In any action by LFA or franchisee that is mandated
or permitted under the terms hereof, such party shall act in a reasonable,
expeditious, and timely manner.
This agreement shall bind and benefit the parties
hereto and their respective heirs, beneficiaries, administrators,
executors, receivers, trustees, successors, and assigns. This agreement
is authorized by Ordinance No. 2116-06 dated September 19, 2006 of
the Cheltenham Township Board.
In the event that federal or state law, rules,
or regulations preempt a provision or limit the enforceability of
a provision of this agreement, the provision shall be read to be preempted
to the extent, and for the time, but only to the extent and for the
time, required by law. In the event such federal or state law, rule,
or regulation is subsequently repealed, rescinded, amended, or otherwise
changed so that the provision hereof that had been preempted is no
longer preempted, such provision shall thereupon return to full force
and effect, and shall thereafter be binding on the parties hereto,
without the requirement of further action on the part of LFA.
Franchisee shall not be held in default under,
or in noncompliance with, the provisions of the franchise, nor suffer
any enforcement or penalty relating to noncompliance or default, where
such noncompliance or alleged defaults occurred or were caused by
a force majeure.
Furthermore, the parties hereby agree that it
is not LFA's intention to subject franchisee to penalties, fines,
forfeitures, or revocation of the franchise for violations of the
agreement where the violation was a good faith error that resulted
in no or minimal negative impact on subscribers, or where strict performance
would result in hardship being placed upon franchisee that outweigh
the benefit to be derived by LFA and/or subscribers.
Unless otherwise expressly stated herein, notices
required under the franchise shall be mailed first class, postage
prepaid, to the addressees below. Each party may change its designee
by providing written notice to the other party.
This franchise and the exhibits hereto constitute
the entire agreement between franchisee and LFA and supersedes all
prior or contemporaneous agreements, representations, or understanding
(written or oral) of the parties regarding the subject matter hereof.
Any ordinances or parts of ordinances related to the provision of
cable services over the cable system in the Township that conflict
with the provisions of this agreement are superseded by this agreement.
Amendments to this agreement shall be mutually
agreed to in writing by the parties.
The captions and headings of articles and sections
throughout this agreement are intended solely to facilitate reading
and reference to the sections and provisions of this agreement. Such
captions shall not affect the meaning or interpretation of this agreement.
If any section, subsection, sentence, paragraph,
term, or provision hereof is determined to be illegal, invalid, or
unconstitutional by any court of competent jurisdiction or by any
state or federal regulatory authority having jurisdiction thereof,
such determination shall have no effect on the validity of any other
section, subsection, sentence, paragraph, term, or provision hereof,
all of which will remain in full force and effect for the term of
the franchise.
The recitals set forth in this agreement are
incorporated into the body of this agreement as if they had been originally
set forth herein.
Under no circumstance, including, without limitation,
upon expiration, revocation, termination, denial of renewal of the
franchise, or any other action to forbid or disallow franchisee from
providing cable services, shall franchisee or its assignees be required
to sell any right, title, interest, use, or control of any portion
of franchisee's FTTP network including, without limitation, the cable
system and any capacity used for cable service or otherwise, to LFA
or any third party. Franchisee shall not be required to remove the
FTTP network or to relocate the FTTP network or any portion thereof
as a result of revocation, expiration, termination, denial of renewal,
or any other action to forbid or disallow franchisee from providing
cable services. This provision is not intended to contravene leased
access requirements under Title VI or PEG requirements set out in
this agreement.
LFA and franchisee each acknowledge that they
have received independent legal advice in entering into this agreement.
In the event that a dispute arises over the meaning or application
of any term(s) of this agreement, such term(s) shall not be construed
by the reference to any doctrine calling for ambiguities to be construed
against the drafter of the agreement.
If LFA exercises its reasonable, necessary,
and lawful police power rights and such exercise results in a material
alteration of the terms and conditions of this agreement that makes
it commercially impracticable for franchisee to continue the provision
of cable services in the Township, then the parties shall modify this
agreement to the mutual satisfaction of both parties to ameliorate
the negative effects of LFA's exercise of its police power rights
on franchisee. Any modification to this agreement shall be in writing
and signed by both parties. If the parties cannot reach agreement
on how to ameliorate the negative effects of LFA's exercise of its
police power rights, then franchisee may terminate this agreement
without further obligation to LFA or, at franchisee's option, the
parties agree to submit the matter to binding arbitration in accordance
with the commercial arbitration rules of the American Arbitration
Association.
