A.
In the event that the Township shall grant to a grantee
a nonexclusive revocable franchise to construct, operate and maintain a cable
communications system within the Township, said franchise shall constitute
both a right and an obligation to provide the services of a cable communications
system as regulated by the provisions of this chapter and a franchise agreement.
C.
Any franchise granted by the Township is hereby made
subject to the general ordinance provisions now in effect and hereafter made
effective. Nothing in the 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.
D.
State of the art continuing obligation.
(1)
General requirements. Throughout the term of any franchise
agreement, the franchisee shall construct, operate, maintain and upgrade the
cable communications 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 the state of the art of
cable communications systems' technology.
(2)
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 communications 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 communications system or systems 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 video cassette 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 ordinance
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 communications
systems generally.
(3)
Procedures for maintaining state of the art. Upon receiving
the report from a franchisee required pursuant to this section of this 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 requirements set forth
herein.
(4)
Directive. Upon completing the evaluation contemplated
by this section of this chapter, and after providing notice to a franchisee
and an opportunity for the franchisee to comment, the Township may issue a
reasonable 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.
(5)
"State of the art" 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, systems
and operations and performance standards) which has been developed and demonstrated
in the cable 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)
"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 for a system, when
measured over the term of the franchise.
For the purpose of operating and maintaining a cable communications
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 communications 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
Code (current edition) and the power company and telephone company pole contract
standards.
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. The 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.
No cable communications system shall be allowed to occupy or use the
streets of the Township or be allowed to operate without a franchise.
The term of any franchise as granted pursuant to this chapter shall
be specified in the franchise agreement in the discretion of the Township.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The Township specifically reserves the right to grant at any time such additional
franchises for a cable communications system as it deems appropriate and/or
build, operate and own such cable communications system or systems as it deems
appropriate.
A.
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, and only if 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.
The franchisee shall promptly notify the Township by
written petition of any proposed transfer. 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 chapter and all applicable state and local law has been received by the
Township and that therefore the petition is complete, after which the Township
shall take action within 120 days following the date such notice is provided
by the Township, pursuant to Section 617(e) of the Cable Act.
C.
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 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.
D.
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 television system. Further, said financial institution
shall also submit a plan for such operation that will ensure 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
it shall have the right to petition for transfer of the franchise to another
grantee. If the Township finds that such transfer, after considering the legal,
financial, character, technical, customer service and operations qualifications
of the applicant are satisfactory and that the proposed transfer and sale
price will not result in a rate increase to subscribers, the Township will
transfer and assign the rights and obligations of such franchise as in the
public interest. The consent of the Township to such transfer shall not be
unreasonably withheld.
E.
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 and the franchise agreement.
F.
The Township reserves the right to review the purchase price of any transfer or assignment of the cable television system. Any negotiated sale value which the Township deems unreasonable will not be considered in the rate base for any subsequent request for rate increases, if permitted by applicable law and § 93-16 of this chapter.
G.
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.
Except as otherwise provided in Subsection D above, 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 therefore under the same terms and conditions as the proposed transferee, or as the parties might otherwise agree.
I.
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 § 93-33C of this chapter and shall entitle the Township to all of the rights set forth under § 93-33C.
A.
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; and 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; and 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 administration and road departments
and the volunteer fire company serving the area which is supported by the
Township; a grantee of any franchise hereunder shall pay to the Township 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.
The present maximum franchise fee allowable is 5% of gross annual revenues.
B.
In the event that any franchise fee payment or recomputed
amount is not made on or before the dates specified in the franchise agreement,
the 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.
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 payments. This statement
shall include a line item for each applicable revenue source and the amount
of revenue received for each source as listed in the definition.
[Amended 3-8-2006 by Ord. No. 298]
D.
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. Grantee shall pay interest
at the rate of 6% per annum. Any additional amount due the Township as a result
of the audit shall be paid 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.
[Amended 3-8-2006 by Ord. No. 298]
A.
Grounds for revocation or acceleration of expiration
date. The Township reserves the right to 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 default and breach under this chapter and
the franchise agreement:
(1)
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)
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)
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)
If the grantee practices any fraud upon the Township
or any subscriber.
(5)
If it is determined that the grantee underpaid its franchise
fee by 15% or more for any year.
(6)
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)
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: default under any loan or any financing arrangement
material to the system or the obligations of the grantee under the franchise
agreement, default under any contract material to the system or the obligations
of the grantee under the franchise agreement or termination of any lease or
mortgage covering all or any material part of the system.
(8)
If in regards to any grantee: 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 of any substantial part of its property, or assets, including
all or any part of this system; or 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; or 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, judgment or decree is entered appointing
any such trustee, receiver, custodian, liquidator or similar officials or
approving the petition in any such proceedings; or any order, judgment or
decree is entered in any proceedings against a grantee decreeing the voluntary
or involuntary dissolution of the grantee.
B.
Effect of circumstances beyond control of grantee. Notwithstanding
any other provisions 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 regard to any
construction delays.
C.
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 chapter 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.
Procedure prior to revocation.
(1)
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)
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)
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)
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.
Disposition of facilities. In the event that a franchise
expires, is revoked or otherwise terminated, the Township may in its sole
discretion, do any of the following:
(1)
Order the removal of the system facilities from the Township
within a reasonable period of time as determined by the Township.
(2)
Require the grantee to maintain and operate its system
for a period of up to 18 months or such further time as may be mutually agreed
upon. 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)
Order that the system be transferred to another cable
operator.
F.
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 section, this chapter and the franchise agreement.
G.
Restoration by Township; reimbursement of costs. In the event of a failure by the grantee to complete any work required Subsection E or F of this section, or any other work required by Skippack 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.
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)
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)
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 this chapter.
B.
Termination by judicial action. In the case of a foreclosure
or other judicial sale of the plan, 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:
A.
All notices from grantee to the Township pursuant to
this chapter and the franchise agreement shall be to the Township Manager
or his designee at the following address: Skippack Township, 1246 Bridge Road,
Skippack, PA 19474.
B.
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 within 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.