be redesignated as a part of
such telephone franchise, if appropriate.
(4)
The ordinance may be amended by the township as indicated
in the ordinance and allowed by law; provided, however, that any amendment
to the ordinance binding on the grantee shall be confined to changes which
do not materially alter the rights and obligations of the grantee under the
franchise and this ordinance as it exists on the date of the applicable franchise.
B.
Event of conflict. In the event of conflict between the
terms and conditions of this ordinance and the franchise, the ordinance shall
control.
C.
General township ordinances. Any franchise granted by
the township is hereby made subject to the general ordinance provisions now
in effect and hereafter made effective. Nothing in the franchise shall be
deemed to waive the requirements of the various codes and ordinances of the
township regarding permits, taxes, fees to be paid or manner of construction.
The grantee shall pay all lawful business taxes or fees, as required by local
law and regulation, in a timely manner.
The franchise area shall be the entire township, or portions thereof,
for which a franchise is granted.
For the purpose of operating and maintaining a cable communications
system in the township, the grantee may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under, upon, across and along
the public streets and ways within the township such wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments
and other property and equipment as are necessary to the operation of the
cable communications system; provided, however, that the grantee complies
with all design, construction, safety, and performance provisions contained
in this ordinance, the franchise and other applicable local ordinances. The
grantee shall also obtain pole attachment agreements for the use of any utility
poles or other utility facilities required in connection with the provision
of services, where required.
In the event that a grantee chooses to utilize township-owned conduit
or other facilities for any portion of its cable communications system, the
consideration for the use of township conduit or other facilities shall be
at charges to be agreed upon between the parties.
No poles shall be erected by the grantee without prior approval of the
township with regard to location, height, type and any other pertinent aspect.
However, no location of any pole of the grantee shall be a vested right, and
such poles shall be removed, relocated or modified by the grantee at its own
expense whenever the township determines that the public convenience would
be enhanced thereby. The grantee shall utilize existing poles and conduits,
where possible. The township shall have the right, during the life of the
franchise, to install and maintain upon the poles owned by the grantee any
wire and pole fixtures that do not unreasonably interfere with the cable system
operations of the grantee at charges to be agreed upon between the parties.
The term of the franchise shall commence upon execution of the franchise
by the township and the grantee and shall continue for a period specified
in the franchise, unless sooner terminated as provided herein. Grantee shall
have no property right to the public rights-of-way, township land and/or facilities
upon the expiration of the franchise term.
No cable communications system shall be allowed to occupy or use the
streets of the township or be allowed to operate within the township without
a franchise.
Any franchise granted pursuant to this ordinance shall be nonexclusive.
The township specifically reserves the right to grant at any time such additional
franchises for a cable communication system as it deems appropriate and/or
build, operate and own such cable communication system or systems as it deems
appropriate. Any additional cable communications system franchises granted
by the township shall contain similar terms and conditions as this franchise,
including without limitation provisions of public benefit with similar cost,
taking into account the size and population of the franchised areas. A grantee
is required to indemnify the township and to hold the township harmless from
all claims against it by third parties arising out of its compliance with
the most-favored nations provision set forth herein to the extent that such
claims are not barred by Section 635A of the Cable Television Consumer Protection
and Competition Act of 1992 (Limitation of Franchise Authority Liability),
or by any other provision of law.
The grantee shall comply with all applicable laws, ordinances and regulations
enacted by the township pursuant to lawful power. Any conflict between the
terms of this ordinance or the franchise and any present or future lawful
exercise of the township's police and regulatory powers shall be resolved
in favor of the latter.
Nothing in this ordinance or the franchise shall limit any right the
township may have to acquire by eminent domain or otherwise any property of
the grantee; provided, however, that any such acquisition shall be for just
compensation.
Nothing in this ordinance shall be in hindrance to the right of the
township or any governmental authority to perform or carry on, directly or
indirectly, any public works or public improvements of any description. Should
the cable communications system in any way interfere with the construction,
maintenance or repair of such public works or public improvements, the grantee
shall, at its own cost and expense, protect or relocate its cable communications
system, or part thereof, as reasonably directed by the township officials
or any governmental authority.
If at any time, in case of fire or disaster in the township, it shall
become necessary in the reasonable judgment of the township to cut or move
any of the wires, cables, amplifiers, appliances or appurtenances of the cable
communications system, the township shall have the right to do so at the sole
cost and expense of the grantee. The grantee shall bear all costs of reinstallation,
repair and other costs resulting from or arising out of the emergency cutting
or removal of the cable communications system.
Upon revocation or termination and nonrenewal of the franchise by passage
of time or otherwise, and unless the grantee transfers the cable communications
system to a subsequent grantee approved by the township, the grantee shall
remove its supporting structures, poles, transmission and distribution systems
and all other appurtenances from the streets and public rights-of-way and
shall restore any property, public or private, to its original condition prior
to the installation, erection or construction of the cable communications
system. Restoration of township property, including but not limited to the
public rights-of-way, shall be in accordance with the directions and specifications
of all affected departments and agencies of the township and all applicable
law. The grantee, at the option and direction of the township, shall accomplish
such restoration at its expense. Such removal shall be made with the supervision
of the township. If such removal and restoration is not completed within 12
months after the notice by the township delivered, in writing, to the grantee,
all of the grantee's property remaining in the affected public rights-of-way
shall, at the option of the township, be deemed abandoned and shall, at the
option of the township, become the property of the township. In the event
that the grantee fails or refuses to remove its system or satisfactorily restore
all areas to the condition in which they existed prior to the original construction
of the system, the township, at its option, may perform such work and collect
the cost thereof from the grantee. No surety on the performance bond shall
be discharged until the township has certified to the grantee, in writing,
that the system has been dismantled and removed and all other property restored
to the satisfaction of the township. Notwithstanding the foregoing, in no
event shall the grantee be required to remove its facilities or be deemed
to have abandoned its property in any case where the township has notified
the grantee of its desire to purchase the cable communications system as set
forth herein in the ordinance or in the franchise agreement.
Whenever this ordinance shall set forth any time for any act to be performed
by or on behalf of the grantee, such time shall be deemed to be of the essence;
any failure of the grantee to perform within the time allotted shall always
be sufficient ground for the township to invoke an appropriate penalty, including
possible revocation of the franchise.
No course of dealing between the grantee and the township nor any delay
on the part of the township or the grantee in exercising any rights hereunder
shall operate as a waiver of any such rights or acquiescence in the actions
of the other party in contravention of rights, except to the extent expressly
waived by the township or the grantee.
Any financial commitments obtained by the grantee which have been confirmed
to the township pursuant to the franchise shall be used solely in connection
with the construction, operation or maintenance of the cable communications
system or the grantee's performance of the term obligations and the conditions
of this ordinance and the franchise.
A.
Transfer of franchise. Any franchise granted hereunder
cannot in any event be sold, transferred, leased, assigned or disposed of,
including but not limited to by force or voluntary sale, merger, consolidation,
receivership or other means, without the prior consent of the township. The
township reserves the right to impose certain conditions on the transferee
as a condition of transfer approval to ensure that the transferee is able
to meet existing ordinance and franchise requirements.
B.
Transfer threshold. The grantee shall promptly notify
the township of any actual or proposed change in, or transfer of, or acquisition
by any other party, of ownership or control of the grantee. The word "control"
as used herein is not limited to major stockholders but includes actual working
control in whatever manner exercised. A rebuttable presumption that a transfer
of ownership has occurred shall arise upon the disposal by the grantee, directly
or indirectly, by gift, assignment, voluntary sale, merger, consolidation
or otherwise, of 25% or more at one time of the ownership or controlling interest
in the system or 30% cumulatively over the term of the franchise of such interests
to a corporation, partnership, limited partnership, trust or association,
or person or group of persons acting in concert.
C.
Township approval. Every change, transfer or acquisition
of control of the grantee shall make the franchise subject to cancellation
unless and until the township shall have consented thereto. For the purpose
of determining whether it shall consent to such change, transfer or acquisition
of control, the township may inquire into the legal, financial, character,
technical and other public interest qualifications of the prospective transferee
or controlling party, and the grantee shall provide the township with all
required information relevant to said inquiry. Failure to provide all information
requested by the township as part of said inquiry shall be grounds for denial
of the proposed change, transfer or acquisition of control.
D.
Assumption of control. The township agrees that any financial
institution having a pledge of the franchise or its assets for the advancement
of money for the construction and/or operation of the franchise shall have
the right to notify the township that it will take control and operate the
cable communications system. If the financial institution takes possession
of the cable communications system, the township shall take no action to effect
a termination of the franchise without first giving to the lender written
notice thereof and a period of six months thereafter (unless otherwise provided
hereinbelow) to allow the financial institution or its agent(s) to continue
operating as the franchisee under the franchise; and to request the township,
and for the township to determine whether, to consent to the assignment of
the grantee's rights, title, interest and obligations under the franchise
to a qualified operator. The township acknowledges that in order for the financial
institution to realize upon the collateral accorded to it by the loan documents,
the financial institution must be entitled to a reasonable period of time
after taking possession of the franchise under the loan document to obtain
the township's consent to an assignment of the franchise to a qualified
operator. The township agrees that such reasonable period of time is 12 months
after the financial institution takes possession of the cable communication
system and, further, agrees that the township shall use its best efforts to
decide upon the assignment of the franchise to the new operator proposed by
the financial institution within such period of time. If the financial institution
has used its best efforts to find a new operator, the township, upon petition
of the financial institution, will extend the timeframe herein by at least
six months ("extended time"). The financial institution shall be entitled
to such possession and other rights granted under this subsection until such
time that the township determines whether to consent to such assignment (the
"extended time"). If the township finds that such transfer, after considering
the legal, financial, character, technical and other public interest qualifications
of the applicant are satisfactory, the township will consent to the transfer
and assign the rights and obligations of such franchise as in the public interest.
During the initial twelve-month period or extended time, the financial institution
shall enjoy all the rights, benefits and privileges of the grantee under the
franchise, and the township shall not disturb such possession by the financial
institution, provided that the financial institution complies in all respects
with the terms and provisions of the franchise and this ordinance. The various
rights granted to the financial institution under this subsection are contingent
upon the lender's continuous compliance with the terms and provisions
of this ordinance and the franchise during the entire aforementioned initial
twelve-month period or extended time, if applicable. For example, should an
agent of the financial institution take possession of the cable communication
system pursuant to rights granted to the financial institution under this
subsection, and such agent fails to comply with the level of service requirements
set forth in this ordinance or the franchise, the rights granted to the financial
institution under this ordinance and the franchise shall be subject to revocation
and all other remedies specified in the ordinance or in the franchise agreement.
E.
No waiver of township property rights. The consent or
approval of the township or any other public entity to any transfer of the
grantee shall not constitute a waiver or release of the rights of the township
in and to the public property or public rights-of-way, and any transfer shall,
by its terms, be expressly subordinate to the terms and conditions of this
ordinance and the franchise.
F.
Transfer time periods. The township will not approve
any transfer or assignment of the franchise prior to construction or the completion
of the rebuild of the system unless there are appropriate guarantees of same
by the transferee.
G.
Signatory requirement. Any approval by the township of
transfer of ownership or control shall be contingent upon the prospective
controlling party becoming a signatory to the franchise agreement.
H.
Time frame for township review. The township shall have
120 days to act upon any request for approval of such sale or transfer that
contains or is accompanied by such information as is required in accordance
with Federal Communications Commission (FCC) regulations and by the township.
If the township fails to render a final decision on the request within 120
days, such request shall be deemed granted unless the requesting party and
the township agree to an extension of time.
A.
Right to purchase of the system by the township upon
termination or expiration of the franchise.
(1)
Right to purchase. In the event that the grantee forfeits
and the township terminates the franchise for cause, pursuant to the provisions
of this ordinance and the franchise, or the franchise is not renewed at or
following the normal expiration of the franchise term, the township shall
have the right, directly or as an intermediary, to purchase the franchised
cable communications system or effect the ownership of the system to another
person. Any such acquisition or transfer shall be at fair market value, determined
on the basis of the cable system valued as a going concern, but with no value
allocated to the franchise itself. The township shall notify the grantee,
in writing, within 30 days following nonrenewal or termination of its intent
to acquire the system on its behalf or effectuate the ownership of the system
to another person. Purchase price shall be based upon the value of the system
determined pursuant to this section.
(2)
Arbitration. In the event that the township and grantee
are unable to agree upon the value of the cable communications system, either
party may require by written notice to the other that the value of the cable
communications system be submitted to arbitration in the following manner:
(a)
The township and the grantee shall each, within 15 days
after such written notice, select an arbitrator who shall be a disinterested
person with reasonable knowledge and experience relative to the subject to
be arbitrated. The two arbitrators thus selected shall immediately thereafter
select a third arbitrator who shall likewise be a disinterested person having
reasonable knowledge and experience relative to the subject to be arbitrated.
(b)
Within 30 days after appointment of all arbitrators and
upon 10 days' written notice to the parties, the panel of arbitrators
shall commence a hearing on the issue of valuation and shall receive all relevant
information from the parties.
(c)
The hearing shall be recorded and may be transcribed
at the request of either party. All hearing proceedings, debate and deliberations
shall be open to the public and at such times and places as contained in the
notice or as thereafter publicly stated; except that, if two arbitrators agree,
debate and deliberations may be held in closed session.
(d)
The value of the system as determined by the arbitration panel shall be pursuant to Subsection A(1) above.
(e)
Within 30 days after the close of the hearing, the panel
of arbitrators shall prepare the findings and decision agreed upon by a majority
of the panel which shall be filed with the township and served by mail upon
the grantee. The decision of the panel regarding the value of the system shall
be final and binding upon the parties. Should there be no majority decision,
the proceedings shall become null and void and shall be started anew, unless
the parties extend by mutual agreement the time which the panel of arbitrators
has to make a decision.
(f)
Either party may seek judicial relief in the following
circumstances:
[1]
A party fails to select an arbitrator;
[2]
The arbitrators fail to select a third arbitrator;
[3]
One or more arbitrators is unqualified;
[4]
Designated time limits have been exceeded;
[5]
The panel has not proceeded expeditiously;
[6]
The decision was procured by corruption, fraud or undue
means;
[7]
There was evident partiality on the part of one or more
of the arbitrators;
[8]
The arbitration panel exceeded its authority hereunder;
[9]
Based upon the record, the panel abused its discretion.
(g)
In the event that a court of competent jurisdiction determines
that judicial relief is appropriate to the circumstances set forth above,
the court in its discretion may order the arbitration procedure repeated and
issue findings, orders and directions.
(h)
The expenses of the arbitrators and those expenses incurred
by the panel as a whole shall be borne equally by the parties.
(3)
Purchase price. The purchase price shall be the value
of the system as determined by the arbitration panel.
Subject to federal law, upon completion of the term of any franchise
granted under this ordinance, the township may grant or deny renewal of the
franchise of the grantee in accordance with the provisions of the Cable Act.
The grantee shall own the cable communication system but shall have no right
to use of public rights-of-way upon the completion of the franchise term,
including any renewals and extensions thereof.
A.
Because the township finds that the public rights-of-way
to be used by the grantee in the operation of its system within the boundaries
of the franchise area are valuable public properties acquired and maintained
by the county, Commonwealth and township at great expense to its taxpayers;
and the grant to the grantee to said streets is a valuable property right
without which the grantee would be required to invest substantial capital
in right-of-way costs and acquisitions; and the administration of this ordinance
or the franchise imposes upon the township additional regulatory responsibility
and expense, therefore the grantee of any franchise hereunder shall pay to
the township a franchise fee in an amount as designated in the franchise,
but in no event less than 5% of the gross annual revenues derived during the
franchise term from the operation of the cable communications system, or the
maximum amount permitted under applicable federal, state or local law, if
such maximum is greater than 5%. The township shall be furnished annually
with certification by a financial officer of the grantee of the amount of
the franchise fee due to Upper Merion Township and a detailed breakdown of
such revenues. The township shall be furnished a fully audited statement of
said payment by a certified public accountant, reflecting the total amounts
of annual gross revenues and the above charges and computations for the period
covered by the payment, upon request, but not more often than every three
years.
B.
Franchise fee in addition to other tax or payments. This
payment shall be in addition to any fee or tax or payment owed to the governments
or other taxing jurisdiction, and the obligation to pay such franchise fees
by the grantee shall commence as of the effective date of the franchise.
C.
Acceptance by the township. 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 grantee.
D.
Failure to make required payment. In the event that any
franchise payment or recomputed amount is not made on or before the dates
specified herein, the grantee shall pay as additional compensation an interest
charge, computed from such due date, at the annual rate equal to the commercial
prime interest rate of the township primary depository bank during the period
that such unpaid amount is owed.
E.
Payments to be made quarterly. The franchise fee and
any other cost or damages assessed shall be payable quarterly to the township
of Upper Merion. The grantee shall file a complete and accurate verified statement
of all gross revenue within the township during the period for which said
quarterly payment is made, and said payment shall be made to the township
not later than 45 days after the expiration of each calendar quarter ending
March 31, June 30 and September 30, and no later than the 90 days after the
calendar quarter ending December 31.
F.
The township right to inspection. The township shall
have the right to inspect the grantee's income records and the right
to audit and to recompute any amounts determined to be payable under this
ordinance. Audits shall be at the expense of the township unless the audit
reveals an underpayment of more than 5% in the amount of the franchise fee
due to the township, in which event the cost of the audit shall be borne by
the grantee. Any additional amount due to the township as a result of the
audit shall be paid within 30 days following written notice to the grantee
by the township, which notice shall include a copy of the audit report.
A.
Grounds for revocation. The township reserves the right
to revoke any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the following circumstances, each of which
shall represent a default and breach under the ordinance and the franchise
grant:
(1)
If the grantee shall default in the performance of any
of the material obligations under this ordinance or under such documents,
contracts and other terms and provisions entered into by and between the township
and the grantee.
(2)
If the grantee shall fail to provide or maintain in full
force and effect the liability and indemnification coverage or the performance
bond as required herein.
(3)
If the grantee, after all appeals have been exhausted,
shall violate any orders or rulings of any regulatory body having jurisdiction
over the grantee relative to this ordinance or the franchise.
(4)
If the grantee practices any fraud or deceit upon the
township or cable subscribers.
(5)
The grantee's construction schedule is delayed materially
beyond the schedule contained in the franchise or beyond any extended date
set by the township.
(6)
The grantee becomes insolvent, unable or unwilling to
pay its debts or is adjudged bankrupt.
(7)
The grantee fails to restore service after 96 consecutive
hours of interrupted service, except when approval of such interruption is
obtained from the township.
(8)
There is/was material misrepresentation of fact in the
application for or negotiation of the franchise or any extension or renewal
thereof.
(9)
There is failure by the grantee to obtain, maintain at
all times and fully comply with any executed agreements with the Township
of Upper Merion that are material to the operations of the cable communications
system.
B.
Effect of circumstances beyond control of grantee. The
grantee shall not be declared at fault or be subject to any sanction under
any provision of this ordinance in any case in which performance of any such
provision is prevented for reasons beyond the grantee's control. A fault
shall not be deemed to be beyond the grantee's control if committed by
a corporation or other business entity in which the grantee holds a controlling
interest, whether held directly or indirectly.
C.
Effect of pending litigation. Pending litigation or any
appeal to any regulatory body or court having jurisdiction over the grantee
shall not excuse the grantee from the performance of its obligations under
this ordinance or the franchise. Failure of the grantee to perform such obligations
because of pending litigation or petition may result in forfeiture or revocation
pursuant to the provisions of this section. Notwithstanding the above, disputes
existing on the effective date of this franchise between grantee and the township
are excluded from this provision.
D.
Procedure prior to revocation.
(1)
The township shall make written demand that the grantee
comply with any such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. If the failure, refusal
or neglect of the grantee continues for a period of 30 days following such
written demand, the township shall place its request for termination of the
franchise upon a regular Board of Supervisors meeting agenda. The township
shall cause to be served upon such grantee, at least seven days prior to the
date of such Board of Supervisors meeting, a written notice of this intent
to request such termination and the time and place of the meeting, notice
of which shall be published by the township at least once seven days before
such meeting in a newspaper of general circulation within the township.
(2)
The Board of Supervisors shall hear any persons interested
therein and shall determine in its discretion whether or not any failure,
refusal or neglect by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee was
with just cause, the Board of Supervisors shall direct the grantee to comply
within such time and manner and upon such terms and conditions as are reasonable.
(4)
If the Board of Supervisors shall determine that such
failure, refusal or neglect by the grantee was without just cause, then the
Board of Supervisors shall, by resolution, declare that the franchise of the
grantee shall be terminated and the bond forfeited unless there be compliance
by the grantee within 90 days.
A.
Equal employment opportunity and affirmative action programs.
The grantee shall be an equal opportunity/affirmative action employer adhering
to all federal, state or municipal laws and regulations.
