Borough of Sharon Hill, PA
Delaware County
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Table of Contents
Table of Contents
[Adopted 4-22-1999 by Ord. No. 1267 (Ch. A129, Art. II, of the 1972 Code)]
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" 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 Borough of Sharon Hill, 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 Borough of Sharon Hill 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 ordinance by the company, provided that the company shall have the option of extending this franchise for an additional term of five years, unless the Borough 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 Borough 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:
(1) 
Identifying the future cable-related community needs and interest.
(2) 
Reviewing the company's performance under the franchise. Upon completion of the above proceeding, the company may submit a proposal for renewal.
C. 
A four-month period shall be allowed for determining the company's eligibility for franchise renewal. The Borough shall consider the company's annual reports to the Borough, 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 ordinance. After a public hearing, duly advertised, the Council shall make recommendation, in writing, to the Borough for renewal of the franchise without change in contract, renewal with 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.
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 towers, poles, lines, cable, facilities, services, licenses and franchises within the limits of the Borough of Sharon Hill, Pennsylvania, including the Bell Telephone Company of Pennsylvania and the Philadelphia Electric Company and to use such towers, poles, lines, cables and other equipment and facilities, subject to all existing and future ordinances and regulations of the Borough, so long as such future ordinances and regulations of the Borough do not materially adversely affect 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.
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, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to its system, provided that all appropriate permits from the Borough 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 homeowner and the Borough in conjunction with the Borough Council and, in addition, so to use, operate and provide similar properties rented or leased from other persons, firms or corporations for such purpose. In addition, the company shall be required to provide seven days' advance notification of construction activity to affected property owners.
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 Borough 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 Borough, the company shall, upon reasonable notice from the Borough, 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.
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, American Institute of Electrical Engineers and American Society of Mechanical Engineers. The company shall comply with all Borough regulations, ordinances and state and federal laws now existing or hereinafter enacted so as not to interfere with the right 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.
E. 
In the construction, conduct, maintenance and operation of its business, the company shall comply with all requirements of Borough 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.
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, it shall, at its own expense and in a manner approved by the Borough, replace and restore such areas 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 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 customer's 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 agents or employees.
The franchise granted herein grants the company the right to install and operate 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 Borough 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 Borough, free of expense, joint use of any and all poles owned by it for any proper Borough 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 Borough does not compete with the company.
In case of any emergency or disaster, the company shall, upon request of the Borough or its civil defense authority, make its facilities and personnel available to the Borough 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 Borough, the company shall install a TV monitor and state of the art character generator and VCR in the Municipal Building and shall maintain the necessary equipment to provide exclusive use of one channel for Borough 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 Borough 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 anytime there is a loss or 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 subscriber's television set.
E. 
The company shall keep a log and, at the request of the Borough, file a copy thereof at the end of each quarter with the Borough, 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 Borough, 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 Borough. Such interconnection shall be made within 60 days of a request by the Borough. The company may request and the Borough may grant reasonable extension of time for company to comply with this requirement.
G. 
The company shall have a representative attend meetings of the Borough or any other meetings when requested.
A. 
The company shall pay to the Borough 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 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 Borough. 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 Subsection A above, the Borough shall automatically be entitled to receive and the company shall be obligated to pay the higher fee upon adoption by the Borough of an ordinance with the higher fee set forth therein.
C. 
The company shall provide and file with the Borough annual certified audited financial statements. The company shall also make available to the Borough, upon request, all documents necessary for the Borough 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. The company shall notify the Borough 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 this franchise term, the Borough 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 ordinance. The company shall be responsible for the payment of the Borough auditor's reasonable fees.
E. 
The company is required to file quarterly reports, including but not limited to the franchise fee payment worksheet (to be provided by the Borough), within 15 days of quarter's end, which present earned revenue. On a quarterly basis, the company shall pay 100% of the fees to the Borough. The Borough Manager/Secretary or his/her representative shall have the right to examine or have examined the books and records of the company to assure compliance with the terms and provisions of this ordinance, such cost to be paid by the company. Noncompliance with the aforementioned will result in a penalty of 10% on moneys due for that quarter.
F. 
The company shall keep on file with the Borough 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 Borough by giving written notice to the Borough. The Borough shall have 120 days to accept said offer under the same terms and conditions as the offer received by company. In the event that the Borough does not accept the offer, the franchise cannot be transferred, leased, assigned or disposed of, as a whole or in part either by forced sale, merger, consolidation or otherwise, without the prior consent of the Borough expressed by this ordinance, which consent shall not be unreasonably withheld.
B. 
Notwithstanding the foregoing, the Borough's consent to transfer shall not be required in the event of a transfer or assignment of this franchise to a parent, subsidiary or 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 Borough at least 30 days in advance of such transfer. In this event, the Borough shall not be afforded the right of first refusal.
Upon request by a subscriber for termination of service, and such termination is not due to nonpayment for service, the company shall promptly:
A. 
Remove all personal property and/or equipment, including but not limited to converters and remote controls.
B. 
Disconnect cable or wiring into the subscriber's premises, either at the point of entry or at a feed point from cable tap.
C. 
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 the customer to discontinue service. If the company has the capability of discontinuing service without visiting premises, then the effective date of termination shall be the day the customer requests termination of service.
D. 
Promptly return security deposits, if any, upon the customer returning equipment for which the deposit is applicable.
E. 
Submit final statement of account to the customer within 45 days of voluntary termination of service.
F. 
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 subscriber premises. However, upon request from the subscriber, the company must remove aerial cable or wiring from only the exterior of customer's property.
At the expiration of the term for which this franchise is granted or upon its termination and cancellation as provided for herein, the Borough shall have the right to require the company to remove, at its own expense, all aboveground portions of the system from all public ways within the Borough.
The company will file with the Borough true and accurate copies of as-built maps and schedules of any major 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 Borough.
A. 
Notice of violation. In the event the Borough believes the grantee has not complied with the terms of this ordinance, it shall notify grantee in writing, by certified or registered mail, of the exact nature of the alleged noncompliance.
B. 
Grantee's right to cure or respond. The grantee shall have 30 days from receipt of the notice described in Subsection A to respond to the Borough, 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 Borough for additional time in which to take reasonable steps to remedy such default, and such permission shall not be unreasonably withheld. In the event the grantee 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 Borough Council. In the event the Borough Council affirms the assertion of noncompliance following a hearing affording the grantee the opportunity to be heard, then the grantee 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 ordinance, 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; insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; 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 Borough by virtue of this ordinance or otherwise, the Borough 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 ordinance or any rule, order or determination of the Borough or Borough Council made pursuant to this ordinance.
(b) 
Becomes insolvent or unable or unwilling to pay its debts or is adjudged as bankrupt.
(c) 
Violates any federal or Pennsylvania law or regulation.
(2) 
Such termination and cancellation shall be by written notice to the company from the Borough Council, provided that the provisions of § A375-41 herein have been followed, and shall in no way affect any of the Borough's rights under this franchise or any provision of law.
This ordinance and the rights granted to the company shall become effective upon execution of a contract between Sharon Hill Borough and the franchisee, binding both parties to abide by all conditions of this ordinance.
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 Borough 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 ordinance.
B. 
The company shall pay, and by its acceptance of this franchise specifically agrees that it will pay, all expenses incurred by the Borough 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 Borough Solicitor or his assistants or any employees of the Borough.
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 Borough 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 Borough in the penal sum of $100,000, conditioned that the company shall well and truly observe, fulfill and perform each term and condition of this ordinance 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 Borough for all damages resulting from the failure of the company to well and faithfully observe and perform any provision of this ordinance.
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 Borough Council, 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 Borough Manager/Secretary during the term of this ordinance.
F. 
All expenses of the above-noted insurance and bond shall be paid by the company.
The company shall:
A. 
Provide each school designated by the Borough, fire station, public library and Borough building, and such public auditoriums and institutions as are requested by the Borough 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 specially designated channel for use by the Southeast Delco School District and provide at no cost a character generator for its exclusive use.
D. 
Local government access channel. The company shall maintain one specially designated channel for Sharon Hill Borough municipal use at the Borough building or other place the Borough may designate and provide at no cost a character generator and TV monitor for its exclusive use.
E. 
Public access/leased access channel. The company shall maintain at least one specially designated, noncommercial public access/leased access channel available on a first-come, nondiscriminatory basis. In addition, other portions of its nonbroadcast bandwidth, 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 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 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 headend 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 headend 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 in or near the Sharon Hill Borough 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 educational VHF stations and local UHF stations and, in addition, no fewer than two distant commercial stations.
I. 
Provide, without charge to the Borough, the company's high-speed Internet access service at up to five locations within the Borough Building. Such locations shall be determined by the Borough Manager/Secretary.
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. 1267, provided that, where there is a conflict between such ordinance and this agreement, the language of the agreement shall prevail.
The company shall make cable service available, when permitted by the property owner, to all residents in private housing in the Borough subject to all provisions of this ordinance.
The company must obtain a permit from the Borough 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 Borough 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.
A. 
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 the franchise ordinance. In consideration of the grant of the franchise to the company, the company also releases the Borough 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 ordinance and charter of the Borough of Sharon Hill 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.
B. 
The company shall compensate the Borough Solicitor reasonable attorneys' fees for services rendered on behalf of the Borough in connection with this ordinance up to a maximum of $5,000.
A. 
The company shall indemnify and hold the Borough and its agents 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 Borough, the company shall at its own expense defend any such actions or proceedings.
B. 
Indemnified expenses shall include, without limitation:
(1) 
All out-of-pocket expenses, such as reasonable attorneys' fees;
(2) 
Requests for relief arising out of any claim for invasion of the right of privacy; for defamation of any person, firm or corporation; for 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, excluding claims arising out of or relating to the Borough's own programming and leased access;
(3) 
Any and all claims arising out of the company's failure to comply with the provisions of this franchise ordinance or any federal, state or local law, ordinance or regulation applicable to the company or the CATV system;
(4) 
Any and all claims which the company may now or hereafter have or claim to have against the Borough, 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 Borough or any of its servants, agents, attorneys, representatives, employees or officials; and
(5) 
Any and all disputes arising out of a claim, wherein damages or other relief is sought as a result of the Borough's cable communications franchising procedure or as a result of the renewal of the cable communications franchise, or as a result of the Borough's award or failure to award a franchise to any other person, partnership, corporation or other legal entity.
C. 
If suit be brought or threatened against the Borough, 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 Borough, shall defend the Borough at the cost of the company. If final judgment is obtained against the Borough, either independently or jointly with the company or any other defendants, the company shall indemnify the Borough and pay such judgment with all costs and satisfy and discharge the same.
D. 
In order for the Borough to assert its rights to be indemnified, defended or held harmless, the Borough must:
(1) 
Promptly notify the company of any claim or legal proceeding which gives rise to such right;
(2) 
The Borough shall 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 Borough, in its sole discretion, determines that its interests cannot be represented in good faith by the company; and
(3) 
The Borough shall 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 Subsection D(2) above.
E. 
The Borough 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 Borough, all expenses incurred by the Borough 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 Borough) rendered by the Borough or any of its employees, officials, attorneys, servants, agents or representatives.
F. 
The Borough 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.
G. 
The company shall make no settlement in any matter identified above without the Borough's written consent, which shall not be unreasonably withheld. Failure to inform the Borough of settlement shall constitute a breach of this franchise ordinance, and the Borough may seek any redress available to it against the company.
H. 
If the Borough awards any additional communications franchise 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 Borough, its elected officials, officers, boards, commissions, employees, representatives, servants, agents or attorneys for any award of a franchise made in conformity with this ordinance, Pennsylvania law, the Cable Communications Policy Act of 1984, Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996.
I. 
All rights of the Borough pursuant to indemnification, insurance, letter of credit or performance bond(s), as provided for by this ordinance are in addition to all other rights the Borough may have under this ordinance or any other ordinance, rule, regulation or law.
J. 
The Borough's exercise of or failure to exercise any rights pursuant to any section of this ordinance shall not affect in any way the right of the Borough subsequently to exercise any such rights or any other right of the Borough under this ordinance or any other ordinance, rule, regulation or law.
K. 
It is the purpose of this section to provide maximum indemnification to the Borough 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 Borough by the company.
A. 
To the extent that the Federal Communications Commission shall terminate controls in any area pertinent to this ordinance, this ordinance may be amended by the Borough Council with the consent of the company.
B. 
If any section, subsection, sentence, clause, phase or portion of this ordinance 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 ordinance, 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.