[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:
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.
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
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.
