[HISTORY: Adopted by the Board of Supervisors
of the Township of Chadds Ford (formerly Township of Birmingham) 1-4-1988 by Ord. No.
76. Amendments noted where applicable.]
In consideration of the faithful performance
and observance of the terms, conditions and reservations hereinafter
specified, the Board of Supervisors of the Township of Chadds Ford,
hereinafter referred to as "Township," grants a nonexclusive franchise
to such applicants as shall be designated by resolution from time
to time, hereinafter referred to as "company," to install, construct,
own, operate and maintain a community antenna cable television system,
said entire system to have two-way transmission capabilities as hereinafter
set forth, and to erect, maintain and operate television transmission
and distribution facilities, and additions thereto, in, under, over,
along, across and upon the streets, lanes, avenues, sidewalks, alleys,
bridges and other public places in the Township of Chadds Ford, Delaware
County, Pennsylvania, for the purpose of the transmission and distribution
of audio and visual impulses and television energy in accordance with
the laws and regulations of the United States of America and the Commonwealth
of Pennsylvania, appropriate agencies, and the Federal Communications
Commission Rules and Regulations, and the ordinances and regulations
of the Township of Chadds Ford now in effect or hereafter enacted.
The company shall observe the following conditions and terms:
A. No poles or wires shall be erected, constructed or
maintained by the company along public highways which contain neither
aerial telephone nor aerial electric facilities or from which both
aerial telephone and aerial electric facilities are hereafter removed.
Where all other utilities are underground, company's cable facilities
shall be placed underground.
B. Where the wires and other aerial facilities of the
company are erected, constructed, maintained or operated along or
over public highways which contain an aerial electric or telephone
pole line or a joint use electric and telephone pole line, the wires
and other facilities of the company shall be supported by attachment
to such pole line; but nothing in this paragraph shall relieve the
company of the duty of securing the consent of such attachment of
the owner of such pole line.
C. Poles, ducts and other facilities of the company shall
be so erected, constructed and maintained as not to interfere with
the traffic over the public highways. No new poles shall be erected
without prior approval of the Township, which approval shall not be
unreasonably withheld. No new poles of the company shall be located
upon private property and no damage shall be inflicted to private
property without the knowledge and consent of the private property
owner.
D. Poles, lines, cables, ducts and other facilities of
the company shall be removed by the company when no longer used or
useful for their intended purpose or whenever required by the Township
in connection with any public improvements or other reasonable cause
at company's expense.
E. Any public highways, sidewalks, and abutting property
disturbed or damaged in the erection, construction, maintenance, or
operation of the facilities of the company shall be promptly repaired
by the company to the reasonable satisfaction of the Township Engineer,
but in no case less than 10 days from disturbance to final repair.
F. The company's rights and privileges shall be subordinated
to any prior lawful use or occupancy of the streets or other public
property and shall be so exercised as not to interfere with existing
improvements or with new improvements the Township may deem proper
to make, or to hinder or obstruct the lawful use of the streets, alleys,
bridges, or other public property. In the event any equipment or facilities
of company shall so interfere with any such existing improvement or
improvement intended to be made by the Township, company shall, upon
notice from Township, forthwith relocate said equipment and facilities
at company's expense so as to eliminate said interference.
G. Construction and maintenance of the transmission distribution
system shall be in accordance with the provisions of the National
Electrical Safety Code, Sixth Edition, or any amendments or revisions
thereof, and "The Standards and Practice Code" of the National Cable
Television Association, and in compliance with any applicable rules,
regulations or orders now in effect or hereafter issued by any federal
or state commission or any other public authority having jurisdiction.
H. All installations of equipment shall be durable and
of a permanent nature, and installed in accordance with good engineering
practices as outlined by the National Bureau of Standards, American
Institute of Electrical Engineers and American Society of Mechanical
Engineers, and "The Standards and Practice Code" of the National Cable
Television Association. The company shall comply with all federal
and state laws and ordinances and regulations of the Township now
existing or hereafter enacted, and so as not to interfere with the
rights of the public or individual property owners and so as not to
unduly interfere with the rights of the public during the construction,
repair or removal of its equipment.
I. In the installation of its equipment and the maintenance
thereof, and in the operation of its business, the company shall comply
with all requirements of the Township ordinances, resolutions, rules,
and regulations heretofore or hereafter enacted or established. The
Township shall have the right, at the expense of the company, to employ
experts of its selection to determine the company's compliance with
the installation and maintenance requirements of this chapter.
J. The granting of the franchise by this chapter does
not eliminate the necessity for the company to secure any other franchise,
license or permit which may be required by law, or ordinance or regulation.
The company shall commence installation of its
equipment and facilities within the Township within 90 days of the
effective date of this chapter, and shall substantially complete the
installation of its equipment and facilities within the Township within
12 months thereafter. An energized trunk cable shall be extended to
at least 20% of the franchised area within four months of the effective
date of this chapter, and shall be extended to an additional 20% of
the franchised area within each two-month period thereafter, with
the entire franchised area being so extended to all Township residents
within 12 months of the effective date of this chapter. There shall
be no charge for cable installation for the first 250 feet from the
nearest utility access. Any line in excess of 250 feet shall be at
company's cost.
The duration of the rights, privileges, and
authorities hereby granted shall be 15 years from the date of adoption
of this chapter. The company shall have the option of extending this
franchise, for an additional period of five years upon application
by the company not later than three years prior to the expiration
date of the initial fifteen-year franchise, unless the Township shall
have given to the company at least three years' written notice of
its intent not to renew this franchise. The renewal of this franchise
is specifically conditioned upon review and approval by the Township,
at a public proceeding, of the company's qualifications and performance
of the future cable-related Township needs and interests, the adequacy
of the franchise provisions, and its consistency with the rules and
regulations of the Federal Communications Commission, and any other
regulatory body.
This franchise is conditioned and contingent
upon the company filing with the Township its unconditional acceptance
of this franchise as set forth in this chapter and the company's promise
to comply with and abide by all the provisions, terms and conditions
of this chapter, and the execution by the company of a franchise agreement
acceptable to the Township. Such acceptance and promise and agreement
shall be in writing duly executed and sworn to by and on behalf of
the company before a notary public or other officer authorized by
law to administer oaths and delivered to the Secretary of the Township
within 30 days after passage of this chapter.
A. The company shall indemnify, hold harmless and defend
the Township, its agents, officers, servants and employees from and
against any and all costs, expenses (including reasonable counsel
fees), liabilities, losses, damages, suits, actions, fines, penalties,
claims or demands of any kind asserted by or on behalf of any person
or governmental agency or authority arising out of or in any way connected
with any of the following, and the Township, its agents, servants,
officers and employees shall not be liable to the company on account
of any of the following:
(1) Any failure by the company to abide by, keep, or perform
any of the terms, conditions or provisions of this franchise; or
(2) Any failure by the company to comply with any statutes,
ordinances, regulations, or orders of any governmental authority;
or
(3) Any bodily injury (including death) or property damage
arising out of the installation, operation or maintenance of the equipment
or the facilities of the company, or out of the conduct of its community
antenna cable television system; or
(4) Any act or activity relating to the granting of this
franchise to the company or to the operations conducted thereunder;
or
(5) The granting of this franchise.
B. In connection with any suit or other proceeding in
which the Township, its agents, servants, officers and employees shall
be made a part, involving this franchise or any act, omission or activity
conducted there under or relating thereto and which may have any direct
or indirect affect upon the Township, its agents, servants and employees,
the company upon the written request of the Township, shall appear
in and defend such suit on behalf of the Township, its agents, servants
and employees and shall bear all of the costs and expenses relating
thereto and shall pay any verdict, or judgment rendered or settlement
arrived at.
C. Insurance.
(1) The company shall provide and continuously maintain throughout the term of this franchise and any renewals thereof general liability insurance insuring the Township and the company with regard to all liabilities and contingencies mentioned in Subsection
A herein in the minimum amounts of:
(a)
For bodily injury or death to any one person:
$500,000;
(b)
For personal injury in any one single accident:
$500,000;
(c)
Property damage for any one single accident:
$200,000.
(2) Excess liability coverage, either straight excess or umbrella excess, covering excess of Subsection
C(1)(a),
(b) and
(c) above, to be maintained in force so that the total coverage available under each of the aforementioned subsections, including this subsection, is not less than $1,000,000 for any one occurrence and $1,000,000 in the aggregate per annum for personal injury, and $1,000,000 for any one occurrence and $1,000,000 in the aggregate per annum for property damage and $1,000,000 for any one occurrence and $1,000,000 in the aggregate per annum for copyright infringement.
(3) All such policies shall provide, to the extent obtainable,
that coverage shall not be reduced or cancelled without thirty (30)
days' prior written notice by certified mail to the Township.
(4) The Township shall have the right, from time to time, to employ an insurance consultant. The policies of insurance required by this §
53-5 shall be in such amounts and contain such provisions as comply with the requirements of §
53-5 or as shall have been recommended in writing by the insurance consultant, if higher and ordered by resolution adopted by Township.
D. The company shall maintain throughout the term of
this franchise a performance bond in favor of the Township, with a
good and sufficient surety approved by the Township, in the sum of
$50,000 conditioned upon the company's well and truly performing its
several obligations as set forth in this franchise, and providing
that in the event of any failure by the company to so perform, the
Township may proceed against the surety either to obtain proper performance
of such obligations of the company or to be recompensed for the failure
of the company to render such proper performance.
E. The insurance policies and bond obtained by the company
in compliance with this section shall be issued by responsible insurance
or fidelity bonding companies, acceptable to the Township and any
Township insurance consultant, qualified to do business in the Commonwealth
of Pennsylvania and qualified under the laws of the commonwealth to
assume risks covered by such policies or bond, and shall be nonassessable,
and must be approved by the Township, which approval shall not unreasonably
be withheld. Such insurance policies and bond shall be filed and maintained
with the Township during the term of this franchise.
F. Neither the provisions of this section, nor any bond
accepted by the Township pursuant thereto, shall be construed as excusing
faithful performance by the company or as otherwise limiting the liability
of the company under its franchise.
A. The company shall so operate its equipment and facilities
as to produce a television picture that is undistorted, free from
ghost images and accompanied with proper sound, and as good as the
state of the art permits. The company shall transmit signals of adequate
strength to produce said pictures and sound at all home outlets without
interfering with other electrical or electronic systems or equipment
or with television reception in existence in the area.
B. The company shall render efficient service, make repairs
promptly, and interruptions, insofar as possible, shall be preceded
by notice and shall occur during minimum use of the system. Upon receipt
of a complaint of the quality of service, equipment malfunctions,
and similar matters, the company shall promptly investigate such complaints.
Where possible, the company shall investigate such complaints within
24 hours of their receipt. Resolution of such service complaints shall
be made promptly. For the purpose of investigation and resolution
of regular service complaints, the company shall maintain an agent
or a local business office within the Township and in operation during
normal business hours. In addition, the company shall maintain a toll-free
business telephone for the receipt of complaints and requests for
repairs or adjustment.
The company agrees and, upon request of the
Township or the institution involved, shall extend without charge
one primary or standard line and monthly service to each noncommercial
public, governmental and educational entity as are requested by the
Township in the Township. Such service shall consist of one television
outlet within the building or in the case of a group of buildings,
within the main building of the group, providing service to one television
receiver. The company shall not be required to install additional
outlets at its expense but shall at the request of the Township install
such additional outlets or other facilities as may be requested, and
the Township or the institution involved shall pay the company on
a time and material basis for such additional installation and shall
pay the company in accordance with its schedule of rates as set forth
in this chapter for such additional service.
A. In the use and occupation of the surfaces, subsurfaces,
space above, below and adjoining the streets, public ways and places
of the Township, the company's equipment and plant and their construction,
operation and maintenance shall be in accordance with the provisions
of the following:
(1) The National Electrical Code of the National Board
of Fire Underwriters, Sixth Edition, or any amendments or revisions
thereto;
(2) "The Standards and Practices Code" of the National
Cable Television Association; and
(3) Such applicable ordinances, codes, laws and regulations
of the Township of Chadds Ford, County of Delaware, Commonwealth of
Pennsylvania, and the United States of America, which are now in effect
or hereafter enacted.
B. Company's equipment and plant shall be kept and maintained
in a safe, suitable and substantial condition and in good order and
repair so as not to endanger the lives or interfere unreasonably with
the rights of persons, or to cause physical damage to property, or
to interfere with improvements the Township may deem proper, or to
hinder or obstruct unnecessarily pedestrian or vehicular traffic on
streets, public ways and places.
C. Where the Township or a public utility serving the
Township desires to make use of the poles or other wire holding structures
of the company but agreement therefor with the company cannot be reached,
the Township may require the company to permit such use for such consideration
and upon such terms as the Township shall determine to be just and
reasonable if it is determined by the Township that the use would
enhance the public convenience and would not unduly interfere with
the company's operations.
D. Company shall, upon not less than 72 hours' advance
notice, temporarily raise, lower, or relocate its wires and cables
to permit the moving of buildings, or any other item of bulk, and
the expenses incurred by company in such raising, lowering or relocation
shall be paid, in advance, by the person or concern requesting the
same.
E. The company shall, at its own cost and expense, replace,
restore or repair any private property, street, sidewalk, alley, public
way or paved area destroyed or damaged by the company or its agents,
employees, or servants.
F. If at any time during the term of this franchise the
Township shall elect to alter or change the grade of any street, sidewalk,
alley or other public way, or when required by reason of traffic conditions,
public safety, street vibration, freeway and street construction,
installation of sewers, drains, water pipes, power lines, signal lines,
and tracks or any other type of structure or improvements, when acting
in a governmental or proprietary capacity, the company upon reasonable
notice by the Township shall remove, relay and relocate its poles,
wires, cables, underground conduits, manholes, and other fixtures
at its own cost and expense.
It shall be the policy of the Township to liberally
amend this franchise, upon application of the company, when necessary
to enable the company to take advantage of any developments in the
field of television and radio signals which will afford it an opportunity
to more effectively, efficiently or economically service its customers;
provided, however, that this § 53-9 shall not be construed
to require the Township to make any amendment or to prohibit it from
unilaterally changing its policy stated herein.
A. In the event that the use of any part or all of the
community antenna cable television system is discontinued for any
reason for a continuous period of 12 months, or that such system or
property has been installed in any street or public places without
complying with the requirements of this franchise, or that the franchise
shall have been terminated, cancelled, or expired for any reason,
the company, upon notice, shall promptly remove from the streets or
public places all such property and poles of such system other than
any which the Township may permit to be abandoned in such place and
shall also remove house distribution cables and connections. In the
event of such removal, the company shall promptly restore the street
or other areas from which such property has been removed to a condition
satisfactory to the Township.
B. Upon termination of service to any subscriber, the
company shall promptly remove all of its facilities and equipment
from the premises of such subscriber upon his request, without charge
to the subscriber.
The company shall abide by all applicable ordinances
of the Township relating to street and sidewalk work and shall make
application accompanied by the required fees for permits to perform
any and all such work before commencing same. Upon failure of the
company to complete any work required by law or by the provisions
of this chapter to be done in any street within the time prescribed,
and to the satisfaction of the Township, the Township may cause such
work to be done and the company shall pay to the Township the cost
thereof in the itemized amounts reported by the Township to the company
within 30 days after receipt of such itemized report.
The company shall not, as to rates, charges,
service, facilities, rules, regulations, or in any other respect,
make or grant any preference to advantage to any person, nor subject
any person to any prejudice or disadvantage.
A. The franchise right given to the company is a privilege
to be held in personal trust by the original grantee. It may not be
transferred, leased, assigned, sold, or disposed of as a whole, or
in part by forced sale, merger, consolidation or otherwise, without
the prior consent of the Township expressed by ordinance, and in such
event only in accordance with such conditions as may be therein prescribed.
Such consent shall not be unreasonably withheld.
B. Any transfer attempted by the company in the absence
of such consent shall be ineffective and the right given hereby shall
thereby be rendered null and void.
Copies of all petitions, applications and communications
submitted by the company to the Federal Communications Commission,
Securities and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction in respect to
any matters affecting community antenna cable television operations
authorized pursuant to this franchise, shall be made available to
the Township at the time of filing or receipt.
A. The right is hereby reserved to the Township to adopt,
in addition to the provisions contained herein and in existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of the police power.
B. The Township shall have the right to inspect the books,
records, maps, plans and other like materials of the company at any
time during normal business hours.
C. The Township shall have the right, during the term
of this franchise, to install and maintain free of charge upon the
poles of the company any wire and pole fixtures necessary for a police/fire
alarm system or lighting fixtures or any other proper Township purpose
on the condition that such wire and pole fixtures do not interfere
with the community antenna cable television operation of the company.
The company's charges for installation of all
television cable connections and services for all cable service shall
be as established by the Township from time to time and specified
in written agreement between the Township and the company, subject
to the requirements and limitations, if any, imposed by any applicable
federal statute, rule or regulation.
A. For the use of the street and other facilities of
the Township for the operation of the community antenna television
system and for the municipal supervision thereof, the company shall
pay to the Township annually during the term hereof that amount of
money which is equal to 5% of the gross revenues received by said
company and derived from the operation of the cable system under this
franchise. "Gross revenues" shall mean any and all compensation and
other consideration received by the company from subscribers from
the sale of its services and facilities within the limits of the Township,
and shall include the original installation charges, reconnection
charges, service charges, and charges for inspection, repair or modification
of installations.
B. The company shall file with the Township within 90
days after the expiration of any fiscal year of the company during
the term of this franchise, a gross revenue report certified by an
independent certified public accountant, in accordance with Statement
on Auditing Standards No. 14 as issued by the Auditing Standards Executive
Committee of the American Institute of Certified Public Accountants,
showing in appropriate detail the total gross revenues, as defined
herein, of the company, its successors or assigns, during the preceding
fiscal year. It shall be the duty of the company to pay to the Township
within 15 days after the time for filing such statements the balance
of the specified sum due for the fiscal year covered by such statement.
The auditor of the Township or his authorized agent or other authorized
representative of the Township shall have the authority to examine
the books and records of the company to verify the accuracy of the
payments made hereunder.
C. The company shall file with the Township quarterly
reports within 15 days of the end of each quarter, a gross revenue
report certified by a company officer showing in appropriate detail
the total gross revenues as defined herein, of the company, its successors
or assigns, during the preceding quarter. It shall be the duty of
the company to pay to the Township within 15 days after the time for
filing such statement a sum equal to 90% of the fee due the Township
for that quarter, and each successive quarterly fee shall include
the 10% not paid the previous quarter.
The company agrees not to oppose intervention
by the Township in any suit or proceeding to which the company is
a party and which may have a substantial adverse affect on the company's
operations within the Township.
The company shall provide a minimum service
offering as follows:
A. Channel capacity. Company shall construct a system
with a minimum channel capacity of 35 television channels and shall
maintain a plant having technical capacity for non-voice return communications.
B. Signals to be carried. Company shall carry on its
system the signals of all stations significantly viewed in the Township
of Chadds Ford, Delaware County, Pennsylvania, including all local
network and educational VHF stations and local UHF stations, and the
signals of no less than two distant independent commercial stations
as well as the signals of such distant educational stations as may
be feasible and permitted under the rules and regulations of the Federal
Communications Commission.
C. Access channels. Company shall maintain all access
channels as required by the Federal Communications Commission. As
a minimum, however, unless prohibited by law, the company shall provide
separate public, governmental and educational channels to the Township
not to be shared by others.
D. The company shall not engage in the sale or rental
of television or radio receivers, the furnishing of television or
radio receiver repair service, or the solicitation or referral to
particular persons or classes of persons for such sale, rental or
service. The facilities of the company shall not be constructed or
operated so as to necessitate the use of a receiver of a unique type
for optimum reception of signals. However, nothing contained herein
shall be interpreted to prohibit the use of converters or descramblers
on the community antenna television system.
E. Program origination. Company shall conduct program
origination cable casting as required by the Federal Communications
Commission.
A. The performance by the company hereunder is subject
to the limitations, restrictions, or requirements now existing or
which may henceforth be imposed by law, rules or order of the Federal
Communications Commission or any other government, board, commission
or authority of any kind.
B. Should the Federal Communications Commission modify
or amend its rules and regulations pursuant to the Act of October
30, 1984, P.L. 98-549 (47 U.S.C. § 521), such modifications
or amendments shall be incorporated into this franchise within one
year of the adoption of the modification or amendment.
A. The Township shall have the right to rescind or revoke
the rights herein granted upon any violation by the company of any
of the obligations and requirements contained herein after written
notice by the Township to the company.
(1) Such written notice to the company shall specify the
manner in which the company is in violation, failure or default with
respect to the franchise.
(2) The notice given by the Township shall give the company
a specified, reasonable amount of time within which to correct violation,
failure or default, but, in no event, shall the time period be less
than 30 days from the date of receipt of the notice to the company.
B. The Township shall have the right to rescind or revoke
the rights herein granted in the event the company becomes insolvent,
unable or unwilling to pay its debts, or is adjudged a bankrupt.
C. The company agrees that it does hereby release the
Township from any and all claims the company might have against the
Township by reason of the rescission or revocation of this franchise.
The Township and the proper officers of said
Township, and the department and bureaus of the Township, shall issue
to the company in the name of the Township all permits necessary or
convenient to evidence the grant of the franchise herein and to implement
the provisions of this chapter.
Company shall make application to the Township
and pay all fees for any and all street work permits as required by
Township ordinances.
Company shall supply Township annually with
a letter signed by the president of the company certifying compliance
with Federal Communications Commission regulations and with this chapter.
This chapter and the rights granted to company
hereunder shall become effective upon the execution of a written agreement
by and between Chadds Ford Township and the franchisee providing for
the implementation of the provisions of this chapter.