A.Â
The Township may grant one or more nonexclusive franchises
to install, erect, hang, lay, bury, draw, emplace, construct, reconstruct,
operate or maintain any cable or open video system upon, across, beneath,
or over any public right-of-way within the Township. The franchise shall be
granted under the terms and conditions contained herein, consistent with the
Second Class Township Code[1] and/or other applicable statutory requirements.
[1]
Editor's Note: See 53 P.S. § 65101 et seq.
B.Â
A franchise is broadly construed in favor of the public
and narrowly construed against the grantee, therefore, a franchise to provide
cable service over a cable system or open video system shall not authorize
the grantee to use the public rights-of-way to provide noncable and/or communications
services unless use of the public rights-of-way to provide noncable services
is specifically and expressly authorized by the franchise agreement. A franchise
is a grant of a special government privilege not enjoyed by the general public
which is granted by the Township to the particularly identified grantee or
franchisee on the basis of the specific and unique qualifications, character
and representations made by an individual grantee or franchisee. Therefore,
the franchise, nor ownership or control of a franchise or franchisee, may
not be transferred, assigned, or vested in any person other than the individual
grantee or franchisee without the prior consent of the Township.
Any franchise granted pursuant to this Cable Ordinance shall be nonexclusive.
Subject to applicable state and federal law the Township specifically reserves
the right to grant at any time such additional franchises for a cable, open
video, or other communications system as it deems to be in the public interest,
and/or to construct, purchase, operate, maintain, and own a cable, open video,
or other communications system or systems if the Township determines that
the public interest will be served by such a system or systems.
Any franchise granted by the Township is hereby made subject to the
police power provisions of general ordinances provisions now in effect and
hereafter made effective. Nothing in any franchise shall be interpreted to
prohibit or limit the Township from the proper exercise of its general regulatory
and police powers and/or powers of eminent domain. Nothing in any franchise
shall be deemed to waive the requirements of the various codes and ordinances
of the Township regarding permits, fees to be paid, or manner of construction.
A.Â
In the event that the Township shall grant to a grantee
a nonexclusive revocable franchise to construct, operate, and maintain a cable
or open video system within the Township, said franchise shall constitute
both a right and an obligation to provide the services of a cable or open
video system as regulated by the provisions of this Cable Ordinance and a
franchise agreement, including, but not limited to, narrowcasting and providing
broad categories of services and affiliate programming access as described
in the definitions section of this chapter,[1] to any and all of the residents of Lower Providence Township.
B.Â
The franchise shall be granted under the terms and conditions
contained herein, consistent with the Second Class Township Code and/or other
applicable statutory requirements.
C.Â
Any franchise granted by the Township is hereby made
subject to the general ordinances provisions now in effect and hereafter made
effective. Nothing in the franchise agreement shall be deemed to waive the
requirements of the various codes and ordinances of the Township including,
but not limited to, right-of-way cable and communication ordinances.
D.Â
State of the art continuing obligation.
(1)Â
General requirement. Throughout the term of any franchise
agreement, the franchisee shall construct, operate, maintain and upgrade the
Cable or open video system in order to ensure that it continuously conforms
to the state of the art in accordance with the requirements set forth herein
below. In addition, the franchisee, either on its own initiative or at the
reasonable request of the Township, shall participate in or undertake experiments,
tests, and other activities to enhance and advance state of the art of cable
and open video systems technology.
(2)Â
State-of-the-art report. A franchisee shall provide to
the Township, in a form satisfactory to the Township, at the Township's request,
but no more often than once every year, a report setting forth the franchisee's
review and assessment of the current state of the art of cable and open video
systems and its plans, if any, for upgrading the system to conform to the
state of the art. The report shall address, at a minimum, technological advances
making possible enhanced signal quality, publicly available equipment for
the receipt of services or greater channel capacity and interactive systems;
a list of each jurisdiction in which new technologies have been or are being
used and a description of the experience those jurisdictions have had with
such new technologies; an assessment of the costs associated with implementing
such new technologies into the system; the franchisee's activities to enhance
or advance such technology in connection with the system and any other cable,
open video or other communications system operated by the franchisee or any
affiliated person in the Township or elsewhere and the franchisee's compliance
with and any modifications with respect thereto; an assessment of the need
to scramble signals distributed over the system in order to prevent theft
of service (such assessment to investigate alternatives to scrambling of signals
and include a cost/benefit analysis of both scrambling and such alternatives
that takes into account significant costs and benefits both to the franchisee
and subscribers); a discussion of additional technological advances anticipated
during the remainder of the term of the franchise, along with a projection
of the costs and timetable for the franchisee offering such advances as part
of or over the system; a discussion of what improvements the franchisee anticipates
making in its customer service facilities, equipment, systems and operations
during the remainder of the term of the franchise, along with a projection
of the costs and timetable for the implementation of such improvements; a
description of any technical experimentation which the franchisee or any affiliated
person anticipates undertaking during the remainder of the term of the franchise;
an assessment of the compatibility of the system with subscribers' televisions
and videocassette recorders, the franchisee's compliance with the rules and
regulations promulgated by the FCC pursuant to Section 624A of the Cable Act
(47 U.S.C. §544a) and any experimentation the franchisee is making to
enhance such compatibility; and, generally, the steps the franchisee or any
affiliated person is undertaking to continuously construct, operate, maintain
and upgrade the system in accordance with the state of the art. The state-of-the-art
report submitted by a franchisee may be only one resource that the Township
will consider in evaluating the franchisee's obligation pursuant to the terms
and conditions of the chapter to continuously construct, operate, maintain
and upgrade the system in accordance with the state of the art, and the Township
may commission third parties, as necessary, to ascertain the current state
of the art in cable and open video systems generally.
(3)Â
Procedures for maintaining state of the art. Upon receiving
the report from a franchisee required pursuant to this section of the chapter,
the Township will evaluate such report and assemble any additional data necessary
to ascertain whether the franchisee's system or any aspect thereof needs to
be upgraded so that it meets the state-of-the-art requirement set forth herein.
(4)Â
Directive. Upon completing the evaluation contemplated
by this section of the chapter, and after providing notice to a franchisee
and an opportunity for the franchisee to comment, the Township may issue a
directive to the franchisee to upgrade the system so as to incorporate state-of-the-art
features. Within 45 days after receipt of such directive, such franchisee
shall submit plans, as specified by the Township, describing how it intends
to complete such upgrade. Upon approval of such plans by the Township, the
franchisee shall commence and diligently pursue implementation of the required
upgrade with a date certain for completion. Failure to comply shall make way
for a competitor to use current cable infrastructure in Township rights-of-way
to provide for said improved services. Improved services shall also take into
consideration pricing points on all services to Township residents.
(5)Â
"State-of-the-Art" or "State of the art," as applicable,
means that level of technical or service performance, capacity and capability
(including, but not limited to, plant or other equipment; access channel and
other production equipment or facilities; construction techniques; customer
service; facilities, equipment, pricing, systems and operations; and performance
standards) which has been developed and demonstrated in the cable and OVS
industry, or any other comparable industry that provides services to the public
under similar conditions, to be workable and economically and technically
feasible and viable from time to time throughout the term of the franchise.
(6)Â
"Economically and technically feasible and viable" means
capable of being provided through technology which has been demonstrated in
actual applications (not simply through tests or experiments) to operate in
a workable manner, and in a manner which has a reasonable likelihood of generating
additional revenues or other financial benefits such as lowering the costs
to residents for a system, when measured over the term of the franchise.
A.Â
No person shall install, erect, hang, lay, bury, draw,
emplace, construct, or reconstruct any cable or open video system or associated
facilities upon, across, beneath, or over more than a de minimis amount of
any public right-of-way within the Township without a valid franchise granted
by the Township; provided, however, that the Township shall not unreasonably
refuse to grant such a franchise.
B.Â
No person shall operate any cable or open video system
or associated facilities installed, erected, hung, laid, buried, drawn, emplaced,
constructed, or reconstructed upon, across, beneath, or over more than a de
minimis amount of any public right-of-way within the Township without a valid
franchise granted by the Township; provided, however, that the Township shall
not unreasonably refuse to grant such franchise.
C.Â
No person shall provide any cable or other communications
services over a cable or open video system that utilizes any facility or facilities
installed, erected, hung, laid, buried, drawn, emplaced, constructed, or reconstructed
upon, across, beneath, or over more than a de minimis amount of any public
right-of-way within the Township without a valid franchise granted by the
Township; provided, however, that the Township shall not unreasonably refuse
to grant such franchise.
A.Â
No erection or installation of any tower, pole, underground
conduit, or fixture or any rebuilds or upgrading of the cable or open video
system shall be commenced by any person until approval therefor has been received
from the Township, such approval not to be unreasonably withheld.
B.Â
No poles shall be erected or installed by a grantee without
prior approval of the Township with regard to location, height, type and any
other pertinent aspect related to the grantee's use of the public rights-of-way
within the Township. The Township shall not unreasonably withhold such prior
approval.
The term of any franchise as granted pursuant to this chapter shall
be specified in the franchise agreement at the discretion of the Township.
Acceleration or termination of said franchise may commence or be required
as a penalty or remedy for noncompliance with provisions of this Cable Ordinance
or the franchise agreement.
A.Â
General. For the purpose of operating and maintaining
a cable or open video system in the Township, a grantee may erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon,
across and along the public streets and ways within the Township such wires,
cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and equipment as are necessary to
the operation of the cable or open video systems, provided, however, that
the grantee complies with all design, construction, safety, and performance
provisions contained in this chapter, the franchise agreement, and other applicable
laws, including but not limited to, the Federal Technical Performance Standards,
National Electrical Safety Code (current edition) and public utility company
pole contract standards.
B.Â
Description of facilities.
(1)Â
Prior to the erection of any towers, poles or conduits
or the upgrade or rebuild of the cable or open video system under this chapter,
the grantee shall first submit to the Township and other designated parties
for approval a concise description of the facilities proposed to be erected
or installed within the public rights-of-way, including engineering drawings,
together with a map and plans in a manner acceptable to the Township indicating
the proposed location of all such facilities within the public rights-of-way;
provided, however, that such approval shall not be unreasonably withheld.
(2)Â
All installations shall be underground in those areas
of the Township where public utilities providing both telephone and electric
service are underground at the time of installation. In areas where either
telephone or electric utility facilities are above ground at the time of installation,
the grantee may install its service above ground, provided that at such time
as both those facilities are required to be placed underground by the Township
or are placed underground, the grantee shall likewise place its services underground.
Where not otherwise required to be placed underground by this chapter or the
franchise agreement, the grantee's system shall be located underground at
the request of a property owner, provided that the excess cost over the aerial
location shall be borne by the property owner making the request. All cable
passing under the public way shall be installed in accordance with all state
and local laws and ordinances.
C.Â
Prior to construction or alteration in any public way,
however, the grantee shall in each case file plans with the appropriate Township
agencies and obtain all necessary construction permits and authorizations
before proceeding.
D.Â
Interference with persons, improvements, public and private
property and utilities. The grantee's system and facilities, including poles,
lines, equipment and all appurtenances, shall be located, erected and maintained
so that such facilities shall:
(1)Â
Not endanger or interfere with the health, safety or
lives of persons;
(2)Â
Not interfere with the free and proper use of public
streets, alleys, bridges, easements or other public ways, places or property,
except to the minimum extent possible during actual construction or repair;
(3)Â
Not interfere with the rights and reasonable convenience
of private property owners, except to the minimum extent possible during actual
construction repair; and
(4)Â
Not obstruct, hinder or interfere with any gas, electric,
water or telephone facilities or other utilities located within the Township.
E.Â
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, property, or other surfacing, the grantee shall, at
its own cost and expense and in a manner approved by the Township, replace
and restore all paving, sidewalk, landscaping, or surfacing of any property
or public way, disturbed, in as good a condition as, or better than, before
said work was commenced and in a good workmanlike, timely manner in accordance
with standards for such work set by the Township. Such restoration shall be
undertaken within no more than 10 business days after the damage is incurred
and shall be completed within 30 business days unless otherwise authorized
by the Township.
F.Â
Relocation of facilities. In the event that at any time
during the period of the franchise, the Township, county or state shall lawfully
elect to alter or change the grade of any street, alley or other public ways,
or make repairs or improvements to any infrastructure, the grantee, upon reasonable
notice by the proper authority, shall remove or relocate as necessary its
poles, wires, cables, underground conduits, manholes and other fixtures at
its own expense and with all due deliberate speed.
G.Â
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued by the
Township, temporarily raise or lower its wire to permit the moving of buildings.
The expense of such temporary removal, raising or lowering of wires shall
be paid by the person requesting the same, and the grantee shall have the
authority to require such payment in advance. The grantee shall be given reasonable
advance notice to arrange for such temporary wire changes.
H.Â
Tree trimming. The grantee shall have the authority,
except when in conflict with existing Township ordinances, to trim any trees
upon or overhanging the public right-of-way so as to prevent the branches
of such trees from coming in contact with system facilities, except that at
the option of the Township, such trimming as may be required by the grantee
may be done by the Township, or under its supervision and direction, at the
expense of the grantee. The grantee shall notify the Township prior to trimming
any trees in the right-of-way.
I.Â
Easements. All necessary easements over and under private
property shall be arranged for by the grantee.
No poles shall be erected by a grantee without prior approval of the
Township with regard to location, height, type and any other pertinent aspect.
However, no location of any pole of the grantee shall be a vested right and
such poles shall be removed or modified by the grantee at its own expense
whenever the Township determines that the public convenience would be enhanced
thereby. grantee shall utilize existing poles and conduits, where possible.
The Township shall have the right, during the life of the franchise, to install
and maintain free of charge upon the poles owned by the grantee, any wire
and pole fixtures that do not unreasonably interfere with the operations of
the grantee.
A.Â
Prior to the erection of any towers, poles or conduits
or the upgrade or rebuild of the cable or open video system under this chapter,
the grantee shall first submit to the Township and other designated parties
for approval a concise description of the facilities proposed to be erected
or installed, including engineering drawings, if required, together with a
map and plans indicating the proposed location of all such facilities. No
erection or installation of any tower, pole, underground conduit, or fixture
or any rebuilds or upgrading of the cable or open video system shall be commenced
by any person until approval therefore has been received from the Township,
such approval not to be unreasonably withheld.
B.Â
Where poles already exist for use in serving the Township
are available for use by the grantee, the Township may require the grantee
to use such poles and structures.
A grantee shall have no recourse against the Township or its officials,
boards, commissions, agents, or employees for any loss, costs, expenses, or
damage arising out of any provision or requirement of the franchise or because
of enforcement of the franchise. This section does not preclude recourse by
a grantee if the loss, costs, expenses, or damages arise from willful misconduct
by the Township.
The Township expressly reserves the right to exercise all governmental
powers consistent with state and federal law, except as expressly provided,
and expressly reserves the right to amend this chapter from time to time in
the exercise of its general legislative and police powers. No franchise, work
permit, or other grant of authority pertaining to use of the public rights-of-way
shall estop or limit the Township from the full exercise of its governmental
or regulatory powers, consistent with state and federal law, to adopt any
ordinance, by-law, rule or regulation necessary for the proper management,
care, and control of the Township and its finances and the maintenance of
peace, good government, health and welfare of the Township and its citizens,
trade, commerce and manufacture.
Because the Township finds that the streets of the county, state, and
Township to be used by the grantee in the operation of its system within the
boundaries of the franchise area are valuable public properties acquired and
maintained by the county, state, and Township at great expense to its taxpayers;
the grant to the grantee to the said streets is a valuable property right
without which the grantee would be required to invest substantial capital
in right-of-way costs and acquisitions; the administration of this chapter
and the franchise imposes upon the Township additional regulatory responsibility
and expense; and the presence of the grantee and its facilities places additional
burdens upon the Township police and road departments and the volunteer fire
company serving the area which is supported by the Township.
A.Â
A grantee of a cable franchise hereunder shall pay to
the Township as a condition of right-of-way use a franchise fee in an amount
as designated in the franchise agreement up to the maximum amount permitted
under applicable federal, state, or local law.
B.Â
A grantee of an OVS franchise hereunder shall pay to
the Township as a condition of right-of-way use a fee in lieu of a franchise
fee in an amount as designated in the franchise agreement up to the maximum
amount permitted to be required as a franchise fee from a cable system operator
under applicable federal, state, or local law. In the event that any franchise
fee payment or recomputed amount is not made on or before the dates specified
in the franchise agreement, grantee shall pay as additional compensation an
interest charge, computed from such due date, at the annual rate equal to
the commercial prime interest rate of the Township's primary depository bank
during the period that such unpaid amount is owed.
C.Â
The franchise fee shall be payable as specified in the
franchise agreement and shall commence as of the effective date of the franchise.
The Township shall be furnished at the time of each payment with a statement
certified by the grantee's chief financial officer reflecting the total amounts
of gross revenues for the period conveyed by the payment.
D.Â
The Township shall have the right to inspect the grantee's
income records and the right to audit and to recompute any amounts determined
to be payable under this chapter for a period of five years from the date
of payment. Audits shall be at the expense of the Township unless the audit
discloses an underpayment in any one year of 5% or more, in which case the
costs of the audit shall be borne by the grantee. Any additional amount due
the Township as a result of the audit shall be paid with accrued interest
within 30 days following written notice to the grantee by the Township which
notice shall include a copy of the audit report unless written notice of disagreement
is filed by the grantee with the Township within such time.
A.Â
Transfer of franchise. No franchise granted hereunder
shall be transferred and no control or controlling interest in any system,
franchise, or franchisee shall be transferred without the prior written consent
of the Township, and then only under such reasonable conditions as the Township
may establish. Transfer of a cable system franchise shall be in compliance
with Section 617 of the Cable Act (47 U.S.C. § 537) and regulations
promulgated by the FCC to implement Section 617.
B.Â
Notice of proposed transfer. The franchisee shall promptly
notify the Township by written petition of any proposed transfer within the
longest time-frame permitted by law. The petition shall fully describe the
proposed action and shall be accompanied by a justification for the action
and, if applicable, an argument as to why such action would not involve a
change in control or controlling interest. The Township shall notify the franchisee
as soon as all of the information required by the FCC, the franchise agreement,
this Cable Ordinance and all applicable state and local law has been received
by the Township and that therefore the transfer petition is complete. For
cable system franchises, the Township shall take action to approve or deny
a transfer petition within 120 days following the date of receipt of a complete
application by the Township, pursuant to Section 617 (e) of the Cable Act.
C.Â
Inquiry of Township. For the purpose of determining whether
it shall consent to a transfer, the Township may inquire, with the assistance
of the grantee, into the legal, financial, character, technical, customer
service, and operations qualifications of the prospective controlling party,
and the effect that the proposed transfer and sale price may have on the use
of the public rights-of-way and the rates being paid by subscribers. Failure
to provide all information reasonably requested by the Township as part of
said inquiry shall be grounds for denial of the proposed transfer. If the
Township finds the results of this inquiry are satisfactory, its consent to
such transfer shall not be unreasonably withheld. However, in all cases, the
costs associated with the transfer of franchise and compliance with the Cable
Ordinance provisions shall not be borne by subscribers.
D.Â
Assumption of control. Any financial institution having
a pledge of the franchise or its assets for the advancement of money for the
construction and/or operation of the franchise shall have the right to notify
the Township that it, or its designees satisfactory to the Township, will
take control and operate the cable or open video system. Further, said financial
institution shall also submit a plan for such operation that will insure continued
service and compliance with all franchise obligations during the term the
financial institution exercises control over the system. The financial institution
shall not exercise control over the system for a period exceeding one year,
unless extended by the Township, at its discretion, and during said period
of time, shall have the right to petition for transfer of the franchise to
another grantee. The Township will consider whether the legal, financial,
character, technical, customer service, and operations qualifications of the
applicant are satisfactory and whether or not the proposed transfer and sale
price will result in a rate increase to subscribers, and may consent to transfer
and assignment of the rights and obligations of such franchise if the Township
determines that such transfer is in the public interest. The financing institution
will be required to provide proof of consent that they understand and accept
the nonexclusive franchise. The consent of the Township to such transfer shall
not be unreasonably withheld.
E.Â
Effect of consent to transfer. The consent or approval
of the Township to any transfer of the grantee shall not constitute a waiver
or release of the rights of the Township in and to the streets, and any transfer
shall, by its terms, be expressly subject to the terms and conditions of this
chapter, the franchise agreement, and any separate transfer or settlement
agreement.
F.Â
Right to review purchase price. The Township reserves
the right to review the purchase price of any transfer or assignment of the
cable or open video system.
G.Â
Transferee signing franchise agreement. Any approval
by the Township of transfer of ownership or control shall be contingent upon
the prospective controlling party becoming a signatory to the franchise agreement.
H.Â
Township's right to purchase. Except as otherwise provided in Subsection D above, or Section 627 of the Cable Act (47 U.S.C. § 547), the Township reserves the right of first purchase in any transfer of the system. Should the Township exercise this option, it shall do so within 30 days of notification and thereafter shall make payment therefor under the same terms and conditions as the proposed transferee, or as the parties might otherwise agree.
I.Â
The transfer of any franchise or the transfer of control or controlling interest in any system, franchise or franchisee without the prior written consent of the Township shall be deemed to be an abandonment of the system by the franchisee under § 6-39C of this chapter and shall entitle the Township to all of the rights set forth under § 6-39C.
A.Â
Grounds for revocation or acceleration of expiration
date. The Township reserves the right to collect liquidated damages as specified
in the franchise agreement, accelerate the expiration of the franchise term
and/or revoke any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the following circumstances, each of which
shall represent a material and substantial default and breach under the Cable
Ordinance and the franchise agreement:
(1)Â
If the grantee shall default in the performance of any
of the material obligations under this chapter or under such documents, contracts
and other terms and provisions entered into by and between the Township and
the grantee.
(2)Â
If the grantee shall fail to provide or maintain in full
force and effect the liability and indemnification coverage or any performance
bond or security fund as required.
(3)Â
If the grantee shall violate any lawful orders or rulings
of any regulatory body having jurisdiction over the grantee relative to this
chapter or the franchise.
(4)Â
If the grantee practices any fraud upon the Township
or any subscriber.
(5)Â
If it is determined that the grantee underpaid its franchise
fee by 15% or more for any year.
(6)Â
If the grantee's construction schedule is delayed later
than the schedule contained in the franchise agreement or beyond any extended
date set by the Township.
(7)Â
If there is an occurrence of any event which may reasonably
lead to the foreclosure or other similar judicial or nonjudicial sale of all
or any material part of the system, including, but not limited to, any of
the following events:
(a)Â
Default under any loan or any financing arrangement material
to the system or the obligations of the grantee under the franchise agreement;
(b)Â
Default under any contract material to the system or
the obligations of the grantee under the franchise agreement; or
(c)Â
Termination of any lease or mortgage covering all or
any material part of the system.
(8)Â
If in regards to any grantee:
(a)Â
A grantee shall suspend or discontinue its business,
shall make an assignment for the benefit of creditors, shall fail to pay its
debts generally as they become due, shall become insolvent (however such an
insolvency may be evidenced), shall be adjudicated insolvent, shall petition
or apply to any tribunal for, or consent to, the appointment of, or taking
possession by, a receiver, custodian, liquidator or trustee or similar official
pursuant to state or local laws, ordinances or regulations of or for it or
any substantial part of its property, or assets, including all or any part
of this system;
(b)Â
A writ or warrant of attachment, execution, distraint,
levy, possession or any similar process shall be issued by any tribunal against
all or any material part of a grantee's property or assets;
(c)Â
Any creditor of a grantee petitions or applies to any
tribunal for the appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator, or similar official for the grantee or of any substantial
parts of the assets of the grantee under the law of any jurisdiction, whether
now or hereinafter in effect, and an order, judgement or decree is entered
appointing any such trustee, receiver, custodian, liquidator, or similar official,
or approving the petition in any such proceedings; or
(d)Â
Any order, judgment or decree is entered in any proceedings
against a grantee decreeing the voluntary or involuntary dissolution of the
grantee.
B.Â
Effect of circumstances beyond control of grantee. Notwithstanding
any other provision of this chapter or the franchise agreement, a grantee
shall not be liable for delay in performance of, or failure to perform in
whole or in part its obligations pursuant to the franchise agreement or this
chapter, due to strike, war or act of war, (whether an actual declaration
of war is made or not), insurrection, riot, act of public enemy, accident,
fire, flood or other act of God, sabotage or other events, where a grantee
has exercised all due care in the prevention thereof and to the extent that
such causes or other events are beyond the control of the grantee and such
causes or events are without the fault or negligence of the grantee. In the
event that any such delay in performance or failure to perform affects only
part of a Company's capacity to perform, the Company shall perform to the
maximum extent that it is able to do so and shall take all steps within its
power to correct such cause or causes. In correcting such cause or causes,
a grantee shall take all reasonable steps to do so in as expeditious a manner
as possible. A grantee shall notify the Township in writing of the occurrence
of an event covered by this subsection within five business days of the date
upon which the grantee learns of its occurrence. Shortage or unavailability
of equipment from suppliers shall not be deemed to be beyond the control of
the grantee in regards to any construction delays.
C.Â
Pending litigation. Pending litigation or any appeal
to any regulatory body or court having jurisdiction over the grantee shall
not excuse the grantee from the performance of its obligations under this
Cable Ordinance or the franchise agreement. Failure of the grantee to perform
such obligations because of pending litigation or petition may result in forfeiture
or revocation pursuant to the provisions of this section. The Township shall
comply with any related court orders.
D.Â
Procedure prior to revocation.
(1)Â
The Township shall make written demand that the grantee
do so comply with any such requirement, limitation, term, condition, rule
or regulation or correct any action deemed cause for revocation. After written
demand is made, the Township may place its request for revocation of the franchise
upon a regular Board meeting agenda. The Township shall cause to be served
upon such grantee at least seven days prior to the date of such Board meeting,
a written notice of this intent to request such revocation, and the time and
place of the meeting, notice of which shall be published by the Township once,
at least seven days before such meeting, in a newspaper of general circulation
within the Township.
(2)Â
The Board shall hear any persons interested therein,
and shall determine in its discretion, whether or not any failure, refusal
or neglect by the grantee was with just cause.
(3)Â
If such failure, refusal or neglect by the grantee was
with just cause, as determined by the Board, the Board shall direct the grantee
to comply within such time and manner and upon such terms and conditions as
are reasonable.
(4)Â
If the Board shall determine such failure, refusal, or
neglect by the grantee was without just cause, then the Board may, by resolution,
declare that the franchise of the grantee shall be revoked and the performance
bond forfeited.
E.Â
Disposition of facilities. In the event a franchise expires,
is revoked or otherwise terminated, the Township may in its sole discretion,
do any of the following:
(1)Â
Order the removal of the system facilities from the Township
within a reasonable period of time as determined by the Township;
(2)Â
Require the grantee to maintain and operate its system
for a period of up to 18 months or such further time as deemed by the discretion
of the Township. During any time the grantee continues to operate the system
it shall do so pursuant to the terms of this chapter and its franchise agreement
and shall be entitled to the revenues from the system.
(3)Â
Order that the system be transferred to another cable
or open video system operator or taken over by the Township.
F.Â
Restoration of property. In removing its plant, structures
and equipment, the grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places in as
good a condition or better as that prevailing prior to the grantee's removal
of its equipment and appliances without affecting the electrical or telephone
cable wires or attachments. The Township shall inspect and approve the condition
of the public ways and public places and cables, wires, attachments, and poles
after removal. The liability, indemnity, insurance and performance bond as
provided herein shall continue in full force and effect during the period
of removal and until full compliance by the grantee with the terms and conditions
of this subsection, this chapter and the franchise agreement.
G.Â
Restoration by Township; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection E or F of this section, or any other work required by Township law or ordinance within the time as may be established and to the satisfaction of the Township, the Township may cause such work to be done and the grantee shall reimburse the Township the cost thereof within 30 days after receipt of an itemized list of such costs or the Township may recover such costs through the performance bond or letter of credit provided by grantee. The Township shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
A.Â
Termination by insolvency. The franchise granted hereunder
shall, at the option of the Township, cease and terminate 120 days after the
appointment of a receiver or receivers or trustee or trustees to take over
and conduct the business of the grantee whether in a receivership, reorganization,
bankruptcy or similar action or proceeding unless such receivership or trusteeship
shall have been vacated prior to the expiration of said 120 days, or unless:
(1)Â
Such receivers or trustees shall have, within 120 days
after their election or appointment, fully complied with all the terms and
provisions of this chapter and the franchise agreement, and the receivers
or trustees within said 120 days shall have remedied all defaults under this
chapter or the franchise agreement; and
(2)Â
Such receivers, or trustees shall, within said 120 days,
execute an agreement duly approved by the Court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be bound
by each and every term, provision and limitation of the franchise agreement
and the ordinance.
B.Â
Termination by judicial action. In the case of a foreclosure
or other judicial sale of the plant, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the Township may
serve notice of termination upon the grantee and the successful bidder at
such sale, in which event the franchise and all rights and privileges of the
grantee granted hereunder shall cease and terminate 30 days after service
of such notice, unless:
(1)Â
The Township shall have approved the transfer of the
franchise, in the manner this chapter provides, and the rights of first refusal
by the Township have been relinquished.
(2)Â
Such successful bidder shall have covenanted and agreed
with the Township to assume and be bound by all the terms and conditions of
the franchise agreement.
All notices from the grantee to the Township pursuant to this chapter
and the franchise agreement shall be to the Township Manager or his designee.
The grantee shall maintain with the Township, throughout the term of the franchise,
an address for service of notices by mail. The grantee shall also maintain
with the Township a local office and telephone number for the conduct of matters
related to the franchise during normal business hours. The grantee shall be
required to advise the Township of such address and telephone numbers and
any changes thereof.