[HISTORY: Adopted by the Board of Commissioners
of the Township of Tinicum 12-20-1999 by Ord. No. 727. Amendments noted where
applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 312.
A.
In consideration of the faithful performance and observance
of the conditions and reservations hereinafter specified, the nonexclusive
right (hereinafter referred to as "franchise") is hereby granted to
RCN Telecom Services of Philadelphia, Inc. (hereinafter referred to
as "RCN Telecom Services of Philadelphia, Inc.," or "the company"),
to construct, own, operate and maintain a cable television system
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 Tinicum, Delaware County, Pennsylvania,
and subsequent additions thereto, for the purpose of reception, transmission,
collection, amplification, origination, distribution and/or redistribution
of signals in accordance with the laws and regulations of the United
States of America, the Commonwealth of Pennsylvania, the Federal Communications
Commission (the "FCC") and the ordinances and regulations of the Township
of Tinicum, now in effect or hereafter enacted. The duration of the
rights, privileges and authorities hereby granted shall be 10 years
from the date of acceptance of this agreement by the company, provided
that the company shall have the option of extending this franchise
for an additional term of five years unless the Township of Tinicum
gives the company not less than one year's written notice of the intent
not to so extend this franchise.
B.
During the six-month period which begins with the
36th month before the franchise expiration, the municipality may,
on its own initiative, and shall at the request of the company, commence
proceedings which afford the public appropriate notice and participation
for the purpose of:
C.
A four-month period shall be allowed for determining
the company's eligibility for franchise renewal. The municipality
shall consider the company's annual reports to the municipality, the
Federal Communications Commission and the commonwealth, if such is
required, and these shall be considered in light of cable television
industry performance on a national basis in respect to technical developments
and performance programming, costs of service and the particular requirements
set out in this agreement and ordinance. After a public hearing duly
advertised, the municipality shall determine the eligibility of renewal
of the franchise without change in contract, renewal and amendment(s)
to the contract or termination of the franchise. In the latter instance,
the specific reasons for nonrenewal of the franchise are to be stated.
A.
There is hereby granted the further right, privilege
and authority to the company to lease, rent, subscribe to service
or in any other manner obtain the use of poles, lines, cable facilities,
services, licenses and franchises within the limits of the Township
of Tinicum, Pennsylvania, including the Bell Telephone Company of
Pennsylvania and the Philadelphia Electric Company, and to use such
poles, lines, cables and other equipment and facilities, subject to
existing and future ordinances and regulations of the Township of
Tinicum, so long as such future ordinances and regulations of the
Township of Tinicum do not materially adversely effect the rights
granted herein. The poles used for the company's distribution system
shall be those erected and maintained by the telephone or electric
companies when and where practicable, provided that mutually satisfactory
rental agreements can be entered into with said companies.
B.
No rights, privilege or authority is granted for any
antennas or monopoles without further application and express approval
of the Township of Tinicum.
A.
The company shall have the right and privilege to
construct, erect, operate and maintain in, upon, along, above, across,
over and under the streets such poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments
and other property as may be necessary and appurtenant to its system,
provided that all appropriate permits from the Township of Tinicum
are obtained in advance of any activity that requires a permit, including,
but not limited to, the individual permits that are issued for the
location of such poles subject to the approval of the affected homeowners
and the municipality and, in addition, so to use, operate and provide
similar properties rented or leased from other persons, firms or corporations
for such purposes. In addition, the company shall be required to provide
seven days' advance notification of construction activity to affected
property owners and the Township. Prior to the commencement of installation
and construction of any facilities, the company must present a mapping
of the municipality that will identify all systems, equipment, cables,
poles, structures, appliances and/or other property, with the filing
of all appropriate municipal permit applications and payment of all
appropriate fees.
B.
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 not be so used as to interfere with existing improvements
or with new improvements this Township of Tinicum may deem proper
to make or as to hinder or obstruct the free use of the streets, alleys,
bridges or other public property. In the event that any equipment
or facilities of the company shall interfere with any such improvement
existing or intended to be made by the Township of Tinicum, the company
shall, upon reasonable notice from the Township of Tinicum, forthwith
relocate said equipment and facilities at the company's expense so
as to eliminate said interference.
C.
Construction and maintenance of the transmission distribution
system shall be in accordance with the provisions of the National
Electrical Safety Code, 1993 (NED-70), or any amendments or revisions
thereof 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, including the Township
of Tinicum.
D.
All installations of equipment shall be durable or
of a permanent nature and installed in accordance with good engineering
practice as outlined by the National Bureau of Standards, the American
Institute of Electrical Engineers and American Society of Mechanical
Engineers. The company shall comply with all Township of Tinicum regulations,
ordinances and state and federal laws now existing or hereinafter
enacted to ensure safety and property maintenance and not to interfere
with the rights of the public or individual property owner and so
as not to unduly interfere with the travel and use of public places
by the public during the construction, repair or removal thereof,
as well as all the requirements and conditions of the Municipal Engineer.
E.
In the construction, conduct, maintenance and operation
of its business, the company shall comply with all requirements of
the Township of Tinicum ordinances, resolutions, local laws, rules,
regulations and specifications heretofore or hereafter enacted or
established, including but not limited to those concerning street
work, street excavation, use and removal and relocation of property
within a street, structural integrity, strength and safety of all
equipment, poles, cables, structures and property.
F.
If the company, in the exercise of its franchise,
shall disturb any lawn or landscaped area, pavement, sidewalk, street,
driveway, public way or other surface or property, it shall, at its
own expense and in a manner approved by the Township of Tinicum, replace
and restore such areas and property so disturbed in as like a condition
as before the work was commenced.
G.
Restoration on private property shall be conducted
in a timely and professional manner. The restored area, property or
surface shall be in a like condition as was present prior to the disturbance
by the company. The company shall not be liable for any defacement
of or damage to customers' premises resulting from the furnishing
of services or equipment on such premises or the installation or removal
thereof unless such defacement or damage is caused by negligence or
willful misconduct of the company's agent or employees.
H.
The company shall timely build out and provide all
residential streets with all services and systems throughout the Township
of Tinicum within 18 months of beginning installation of systems in
the municipality.
The franchise granted herein grants the company
the right to install and operate a cable system and does not take
the place of any other franchise license or permit which may be required
by law or ordinance or regulation.
In all areas of the Township of Tinicum where
cables, wires or other like facilities of public utilities are placed
underground, the company shall place its cables, wires or other like
facilities underground.
The company shall grant to the Township of Tinicum,
free of expense, joint use of any and all poles owned by it for any
proper Township of Tinicum purpose, provided that it may be done without
interfering with the free use and enjoyment of the company's own facilities
and provided that the Township of Tinicum does not compete with the
company.
In case of any emergency or disaster, the company
shall, upon request of the Township of Tinicum or its civil defense
authority, make its facilities and personnel available to the Township
of Tinicum or said authority during the emergency or disaster period
without charge and in accordance with the Federal Emergency Alert
System (EAS) regulations as promulgated by the FCC.
In lieu of maintaining an office and studio
in the Township of Tinicum, the company shall install a television
(TV) monitor and state-of-the-art character generator and videocassette
recorder (VCR) in the Municipal Building and shall maintain the necessary
equipment to provide exclusive use of one channel for Township of
Tinicum residents only.
A.
The company shall construct and operate a cable system
and render service to all subscribers consistent with all applicable
rules and regulations of the FCC and any other applicable laws, rules
or regulations of municipal, state or federal agencies having jurisdiction
over such matters.
B.
The company shall comply with all FCC requirements
that pertain to signal leakage performance criteria and provide a
timely response and repair at no charge for all complaints from noncable
customers who are experiencing impaired reception caused directly
by the transmission of the company's cable system.
C.
The company shall provide same-day service response,
on any normal working day, for all complaints and requests for adjustments
received before 12:00 noon. Calls received after 12:00 noon must be
responded to within 24 hours. After 12:00 noon on Saturdays or Sundays
and holidays, customers with problems must have a call back by 12:00
noon the next working day. Twenty-four-hour emergency service will
always be available for the following: loss of channels for the entire
cable system, downed lines blocking streets or sidewalks, cable causing
a dangerous situation to pedestrians or traffic or when five or more
calls come from the Township of Tinicum due to loss of signal or impaired
picture quality. Upon failure to remedy a loss of service attributable
to the cable system within 24 hours after a complaint, if requested
the company shall credit 1/30 of the regular monthly charge to the
subscriber for each 24 hours or fraction thereof until service is
restored.
D.
The company shall have the work done between the hours
of 7:00 a.m. and 12:00 noon whenever possible, any time there is a
loss of interruption of service to more than 500 subscribers caused
by the company. Whenever the company has a planned outage due to maintenance
of the system for a period of 24 hours or more, the company shall
credit to the subscriber's account 1/30 of the monthly subscription
fee. The requirements for maintenance of equipment contained in this
provision shall not apply to subscribers' television sets.
E.
The company shall keep a log and, at the request of
the municipality, file a copy thereof at the end of each month with
the municipality listing by category all complaints and trouble calls
received, the number of second or subsequent calls on the same complaint,
the remedial action taken and the period of time required to satisfy
each reported complaint. The company shall maintain and make available
upon request a list of credits with the municipality, when available.
F.
The company shall be required to interconnect its
cable system to facilitate the carriage of public, educational and
government access channels with any other franchised cable company
operating in the Township of Tinicum. Such interconnection shall be
made within 60 days of a request by the Township of Tinicum. The company
may request and the Township of Tinicum may grant a reasonable extension
of time for the company to comply with this requirement.
G.
The company shall have a representative attend meetings
of the Township of Tinicum or any other meetings when requested.
A.
The company shall pay to the Township of Tinicum 5%
of the annual gross receipts. "Gross receipts" shall mean any and
all compensation and other considerations in any form paid by and
due or owing by subscribers to the company or any lessee or advertiser
of the company from the distribution of any cable service over the
cable system to said subscriber or lessee of the company within the
limits of the Township of Tinicum. All installation charges, reconnection
charges, service charges and charges for inspection, repair or modification
of installations, all advertising revenue, all sales commissions from
all present and future sales channels and any revenues generated from
technologies that are determined by the FCC to be a cable service
shall be included in said sum.
B.
While the company is in the process of franchising in the various municipalities in the County of Delaware, should any other municipality in said county receive a better fee package in any franchising agreement than that set forth in § A400-10A above, the Township of Tinicum shall automatically be entitled to receive, and the company shall be obligated to pay, the higher fee upon request of the Township of Tinicum, with the higher fee set forth therein.
C.
The company shall provide and file with the Township of Tinicum annual certified audited financial statements. The company shall also make available to the Township of Tinicum, upon request, all documents necessary for the Township of Tinicum to determine whether or not the company is fulfilling its obligations. Such documentation shall include but not be limited to maps, plans, a schedule of proposed installation, certificates of insurance and performance bonds and documentation to confirm gross receipts as set forth in § A400-10A. The company shall notify the Township of Tinicum of any material alteration or change of insurance coverage within seven to 30 days in advance of said change.
D.
Within the second year of the franchise term, the
Township of Tinicum shall be permitted to conduct an audit of the
company's records to ascertain whether the company is in compliance
with the financial terms and provisions of this agreement. The company
shall be responsible for the payment of the Township of Tinicum's
auditor's reasonable fees.
E.
The company is required to file quarterly reports
(every three months), including but not limited to the franchise fee
payment and payment worksheet (to be provided by the municipality)
within 15 days of the end of each quarter which presents earned revenue.
On a quarterly, every-three-month basis, the company shall timely
pay 100% of the fees attributable to that quarter to the Township
of Tinicum. The Township Secretary or his/her representative shall
have the right to audit, examine or have examined the books and records
of the company to assure compliance with the terms and provision of
this agreement, such cost to be paid by the company. Noncompliance
with the aforementioned will result in a penalty of 10% on moneys
due for each three-month period the company is not in compliance.
F.
The company shall keep on file with the municipality
a current list of its stockholders, bondholders, owners and partners
and the holdings thereof.
A.
This franchise right is a privilege to be held in
personal trust by the original grantee. It cannot be transferred,
leased, assigned or disposed of, as a whole or in part, either by
forced sale, merger, consolidation or otherwise, without first offering
to transfer, lease, assign or dispose of, in whole or in part, to
the Township of Tinicum by giving written notice to the Township of
Tinicum. The Township of Tinicum shall have 120 days to accept said
offer under the same terms and conditions as the offer received by
the company. In the event that the Township of Tinicum does not accept
the offer, the franchise cannot be transferred, erased, assigned or
disposed of, as a whole or in part, either by forced sale, merger,
consideration or otherwise, without the prior consent of the Township
of Tinicum, which consent shall not be unreasonably withheld.
B.
Notwithstanding the foregoing, the Township of Tinicum's
consent to transfer shall not be required in the event of a transfer
or assignment of this franchise to a parent, subsidiary or an affiliated
entity that has control, is controlled by or under the same control
as the original grantee, subject to the company providing notice to
the Township of Tinicum at least 30 days in advance of such transfer.
In this event, the Township of Tinicum shall not be afforded the right
of first refusal.
A.
Upon request by a subscriber for termination of service
and such termination is not due to nonpayment for service, the company
shall promptly:
(1)
Remove all personal property and/or equipment,
including but not limited to converters and remote controls.
(2)
Disconnect cable or wiring into the subscriber's
premises either at the point of entry or at a feed point from cable
tap.
(3)
Refund payment made in advance for service.
The refund of advance payment should be calculated based upon an effective
termination date, which shall be the date which occurs first, that
is the actual date of termination of service into the premises or
seven days after a request is made by customer to discontinue service.
If the company has the capability of discontinuing service without
visiting the premises, then the effective date of termination shall
be the day the customer requests termination of service.
(4)
Promptly return security deposits, if any, upon
the customer returning equipment for which a deposit is applicable.
(5)
Submit a final statement of account to a customer
within 45 days of voluntary termination of service.
B.
The company shall not impose a termination charge
or fee to a customer who requests termination of service. The company
shall not be required to remove cable or wiring from either the inside
or outside of a subscriber's premises. However, upon request from
the subscriber, the company must remove aerial cable or wiring from
only the exterior of a customer's property.
At the expiration of the term for which the
franchise is granted or upon its termination and cancellation as provided
for herein, the Township of Tinicum shall have the right to require
the company to remove, at its own expense, all aboveground portions
of the system and all equipment and property from all public ways
within the Township of Tinicum.
The company will file with the Township of Tinicum
true and accurate copies of as-built maps and schedules of any construction.
This provision is not intended to waive or alter the filing of any
maps, plans or schedules as required for permits or any approvals
from the Township of Tinicum.
A.
Notice of violation. In the event that the Township
of Tinicum believes the company has not complied with the terms of
this agreement, it shall notify the company, in writing, by regular
mail, of the exact nature of the alleged noncompliance.
B.
The company's right to cure or respond. The company shall have 30 days from receipt of the notice described in § A400-15A to respond to the Township of Tinicum contesting the assertion of noncompliance and to cure such default or, in the event that by the nature of default such default cannot be cured within the thirty-day period, request permission from the Township of Tinicum for additional time in which to take reasonable steps to remedy such default, and such permission shall not be unreasonably withheld. In the event that the company contests the assertion of noncompliance in a timely manner, then the time specified to cure the alleged default shall be stayed or tolled pending a hearing before the Township Commissioners of the Township of Tinicum. In the event that the Township Commissioners affirms the assertion of noncompliance following a hearing affording the company the opportunity to be heard, then the Company shall have 30 days within which to cure such default.
C.
Force majeure. If, for any reason of force majeure,
either party is unable in whole or in part to carry out its obligations
hereunder, said party shall not be deemed in violation or default
during the continuance of such inability. Unless further limited elsewhere
in this agreement, the term "force majeure" as used herein shall have
the following meaning: strikes; acts of God; acts of public enemies;
orders of any kind of the government of the United States of America
or of the Commonwealth of Pennsylvania or any of their departments,
agencies, political subdivisions or officials or any civil or military
authority; insurrection; riots; epidemics; landslides; lighting; earthquakes,
fires; hurricane; volcanic activity; storms; entire failure of utilities;
or any other cause or event not reasonably within the control of the
party affected.
D.
Cancellation of franchise.
(1)
In addition to all other rights and powers pertaining
to the Township of Tinicum by virtue of this agreement or otherwise,
the Township of Tinicum reserves the right to terminate and cancel
the franchise hereby granted and all rights and privileges of the
company hereunder in the event that the company:
(a)
Violates any material provision of this agreement
or any rule, order or determination of the Township of Tinicum or
Township Commissioners made pursuant to this agreement.
(b)
Becomes insolvent or unable or unwilling to
pay any of its debts or is adjudged as bankrupt.
(c)
Violates any federal or Pennsylvania law or
regulation.
This agreement and the rights granted to the
company shall become effective upon execution of a contract between
the Township of Tinicum and the franchisee, binding both parties to
abide by all conditions of this agreement.
A.
The company shall pay, and by its acceptance of this
franchise the company specifically agrees that it will pay, all damages
and penalties which the Township of Tinicum may legally be required
to pay as a result of granting the franchise. These damages or penalties
shall include, but shall not be limited to, damages arising out of
the installation, operation or maintenance of the cable system authorized
herein, whether or not any act or omission complained of is authorized,
allowed or prohibited by this agreement.
B.
The company shall pay, and by its acceptance of this franchise specifically agrees that it will pay, all expenses incurred by the Township of Tinicum in defending itself with regard to all damages and penalties mentioned in Subsection A above. These expenses shall include all out-of-pocket expenses such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the Township of Tinicum Solicitor or his assistant or any employees of the Township of Tinicum.
C.
The company shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain, throughout the terms of this franchise liability insurance insuring the Township of Tinicum and the company with regard to all damages mentioned in Subsection A above in the minimum amounts of:
(1)
The company shall provide evidence of workman's
compensation and vehicle insurance from a carrier with an A.M. Best
rating of "A" or better.
(2)
Comprehensive general liability insurance shall
be written on an occurrence basis with a combined single limit of
no less than $1,000,000 for bodily injury, property damage and personal
injury.
D.
The company shall maintain, and by its acceptance
of this franchise specifically agrees that it will maintain throughout
the term of this franchise, a faithful performance bond running to
the Township of Tinicum in the penal sum of $50,000, conditioned that
the company shall well and truly observe, fulfill and perform each
term and condition of this agreement and that, in case of any breach
of condition of the bond, the amount thereof shall be recoverable
from the principal and surety thereof by the Township of Tinicum for
all damages resulting from the failure of the company to well and
faithfully observe and perform any provision of this agreement.
E.
The insurance policy and bond obtained by the company
in compliance with this section must be written by an insurance company
with an A.M. Best rating of "A" or better and shall be approved by
the Township Commissioners of the Township of Tinicum, and a certificate
of insurance as evidence of the company's insurance policy and the
performance bond, including written evidence of the payment of required
premiums, shall be filed and maintained with the Township of Tinicum
Manager/Secretary during the term of this agreement.
F.
All expenses of the above-noted insurance and bond
shall be paid by the company.
The company shall:
A.
Provide each public, private and parochial school,
fire station, ambulance corps building, public library and Municipal
Office Building, and such public auditoriums and institutions as are
requested by the Township of Tinicum, with a single drop and basic
service without charge. Additional drops and service will be charged
to the facility by the company at cost to the company of time and
material only.
B.
Comply with the present and future rules and regulations
of the FCC in connection with and relating to the construction, operation
and maintenance of its cable system.
C.
Education access channel. The company shall maintain
one specifically designated channel for use by the school district
and provide at no cost a character generator for their exclusive use.
D.
Local government access channel. The company shall
maintain, at no cost to the municipality, one specially designated
channel for the Township of Tinicum municipal use at the Township
of Tinicum Municipal Building or other place the Township of Tinicum
may designate and provide at no cost a character generator and TV
monitor for their exclusive use.
E.
A public access/leased access channel. The company
shall maintain at least one specially designated, noncommercial public
access/leased access channel available for a first-come, nondiscriminatory
basis. In addition, other portions of its nonbroadcast bandwidths,
including unused portions of the specially designated channels, shall
be available for leased uses. On at least one of the public access/leased
channels, priority shall be given to part-time users.
F.
System specifications.
(1)
The system will be designed and constructed
using a combination of fiber optics and coaxial radio (RF) distribution.
The system will have an analog bandwidth of 650 megahertz (MHz) and
a digital bandwidth of 210 MHz for a total operational bandpass of
860 MHz. The analog bandwidth will provide for nearly 100 channels
of unscrambled and in-the-clear programming. The digital tier of over
200 MHz has the ability to provide hundreds of additional channels
using digital compression and a specially designed set-top box.
(2)
The system will consist of a combination of
digital and analog transport using wavelength division multiplexing
(WDM) and 1550 nanometer (nm) and 1310 nm optical components connected
to an 860 MHz optical node which will convert the optical signals
to RF signals for distribution on a coaxial-based system. Each optical
node will be constructed with at least a twelve-fiber bundle of single-mode
fibers to serve an area no larger than 75 to 150 homes passed. This
design will accommodate other communications services such as telephony
and high-speed data.
(3)
Each optical node and its RF distribution will
be powered using a zero transfer standby power supply to minimize
interruptions of service caused by power outages. The coaxial cable
will be of the jacketed variety for durability and performance. All
splicing and RF connections will use integral sleeve-pin-type connectors
and will be shielded with heat-shrinkable tubing for weather protection.
(4)
The system will be designed and constructed
to be an active two-way plant utilizing the return bandwidth of 5
to 40 MHz to permit such services as impulse pay per view, high-speed
data, telemetry, telephony and other telecommunications services.
These return signals will be transmitted back to the primary head
end or hub using the optical return laser in the node. The optical
return laser has a return bandwidth of 5 to 200 MHz to allow for additional
future bandwidth requirements. The head end site will be geographically
located to service the Philadelphia metro area using a digital and/or
analog fiber transmission system. A hub site will be located on or
near the municipality area to distribute these signals.
G.
At no time shall the company monitor the viewing habits
of its customers without the express permission of said customers.
Pursuant to the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996, hereinafter referred to as the "Cable
Act," all personally identifiable information is used solely for the
normal business purpose of offering and rendering cable television
service to the customer. The company will not disclose personally
identifiable information without permission of the customer.
H.
Make its best effort to carry on its system the signals
of all stations significantly viewed in Delaware County, Pennsylvania,
these to include all local network and education VHF stations and
local UHF stations, and in addition, no less than two distant commercial
stations.
I.
Provide, without charge to the Township of Tinicum,
the company's high-speed Internet access service at up to three locations
within the Township of Tinicum Municipal Building and three locations
at the municipal library. Such locations shall be determined by the
Township Secretary/Manager. In addition, the company will provide
the Township of Tinicum with assistance in establishing a website
and reasonable storage capacity sufficient to host a website to disseminate
information about the Township of Tinicum programs and services.
J.
Supply and install, at no cost to the customer, a
closed-captioned device when requested by the hearing impaired.
K.
Faithfully comply with all the provisions of Ordinance No. 727, as amended, provided that
where there is a conflict between such ordinance and this agreement,
the language of this agreement shall prevail.
The company shall make cable service available,
when permitted by the property owner, to all residents in private
housing in the Township of Tinicum subject to all provisions of this
agreement.
The company must obtain a permit from the Township
of Tinicum to provide segments of subscribers any specialized service
that will not be available to all subscribers. All requests shall
demonstrate that the service is not contrary to the public interest
and will not affect the company's ability to deliver service to other
users and subscribers.
A.
The Township of Tinicum shall not prohibit or limit
any program or any class or type of program or otherwise control the
communications or signals transmitted by the company or impose discriminatory
or preferential fees in any manner that would tend to encourage or
discourage programming of any particular nature, directly or indirectly,
and shall not promulgate any regulation that would interfere with
the right of free speech by means of the company's provision of cable
television services.
B.
The company shall not prohibit or limit any program
or class or type of program presented over a leased channel or any
channel made available for public access or educational purposes.
In the event of expiration, cancellation or
transfer of the franchise, the company shall be required to continue
to operate the system until an orderly change of operation is effectuated
and shall be subject to an accounting for net earnings or losses during
this interim period.
The company was represented throughout the negotiations
of the franchise by its own attorneys and has had opportunity to consult
with its own attorneys about its rights and obligations regarding
the franchise. In consideration of the grant of the franchise to the
company, the company hereby waives any claim which it may have with
respect to the issuance of and/or the terms and conditions of this
agreement. In consideration of the grant of the franchise to the company,
the company also releases the Township of Tinicum and any of its elected
officials, employees, representatives, agents, servants, including
attorneys, from any claims it may have, known or unknown, including,
without limitation, claims arising under Pennsylvania law, the Cable
Act, the ordinances and Charter of the Township of Tinicum and/or
the requirements of federal, state or municipal law, including the
Constitutions of the United States and of Pennsylvania. However, the
foregoing release shall not apply to any claims which the company
may have with respect to the terms and conditions of this agreement
where substantially the same terms and conditions of other cable television
franchises have been held invalid by a binding and final judgment
of the United States or Pennsylvania Supreme Courts.
A.
The company shall indemnify and hold the Township
of Tinicum and its public officials, employees, agents and servants
harmless at all times during the term of this franchise from any and
all claims alleged to be caused by the company's construction, installation,
operation or maintenance of any structure, equipment, wire or cable
authorized to be installed pursuant to the franchise or in the exercise
of any of its rights under this franchise. Upon receipt of notice
in writing from the Township of Tinicum, the company shall, at its
own expense, defend any such actions or proceedings. Indemnified expenses
shall include, without limitation, all out-of-pocket expenses, such
as reasonable attorney's fees, and:
(1)
Requests for relief arising out of any claim
for invasion of the rights of privacy; for defamation of any person,
firm or corporation; for the violation or infringement of any contract
and copyright, trademark, trade name, service mark or patent; or of
any other right of any person, firm or corporation, excluding claims
arising out of or relating to the Township of Tinicum's own programming
and leased access.
(2)
Any and all claims arising out of the company's
failure to comply with the provisions of this agreement or any federal,
state or local law, ordinance or regulation applicable to the company
or the cable system.
(3)
Any and all claims which the company may now
or hereafter have or claim to have against the Township of Tinicum,
its servants, agents, attorneys, representatives, employees or officials
due to or arising out of damage to any of the company's property or
equipment, including, without limitations, the resulting or consequential
loss of income, injury to reputation or any other resulting or consequential
damages of any kind caused by or resulting from negligent acts or
omissions of the Township of Tinicum or any of its servants, agents,
attorneys, representatives, employees or officials.
(4)
Any and all disputes arising out of a claim
wherein damages or other relief is sought as a result of the Township
of Tinicum cable communications franchising procedure or as a result
of the renewal of the cable communications franchise or as a result
of the Township of Tinicum award or failure to award a franchise to
any other person, partnership, corporation or other legal entity.
(5)
If suit be brought or threatened against the
Township of Tinicum, either independently or jointly with the company,
arising out of company's installation, construction, operation or
maintenance of the cable television system, or with any other person
or municipality, the company, upon notice given by the Township of
Tinicum, shall defend the Township of Tinicum, its public officials,
employees, servants and agents, at the cost of the company if final
judgment is obtained against the Township of Tinicum, its public officials,
employees, servants and agents, either independently or jointly with
the company or any other defendants, the company shall indemnify the
Township of Tinicum, its public officials, employees, servants and
agents and pay such judgment with all costs and satisfy and discharge
the same.
B.
In order for the Township of Tinicum to assert its
rights to be indemnified, defended or held harmless, the Township
of Tinicum must:
(1)
Promptly notify the company of any claim or
legal proceeding which gives rise to such right;
(2)
Afford the company the opportunity to participate
in and fully control any compromise, settlement or other resolution
or disposition of such claim or proceeding, unless, however, the Township
of Tinicum, in its sole discretion, determines that its interests
cannot be represented in good faith by the company; and
(3)
Fully cooperate with the reasonable requests of the company in its participation in and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to § A400-24B(2) above.
C.
The Township of Tinicum reserves the right to cooperate
with the company and participate in the defense of any litigation
either through intervention or otherwise. The company shall pay, upon
receipt of written demand from the Township of Tinicum, all expenses
incurred by the Township of Tinicum in defending itself with regard
to any matters in this section. These expenses shall include, but
not be limited to, attorneys fees and the reasonable value of services
(as determined by the Township of Tinicum) rendered by the Township
of Tinicum or any of its employees, officials, attorneys, servants,
agents or representatives.
D.
The Township of Tinicum is in no manner or means waiving
any governmental immunity it may enjoy or any immunity for its agents,
officials, servants, attorneys, representatives and/or employees.
E.
The company shall make no settlement in any matter
identified above without the Township of Tinicum's written consent,
which shall not be unreasonably withheld. Failure to inform the Township
of Tinicum of settlement shall constitute a breach of this franchise
agreement and the Township of Tinicum may seek any redress available
to it against the company, whether set forth in this agreement or
not.
F.
If the Township of Tinicum awards any additional communications
franchise or extensions thereof in any future franchise process to
a firm other than the company, then the company agrees that it will
not bring or cause to be brought any action, suit or other proceeding
claiming damages or seeking any other relief against the Township
of Tinicum, its elected officials, officers, boards, commissions,
employees, representatives, servants, agents or attorneys for any
award of a franchise made in conformity with this agreement, Pennsylvania
Law, the Cable Communications Policy Act of 1984, Cable Television
Consumer Protection and Competition Act of 1992 and the Telecommunications
Act of 1996.
G.
All rights of the Township of Tinicum pursuant to
indemnification, insurance, letter of credit or performance bond(s),
as provided for by this agreement, are in addition to all other rights
the Township of Tinicum may have under this agreement or any other
ordinance, rule, regulation or law.
H.
The Township of Tinicum's exercise of or failure to
exercise any rights pursuant to any section of this agreement shall
not affect in any way the right of the Township of Tinicum subsequently
to exercise any such rights or any other right of the Township of
Tinicum under this agreement or any other ordinance, rule, regulation
or law.
I.
It is the purpose of this section to provide maximum
indemnification to the Township of Tinicum under the terms and conditions
expressed and, in the event of a dispute, this section shall be construed
(to the greatest extent permitted by law) to provide for the indemnification
of the Township of Tinicum by the company.
A.
To the extent that the Federal Communications Commission
shall terminate controls in any area pertinent to this agreement,
this agreement may be amended by the Township of Tinicum with the
consent of the company.
B.
If any section, subsection, sentence, clause, phrase
or portion of this agreement is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holdings
shall not affect the validity of the remaining portions hereof.
For the purpose of this agreement, all terms,
phrases, words and their derivations shall have the meanings set forth
in the Cable Act, unless the context clearly indicates that another
meaning is intended.
