[HISTORY: Adopted by the Board of Supervisors
of the Township of New Garden as indicated in article histories. Amendments
noted where applicable.]
[Adopted 3-19-1980 by Ord. No. 61]
This ordinance shall be known and may be cited
as the "Brandywine Cablevision, Inc., Community Antenna Television
Ordinance," a nonexclusive ordinance.
In consideration of the faithful performance and observance of the conditions and reservations herein specified and in consideration of the payment of the amounts provided for in § A203-12A hereof, the right is hereby granted to Brandywine Cablevision, Inc. ("company"), a corporation organized under the laws of the State of Pennsylvania and qualified to do business in the State of Pennsylvania, its successors, assigns, or designees, 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 and other public places in the Township of New Garden, Pennsylvania ("Township"), and subsequent additions thereto, for the purpose of transmission and distribution of audio and visual impulses and television energy in accordance with the laws and regulations of the State of Pennsylvania and the ordinances and regulations of the Township for the period provided for in § A203-9 of this ordinance.
Whenever used in this ordinance, the word "television"
shall mean a system for transmission of audio signals and/or visual
images by means of electrical impulses.
A.Â
To the extent possible, the company shall make attachments
to poles already in existence within the Township. To the extent that
existing poles are insufficient for its purposes, or if the company
is unable to negotiate agreements satisfactory to it providing for
use of existing poles, the company shall have the right to erect and
maintain its own poles as necessary for the construction and maintenance
of its television distribution system with the approval of locating
such poles by the Township Engineer, which approval shall not unreasonably
be withheld, and so long as erection of poles are within rights-of-way
of Township and/or state roads.
B.Â
The company shall have the right, authority, power
and privilege to attach any of its system facilities to any existing
or future poles, towers or other electrical facilities owned by the
Township, in a manner which will not interfere with the use of such
poles, towers and other electrical facilities by the Township.
C.Â
The company hereby agrees to pay to the Township that
fee per year per pole by the Township and used by the company arrived
at by negotiation and contract with Philadelphia Electric and/or Bell
of Pennsylvania for the use of their poles.
D.Â
In the event its negotiated contract fee per year
per pole with Philadelphia Electric and Bell of Pennsylvania is dissimilar,
the company will pay to the Township that fee per year per pole owned
by the Township and used by the company which is the higher of the
two negotiated contract fees.
E.Â
In the event the company is unable to negotiate a
satisfactory agreement with both Philadelphia Electric and Bell of
Pennsylvania, it will pay to the Township an annual fee of $1.50 per
year per pole owned by the Township and used by the company, which
charge shall be prorated for each full month each pole is used, without
an obligation on the Township to install poles for ordinance accommodation.
F.Â
It is the stated intention of the Township that all
holders of public licenses and franchises within the corporate limits
of the Township shall cooperate with the company to allow its usage
of their poles and pole line facilities wherever possible and wherever
such usage does not interfere with the normal operation of said poles
and pole lines, so that the number of new or additional poles constricted
by the company within the Township may be minimized.
G.Â
The company shall extend to the Township, free of
expense, joint use of any and all poles owned by it for any proper
municipal purpose insofar as may be accomplished without interference
with the use and enjoyment of the company's own wires and fixtures.
The Township shall hold the company harmless from any and all actions,
causes of action or damage caused by the placement of the Township's
wires or appurtenances upon the poles of the company.
H.Â
The company shall have the authority to trim trees
upon and overhanging all streets, alleys, easements, sidewalks and
other public places within the Township so as to prevent the branches
of such trees from coming into contact with the facilities of the
company, within Township and/or state rights-of-way.
I.Â
The company shall construct an all-bands system capable
of providing 36 channels of television reception and FM radio to its
subscribers and installation and maintenance of equipment shall be
such that standard color signals shall be transmitted to subscribers.
A.Â
All structures, lines and equipment erected by the
company within the Township shall be so located as to cause minimum
interference with the use of streets, alleys, easements and other
public ways and places and with the rights or reasonable convenience
of property owners and the company shall comply with all reasonable,
proper and lawful ordinances of the Township now or hereafter in force.
Where Bell of Pennsylvania and Philadelphia Electric have buried their
facilities to homes, the company shall also cable underground.
B.Â
In cause of any disturbance of pavement, sidewalk,
driveway or other surface, the company shall, at its own expense and
in a manner approved by the Township, remove, replace and restore
all pavement, sidewalk, driveway or surface so disturbed in as good
condition as before said work was commenced.
C.Â
In the event that at any time during the period of
this ordinance the Township shall lawfully elect to alter or change
any street, alley, easement or other public way requiring the relocation
of the facilities of the company, upon reasonable notice by the Township,
the company shall remove and relocate the same at its own expense.
D.Â
The company shall, when necessary, in the request
of any person holding an appropriate permit issued by the Township,
temporarily raise or lower its lines to permit the moving of any building
or other structure. The actual expense of such temporary removal shall
be paid by the person requesting the same and the company shall have
the right to require such payment in advance of such temporary removal.
E.Â
All poles, lines, structures and other facilities
of the company in, on, over and under the streets, sidewalks, alleys,
easements and other public grounds or places within the Township shall
be kept by the company at all times in a safe and substantial condition.
F.Â
The company shall furnish free of charge one service
distribution connection to each school, fire station, Township police
and public library on its pole plant route and located within the
Township.
A.Â
The company shall, at all times during the term hereof,
be subject to all lawful exercise of the police power by the Township
and to such reasonable regulations as the Township shall hereafter
provide by ordinance or resolution; provided, however, that the company
is not to be deemed a public utility except as may be otherwise provided
by the laws of the State of Pennsylvania.
B.Â
The company shall maintain and operate its system
and render efficient service in accordance with the rules and regulations
which are or may be set forth by the Township.
C.Â
Whenever it is necessary to shut off or interrupt
service for the purpose of making repairs, installations or adjustments,
the company shall do so at such times as will cause the least amount
of inconvenience to its customers unless such interruption is unforeseen
and immediately necessary.
The company shall save the Township harmless
and defend it from and against any and all loss sustained by the Township
by reason of any suit, judgment, execution, claim or demand whatsoever,
resulting from negligence on the part of the company in the construction,
operation or maintenance of its television system within the Township,
and for this purpose the company shall carry property damage and public
liability insurance with a responsible insurance company. The amounts
of such insurance to be carried against liability owing to damage
to property shall be $100,000, as to any one accident, and against
liability owing to injury to or death of persons $500,000 as to any
person and $1,000,000, as to any one accident. The Township reserves
the right to revise these liability limits, if necessary, every five
years to correct for inflation. The company shall also carry such
insurance as it deems necessary to protect it from claims made under
applicable workmen's compensation laws. The Township shall notify
the company within 30 days after the presentation of any claim or
demand, either by suit or otherwise, made against the Township on
account of any negligence as aforesaid on the part of the company.
The company shall have the right to charge and
collect compensation from all subscribers to whom it shall furnish
service, but the company shall not, as to rates, charges, service,
facilities, rules, regulations or in any other respects, make or grant
any preference or advantage to any person, or subject any person to
any prejudice or disadvantage; and provided further that this provision
shall not be deemed to prohibit the establishment of a graduated scale
of charges and classified rate schedules to which any customer coming
within such classification shall be entitled. Rates shall be the same
for all classifications of customers which are served by the company
from identical facilities.
The rights granted hereunder shall take effect
and be in full force from and after the date of acceptance by the
company. The rights granted under this ordinance shall continue in
full force and effect for an initial period of 15 years from the date
of acceptance by the company; the Township herewith grants to the
company the right, option and privilege to renew the rights granted
for herein. This option may be exercised by the company giving the
Township notice, in writing, of its election to exercise the option,
which notice shall be given not less than six months or more than
two years prior to the expiration of the initial term of this ordinance.
References in this ordinance to its "term" shall include the initial
fifteen-year period and the additional period of 15 years.
If the company should violate any of the terms, conditions or provisions of this ordinance, or if the company should fail to comply with any reasonable provisions of any ordinance of the Township regulating the use by the company of the streets, alleys, easements or public ways of the Township, and should the company continue to violate the same for a period of 60 days after the company shall have been notified in writing by the Township to desist from such violations,. The company may, at the Township's option, be deemed to have forfeited and annulled all the rights and privileges of this ordinance. If the rights granted hereunder are forfeited pursuant to this § A203-10, the company may dispose of its property located within the Township in any lawful manner it chooses, repairing any damage done by such removal.
It is understood that, in order to render the
service contemplated by this ordinance, the company may require service
from a point-to-point microwave service common carrier licensed by
the Federal Communications Commission. Within 120 days after its acceptance
of the terms hereof, the company shall submit an order for service
with a qualified carrier. This ordinance may be revoked and cancelled
by the Township if the company shall not within six months from the
date the qualified carrier completes the installation of its television
distribution system; in the event the company does not place an order
for service with a qualified carrier as contemplated above, this ordinance
may be one year from the date of passage of this ordinance, have complied
with the construction and Service Schedule[1] attached hereto, and made a part hereof.
[1]
Editor's Note: The Construction and Service Schedule is included at the end of this chapter.
A.Â
The company agrees that within 30 days after the first
anniversary date following its acceptance of the terms of this ordinance,
and within 30 days after each succeeding anniversary date, it will
pay to the Township an amount, which when added to the amount of all
taxes, licenses, fees or impositions levied or imposed by the Township
upon the company or upon its property or operations for the preceding
tax year will equal 3% of gross monthly service revenues received
from its operations within the Township. "Gross revenues" as used
herein shall mean the gross amount of regular monthly or quarterly
service charges plus any amount charged for special programs or projects
actually paid for by subscribers served within the Township, as well
as installation fees.
B.Â
The company agrees that if, during the term of this grant or any renewal thereof, the Federal Communications Commission or any state regulatory body lifts its current ceiling on the percentage of gross revenue authorized to be paid to municipalities, the company shall within 30 days after such increase make payments in accordance with the terms of this section, at said increased rate; provided, however, that if said ceiling is totally removed, the rate to be paid to the Township by the company, as set forth in Subsection A, shall be the subject of negotiations between the parties.
C.Â
The company shall keep records of account showing
payments and dates received. The duly authorized agent of the Township
shall have the right to inspect and audit the current records of gross
revenues of the company at any reasonable time. The Township shall
have the right, at its own expense, to audit the records of gross
revenue of the company for any annual period at any reasonable time
within three years after expiration of such anniversary. The gross
revenue records of the company for any annual period shall be closed
to the Township after three years from the said anniversary date or
after an audit of such records has been made.
D.Â
Nothing herein shall be construed as requiring the
company to pay to the Township any portion of the revenue derived
from the sale of community television service by the company to customers
residing outside the corporate limits of the Township; provided that,
upon annexation to the Township of any territory not now within the
corporate limits of the Township, the portion of the company's facilities
that may be located within such annexed territory and upon the streets,
alleys and public grounds hereof, shall thereafter be subject to all
the terms of this ordinance.
As a condition of this ordinance, the company
agrees that it will not engage in the business of sale or repair of
television receivers owned by its subscribers nor will it be responsible
for the operating condition of said receivers. Any service furnished
by the company to the subscriber shall terminate at the point of connection
of the company's facilities to the subscriber's receiver.
The company shall forfeit and shall be deemed
to have forfeited and abandoned all rights and privileges conferred
by this ordinance and this ordinance shall be null and void and of
no force and effect unless the company shall, within 30 days after
adoption hereof, file with the Township Secretary its written acceptance
of the rights and privileges hereby conferred and with the terms,
conditions and restrictions hereby imposed.
The rights granted under this ordinance shall
not be deemed to be exclusive.
If any section, subsection, sentence, clause,
phrase or portion of this ordinance is for any reason held invalid
or unconstitutional, such portion shall be deemed a separate, distinct,
and independent provision and such holding shall not affect the validity
of the remaining portions hereof.
All other ordinances or parts of ordinances
in conflict with the provisions of this ordinance are hereby repealed.
The rights granted under this ordinance shall
be freely assignable and transferable by the company during the term
hereof; provided that no assignment or transfer of the rights granted
hereunder shall become effective until the assignee or transferee
has filed with the Township Secretary an instrument accepting terms
of this ordinance and agreeing to perform all of the conditions hereof.
The company shall obtain approval of the Township if, within two years
from the date the company provides service to customers, it sells
said CATV system. The Township shall not unreasonably withhold such
approval.
The terms of this agreement shall be binding
upon the successors and/or assigns of the company.
This ordinance shall became effective immediately
upon its passage and adoption as required by the Township Charter.
[Adopted 6-20-2022 by Ord. No. 255]
A.Â
Whereas, the franchisee is a cable operator and the Township is a
local franchising authority in accordance with Title VI of the Communications
Act [see 47 U.S.C. § 522(5), (10)] and the Township is authorized
to grant one or more nonexclusive cable franchises to operate a cable
system within the Township pursuant to Title VI of the Communications
Act;
B.Â
Whereas, the Township granted to the franchisee, effective as of
November 13, 2006, a nonexclusive initial franchise to install, maintain,
extend, and operate a cable system in the Township for a term of 15
years (the "initial franchise");
C.Â
Whereas, the franchisee has operated a cable system in accordance
with the initial franchise as of the effective date on its existing
telecommunications facilities consisting of a fiber to the premises
telecommunications network ("FTTP network") in the Township which
also transmits noncable services pursuant to authority granted by
applicable state law and Title II of the Communications Act, and which
are not subject to Title VI of the Communications Act or this agreement;
D.Â
Whereas, the franchise has requested that the Township renew the
franchisee's franchise to provide cable service to residents
of the Township;
E.Â
Whereas, pursuant to and in accordance with applicable federal and
state law, the Township undertook a process to determine whether it
should renew the initial franchise and the terms for such a renewal;
F.Â
Whereas, the Township has examined the past performance of the franchisee
and has identified the Township's future cable-related needs
and interests;
G.Â
Whereas, following good faith negotiations between the parties, the
Township and the franchisee have agreed on the terms for a franchise
renewal agreement under which the franchisee will continue to operate
its cable system in the Township; and
H.Â
Whereas, the Township has determined that this agreement and the
process for consideration of this agreement complies with all applicable
federal, state and local laws and regulations.
Now therefore, be it ordained that the Township Board of Supervisors
does hereby approve the cable franchise agreement negotiated with
the franchisee, including all of the terms and conditions contained
therein, and does hereby authorize the execution of such agreement.
