[Ord. 167, 8/8/1989]
The Township of North Strabane finds that the development of
cable television and communications systems has the potential of having
great benefit and impact upon the residents of the Township. Because
of the complex and rapidly changing technology associated with cable
television, the Township further finds that the public convenience,
safety and general welfare can best be served by establishing regulatory
powers which should be vested in the Township or such persons as the
Township shall designate. It is the intent of this Part 4 and subsequent
amendments to provide for and specify the means to attain the best
possible public interest and public purpose in these matters and any
franchise issued pursuant to this Part shall be deemed to include
this finding as an integral part thereof.
[Ord. 167, 8/8/1989]
This Part shall be known and may be cited as the "North Strabane
Cable Communications Ordinance".
[Ord. 167, 8/8/1989]
For the purposes of this Part the following terms, phrases,
words, and their derivations shall have the meaning given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular
number, words in the singular number include the plural numbers, and
the use of any gender shall be applicable to all genders whenever
the sense requires. The words "shall" and "will" are mandatory and
the word "may" is permissive. Words not defined shall be given their
common and ordinary meaning.
A system of antennae, cables, wires, lines, towers, waveguides,
or other conductors, converters, amplifiers, headend equipment, master
controls, earth stations, equipment and facilities designed and constructed
for the purpose of producing, receiving, transmitting, amplifying
and distributing audio, video and other forms of electronic or electrical
signals within the Township.
The Federal Communications Commission.
The right granted through a contractural agreement between
the Township and a person by which the Township authorizes such person
to erect, construct, reconstruct, operate, dismantle, test, use and
maintain a Cable Communications System in the Township. Any Franchise
awarded by an agreement in accordance herewith shall be authorized
by resolution and shall be a nonexclusive franchise. The term "Franchise"
shall also include any "Franchise Renewal."
An agreement entitled "Franchise Agreement" entered into
between the Township and Grantee which is authorized by resolution
and which is enforceable by the Township and Grantee and which sets
forth the rights and obligations between the Township and Grantee
arising out of the Franchise.
The party or parties granted a Franchise pursuant to this
Part.
Any tax, fee or assessment of any kind imposed by the Township
on a Grantee solely because of its status as such. The term "Franchise
Fee" does not include:
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee or assessment
which is unduly discriminatory against Grantee or cable subscribers);
Capital costs which are required by the franchise to be incurred
by Grantee for public, educational or governmental access facilities;
Requirements or charges incidental to the awarding or enforcing
of the Franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages;
Any fee imposed under Title 17, United States Code.
All cash, credits, property of any kind or nature or other
consideration derived directly or indirectly by a Grantee, its affiliates,
subsidiaries, parents, and any other person or entity in which Grantee
has a financial interest or which has a financial interest in Grantee,
arising from or attributable to operation of the Cable Television
System within the Township, including but not limited to:
Revenue from all charges for services provided to subscribers
of entertainment and non-entertainment services (including leased
access fee) within the Town of North Strabane;
Revenue from all charges for the insertion of commercial advertisements
upon the Cable Television System;
Revenue from all charges for the leased use of studios;
Revenue from all charges for the installation, connection and
reinstatement of equipment necessary for the utilization of the Cable
Television System and the provision of subscriber and other services;
The sale, exchange or use or cablecast of any programming developed
for community use or institutional users;
Commissions received by Grantee based upon sales of services
or merchandise on programming services carried on the System.
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Items (b), (c), (e), and (f) shall be pro-rated based upon the
total number of subscribers served by the Cable Television System
and those subscribers residing in North Strabane.
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Gross Revenues shall include the value at retail price levels
of any goods, service or other renumeration in non-monetary form (including
but not limited to stock options, complementary sports and other event
tickets) received by the Grantee or others described above for performance
by a Grantee or others described above of any advertising or other
service in connection with the Cable Television System.
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The use on a fee-for-service basis of the Cable Television
System by business enterprises (whether profit, nonprofit or governmental)
to render services to the citizens of the Township and shall include
without limitation all use pursuant to Section 612 of the Cable Communications
Policy Act of 1984 (47 USC § 521 et seq.).
Any individual, corporation, partnership, association, joint
venture or organization of any kind.
Any person who legally receives any one or more of the services
provided by the Cable Communications System.
The surface of and the space above and below any public street,
road, highway, freeway, easement, lane, path, alley, court, sidewalk,
parkway, or driveway now or hereafter existing as such within the
Township.
The Township of North Strabane, and all the territory within
its present and future boundaries and including any area over which
the Township exercises jurisdiction. The Board of Supervisors is the
governing authority of the Township.
[Ord. 167, 8/8/1989]
Nothing in this Part or in any ordinance of Franchise Agreement
awarding a Franchise in accordance herewith shall be construed as
an abrogation by the Township of any of its police powers.
[Ord. 167, 8/8/1989]
Applications for a Franchise shall include at a minimum:
1.
A clear description of the identity of the applicant, including but
not limited to the name of the applicant, the address of the applicant,
the nature of the business entity, and evidence of the compliance
of the business entity with all applicable laws.
2.
Evidence that the applicant has applied (including the payment of
all applicable fees) to the Township for all applicable construction
permits.
3.
Evidence that all aspects of the applicant's Cable Television System
comply with applicable zoning laws of the Township.
4.
A map or maps of a scale of not less than one inch equaling 100 feet
showing the precise geographic area for which applicant seeks a Franchise
("Franchise Area") and, also, for any applicant seeking Franchise
Renewal, the area served by the applicant at the time of the application
for renewal.
5.
Evidence that applicant has applied (including the payment of all
applicable fees) to the Township for building and electrical code
review and approval of the plans and construction of the entire Cable
Television System within the Franchise Area.
6.
Evidence of financial responsibility in the form of a letter of credit
and construction performance bond, conforming to § 421 and
§ 422 of this Part, respectively.
7.
A non-refundable application fee as may be established by the Township
to cover the costs of review, issuance and enforcement of Franchises
issued pursuant to this Part.
8.
A schedule of construction, as established by the applicant and reflected upon the map(s) provided pursuant to Subsection (4) of this Section, showing by a logical geographic progression which streets within the Franchise Area shall be constructed by the applicant within each calendar quarter during the period of construction.
9.
Detailed plans and specifications for the Cable Television System
which is proposed by the applicant.
[Ord. 167, 8/8/1989]
1.
Authority to Grant Franchise. The Township may grant a Franchise
for all or any defined portion of the Township. The Franchise Area
shall be the entire area defined in the Franchise Agreement. The Grantee
shall be required to provide services to all potential subscribers
located in the Franchise Area requesting such service, unless otherwise
specified in the Ordinance granting the Franchise.
2.
Grant. In the event that Township shall grant to a Grantee a nonexclusive,
revocable (in accordance with its terms) Franchise to construct, operate,
maintain, and reconstruct, a Cable Communications System within the
Franchise Area, or grant a renewal of an existing obligation to provide
the services of a Cable Communications System as required by the provisions
of this Part and the Franchise Agreement.
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Any Franchise granted under the terms and conditions contained
herein shall be consistent with Federal laws and regulations and State
general laws and regulations. In the event of conflict between the
terms and conditions of the Franchise and the terms and conditions
on which the Township can grant a Franchise, the general law and/or
statutory requirements shall, without exception, control.
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Any Franchise granted is hereby made subject to the general
ordinance provisions now in effect or hereafter made effective. Nothing
in the Franchise shall be deemed to waive the requirements of the
other codes and ordinances of the Township regarding permits, fees
to be paid or manner of construction.
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3.
Franchise Required. No Cable Communications System shall be allowed
to occupy or use the streets in the Township or be allowed to operate
without a Franchise in accordance with the provisions of this Part.
4.
Establishment of Franchise Requirements. The Township may establish
appropriate requirements for new Franchises or Franchise Renewals
(consistent with the Cable Communications Policy Act of 1984), and
may modify these requirements from time to time to reflect changing
conditions and state of art in the cable industry.
5.
Duration. The term of any Franchise and all rights, privileges, obligations,
and restrictions pertaining thereto shall be as established in the
Franchise Agreement, unless terminated sooner as hereinafter provided.
6.
Franchise Nonexclusive. Any Franchise or Franchise Renewal granted
shall be nonexclusive. The Township specifically reserves the right
to grant, at any time, such additional Franchises for a Cable Communications
System as it deems appropriate, provided however, that such additional
grants shall not contain more favorable or less burdensome terms than
those contained in existing Franchises nor operate to materially modify,
revoke, or terminate any rights previously granted to any Grantee.
7.
Franchise Applications. Applicants for a Franchise or Franchise Renewal
shall submit to the Township written applications utilizing the standardized
format provided by Township, at the time and place designated by the
Township for accepting applications, and shall include the application
fees designated by the Township.
8.
Grant Procedure. All Franchise or Franchise Renewal applications
when filed shall be available for public inspection at places designated
by the Township.
A.
Initial Franchises. No later than 90 days after the final date for
filing applications, one or more public hearings shall be held on
the applications. A decision shall be made by the Township not later
than 90 days after the conclusion of all such public hearings based
upon an evaluation of the application(s), the hearings, and other
information that the Township may deem relevant. Township may grant
one or more Franchises, or may decline to grant any Franchise.
B.
Franchise Renewals. Applications may be made during the period 30
months to 36 months prior to expiration of an existing Franchise.
The procedure for Franchise Renewals shall be governed by the Cable
Communications Policy Act of 1984.
[Ord. 167, 8/8/1989]
1.
For the purposes of operating and maintaining a Cable Communications
System in the Township, Grantee may erect, install, construct, repair,
replace, reconstruct and retain in, on, over, under, upon, across
and along the streets within the Township such lines, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments and other property and equipment as are necessary and
appurtenant to the operation of the Cable System, provided that all
applicable permits are applied for and granted, all fees paid and
all other Township codes and ordinances are otherwise complied with.
2.
Prior to construction or alteration, Grantee shall in each case file
plans with all appropriate Township agencies and utility companies
and receive written approval of such plans, which approval shall not
be unreasonably withheld. Grantee shall provide a monthly progress
report to Township through the completion of construction or alteration.
3.
Grantee shall construct and maintain a Cable Communications System
so as not to interfere with other uses of streets. Grantee shall make
use of existing poles and other facilities available to Grantee. Grantee
shall individually notify all residents affected by proposed construction
prior to the commencement of that work.
4.
Notwithstanding the above grant to use streets, no street shall be
used by Grantee if the Township, in its sole opinion, determines that
such use is inconsistent with the terms, conditions or provisions
by which such street was created or dedicated, or presently used.
[Ord. 167, 8/8/1989]
1.
All transmission and distribution structures, lines and equipment
erected by the Grantee within the Township shall be so located as
to cause minimum interference with the proper use of streets, alleys
and other public ways and places, and to cause minimum interference
with the rights and reasonable convenience of property owners who
join any of the said streets, alleys or other public ways and places.
2.
In case of disturbance of any street, sidewalk, alley, public way
or paved area, the Grantee shall, at its own cost and expense and
in a manner approved by the Superintendent of Public Works, replace
and restore such street, sidewalk, alley, public way, or paved area
in as good a condition as before the work involving such disturbance
was done.
3.
The Grantee shall have the authority to trim trees upon and overhanging
streets, alleys, sidewalks, and public ways and places of the Township
so as to prevent the branches of such trees from coming in contact
with the wires and cables of the Grantee, except that at the option
of the Township, such trimming may be done by it or under its supervision
and direction at the expense of the Grantee.
[Ord. 167, 8/8/1989]
1.
No Franchise shall be deemed to expressly or impliedly authorize
the Grantee to construct or install poles or wireholding structures
within streets for the purpose of placing cables, wires, line or otherwise,
without the written consent of the Township. Such consent shall be
given upon such terms and conditions as the Board of Supervisors in
its sole direction may prescribe. The Grantee shall perform, at its
sole expense, all tree trimming required to maintain the poles clear
of obstructions.
2.
With respect to any poles or wire-holding structures which a Grantee
is authorized to construct and install within streets, a public utility
serving the Township may, if denied the privilege of utilizing such
poles or wire-holding structures by the Grantee, apply for such permission
to the Board of Supervisors. If the Board of Supervisors finds that
such use would enhance the public convenience and would not unduly
interfere with Grantee's operations, the Board of Supervisors may
authorize such use subject to such terms and conditions as it deems
appropriate. Such authorization shall include the condition that the
public utility pay to the Grantee any and all actual and necessary
costs incurred by the Grantee in permitting such use.
[Ord. 167, 8/8/1989]
1.
Except as hereinafter provided, in all areas of the Township where
the cables, wires and other like facilities of a public utility are
placed underground, each Grantee shall construct and install its cables,
wires, and other facilities underground. Amplifier boxes and pedestal
mounted terminal boxes may be placed above ground if existing technology
reasonably requires, but shall be of such size and design and shall
be so located as not to be unsightly or unsafe. In any area of the
Township where there are certain cables, wires and other like facilities
of a public utility underground and at least one operable cable, wire
or like facility of a public utility suspended above the ground from
poles a Grantee may construct and install its cables, wires and other
facilities from the same pole.
2.
With respect to any cables, wires and other like facilities constructed
and installed by a Grantee above ground, the Grantee shall, at its
sole expense, reconstruct and reinstall such cables, wires or other
facilities underground pursuant to any project under which the cables,
wires or other like facilities of such utilities are placed underground
within an area. The duty of a Grantee to place its cables, wires and
other like facilities underground shall arise only if all like facilities
of utilities which are existing above ground are placed underground.
[Ord. 167, 8/8/1989]
If during the term of a Franchise the Township, a public utility
or authority, a public water company or authority, a public sanitation
company or authority, a public drainage authority or any other similar
special public entity or authority elects to alter, repair, realign,
abandon, improve, vacate, reroute or change the grade of any street
or to replace, repair, install, maintain, or otherwise alter any above
ground or underground cable, wire conduit, pipe, line, pole, wireholding
structure, structure, or other facility utilized for the provision
of utility or other services or transportation of drainage, sewage
or other liquids, the Grantee has, except as otherwise hereinafter
provided, at its sole expense, remove or relocate as necessary its
poles, wires, cable, underground conduits, manholes and any other
facilities which it has installed. The entities may decide among themselves
who is to bear the cost of relocation; provided, that the Township
shall not be liable to a Grantee for such costs. Regardless of who
bears the costs, a Grantee shall take action to remove or relocate
at such time or times as are directed by the entity of company undertaking
the work.
[Ord. 167, 8/8/1989]
Each Grantee shall, upon request by any person holding a building
moving permit, franchise or other approval issued by any governmental
entity having jurisdiction over the same, temporarily remove, raise
or lower its wire to permit the movement of buildings. The expense
of such removal, raising or lowering shall be paid by the person requesting
same, and a Grantee shall be authorized to require such payment in
advance. A Grantee shall be given not less than 48 hours oral or written
notice to arrange for such temporary wire changes.
[Ord. 167, 8/8/1989]
1.
Upon expiration or termination of a Franchise without renewal the
Grantee may either disable its underground cable, or, at its option,
remove any underground cable from the streets which has been installed
in compliance with the following:
A.
Grantee shall file written notice with the Township not later than
30 calendar days following the date of expiration or termination of
the Franchise of its intention to remove cable and a schedule for
removal by location. The scheduled timing of removal shall be subject
to approval and regulation by the Superintendent of Public Works of
the Township. Removal shall be completed not later than one year following
the date of the expiration of the Franchise and all streets shall
be repaired to their preexisting condition. Underground cable and
conduit in the streets which is not removed shall be deemed abandoned
and title thereto shall be vested in the Township.
B.
Upon expiration or termination of a Franchise without renewal the
Grantee, at its sole expense, shall, unless relieved of the obligation
by the Township, remove from the streets all above ground elements
of the Cable Television System, including but not limited to amplifier
boxes, pedestal mounted terminal boxes, and cable attached to or suspended
from poles.
C.
The Grantee shall apply for and obtain such encroachment permits,
licenses, authorizations or other approvals and pay such fees and
deposit such security as required by applicable ordinance of the Township,
shall conduct and complete the work of removal in compliance with
all such applicable ordinances, and shall restore the streets to the
same condition they were in before the work of removal commenced.
The work of removal shall be completed not later than one year following
the date of expiration of the Franchise.
[Ord. 167, 8/8/1989]
Any Cable Television System Franchise awarded pursuant to the
provisions of this Part shall provide equal and uniform cable television
service to all persons requesting service in the Franchise Area, except
as provided otherwise in the Franchise Agreement.
[Ord. 167, 8/8/1989]
The applicant shall define a Franchise Area whose contour, so
far as is possible, shall follow streets. Within the perimeter of
the contour, no dwelling units shall be excluded from service provided
to the Franchise Area defined by the applicant.
[Ord. 167, 8/8/1989]
Each Cable Television System shall, at minimum:
1.
Relay to subscriber terminals those broadcast signals required by
Federal law, rules and regulations.
2.
Distribute in color all signals which it receives in color.
3.
Distribute in stereo all signals which are capable of being received
by Grantee in stereo.
4.
Make available upon request at reasonable cost by any subscribers
receiving channels showing premium services and pay per view events,
a lockout device which prevents the unauthorized viewing of such channels.
5.
Make available to subscribers at reasonable cost, upon request, an
RF switch (an A-B switch) permitting conversion from cable to antenna
reception.
6.
Provide state of the art service and capacity as is reasonable in
light of both cost and services provided by neighboring systems of
comparable size.
[Ord. 167, 8/8/1989]
Each Cable Television System shall include equipment capable
of providing standby power for headend, transportation and truck amplifiers
for a minimum of three hours and all repair work shall be performed
in a manner to minimize interruption of service. The system shall
incorporate safeguards necessary to prevent injury to linemen resulting
from a standby generator powering a "dead" utility line.
[Ord. 167, 8/8/1989]
Each Cable Television System shall include an "Emergency Alert
Capability" which will permit the Township, in times of emergency
and in cooperation with other communities served by the Cable Television
System, to override by remote control alternatively the audio and
video of all channels simultaneously.
[Ord. 167, 8/8/1989]
1.
Each Grantee shall construct, install and maintain its Cable Television
System in a manner consistent and in compliance with all applicable
laws, ordinances, construction standards, governmental requirements,
and technical standards equivalent to those established by the FCC.
Each Grantee shall provide to the Board of Supervisors, upon request,
written reports of the Grantee's annual proof of performance tests
conducted pursuant to FCC standards and requirements.
2.
Each Grantee shall at all times comply with the National Electrical
Safety Code (National Bureau of Standards); National Electrical Code
National Bureau of Fire Underwriters); applicable FCC and other Federal,
State and local regulations; and codes and other ordinances of the
Township.
3.
The Cable Television System shall not endanger or interfere with
the safety of persons or property within the Township or other areas
where the Grantee may have equipment located.
4.
All working facilities, conditions and procedures, used or occurring
during construction of the Cable Television System shall comply with
the standards of the Occupational Safety and Health Administration.
5.
Construction, installation and maintenance of the Cable Television
System shall be performed in an orderly and workmanlike manner, and
in close coordination with public and private utilities serving the
Township following accepted construction procedures and practices
and working through existing committees and organizations.
6.
All cable and wires shall be installed, where possible, parallel
with electric and telephone lines, and multiple cable configurations
shall be arranged in parallel and bundled with due respect for engineering
consideration.
7.
Any antenna structure used in the Cable Television System shall comply
with construction, marking and lighting of antennae structures, required
by the United States Department of Transportation.
8.
The Grantee shall comply with all FCC regulations regarding RF leakage,
which shall be checked periodically in accordance with FCC regulations
at reception locations for emergency radio services to prove no interference
signal combinations are possible. Radiation shall be measured adjacent
to any proposed aeronautical navigation or communication radio sites
to prove no interference to air navigational reception.
[Ord. 167, 8/8/1989]
1.
A Franchise shall not be sold, assigned or transferred, either in
whole or in part, or leased, sublet, or mortgaged in any manner, nor
shall title thereto, either legal or equitable or any right, interest
or property therein, pass to or vest in any person without the prior
written consent of the Township. Such consent shall not be withheld
unreasonably.
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No such consent shall be required for a transfer to or among
affiliated companies or to related parties, nor a transfer in trust,
mortgage, or other hypothecation as a whole or in part to secure an
indebtedness, except that when such hypothecation shall exceed 50%
of the market value of the property used by the Grantee in conducting
the business of the franchise.
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The proposed assignee must show technical ability, financial
capability, legal qualifications and general character qualifications
as determined by the Township and must agree to comply with all provisions
of the Franchise and such conditions as may be prescribed by the Board
of Supervisors expressed by resolution. The Township shall be deemed
to have denied a proposed transfer or assignment in the event that
its consent is not communicated in writing to Grantee within 120 days
following receipt of written notice of the proposed transfer or assignment.
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2.
The Grantee shall promptly notify the Township of any actual or proposed
change in, or transfer of, or acquisition by any other party of, control
of the Grantee. The word "control" as used herein is not limited to
major stockholders but includes actual working control in whatever
manner exercised. Every change, transfer or acquisition of control
of the Grantee shall make the Franchise subject to cancellation unless
and until the Township shall have consented thereto, which consent
will not be unreasonably withheld. However, a transfer of control
shall not be deemed to have occurred where the transfer is (i) to
or among affiliated companies; or (ii) to related persons. For the
purpose of determining whether it shall consent to such change, transfer
or acquisition of control, the Township may inquire into the qualifications
of the prospective controlling party and the Grantee shall assist
the Township in any such inquiry.
3.
A rebuttable presumption that a transfer of control has occurred
shall arise upon the acquisition or accumulation by any unrelated
person or group of persons of 10% of the voting control of the Grantee.
4.
The consent or approval of the Board of Supervisors to any transfer
of the Franchise shall not constitute a waiver or release of the right
of the Township in and to the streets, and any transfer shall by its
terms, be expressly subordinate to the terms and conditions of a Franchise.
5.
In any absence of extraordinary circumstances, the Township will
not approve any transfer or assignment of a Franchise prior to substantial
completion of construction of a proposed system.
6.
In no event shall a transfer of ownership or control be approved
without the successor in interest becoming a signatory to the Franchise
Agreement.
[Ord. 167, 8/8/1989]
1.
Each Grantee shall file with its acceptance of a Franchise, and at
all times thereafter maintain in full force and effect until construction
of its Cable Television System has been completed, an acceptable corporate
surety bond issued by a surety licensed therefor by the Commonwealth
of Pennsylvania in the estimated amount of the proposed construction
as specified in the Franchise Agreement. The surety bond shall be
conditioned that in the event the Grantee shall fail to complete construction
of the Cable Television System in a timely manner whether or not the
Franchise is terminated, then there shall be recoverable jointly damages
and costs of repairing or completing the Cable Television System,
and cost of removal or abandonment of property and repair of streets
and other public or private improvements, up to the full amount of
the bond; said condition to be a continuing obligation until the Grantee
has satisfied all of its construction obligations which may have arisen
from the acceptance of the Franchise or from its exercise of any privileges
thereunder. The bond shall not be cancelled by the surety, whether
for failure to pay a premium or otherwise, without 30 calendar days
advance written notice mailed by the surety to the Township Secretary
by certified mail. The form of the bond and surety shall be subject
to the approval by the Township Solicitor.
2.
Neither the provisions of this Section, nor any bond presented pursuant
thereto, nor any damages recovered thereunder shall be construed to
excuse faithful performance by the Grantee or to limit the liability
of the Grantee under the Franchise or for damages.
[Ord. 167, 8/8/1989]
1.
Within 30 days of the effective date of the Ordinance awarding a
Franchise or Franchise Renewal, a Grantee shall cause to be established
and issued by a Federally insured commercial lending institution an
irrevocable letter of credit in favor of the Township in an amount
as specified in the Franchise Agreement or Franchise Renewal Agreement.
The Grantee shall be required to maintain a letter of credit throughout
the term. The form and substance of said letter of credit are subject
to the approval of the Township Solicitor. The purpose of the aforesaid
letter of credit is to insure the faithful performance by a Grantee
of all provisions of this Part and the Grantee's Franchise Agreement,
and compliance with all orders, permits and directions of any agency,
commission, board, department, division or office of the Township
having jurisdiction over a Grantee's acts or defaults under a Franchise
and the payment by the Grantee of any penalties, liquidated damages,
claims, liens and taxes due the Township which arise by reason of
the construction, operation or maintenance of the system, including
cost of removal or abandonment of any property of Grantee.
2.
The letter of credit may be drawn upon by the Township by presentation
of a draft at sight on the lending institution, accompanied by a written
certificate on Township letterhead signed by the Township Manager
certifying that the Grantee has failed to comply with this Part, the
Franchise or Franchise Agreement, stating the specific reasons therefor,
and stating the basis for the amount being drawn. Examples of a basis
for drawing upon the letter of credit include but are not limited
to the following:
A.
Failure of the Grantee to pay the Township any taxes after 10 days
written notice of delinquency.
B.
Failure of the Grantee to pay to the Township after 10 days written
notice, any amounts due and owing the Township by reason of the indemnity
provisions of this Part.
C.
Failure by the Grantee to pay to the Township any liquidated damages
due and owing to the Township;
D.
Failure by the Grantee to pay any amounts owing as franchise fees
pursuant to § 429 and § 430 of this Part.
3.
The Grantee shall be required to maintain a Letter of Credit throughout
the term in the amount stated on the Franchise Agreement, and shall,
within 10 days of the Township's draw-down under a letter of credit,
increase its letter of credit or provide a new letter of credit so
that the Township will have available the full amount stated in the
Franchise Agreement.
4.
The rights reserved to the Township with respect to the letter of
credit are in addition to all other right of the Township, whether
reserved by a Franchise or authorized by law, and no action, proceeding
or exercise of a right with respect to such letter of credit shall
affect any other right the Township may have.
[Ord. 167, 8/8/1989]
Each Grantee shall, at its sole expense, fully indemnify, defend
and hold harmless the Township, and their capacity as such, the officers,
agents and employees thereof, from and against any and all claims,
suits, actions, liability and judgments for damages or otherwise:
1.
For actual or alleged injury to persons or property, including loss
of use of property due to an occurrence, whether or not such property
is physically damaged or destroyed, in any way arising out of or through
the acts or omissions of the Grantee or its officers, agents, employees,
or contractors or to which the Grantee's or its officers, agents,
employees or contractors acts or omissions in any way contribute.
2.
Arising out of or alleged to arise out of any claim for damages for
invasion of the right of privacy, defamation of any person, firm or
corporation, or the violation or infringement of any copyright, trademark,
trade name, service mark or patent, or of any other right of any person,
firm or corporation.
3.
Arising out of or alleged to arise out of Grantee's failure to comply
with the provisions of any statute, regulation or ordinance of the
United States, Commonwealth of Pennsylvania or any local agency applicable
to the Grantee in its business.
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Nothing herein shall be deemed to prevent the parties indemnified
and held harmless from participating in the defense of any litigation
by their own counsel at the Grantee's sole expense. Such participation
shall not under any circumstances relieve the Grantee from its duty
of defense against liability or of paying any judgment entered against
such party.
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[Ord. 167, 8/8/1989]
1.
As a part of the indemnification provided by § 423, but
without limiting the foregoing, each Grantee shall file with the application,
and at all times thereafter maintain in full force and effect at its
sole expense, an acceptable policy or policies of liability insurance,
including comprehensive general liability insurance, products/completed
operations liability, personal injury liability, owners and contractors
protective liability, broad form property damage, contractual liability,
automobile liability (owned, nonowned and hired automobiles), workers
compensation and employer liability. The Grantee and the Township
and its officers, agents, and employees shall be named as additional
insureds, and the policy or policies shall contain cross-liability
endorsements. Policies of insurance shall be in the single limit amount
of $1,000,000 per occurrence. The insurance policy or policies shall
insure against the types of liabilities covered by the indemnification
and hold harmless provisions of § 423.
2.
The form and substance of the policy or policies of insurance shall
be subject to approval by the Township Solicitor.
3.
The policy or policies of insurance shall be maintained by the Grantee
in full force and effect during the entire term of the Franchise.
Each policy of insurance shall contain a statement on its face that
the insurer will not cancel the policy or fail to renew the policy,
whether for non-payment of premium, or otherwise, and whether at the
request of the Grantee or for other reasons, except after 30 calendar
days advance written notice mailed by the insurer to the Township
Secretary by certified mail.
[Ord. 167, 8/8/1989]
No provision of this Part shall be deemed to bar the right of
the Township to seek or obtain judicial relief from a violation of
any provision of the Franchise or any rule, regulation, requirement
or directive promulgated thereunder. Neither the existence of other
remedies identified in this Part not the right of the Township to
recover monetary damages (except where liquidated damages are otherwise
prescribed) for such violation the Grantee, or judicial enforcement
of the Grantee's obligations by means of specific performance, injunction
relief or mandate, or any other judicial remedy at law or in equity.
[Ord. 167, 8/8/1989]
A Grantee shall not be relieved of any obligation to comply
with any of the provisions of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder by reason of any failure
of the Township or its officers, agents or employees to enforce prompt
compliance.
[Ord. 167, 8/8/1989]
On request, the Grantee shall provide to the Township copies
of all petitions, applications, communications and reports submitted
by the Grantee to the FCC or any other Federal or State regulatory
commission or agency having jurisdiction in respect to any matters
affecting construction or operation of a Cable Television System or
services provided through such a system. Copies of responses or any
other communications from the regulatory agencies to a Grantee likewise
shall be provided on request to the Township.
[Ord. 167, 8/8/1989]
The Township Board of Supervisors expressly reserves the right
to approve the rates which the Grantee charges its subscribers for
basic cable service to the extent the Board of Supervisors is permitted
to do so by law. Such approval shall not be unreasonably withheld.
"Basic cable service" shall mean any tier of service which includes
the retransmission of local broadcast signals. The Grantee shall not
deny, delay, interrupt or terminate Cable Communications Services
to subscribers or users because the Board of Supervisors denies a
request for a rate increase, provided, however, that nothing herein
shall be construed to limit the Grantee's right to seek judicial review
of such action. Grantee shall notify the Township of any proposed
rate increase at least 60 days in advance of the effective date of
said increase. The increase shall take place automatically unless
denied by the Board of Supervisors at a public meeting, after public
hearing, during the sixty-day period.
[Ord. 167, 8/8/1989]
For the use of the streets and for the purposes of providing
revenue with which to defray the costs of regulation arising out of
the granting of Franchises under this Part and each Grantee shall
pay Franchise Fees in the amount prescribe by § 430.
[Ord. 167, 8/8/1989]
1.
During the term of each Franchise, each Grantee shall pay to the
Township an amount equal to 5% per year of the Grantee's annual gross
revenues. Said fees shall be paid quarterly not later than August
1, November 1, February 1 and May 1 for the preceding three-month
period ending, respectively, June 30, September 30, December 31 and
March 31. Not later than the date of each payment, each Grantee shall
file with the Township a written statement in the form prescribed
by the Township and signed under penalty of perjury by an officer
of the Grantee, which identifies the sources and amounts of gross
revenues received by a Grantee during the quarter for which payment
is made.
2.
No acceptance of any payment shall be construed as an accord that
the amount paid is, in fact, the correct amount, nor shall such acceptance
of payment be construed as a release of any claim which the Township
may have for further or additional sums payable under the provisions
of this Section.
[Ord. 167, 8/8/1989]
Any Franchise Fees which remain unpaid after the dates specified
in § 430 above shall be delinquent and shall thereafter
accrue interest at the rate of 18% per annum.
[Ord. 167, 8/8/1989]
Not less than annually, the Grantee shall provide the Township
with an unqualified certification of an independent certified public
accountant certifying the accuracy of the Franchise Fee payments made
during the preceding 12 months pursuant to § 430. Said certification
shall be prepared in accordance with generally accepted accounting
standards as established by the Financial Accounting Standards Board
(FASB).
[Ord. 167, 8/8/1989]
1.
For purposes of the gross revenue calculations required by § 430
above, the phrase "consideration derived directly or indirectly" as
used in § 403(9) above shall include but not be limited
to:
A.
Any contract in which the Grantee is to receive a percentage of the
gross revenues and/or a percentage of the net income of the other
party to the transaction by reason of the activities encompassed by
said contract.
B.
Any debt relationship in which the Grantee as debtor borrows funds
at a rate more advantageous than that generally available to similarly
situated entities of similar credit worthiness.
C.
Any debt relationship in which the Grantee as creditor receives a
rate of interest exceeding that which would otherwise be paid by a
similarly situated debtor of similar credit worthiness.
D.
Any option or warrant to purchase the stock or other equity interest
in an entity or entity related to an entity which generates revenues
arising from or attributable to the operation of the system, where
such option or warrant is obtained in lieu of actual payment to Grantee
for services provided.
E.
Any debt relationship which has conversion privileges to a form of
equity of the nature described in the preceding subsection.
2.
For purposes of the gross revenue calculation required by § 430
above, the phrase "arising from or attributable to operation of the
cable television system" as used in § 403(9) above shall
include but not be limited to:
A.
Any activity, product or service which generates revenue of any type
whatsoever to the Grantee and which is offered to the subscribers
of the system.
B.
Revenue derived from the sale of the System's subscriber list or
any portion thereof.
C.
Any consideration received for the use of the System's production
facilities or administrative facilities.
[Ord. 167, 8/8/1989]
During the term of each Franchise, the Township may, not more
frequently than once each year, conduct an audit of the books, records
and accounts of the Grantee for the purpose of determining whether
the Grantee has paid Franchise Fees in the amounts prescribed by § 430.
The audit may be conducted by an independent certified public accounting
firm retained by the Township, and shall be conducted at the sole
expense of the Township. The party conducting the audit shall prepare
a written report containing its findings, and the report shall be
filed with the Township, and mailed to the Township and Grantee.
[Ord. 167, 8/8/1989]
1.
By acceptance of the Franchise granted by the Township, a Grantee
understands and shall agree that failure to comply with any time and
performance requirements as stipulated in this Part and the Franchise
Agreement will result in damage to the Township, and that it is and
will be impracticable to determine the actual amount of such damage
in the event of delay or non-performance. As a result, the Grantee
shall be liable for liquidated damages in amounts set forth below:
A.
For failure to complete system construction or reconstruction in
accordance with this Part and the Franchise Agreement, unless the
Board of Supervisors specifically approves the delay by motion or
resolution due to the occurrence of conditions beyond Grantee's control,
a Grantee shall pay $300 per day for each day, or part thereof, the
deficiency continues.
B.
For failure to provide to the Township within 15 days of written
request, data, documents, reports, information, a Grantee shall pay
$50 per day, or part thereof, each violation occurs or continues.
Failure to provide each document shall constitute a separate violation.
C.
For failure to test, analyze and report on the performance of the
System within 15 days following a written request pursuant to this
Part or the Franchise Agreement, a Grantee shall pay to Township $100
per day for each day, or part thereof, that such noncompliance continues.
D.
For failure to provide in a continuing manner the types of services
proposed in the Franchise Agreement, unless the Board of Supervisors
specifically excuses the delay or change, or the Grantee has obtained
modification of its obligation under § 625 of the Cable
Communications Policy Act of 1984, Grantee shall pay to the Township
$300 per day for each day, or part thereof, that each noncompliance
continues.
E.
If the Township concludes that a Grantee is liable for liquidated
damages pursuant to this Section, it shall issue to Grantee by certified
mail a notice of intention to assess liquidated damages. The notice
shall set forth the basis for the assessment and inform the Grantee
that liquidated damages will be assessed beginning 15 days after the
date of the notice unless the assessment notice is appealed for hearing
before the Board of Supervisors and the Board of Supervisors rules
that a reduction in the assessment or that an extension of time or
other relief should be granted. A Grantee desiring a hearing before
the Board of Supervisors shall send a written notice of appeal by
certified mail to the Township within 10 days of the date on which
the Township sent the notice of intention to assess liquidated damages.
A public hearing on the Grantee's appeal shall [held] be within 30
days of the date of Grantee's notice of appeal.
2.
Unless the Board of Supervisors indicates to the contrary, said liquidated
damages shall be assessed beginning with the date on which the Township
sent the notice of the intention to assess liquidated damages and
continuing thereafter until such time as the violation ceases, as
determined by the Board of Supervisors.
[Ord. 167, 8/8/1989]
1.
In the event the Grantee should violate any of the terms of this
Part or any applicable Federal, State or local law or regulation,
or any of the rules and regulations as may hereafter be from time
to time lawfully adopted, or any provision of the Franchise Agreement,
the Township may, after giving notice of deficiency, and after the
time period for correction (and appeal) has expired:
A.
Make such correction itself and charge the cost of the same to the
Grantee.
B.
Secure the proceeds from the performance bond required by § 421
of this part for construction delays.
C.
Secure the proceeds from the Letter of Credit required by § 422
of this Part, as authorized by § 435 of this Part.
D.
In the case of a material breach of this part or the Franchise Agreement,
declare the Grantee in default and terminate the Franchise and rights
granted under the Franchise.
2.
A material breach by Grantee shall include, but shall not be limited
to the following:
A.
Violation of any material provision of the Franchise Agreement, Franchise
Renewal Agreement, this Part or any material rule, order, regulation
or determination of the Township made pursuant to the Franchise Agreement,
Franchise Renewal Agreement or this Part.
B.
Attempt to evade any material provision of the Franchise Agreement,
Franchise Renewal Agreement or this Part or the practicing of any
fraud or deceit upon the Township or its subscribers or customers.
C.
Failure to begin or complete System construction, reconstruction
or System extension as provided under the Franchise Agreement, Franchise
Renewal Agreement or this Part.
D.
Failure to provide the types of services promised, assuming Grantee
has unsuccessfully pursued whatever recourse is available under § 416
of this Part and § 625 of the Cable Communications Policy
Act of 1984.
E.
Failure to restore cable service after 96 consecutive hours of interrupted
service, except when approval of such interruption is obtained from
the Township or due to conditions beyond the Grantee's control.
F.
Material misrepresentation of fact in the application for or negotiation
of the Franchise Agreement or Franchise Renewal Agreement.
3.
Prior to terminating a Franchise, the Township shall make a written
demand that a Grantee comply with any such provision, rule, order
or determination under or pursuant to this Part, the Franchise Agreement
or Franchise Renewal Agreement. If the material breach by the Grantee
continues for a period of 30 days following such written demand without
written proof that the corrective action has been taken or is being
actively and expeditiously pursued, the Board of Supervisors may schedule
a public hearing to address termination of a Franchise. The Board
of Supervisors shall hear and consider the issue and shall hear any
person interested therein, and shall determine in its discretion whether
or not any material breach by the Grantee has occurred. If the Board
of Supervisors shall determine the material breach by a Grantee was
the fault of the Grantee and within its control, the Board of Supervisors
may, by resolution, declare that the franchise of the Grantee shall
be forfeited and terminated immediately or forfeited and terminated
unless there is compliance within such period as the Board of Supervisors
may fix.
4.
Any enforcement action or remedy provided by this Section or this
Part or by the Franchise Agreement shall not be deemed exclusive but
shall be alternative or cumulative in nature.
5.
Notwithstanding anything to the contrary in this Part, the Township
shall not impose any penalty upon the Grantee where either the violation
or failure to cure the same results from force majeure, labor dispute,
declaration of war or other hostilities, Act of God, or any other
reason beyond the control of the Grantee.
