[HISTORY: Adopted by the Board of Supervisors
of the Township of Uwchlan as indicated in article histories. Amendments
noted where applicable.]
[Adopted 7-10-2006 by Ord. No. 2006-03]
[1]
Editor's Note: This agreement was renewed 3-8-2021 by Ord. No. 2021-03.
Except as otherwise provided herein, the definitions
and word usages set forth in the Communications Act are incorporated
herein and shall apply in this agreement. In addition, the following
definitions shall apply:
A video channel which the franchisee shall make available
to the LFA without charge for noncommercial public, educational, or
governmental use for the transmission of video programming as directed
by the LFA.
Any such portion of the service area added pursuant to § A270-3A(2) of this agreement.
Any person who, directly or indirectly, owns or controls,
is owned or controlled by, or is under common ownership or control
with, the franchisee.
Any service tier which includes the retransmission of local
television broadcast signals as well as the PEG channels required
by this franchise.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(6), which currently
states: "The one-way transmission to subscribers of video programming
or other programming service, and subscriber interaction, if any,
which is required for the selection or use of such video programming
or other programming service."
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(7), which currently
states: "A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment,
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include (A) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; (B) a facility that serves subscribers without using any
public rights-of-way; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of Title II of this
Act, except that such facility shall be considered a cable system
[other than for purposes of Section 621(c)] to the extent such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services; (D) an open video system that complies with Section 653
of this title; or (E) any facilities of any electric utility used
solely for operating its electric utility systems." The cable system
shall be limited to the optical spectrum wavelength(s), bandwidth,
or future technological capacity that is used for the transmission
of cable services directly to subscribers within the franchise/service
area and shall not include the tangible network facilities of a common
carrier subject in whole or in part to Title II of the Communications
Act or of an information services provider.
The municipalities of Caln Township, South Coatesville Borough,
Upper Uwchlan Township, Uwchlan Township, and West Whiteland Township,
which jointly negotiated this agreement by retaining special counsel
to negotiate with the franchisee on their behalf, as well as any additional
municipalities that may join this group after the effective date of
this agreement.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(4), which currently
states: "A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel (as television channel is defined by the FCC by regulation)."
The Communications Act of 1934, as amended.
The ability to exercise de facto or de jure control over
day-to-day policies and operations or the management of the franchisee's
affairs.
An access channel available for the use of the local public
schools in the franchise area.
The franchisee's service tier on the cable system which includes
basic service and additional channels, including without limitation
twenty-four-hour per-day news channels such as CNN, MSNBC, FOX News
and similar channels.
The United States Federal Communications Commission or successor
governmental entity thereto.
An event or events reasonably beyond the ability of the franchisee
to anticipate and control. This includes, but is not limited to, severe
or unusual weather conditions, strikes, labor disturbances, lockouts,
war or act of war (whether an actual declaration of war is made or
not), insurrection, riots, act of public enemy, actions or inactions
of any government instrumentality or public utility including condemnation,
accidents for which the franchisee is not primarily responsible, fire,
flood, or other acts of God, or work delays caused by waiting for
utility providers to service or monitor utility poles to which the
franchisee's FTTP Network is attached, and unavailability of materials
and/or qualified labor to perform the work necessary.
The incorporated area (entire existing territorial limits)
of the LFA and such additional areas as may be included in the corporate
(territorial) limits of the LFA during the term of this franchise.
Verizon Pennsylvania Inc., and its lawful and permitted successors,
assigns and transferees.
An access channel available for the use of the LFA.
All revenue, as determined in accordance with
generally accepted accounting principles, which is derived by the
franchisee from the operation of the cable system to provide cable
service in the service area. Gross revenue includes but is not limited
to:
Fees charged for basic service;
Fees charged to subscribers for any service
tier other than basic service;
Fees charged for premium channel(s), e.g., HBO,
Cinemax, or Showtime;
Fees charged to subscribers for any optional,
per-channel, or per-program services;
Charges for installation, additional outlets,
relocation, disconnection, reconnection, and change-in-service fees
for video or audio programming;
Fees for downgrading any level of cable service
programming;
Fees for service calls and similar repair services;
Fees for leasing of channels;
Advertising revenue as set forth herein;
Rental of any converters and remote control
devices;
Late payment fees;
Revenue from NSF check charges;
Franchise fees;
Revenue from the sale of program guides;
Revenues or commissions received from the carriage of home shopping channels subject to Subsection C(5) below;
Revenue from the sale of subscriber lists; and
Revenue from the sale of video-on-demand services.
Advertising commissions paid to independent
third parties shall not be deducted from advertising revenue included
in gross revenue. Advertising revenue is based upon the ratio of the
number of subscribers as of the last day of the period for which gross
revenue is being calculated to the number of the franchisee's subscribers
within all areas covered by the particular advertising source as of
the last day of such period, e.g., the franchisee sells two ads: Ad
"A" is broadcast nationwide; Ad "B" is broadcast only within Pennsylvania.
The franchisee has 100 subscribers in LFA, 500 subscribers in Pennsylvania,
and 1,000 subscribers nationwide. Gross revenue as to LFA from Ad
"A" is 10% of the franchisee's revenue therefrom. Gross revenue as
to LFA from Ad "B" is 20% of the franchisee's revenue therefrom.
Gross revenue shall not include:
Revenues received by any affiliate or other
person in exchange for supplying goods or services used by the franchisee
to provide cable service over the cable system;
Bad debts written off by the franchisee in the
normal course of its business; provided, however, that bad debt recoveries
shall be included in gross revenue during the period collected;
Refunds, rebates or discounts made to subscribers
or other third parties;
Any revenues classified, in whole or in part,
as non-cable services revenue under federal or state law, including,
without limitation, revenue received from telecommunications services;
revenue received from information services, including, without limitation,
Internet access service, electronic mail service, electronic bulletin
board service, or similar online computer services; charges made to
the public for commercial or cable television that is used for two-way
communication; and any other revenues attributed by the franchisee
to non-cable services in accordance with FCC or state public utility
regulatory commission rules, regulations, standards or orders;
Any revenue of the franchisee or any other person
which is received directly from the sale of merchandise through any
cable service distributed over the cable system, notwithstanding that
portion of such revenue which represents or can be attributed to a
subscriber fee or a payment for the use of the cable system for the
sale of such merchandise, which portion shall be included in gross
revenue;
The sale of cable services on the cable system
for resale in which the purchaser is required to collect cable franchise
fees from the purchaser's customer;
Any tax of general applicability imposed upon
the franchisee or upon subscribers by a city, state, federal or any
other governmental entity and required to be collected by the franchisee
and remitted to the taxing entity (including, but not limited to,
sales/use tax, gross receipts tax, excise tax, utility users tax,
public service tax, communication taxes and non-cable franchise fees);
Any forgone revenue which the franchisee chooses
not to receive in exchange for its provision of free or reduced cost
cable or other communications services to any person, including without
limitation employees of the franchisee and public institutions or
other institutions designated in the franchise; provided, however,
that such forgone revenue which the franchisee chooses not to receive
in exchange for trades, barters, services or other items of value
shall be included in gross revenue;
Sales of capital assets, but not including sales
of non-capital assets to subscribers related to cable service, or
sales of surplus equipment;
Program launch fees;
Directory or Internet advertising revenue, including,
but not limited to, yellow page, white page, banner advertisement
and electronic publishing; and
Any fees or charges collected from subscribers
or other third parties for any PEG grant.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(20), which currently
states: "The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing or making available
information via telecommunications, and includes electronic publishing,
but does not include any use of any such capability for the management,
control or operation of a telecommunications system or the management
of a telecommunications service."
The portion of the franchise area as outlined in Exhibit
B.[1]
Dial-up or broadband access service that enables subscribers
to access the Internet.
The Township of Uwchlan or the lawful successor, transferee,
or assignee thereof.
Any service that does not constitute the provision of video
programming directly to multiple subscribers in the franchise area,
including, but not limited to, information services and telecommunications
services.
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Those service conditions which are within the control of
the franchisee. Those conditions which are not within the control
of the franchisee include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions that are within
the control of the franchisee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods, and maintenance or rebuild of the cable system. See
47 CFR § 76.309(c)(4)(ii).
Public, educational, and governmental.
An individual, partnership, association, joint-stock company,
trust, corporation, or governmental entity.
An access channel available for use by the persons within
the franchise area.
The surface and the area across, in, over, along, upon and
below the surface of the public streets, roads, bridges, sidewalks,
lanes, courts, ways, alleys, and boulevards, including public utility
easements and public lands and waterways used as public rights-of-way,
as the same now or may thereafter exist, which are under the jurisdiction
or control of the LFA. Public rights-of-way do not include the airwaves
above a right-of-way with regard to cellular or other nonwire communications
or broadcast services.
All portions of the franchise area where cable service is
being offered, including the initial service area and any additional
service areas.
The date that the franchisee first provides cable service
on a commercial basis directly to multiple subscribers in the franchise
area. The franchisee shall memorialize the service date by notifying
the LFA in writing of the same, which notification shall become a
part of this franchise.
The loss of picture or sound on one or more cable channels.
A person who lawfully receives cable service over the cable
system with the franchisee's express permission.
The franchisee's existing telecommunications services and
information services facilities and its FTTP Network facilities.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(46), which currently
states: "The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used."
Title II of the Communications Act, Common Carriers, as amended,
under which the franchisee has upgraded its network with the FTTP
Network.
Title VI of the Communications Act, Cable Communications,
as amended, which governs only the provision of cable services by
a franchisee.
Any transaction in which:
An ownership or other interest in the franchisee
is transferred, directly or indirectly, from one person or group of
persons to another person or group of persons, so that control of
the franchisee is transferred; or
The rights held by the franchisee under the
franchise are transferred or assigned to another person or group of
persons.
However, notwithstanding Subsections A(1) and (2) above, a transfer of the franchise shall not include transfer of an ownership or other interest in the franchisee to the parent of the franchisee or to another affiliate of the franchisee; transfer of an interest in the franchise or the rights held by the franchisee under the franchise to the parent of the franchisee or to another affiliate of the franchisee; any action which is the result of a merger of the parent of the franchisee; or any action which is the result of a merger of another affiliate of the franchisee.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(20), which currently
states: "Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station."
[1]
Editor's Note: Exhibit B is on file in the
Township office.
A.
Grant of authority. Subject to the terms and conditions
of this agreement and the Communications Act, the LFA hereby grants
the franchisee the right to own, construct, operate and maintain a
cable system along the public rights-of-way within the franchise area
in order to provide cable service. No privilege or power of eminent
domain is bestowed by this grant, nor is such a privilege or power
bestowed by this agreement. By this grant, the LFA makes no representation
or guarantee regarding its interest in or right to control any public
right-of-way.
B.
LFA's regulatory authority. The parties recognize
that the franchisee's FTTP Network is being constructed and will be
operated and maintained as an upgrade to and/or extension of its existing
telecommunications facilities for the provision of non-cable services.
The jurisdiction of LFA over such telecommunications facilities is
restricted by federal and state law, and LFA does not and will not
assert jurisdiction over the franchisee's FTTP Network in contravention
of those limitations. Therefore, as provided in Section 621 of the
Communications Act, 47 U.S.C. § 541, the LFA's regulatory
authority under Title VI of the Communications Act is not applicable
to the construction, installation, maintenance, or operation of the
franchisee's FTTP Network to the extent the FTTP Network is constructed,
installed, maintained, or operated for the limited purpose of upgrading
and/or extending Verizon's existing telecommunications facilities
for the provision of non-cable services. This agreement shall not
be construed to limit whatever regulatory authority LFA may have under
Title II, state, and local law with respect to the FTTP Network facilities.
C.
Term. This franchise shall become effective on July
10, 2006 (the "effective date"). The term of this franchise shall
be 10 years from the effective date, with an automatic renewal of
five years unless the franchise is earlier revoked as provided herein.
D.
Grant not exclusive. The franchise and the rights
granted herein to use and occupy the public rights-of-way to provide
cable services shall not be exclusive, and the LFA reserves the right
to grant other franchises for similar uses or for other uses of the
public rights-of-way, or any portions thereof, to any person, or to
make any such use themselves, at any time during the term of this
franchise. Any such rights which are granted shall not adversely impact
the authority as granted under this franchise and shall not interfere
with existing facilities of the cable system or the franchisee's FTTP
Network.
E.
Franchise subject to federal law. Notwithstanding
any provision to the contrary herein, this franchise is subject to
and shall be governed by all applicable provisions of federal law
as it may be amended, including but not limited to the Communications
Act and implementing regulations, and the laws of the Commonwealth
of Pennsylvania to the extent not in conflict with federal law.
F.
No waiver:
(1)
The failure of the LFA on one or more occasions to
exercise a right or to require compliance or performance under this
franchise or any other applicable law shall not be deemed to constitute
a waiver of such right or a waiver of compliance or performance by
the LFA, nor to excuse the franchisee from complying or performing,
unless such right or such compliance or performance has been specifically
waived in writing.
(2)
The failure of the franchisee on one or more occasions
to exercise a right under this franchise or applicable law, or to
required performance under this franchise, shall not be deemed to
constitute a waiver of such right or of performance of this agreement,
nor shall it excuse the LFA from performance, unless such right or
performance has been specifically waived in writing.
G.
Construction of agreement:
(1)
The provisions of this franchise shall be liberally
construed to effectuate their objectives.
(2)
Nothing herein shall be construed to limit the scope
or applicability of Section 625 of the Communications Act, 47 U.S.C.
§ 545.
(3)
Should any change to state law have the lawful effect
of materially altering the terms and conditions of this franchise,
then the parties shall modify this franchise to the mutual satisfaction
of both parties to ameliorate the negative effects on the franchisee
of the material alteration. Any modifications shall be in writing.
If the parties cannot reach agreement on the above-referenced modification
to the franchise, then the franchisee may terminate this agreement
without further obligation to the LFA; provided, however, that the
franchisee shall be required to provide the LFA with written notice
of such termination, with such termination to take effect no sooner
than 180 days after the provision of such notice, or at the franchisee's
option, the parties agree to submit the matter to binding arbitration
in accordance with the commercial arbitration rules of the American
Arbitration Association.
H.
Police powers. Nothing in this franchise shall be
construed to prohibit the reasonable, necessary and lawful exercise
of the police powers of the LFA. However, if the reasonable, necessary
and lawful exercise of the police power results in any material alteration
of the terms and conditions of this franchise, then the parties shall
modify this franchise to the mutual satisfaction of both parties to
ameliorate the negative effects on the franchisee of the material
alteration. If the parties cannot reach agreement on the above-referenced
modification to the franchise, then the franchisee may terminate this
agreement without further obligation to the LFA; provided, however,
that the franchisee shall be required to provide the LFA with written
notice of such termination, with such termination to take effect no
sooner than 180 days after the provision of such notice, or at the
franchisee's option, the parties agree to submit the matter to binding
arbitration in accordance with the commercial arbitration rules of
the American Arbitration Association.
A.
Service area.
(1)
Initial service area. The franchisee shall offer cable service to significant numbers of subscribers in residential areas of the initial service area and may make cable service available to businesses in the initial service area within 24 months of the service date of this franchise, and shall offer cable service to all residential areas in the initial service area within five years of the service date of the franchise, except: (A) for periods of force majeure; (B) for periods of delay caused by LFA; (C) for periods of delay resulting from the franchisee's inability to obtain authority to access rights-of-way in the service area; (D) in areas where developments or buildings are subject to claimed exclusive arrangements with other providers; (E) in developments or buildings that the franchisee cannot access under reasonable terms and conditions after good faith negotiation, as determined by the franchisee; and (F) in areas, developments or buildings where the franchisee is unable to provide cable service for technical reasons or which require nonstandard facilities which are not available on a commercially reasonable basis; and (G) in areas where the occupied residential household density does not meet the density requirements set forth in Subsection A(1)(a).
(a)
Density requirement. The franchisee shall make cable services available to residential dwelling units in all areas of the service area where the average density is equal to or greater than 30 occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on the active FTTP Network trunk or feeder line. Should, through new construction, an area within the initial service area meet the density requirements after the time stated for providing cable service as set forth in Subsection A(1) and (2), respectively, the franchisee shall provide cable service to such area within six months of receiving notice from the LFA that the density requirements have been met.
(2)
Additional service areas. Except for the initial service
area, the franchisee shall not be required to extend its cable system
or to provide cable services to any other areas within the franchise
area during the term of this franchise or any renewals thereof. If
the franchisee desires to add additional service areas within the
franchise area, the franchisee shall notify the LFA in writing of
such additional service area at least 10 days prior to providing cable
services in such areas.
B.
Availability of cable service. The franchisee shall make cable service available to all residential dwelling units and may make cable service available to businesses within the service area in conformance with Subsection A, and the franchisee shall not discriminate between or among any individuals in the availability of cable service. In the areas in which the franchisee shall provide cable service, the franchisee shall be required to connect, at the franchisee's expense, all residential dwelling units that are within 125 feet of trunk or feeder lines not otherwise already served by the franchisee's FTTP Network. The franchisee shall be allowed to recover, from a subscriber that requests such connection, the actual costs incurred for residential dwelling unit connections that exceed 125 feet and actual costs incurred to connect any nonresidential dwelling unit subscriber.
C.
Cable service to municipal buildings. Subject to Subsection A, the franchisee shall provide, without charge within the service area, one service outlet activated for expanded basic service to one fire station, one police station, one emergency operations center, and one ambulance corps, and one service outlet activated for basic service to each municipal building, public library, and each public school, and each nonpublic school that (a) receives funding pursuant to Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301 et seq., and (b) is considered a nonpublic, nonlicensed school under the Pennsylvania Private Academic Schools Act, 24 P.S. §§ 6702-6721, located in the LFA, as may be designated by the LFA in Exhibit A;[1] provided, however, that the franchisee shall not be obligated to provide any service outlets activated for basic service to home schools; also provided, however, that if it is necessary to extend the franchisee's trunk or feeder lines more than 125 feet solely to provide service to any such school or municipal building, the LFA shall have the option either of paying the franchisee's direct costs for such extension in excess of 125 feet or of releasing the franchisee from the obligation to provide service to such school or other municipal building. Furthermore, the franchisee shall be permitted to recover, from any school or other municipal building owner entitled to free service, the direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than 125 feet of drop cable; provided, however, that the franchisee shall not charge for the provision of basic service to the additional service outlets once installed. In addition to the locations designated in Exhibit A, the franchisee shall provide without charge within the service area up to one service outlet activated for basic service to a maximum of four additional municipal buildings during the term of the agreement at locations as mutually agreed upon by the parties, subject to all conditions set forth in this Subsection C; provided, however, that the franchisee shall not be required to provide any such service outlet if the location of the additional municipal building resides in an area, development, or building where the franchisee is unable to provide cable service for technical reasons or which require nonstandard facilities which are not available on a commercially reasonable basis. Furthermore, the franchisee shall not be required to provide any such additional service outlets until all cable operators providing cable service in the franchise area also provide such additional service outlet(s) without charge.
[1]
Editor's Note: Exhibit A is on file in the
Township office.
A.
Technical requirement. The franchisee shall operate,
maintain, test on a regular basis, construct and extend the cable
system so as to provide high quality signals and reliable delivery
of cable services for all cable programming services throughout the
LFA over its FTTP Network. The cable system shall meet or exceed any
and all technical performance standards of the FCC; the National Electrical
Safety Code; the National Electric Code; and any other applicable
federal laws, as well as state and local laws or regulations, to the
extent not in conflict with federal law and regulations.
B.
System characteristics. The franchisee's cable system
shall meet or exceed the following requirements:
C.
Interconnection. The franchisee shall design its cable
system so that it may be interconnected with other cable systems in
the franchise area. Interconnection of systems may be made by direct
cable connection, microwave link, satellite, or other appropriate
methods.
A.
PEG set-aside; interconnection:
(1)
In order to ensure universal availability of PEG programming within the geographic limits of those municipalities that comprise the CCCG, the franchisee shall reserve on the basic service tier up to one dedicated public access channel, one dedicated educational access channel, and one dedicated government access channel ("PEG channels"); provided, however, that the franchisee shall not be obligated to reserve the PEG channels until all cable incumbents within the franchise area of at least one CCCG member jurisdiction similarly reserve capacity for an equal number of PEG channels. The parties agree that the franchisee shall retain the right to utilize all such reserved PEG channel capacity, in its sole discretion, during the term of this franchise until such time that, and to the extent that, a CCCG member jurisdiction or its designee: a) activates the PEG channels subject to Subsection A(2); or b) ceases to use the PEG channels during the term for a period of more than one year. Notwithstanding the foregoing, the parties acknowledge that the franchisee shall only be obligated to provide a maximum of three PEG channels to be shared among all CCCG member jurisdictions to the extent they are activated subject to Subsection A(2).
(2)
A CCCG member jurisdiction with a franchise from the
franchisee or its designee may activate any or all of the reserved
PEG channels during the term by providing the franchisee with written
notice 180 days prior to the date it intends to activate any or all
of the reserved PEG channels. Such written notice shall specify the
programming to be carried on such PEG channel(s), and shall include
an operation plan providing sufficient information about the administration,
programming, and operation of the requested PEG channel(s). Notwithstanding
the foregoing, any such operation plan shall provide for the cablecast
of any such PEG channel(s) for a period of not less than eight continuous
hours of original programming per calendar week for not less than
four such consecutive weeks. Such notice shall also authorize the
franchisee to transmit the PEG channel(s) within and outside the LFA.
Thereafter, the franchisee shall assign the PEG channel(s) on its
channel lineup as set forth in such notice, to the extent such channel
assignment does not interfere with any preexisting channels. The CCCG
member jurisdiction or its designee activating the PEG channel(s)
shall have complete control over the content, scheduling, and administration
of the PEG channel(s) and may delegate such functions, or a portion
or such functions, to an appropriate designee. The franchisee shall
neither have nor attempt to exercise any editorial control over PEG
channel programming.
(3)
If the LFA or its designee is the CCCG member jurisdiction
requesting activation of the PEG channel(s), following receipt of
such activation request, the franchisee shall use reasonable efforts
to interconnect its cable system with existing cable operator(s) in
the relevant franchise area, which may include areas within the geographic
limits of those municipalities that comprise the CCCG. After receiving
such notice of activation, the franchisee shall initiate interconnection
negotiations with the existing cable operator(s) to cablecast, on
a live basis, public, educational or governmental programming consistent
with this franchise. Interconnection may be accomplished by direct
cable, microwave link, satellite or other technically feasible and
reasonable method of connection. The franchisee shall negotiate in
good faith with existing cable operator(s) respecting reasonable,
mutually convenient, cost-effective, and technically viable interconnection
points, methods, terms and conditions. If the LFA or its designee
is the requesting CCCG member jurisdiction, and the interconnection
point is within the LFA's jurisdictional boundaries, the LFA shall
use its best efforts to require the existing cable operator(s) to
provide such interconnection to the franchisee on reasonable terms
and conditions. The construction costs and ongoing expenses of interconnection
shall be fairly shared between the franchisee and the existing cable
operator(s). The franchisee and the existing cable operator(s) shall
negotiate the precise terms and conditions of an interconnection agreement,
and the LFA or its designee shall use its best efforts to facilitate
these negotiations. If the franchisee is unable to reach such an agreement
within 30 days after requesting in writing to interconnect with other
local cable operator(s), the LFA or its designee shall use its best
efforts to assist in mediating such dispute. If no agreement is reached
within an additional 30 days, the franchisee agrees that the LFA or
its designee shall designate the point of interconnection. If the
cost of interconnection would be unreasonable, interconnection is
not technically feasible or would cause an unacceptable increase in
subscriber rates, or if an existing cable operator will not agree
to reasonable terms and conditions of interconnection, the franchisee
will be under no obligation to interconnect with the existing cable
operator.
(4)
If the procedures of Subsection A(3) do not result in interconnection of the franchisee's cable system with the existing cable operator(s)' for purposes of providing PEG channel(s), the LFA or its designee may require the franchisee to provide a video link to the Chester County Intergovernmental Unit (CCIU) Educational Service Center, 455 Boot Road, Downingtown, PA 19335, where PEG access programming is originated for the purpose of cablecasting PEG programming. The franchisee shall not be obligated to provide the LFA or its designee with either cablecast equipment and facilities or personnel responsible for maintaining and operating such equipment and facilities or generating any such PEG programming.
B.
PEG grant.
(1)
The franchisee shall provide an annual grant to the
CCCG member jurisdiction(s) or their designee(s) requesting PEG channel(s)
to be used in support of the production of local PEG programming (the
"annual PEG grant"). Such grant shall be used by the requesting CCCG
member jurisdiction or its designee for PEG access equipment, including,
but not limited to, studio and portable production equipment, editing
equipment and program playback equipment, or for renovation or construction
of PEG access facilities.
(2)
The annual PEG grant provided by the franchisee hereunder shall not exceed $0.25, per month, per subscriber in the service area to the franchisee's basic service tier; provided, however, that if any cable operator(s) other than the franchisee providing cable service within the geographical boundaries of the LFA also provides PEG programming within the geographical boundaries of the LFA, the franchisee shall not be obligated to pay the annual PEG grant until the LFA or its designee begins to exercise whatever rights (if any) the LFA may have pursuant to the LFA's existing franchise agreement(s) with such cable operator(s) to receive comparable financial or tangible support for PEG programming from such cable operator(s). The annual PEG grant payment, along with a brief summary of the subscriber information upon which it is based, shall be delivered to applicable CCCG member jurisdictions or their designees within 60 days after the beginning of each calendar year during the franchise term. Calculation of the annual PEG grant will commence with the first calendar month during which the franchisee receives written request to activate any of the reserved PEG channels. The annual PEG grant will become effective upon written request by the LFA or designee following activation of any of the PEG channels held in reserve outlined in Subsection A. The annual PEG grant shall be payable based on the number of PEG channels activated pursuant to Subsection A, e.g., if one PEG channel is activated, the annual PEG grant shall be up to the sum of $0.15, per month, per subscriber in the relevant service area. If two PEG channels are activated, the annual PEG grant shall be up to the sum of $0.20, per month, per subscriber in the relevant service area. If three PEG channels are activated, the annual PEG grant shall be up to the sum of $0.25, per month, per subscriber in the relevant service area.
C.
Indemnity for PEG. The LFA or its designee shall require all local producers and users of any of the PEG facilities or channels to agree in writing to authorize the franchisee to transmit programming consistent with this agreement and to defend and hold harmless the franchisee and the LFA or its designee from and against any and all liability or other injury, including the reasonable cost of defending claims or litigation arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity which results from the use of a PEG facility or channel. The LFA or its designee shall establish rules and regulations for use of PEG facilities consistent with, and as required by, 47 U.S.C. § 531, which currently states: "(a) A franchising authority may establish requirements in a franchise with respect to the designation or use of channel capacity for public, educational, or governmental use only to the extent provided in this section; (b) A franchising authority may in its request for proposals require as part of a franchise, and may require as part of a cable operator's proposal for a franchise renewal, subject to Section 546 of this title, that channel capacity be designated for public, educational, or governmental use, and channel capacity on institutional networks be designated for educational or governmental use, and may require rules and procedures for the use of the channel capacity designated pursuant to this section; (c) A franchising authority may enforce any requirement in any franchise regarding the providing or use of such channel capacity. Such enforcement authority includes the authority to enforce any provisions of the franchise for services, facilities, or equipment proposed by the cable operator which relate to public, educational, or governmental use of channel capacity, whether or not required by the franchising authority pursuant to subsection (b) of this section; (d) In the case of any franchise under which channel capacity is designated under subsection (b) of this section, the franchising authority shall prescribe (1) rules and procedures under which the cable operator is permitted to use such channel capacity for the provision of other services if such channel capacity is not being used for the purposes designated; and (2) rules and procedures under which such permitted use shall cease; (e) Subject to Section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section, except a cable operator may refuse to transmit any public access program or portion of a public access program which contains obscenity, indecency, or nudity; (f) For purposes of this section, the term 'institutional network' means a communication network which is constructed or operated by the cable operator and which is generally available only to subscribers who are not residential subscribers." The term "franchising authority" as used in 47 U.S.C. § 531 shall be interpreted with respect to PEG to mean any CCCG member jurisdiction or its designee that activates a PEG channel.
D.
Recovery of costs. To the extent permitted by federal
law, the franchisee shall be allowed to recover the costs of an annual
PEG grant or any other costs arising from the provision of PEG services
from subscribers and to include such costs as a separately billed
line item on each subscriber's bill. Without limiting the foregoing,
if allowed under state and federal laws, the franchisee may externalize,
line-item, or otherwise pass through interconnection costs to subscribers.
A.
Payment to the LFA. The franchisee shall pay to the
LFA a franchise fee of 5% of annual gross revenue. Notwithstanding
the foregoing, if all cable operators providing cable service in the
franchise area pay the LFA a higher franchise fee pursuant to their
franchises, the franchisee agrees to pay the same increased franchise
fee to the extent permitted by law. In accordance with Title VI of
the Communications Act, the twelve-month period applicable under the
franchise for the computation of the franchise fee shall be a calendar
year. Such payments shall be made no later than 45 days following
the end of each calendar quarter. The franchisee shall be allowed
to submit or correct any payments that were incorrectly omitted, and
shall be refunded any payments that were incorrectly submitted in
connection with the quarterly franchise fee remittances within 90
days following the close of the calendar year for which such payments
were applicable.
B.
Supporting information. Each franchise fee payment
shall be accompanied by a brief report showing the basis for the computation
of the franchise fee payment that shall be prepared by a qualified
representative authorized by the franchisee to prepare and certify
the report. The report shall be certified by such representative to
be true and correct.
C.
Limitation on franchise fee actions. The parties agree
that the period of limitation for commencing any action for recovery
of any franchise fee payable hereunder shall be three years from the
end of the calendar year in which payment by the franchisee is due.
D.
Bundled services. If cable services subject to the franchise fee required under this Article 7 are provided to subscribers in conjunction with non-cable services, the franchise fee shall be applied only to the value of the cable services, as reflected on the books and records of the franchisee in accordance with FCC or state public utility regulatory commission rules, regulations, standards or orders.
E.
Audits.
(1)
The LFA may audit the franchisee's books and records
during the term, but no more than once every three years. During any
audit period, the LFA may commence an audit of the franchisee's books
and records for the portion of the calendar year preceding the audit
in addition to the three prior calendar years. Notwithstanding the
foregoing, the LFA may commence an audit within 30 days of its final
franchise fee payment in order to audit books and records pertaining
to the time period not encompassed by any previous audit period with
respect to the final three years of the term. All records reasonably
necessary for any such audit shall be made available by the franchisee
to the LFA.
(2)
Each party shall bear its own costs of an audit; provided,
however, that if the results of any audit indicate that the franchisee
underpaid any franchise fee payment by 5% or more, then the franchisee
shall pay the reasonable, documented, out-of-pocket costs of the audit;
provided, however, that the franchisee shall not be required to reimburse
the LFA for costs exceeding $5,000 for each audit.
(3)
If the results of an audit indicate an overpayment
or underpayment of franchise fees, the parties agree that such overpayment
or under payment shall be returned to the proper party within 45 days;
provided, however, that the franchisee shall be required to remit
underpayments to the LFA together with interest at prime rate (as
published in The Wall Street Journal) plus 0.5% of the amount correctly
due from the date such underpayment would have been due.
(4)
Any auditor employed by the LFA shall be a certified
public accountant and shall not be permitted to be compensated on
a success-based formula, e.g., payment based on an underpayment of
fees, if any.
Customer service requirements are set forth
in Exhibit C, which shall be binding unless amended by written consent
of the parties.[1]
[1]
Editor's Note: Exhibit C is on file in the
Township office.
A.
Open books and records. Upon reasonable written notice
to the franchisee and with no less than 30 days' written notice to
the franchisee, the LFA shall have the right to inspect the franchisee's
books and records pertaining to the franchisee's provision of cable
service in the franchise area at any time during normal business hours
and on a nondisruptive basis as are reasonably necessary to ensure
compliance with the terms of this franchise. Such notice shall specifically
reference the section or subsection of the franchise which is under
review, so that the franchisee may organize the necessary books and
records for appropriate access by the LFA. The franchisee shall not
be required to maintain any books and records for franchise compliance
purposes longer than three years. Notwithstanding anything to the
contrary set forth herein, the franchisee shall not be required to
disclose information that it reasonably deems to be proprietary or
confidential in nature, nor disclose any of its or an affiliate's
books and records not relating to the provision of cable service in
the service area. The LFA shall treat any information disclosed by
the franchisee as confidential and shall only disclose it to employees,
representatives, and agents thereof that have a need to know, or in
order to enforce the provisions hereof. The franchisee shall not be
required to provide subscriber information in violation of Section
631 of the Communications Act, 47 U.S.C. § 551.
B.
Records required. the franchisee shall at all times
maintain:
(1)
Records of all written complaints for a period of
the calendar year after receipt by the franchisee as well as three
years thereafter. The term "complaint" as used herein refers to complaints
about any aspect of the cable system or the franchisee's cable operations,
including, without limitation, complaints about employee courtesy.
Complaints recorded will not be limited to complaints requiring an
employee service call;
(2)
Records of outages for a period of the calendar year
after occurrence as well as three years thereafter, indicating date,
duration, area, and the number of subscribers affected, type of outage,
and cause;
(3)
Records of service calls for repair and maintenance
for a period of the calendar year after resolution by the franchisee
as well as three years thereafter, indicating the date and time service
was required, the date of acknowledgment and date and time service
was scheduled (if it was scheduled), and the date and time service
was provided, and (if different) the date and time the problem was
resolved;
(4)
Records of installation/reconnection and requests
for service extension for a period of the calendar year after the
request was fulfilled by the franchisee as well as three years thereafter,
indicating the date of request, date of acknowledgment, and the date
and time service was extended; and
(5)
A map showing the area of coverage for the provisioning
of cable services and estimated timetable to commence providing cable
service.
A.
Insurance:
(1)
the franchisee shall maintain in full force and effect,
at its own cost and expense, during the franchise term, the following
insurance coverage:
(a)
Commercial general liability insurance in the
amount of $1,000,000 combined single limit for property damage and
bodily injury. Such insurance shall cover the construction, operation
and maintenance of the cable system and the conduct of the franchisee's
cable service business in the LFA.
(b)
Automobile liability insurance in the amount
of $1,000,000 combined single limit for bodily injury and property
damage coverage.
(c)
Workers' compensation insurance meeting all
legal requirements of the Commonwealth of Pennsylvania.
(d)
Employer's liability insurance in the following
amounts: bodily injury by accident: $100,000; and bodily injury by
disease: $100,000 employee limit; $500,000 policy limit.
(2)
The LFA shall be designated as an additional insured under each of the insurance policies required in this Article 9 of this agreement, except worker's compensation and employer's liability insurance.
(3)
The franchisee shall not cancel any required insurance
policy without submitting documentation to the LFA verifying that
the franchisee has obtained alternative insurance in conformance with
this agreement.
(4)
Each of the required insurance policies shall be with
sureties qualified to do business in the Commonwealth of Pennsylvania,
with an A- or better rating for financial condition and financial
performance by Best's Key Rating Guide, Property/Casualty Edition.
(5)
Upon written request, the franchisee shall deliver
to the LFA certificates of insurance showing evidence of the required
coverage.
(6)
Notwithstanding anything to the contrary set forth
in this agreement or elsewhere, any policy or policies of insurance
maintained by the franchisee shall contain waiver of subrogation clause
with regard to the LFA and any of its officials, officers, agents,
employees and contractors and be primary as to all claims thereunder
and provide that any insurance carried by the LFA is not in excess
of and is noncontributing with any insurance requirement of the franchisee
hereunder.
B.
Indemnification:
(1)
Except as directly related to or arising directly
out of the negligence or willful misconduct of the LFA, its officials,
officers, agents, employees, independent contractors, or third parties,
the franchisee agrees to indemnify, save and hold harmless, and defend
the LFA, and its officials, officers, agents, boards, employees, and
independent contractors from and against any liability for damages,
claims, judgments, suits, and awards resulting from tangible property
damage or bodily injury (including accidental death) or financial
loss, to the extent proximately caused by the franchisee's negligent
construction, operation, or maintenance of its cable system, provided
that the LFA shall give the franchisee written notice of the LFA's
request for indemnification within 30 days of receipt of a claim or
action pursuant to this subsection and 10 days following service of
legal process on the LFA or its designated agent of any action related
to this subsection. Notwithstanding the foregoing, the franchisee
shall not indemnify the LFA for any damages, liability or claims resulting
from the willful misconduct or negligence of the LFA, its officers,
agents, employees, attorneys, consultants, independent contractors
or third parties or for any activity or function conducted by any
person other than the franchisee in connection with PEG access, or
EAS, or the distribution of any cable service over the cable system.
(2)
With respect to the franchisee's indemnity obligations set forth in Subsection B(1), the franchisee shall provide the defense of any claims brought against the LFA by selecting counsel of the franchisee's choice to defend the claim, subject to the consent of the LFA, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the LFA from cooperating with the franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense. The franchisee shall neither settle nor compromise any claim or action without the prior written consent of the LFA, which such consent may be withheld by the LFA in the reasonable exercise of its governmental discretion. In the event that the terms of any such settlement do not include the release of the LFA and the LFA does not consent to the terms of any such settlement or compromise, the franchisee shall not settle the claim or action but its obligation to indemnify the LFA shall in no event exceed the maximum possible amount that would have been payable had the LFA consented to the terms of such settlement.
(3)
The LFA shall hold harmless and defend the franchisee
from and against and shall be responsible for damages, liability,
or claims resulting from or arising out of the willful misconduct
or negligence of the LFA. The LFA shall provide the defense of any
claims brought against the franchisee by selecting counsel of the
LFA's choice to defend the claim, subject to the consent of the franchisee,
which shall not unreasonably be withheld.
(4)
The LFA shall be responsible for its own acts of willful
misconduct or negligence, or breach of obligation, subject to any
and all defenses and limitations of liability provided by law.
A.
Transfer. Subject to Section 617 of the Communications
Act, 47 U.S.C. § 537, no transfer of the franchise shall
occur without the prior consent of the LFA, provided that such consent
shall not be unreasonably withheld, delayed or conditioned. No such
consent shall be required, however, for a transfer in trust, by mortgage,
by other hypothecation, by assignment of any rights, title, or interest
of the franchisee in the franchise or cable system in order to secure
indebtedness, or for transactions otherwise excluded under § A270-1's
definition of "transfer of the franchise."
A.
Governing law. The LFA and the franchisee agree that
any proceedings undertaken by the LFA that relate to the renewal of
this franchise shall be governed by and comply with the provisions
of Section 626 of the Communications Act, 47 U.S.C. § 546.
B.
Needs assessments. In addition to the procedures set
forth in said Section 626 of the Communications Act, the LFA shall
notify the franchisee of all of its assessments regarding the identity
of future cable-related community needs and interests, as well as
the past performance of the franchisee under the then current franchise
term. Such assessments shall be provided to the franchisee by the
LFA promptly so that the franchisee has adequate time to submit a
proposal under Section 626 and complete renewal of the franchise prior
to expiration of its term.
C.
Informal negotiations. Notwithstanding anything to
the contrary set forth herein, the franchisee and the LFA agree that
at any time during the term of the then current franchise, while affording
the public appropriate notice and opportunity to comment, the LFA
and the franchisee may agree to undertake and finalize informal negotiations
regarding renewal of the then current franchise, and the LFA may grant
a renewal thereof.
D.
Consistent terms. The franchisee and the LFA consider
the terms set forth in this Article 12 to be consistent with the express
provisions of Section 626.
A.
Notice of violation. If at any time the LFA believes
that the franchisee has not complied with the terms of the franchise,
the LFA shall informally discuss the matter with the franchisee. If
these discussions do not lead to resolution of the problem in a reasonable
time, the LFA shall then notify the franchisee in writing of the exact
nature of the alleged noncompliance in a reasonable time (for purposes
of this article, the "noncompliance notice").
B.
The franchisee's right to cure or respond. The franchisee
shall have 15 days in the case of the failure of the franchisee to
pay any sum or other amount due the LFA under this agreement, and
30 days in all other cases, from receipt of the noncompliance notice
to: (i) respond to the LFA, if the franchisee contests (in whole or
in part) the assertion of noncompliance; (ii) cure such noncompliance;
or (iii) in the event that, by its nature, such noncompliance cannot
be cured within such thirty-day period, initiate reasonable steps
to remedy such noncompliance and notify the LFA of the steps being
taken and the date by which they are projected to be completed. Upon
cure of any noncompliance, the LFA shall provide written confirmation
that such cure has been effected.
C.
Written notice from the LFA. In the event that the franchisee fails to respond to the noncompliance notice pursuant to the procedures required by this article, or in the event that the alleged noncompliance is not remedied within the applicable cure period pursuant to Subsection B above or the date projected pursuant to Subsection B(iii) above, if the LFA seeks to continue its investigation into the alleged noncompliance, then the LFA shall provide the franchisee with written notice thereof. Such written notice shall set forth the reasons why the LFA believes that the franchisee has not cured the default and shall set forth the LFA's proposed action, which may include the following:
D.
Public meeting; revocation. Should the LFA seek to revoke this franchise after following the procedures set forth in Subsection C, the franchisee shall have 60 days from receipt of such notice to object in writing and to state its reasons for such objection. In the event the LFA has not received a satisfactory response from the franchisee, it may then seek termination of the franchise at a regularly scheduled and properly noticed public meeting pursuant to the schedule announced at the LFA's annual organizational meeting as required by 65 Pa.C.S.A. § 709(a); provided, however, that the LFA shall cause to be served upon the franchisee, at least 30 business days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to revoke the franchise; provided also, however, that the LFA shall provide public notice of the meeting as defined in 65 Pa.C.S.A. § 703, which shall include the fact that termination of the franchise will be an agenda item at the public meeting, at least 14 days prior to such public meeting.
(1)
At the designated public meeting, the franchisee
shall be provided a fair opportunity for full participation, including
the right to be represented by legal counsel, to introduce relevant
evidence, to require the production of evidence, to compel the relevant
testimony of the officials, agents, employees or consultants of the
LFA, to compel the testimony of other persons as permitted by law,
and to question and/or cross-examine witnesses. A complete verbatim
record and transcript shall be made of such meeting at the franchisee's
sole cost and expense.
(2)
Following the public meeting described above in this Subsection D, the franchisee shall be provided up to 30 days to submit its proposed findings and conclusions to the LFA in writing and thereafter the LFA shall determine: (i) whether an event of default has occurred under this franchise; (ii) whether such event of default is excusable; and (iii) whether such event of default has been cured or will be cured by the franchisee. The LFA shall also determine whether it will revoke the franchise based on the information presented or, where applicable, grant additional time to the franchisee to effect any cure. If the LFA determines that it will revoke the franchise, the LFA shall promptly provide the franchisee with a written determination setting forth the LFA's reasoning for such revocation. the franchisee may appeal such written determination of the LFA to an appropriate court, which shall have the power to review the decision of the LFA de novo. The franchisee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within the shorter of 45 days or the period otherwise permitted by law of the franchisee's receipt of the written determination of the LFA.
(3)
The LFA may, at its sole discretion, take any
lawful action that it deems appropriate to enforce the LFA's rights
under the franchise in lieu of revocation of the franchise.
E.
The franchisee termination. The franchisee shall have the right to terminate this franchise and all obligations hereunder within 90 days after the end of three years from the service date of this franchise if at the end of such three-year period the franchisee does not then in good faith believe it has achieved a commercially reasonable level of subscriber penetration on its cable system. The franchisee may consider subscriber penetration levels outside the franchise area in this determination. Notice to terminate under this Subsection E shall be given to the LFA in writing, with such termination to take effect no sooner than 180 days after giving such notice. The franchisee shall also be required to give its then current subscribers not less than 120 days' prior written notice of its intent to cease cable service operations.
A.
Actions of parties. In any action by the LFA or the
franchisee that is 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,
delayed or conditioned.
B.
Binding acceptance. This agreement shall bind and
benefit the parties hereto and their respective heirs, beneficiaries,
administrators, executors, receivers, trustees, successors and assigns,
and the promises and obligations herein shall survive the expiration
date hereof.
C.
Preemption. In the event that federal or state law,
rules, or regulations preempt a provision or limit the enforceability
of a provision of this agreement, the provision shall be read to be
preempted to the extent, and for the time, but only to the extent
and for the time, required by law. In the event such federal or state
law, rule or regulation is subsequently repealed, rescinded, amended
or otherwise changed so that the provision hereof that had been preempted
is no longer preempted, such provision shall thereupon return to full
force and effect, and shall thereafter be binding on the parties hereto,
without the requirement of further action on the part of the LFA.
D.
Force majeure. The franchisee 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, where such noncompliance or alleged defaults occurred or
were caused by a force majeure.
(1)
Furthermore, the parties hereby agree that it
is not the LFA's intention to subject the franchisee to penalties,
fines, forfeitures or revocation of the franchise for violations of
the franchise where the violation was a good faith error that resulted
in no or minimal negative impact on subscribers, or where strict performance
would result in practical difficulties and hardship being placed upon
the franchisee that outweigh the benefit to be derived by the LFA
and/or subscribers.
E.
Notices. Unless otherwise expressly stated herein,
notices required under the franchise shall be mailed first class,
postage prepaid, to the addressees below. Each party may change its
designee by providing written notice to the other party.
(1)
Notices to the franchisee shall be mailed to:
|
William Petersen, President
Verizon Pennsylvania Inc.
1717 Arch Street, Floor 17
Philadelphia, PA 19103
|
(2)
With a copy to:
|
Jack White
Senior Vice President & General Counsel
Verizon Telecom
One Verizon Way
Room VC43E010
Basking Ridge, NJ 07920-1097
|
(3)
Notices to the LFA shall be mailed to:
|
Douglas Hanley
Township Manager
Uwchlan Township
715 N. Ship Road
Exton, PA 19341
|
(4)
With a copy to:
|
Vincent Pompo, Esquire
Lamb McErlane PC
24 West Market Street
P.O. Box 565
West Chester, PA 19381-0565
|
F.
Entire agreement. This franchise and the exhibits
hereto constitute the entire agreement between the franchisee and
the LFA and supersede all prior or contemporaneous agreements, representations
or understanding (written or oral) of the parties regarding the subject
matter hereof. Any ordinances or parts of ordinances that conflict
with the provisions of this agreement are superseded by this agreement.
G.
Amendments. Amendments to this franchise shall be
mutually agreed to in writing by the parties.
H.
Captions. The captions and headings of articles and
sections throughout this agreement are intended solely to facilitate
reading and reference to the sections and provisions of this agreement.
Such captions shall not affect the meaning or interpretation of this
agreement.
I.
Severability. If any section, subsection, 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, subsection, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the
term of the franchise.
J.
Recitals. The recitals set forth in this agreement
are incorporated into the body of this agreement as if they had been
originally set forth herein.
K.
Modification. This franchise shall not be modified
except by written instrument executed by both parties.
L.
FTTP Network transfer prohibition. Under no circumstance,
including, without limitation, upon expiration, revocation, termination,
denial of renewal of the franchise or any other action to forbid or
disallow the franchisee from providing cable services, shall the franchisee
or its assignees be required to sell any right, title, interest, use
or control of any portion of the franchisee's FTTP Network, including,
without limitation, the cable system and any capacity used for cable
service or otherwise, to the LFA or any third party. The franchisee
shall not be required to remove the FTTP Network or to relocate the
FTTP Network or any portion thereof as a result of revocation, expiration,
termination, denial of renewal or any other action to forbid or disallow
the franchisee from providing cable services, provided that and for
so long as the franchisee retains its right under applicable law to
use the public rights-of-way to provide telecommunications services.
This provision is not intended to contravene leased access requirements
under Title VI or PEG requirements set out in this agreement.
M.
Independent review. The LFA and the franchisee each
acknowledge that they have received independent legal advice in entering
into this agreement. In the event that a dispute arises over the meaning
or application of any term(s) of this agreement, such term(s) shall
not be construed by the reference to any doctrine calling for ambiguities
to be construed against the drafter of the agreement.
N.
Venue. Without waiving any right to bring or remove
an action in either state or federal court, venue for any dispute
between the LFA and the franchisee under this agreement shall rest
in the Court of Common Pleas of Chester County, Pennsylvania, or if
one or more of the issues within such dispute shall constitute a federal
question, then venue shall rest in the United States District Court
for the Eastern District of Pennsylvania.
[Adopted 5-14-2012 by Ord. No. 2012-02]
The municipality hereby authorizes the entering into of a cable
franchise agreement with Comcast to construct, install, maintain,
extend, and operate a cable system, the specific terms of which, agreeable
to both parties, are memorialized in said agreement attached hereto
and incorporated herein by reference.[1]
[1]
Editor's Note: Said agreement is on file in the Township offices.
If any sentence, clause, section or part of this ordinance or
the underlying agreement is, for any reason, found to be unconstitutional,
illegal or invalid, such unconstitutionality, illegality or invalidity
shall not affect or impair any of the remaining provisions, sentences,
clauses, sections or parts hereof. It is hereby declared as the intent
of the Board of Supervisors that this ordinance would have been adopted
had such unconstitutional, illegal or invalid sentence, clause, section
or part thereof not been included herein.
Any prior ordinances or resolutions granting a franchise in
favor of Comcast or its predecessors in interest are hereby repealed
insofar as the same impact this ordinance and the agreement authorized
herein.
This ordinance shall be effective five days following adoption
or as by law provided.
