The Board of Commissioners hereby finds and
declares that the public rights-of-way within the Township of Springfield:
A.
Are used and useful for the travel of persons and
the transport of goods and other tangibles in the business and social
life of the community by all citizens.
B.
Can be partially occupied by utilities and other public
service entities for facilities used in the delivery, conveyance and
transmission of utility and public services rendered for profit to
the enhancement of the health, welfare and general economic well-being
of the Township of Springfield and its citizens.
C.
Are physically limited so that proper management by
the Township of Springfield is necessary to maximize the efficiency
and to minimize the costs to the taxpayers of the foregoing uses,
to prevent foreclosure of future uses through premature exhaustion
of available right-of-way capacity and to minimize the inconvenience
to the public from such facilities construction, emplacement, relocation
and maintenance in the rights-of-way.
D.
The public deserves fair and reasonable compensation
for the property held by the township and made available to private
entities providing for-profit services.
The Board of Commissioners adopts this ordinance
to better:
A.
Manage a limited resource to the long-term benefit
of the public.
B.
Recover the costs of maintaining and managing the
public rights-of-way.
C.
Receive fair and reasonable compensation for the value
of the public rights-of-way used by telecommunications and cable television
entities.
D.
Minimize inconvenience of the public occasioned by
the emplacement and maintenance of telecommunications facilities in
the public rights-of-way.
E.
Recover the burden imposed on taxpayers by occupation
of the public rights-of-way by nongovernmental businesses.
F.
Prevent premature exhaustion of capacity in the public
rights-of-way to accommodate telecommunications, utility and other
public services.
This ordinance is adopted pursuant to the Township of Springfield's powers, including but not limited to those under Article IX of the Pennsylvania Constitution, the First Class Township Code and Section 253 of the Communications Act of 1934, as amended, 47 U.S.C. § 253.
This ordinance is known and may be cited as
the "Springfield Telecommunications Right-of-Way Ordinance."
For the purposes of this ordinance only, the
following words shall have the following meaning:
The term affiliate, when used in relation to any person,
means another person who de facto or de jure owns or controls, is
owned or controlled by, or is under common ownership or control with
such person.
An annual charge against the owner or operator of communications
facilities in the public rights-of-way whereby the Township of Springfield
recovers an apportioned share of the costs to the Township of Springfield
in granting access to and maintaining those portions of the public
rights-of-way used by the franchisee, licensee or lessee in its business.
Governmental entities are not subject to the annual occupancy fee.
A person who submits an application.
A request for authority to construct, emplace, replace, reconstruct,
operate or maintain a telecommunications system within the township,
transfer a franchise or license, renew a franchise or license or modify
a franchise or license. An application includes the initial request
plus all subsequent written amendments or supplements to the request.
That part of a tangible facility that occupies the public
rights-of-way and is used to provide open video system (OVS) services,
as described in this section, or one or more telecommunications services
or to transmit telecommunications signals. The term "telecommunications
facility" includes radio transmitting towers, other supporting structures,
and associated facilities used to transmit telecommunications signals.
The transmission for hire by optical fiber, coaxial cable
or any other bounded, tangible means, whether or not the transmission
medium is owned by the provider itself, of information in electronic
or optical form, including, but not limited to, voice, video or data.
Communications service includes telephone service but does not include
over-the-air broadcasts to the public at large licensed by the Federal
Communications Commission.
Tangible, bounded devices over or through which communications
are transmitted or which control or process transmissions of communications.
The Federal Communications Commission or its successor.
The legal authorization granted by the Township of Springfield
to a person to construct, maintain or emplace upon, across, beneath
or over any public right-of-way in this Township of Springfield a
specified communications facility and to operate and maintain such
facility. The term does not include any license or permit that may
be required by this ordinance or other laws or ordinances.
A contract entered into in accordance with the provisions
of this ordinance between the Township of Springfield and a franchisee
that sets forth, subject to this ordinance, the terms and conditions
under which the franchise may be exercised.
A person that has been granted a franchise by the Township
of Springfield.
An agreement between the Township of Springfield and a telecommunications
provider or the owner or operator of communications facilities under
which the provider or owner or operator is permitted to occupy space
on Township of Springfield-owned or -controlled public rights-of-way
or supporting structures to emplace and maintain a radio frequency
antenna or antennas or other communications facility.
The legal authorization of the Township of Springfield Township
Manager or a designee to issue a work permit to a person, not otherwise
a franchisee, to construct, maintain or emplace upon, across, beneath
or over any public right-of-way in this Township of Springfield a
specified communications facility. The operator of communications
facilities may be required to hold different authorizations for different
services to which different titles of this ordinance apply.
A contract entered into in accordance with the provisions
of this ordinance between the Township of Springfield and a licensee
that sets forth, subject to this ordinance, the terms and conditions
under which the license may be exercised.
A person that has been granted a license by the Township
of Springfield.
A communications facility consisting of a set of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of the Rules of the Federal Communications Commission, 47 C.F.R., Part 76, as amended from time to time. An open video system shall be treated as a cable system for purposes of this ordinance, except for the purposes of Article II and where the context otherwise requires.
Under Article II is a franchise for the use of the public rights-of-way for the construction and operation of an OVS system for the provision of video programming services only through an open video system, provided that the operator of which has been certified in accordance with Section 653 of the Communications Act, U.S.C. § 573.
Includes any individual, corporation, partnership, association,
joint-stock company, trust, governmental entity or any other legal
entity but not the Township of Springfield.
The surface and space above, on and below any public highway,
avenue, street, lane, alley, boulevard, concourse, driveway, bridge,
tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, public
easement, right-of-way or any other public ground or water within
or in which the Township of Springfield now or hereafter holds any
property interest which, consistent with the purposes for which it
was dedicated or otherwise acquired, may be used for the purpose of
constructing, operating and maintaining a communications facility.
No reference herein, or in any license agreement, to a public right-of-way
shall be deemed to be a representation or warranty by the Township
of Springfield that its interest or other right to control the use
of such property is sufficient to permit its use for such purposes,
and a licensee shall be deemed to acquire only those rights of user
as are properly in the Township of Springfield and as the Township
of Springfield may have the undisputed right and power to give.
A document on a form prescribed by the Township Manager wherein
the licensed provider of telecommunications services, rendered in
whole or in part via the facilities of another licensee in the public
rights-of-way, certifies what its payments to the underlying provider(s)
in respect of such services have been. The resale certificate provides
the basis for a deduction by the underlying provider of telecommunications
services or that portion of its revenues derived from resales by the
reselling licensee.
Refers to a person that provides one or more telecommunications
services for hire which are carried in whole or in part by means of
the services of one or more other providers or over one or more telecommunications
facilities in the public rights-of-way in which that person lacks
a present possessory interest.
The Township Manager of the Township of Springfield.
The "transfer" of an interest in a license or franchise means
the sale or transfer, directly or indirectly, of an existing or newly
created equity interest in the licensee or franchisee whether or not
it may result in a transfer of control of the licensee or franchisee.
Programming provided by or generally considered comparable
to programming provided by a television broadcast station.
The term "video programming services" includes the provision
of video programming for a fee or other compensation.
An authorization issued by the Township of Springfield to
enter upon the public rights-of-way to erect, construct or emplace
communications facilities. "Work permits" are permits issued pursuant
to the general laws of the Township of Springfield allowing a person
to erect, hang, lay, bury, draw, emplace, construct, reconstruct,
relocate, repair, operate, disconnect, remove or displace any communications
facility upon, across, beneath or over any public right-of-way in
this Township of Springfield.
A.
No person shall install, erect, hang, lay, bury, draw,
emplace, construct or reconstruct any communications facility upon,
across, beneath or over any public right-of-way in this Township of
Springfield without first entering into a franchise agreement, license
agreement or lease that compensates the Township of Springfield for
the use of its public rights-of-way. The Township of Springfield may
grant one or more franchises or licenses in accordance with this ordinance.
B.
The provisions of this ordinance apply to communications
systems and communications providers existing on the effective date
of this ordinance and thereafter. A person must hold a valid franchise
or license, subject to the provisions of this ordinance, for any portion
of a communications system that occupies a portion of the public rights-of-way
and for the provision of communications services over a communications
system located, in whole or in part, within the public right-of-way.
A.
No person shall install, erect, hang, lay, bury, draw,
emplace, construct or reconstruct any communications facility upon,
across, beneath or over any public right-of-way in the Township of
Springfield without first obtaining a work permit therefore from the
Township of Springfield.
B.
No person shall enter upon, across, beneath or over
any public right-of-way in the Township of Springfield to relocate
or otherwise displace any communications facility that is located
upon, across, beneath or over any public right-of-way without first
obtaining a work permit therefor from the Township of Springfield.
C.
No person shall maintain or operate a communications
facility upon, beneath or over any public right-of-way in this Township
of Springfield without paying to the Township of Springfield an annual
fee as prescribed in this ordinance.
A.
The Township Manager or a designee shall:
(1)
Issue all work permits and inspect the work under
each.
(2)
Determine and collect annual fees for all cable, OVS
or telecommunications services providers occupying public rights-of-way.
(3)
Recommend that the Board of Commissioners issue franchises
and licenses to all providers of communications services in accordance
with the terms and procedures specified in this ordinance.
(4)
Negotiate all franchise and license agreements in
accordance with the terms and procedures specified in this ordinance.
(5)
Collect and audit all annual per-lineal-foot fees
owed by communications services providers under this ordinance.
(6)
Collect and audit all franchise and license fees owed
under this ordinance.
(7)
Publish from time to time a schedule of application
and hearing fees which shall be designed to recover the Township of
Springfield costs in processing applications for franchises, licenses
and permits hereunder and may provide specially for hearing fees in
those cases where hearings are required.
B.
The Township Manager shall be responsible for the
continuing enforcement of all terms and conditions of permits, licenses,
leases and other such instruments authorizing the use of employment
of public rights-of-way of the Township of Springfield for communications
facilities and services.
A.
Civil infraction. Any person who knowingly violates any prohibition in § 130-7 shall be guilty of a civil infraction.
B.
Forfeiture of facilities. Any communications facility
constructed, maintained or operated upon, across, beneath or over
any public right-of-way in this Township of Springfield in violation
of this ordinance, including default as timely payment of annual fees
or any franchise or licensee fee due hereunder, is hereby declared
to be subject to forfeiture; and the Township of Springfield may seize,
disable, remove or destroy such facility upon 30 days' advance notice
in writing to the owner or operator thereof; provided, however, that
where the safety of any person or property lawfully within the right-of-way
is endangered thereby, only such notice as is practicable under the
circumstances need be given.
C.
Penalties.
(1)
For violation of provisions of this ordinance or a
franchise or license agreement entered into pursuant to this ordinance,
penalties shall be assessable against a franchisee or licensee and
shall be chargeable to the franchisee or licensee's performance bond
in any amount up to the limits specified below at the Township of
Springfield's discretion:
(a)
For failure to submit any required plans indicating
expected dates of installation of various parts of the system: $400
per day for each violation for each day the violation continues.
(b)
For failure to commence operations in accordance
with the requirements of the franchise or license agreement: $1,000
per day for each violation for each day the violation continues.
(c)
For failure to substantially complete construction
in accordance with the franchise or license agreement: $1,000 per
day for each violation for each day the violation continues.
(d)
For transferring the franchise or license without
approval: $1,000 per day for each violation for each day the violation
continues.
(e)
For failure to comply with requirements for
public, educational and governmental use of the system: $1,000 per
day for each violation for each day the violation continues.
(f)
For failure to supply information, reports or
filings lawfully required under the franchise or license agreement
or applicable law or by the Township of Springfield: $200 per day
for each violation for each day the violation continues.
(g)
For violation of consumer protection standards:
$200 per violation or per day, as applicable.
(h)
For failure, unless such failure is beyond the
franchisee or licensee's control, of the system to perform in the
event of a public emergency or vital information situation: $250 per
occurrence.
(i)
For failure to render payment for reimbursement
of any franchise or license expenses or failure to pay franchise or
license fees or liquidated damages: $100 per day.
(j)
For failure to file, obtain or maintain any
required performance bond in a timely fashion: $50 per day.
(k)
For failure to restore damaged property: $50
per day in addition to the cost of the restoration and any other penalties
or fees as required elsewhere herein or in a franchise or license
agreement.
(l)
For any other violations of this ordinance,
a franchise or license agreement or other applicable law: $200 per
day for each violation for each day the violation continues.
(2)
The franchisee or licensee shall pay any penalty in
accordance with this ordinance within 14 days after receipt of notice
from the Township of Springfield of such penalty.
(3)
To the extent that penalties are applied to a franchisee
or licensee under this section, a franchisee or licensee shall not
be subject to liquidated damages payable to the Township of Springfield.
(4)
The Township of Springfield may reduce or waive any
of the above-listed penalties for good cause shown.
D.
Pending litigation or any appeal to any regulatory
body or court having jurisdiction over a franchisee or licensee shall
not excuse the franchisee or licensee from the performance of its
obligations under this ordinance or its franchise or license agreement
unless a stay is obtained. Failure of the franchisee or licensee to
perform such obligations because of pending litigation or petition,
in the absence of a stay issued by a forum of competent jurisdiction,
may result in forfeiture or revocation pursuant to the provisions
of this ordinance and/or its franchise or license agreement.
E.
Injunctive relief. In addition to the foregoing remedies,
the Township of Springfield may seek an injunction to mitigate or
terminate the violation or employ any other remedy available at law
or equity.
F.
Reduction of term. Where, after notice and after a
hearing, if timely requested by a franchisee or licensee, the Township
Manager finds that the franchise or license is being operated in substantial
violation of its terms or this ordinance, the Township Manager may
make an appropriate reduction in the remaining term of the franchise
or license after a hearing, at which the franchisee or licensee shall
have the burden of proof. Such a hearing shall not be required before
the Township Manager's action if the franchisee or licensee waives
the hearing in writing.
G.
No waiver. The failure of the Township of Springfield
to insist on timely performance or compliance by any person holding
a franchise or license or work permit shall not constitute a waiver
of the Township of Springfield's right to later insist on timely performance
or compliance by that person or any other person holding such a franchise,
permit or license.
A.
No franchise or license under this ordinance shall
be for a term of longer than 15 years.
[Amended 10-12-2004 by Ord. No. 1424]
C.
The franchisee or licensee of any franchise or license
under this ordinance, as the case may be, shall promptly commence
to exercise its privileges thereunder. Each franchisee or licensee
within six months of the effective date of the franchise or license
shall file with the Township Manager or his delegee a report under
oath describing the extent of operations and/or preparatory measures
thereto since the effective date. On each anniversary of the effective
date of grant, the franchisee or licensee shall file with the Township
Manager or his delegee a report under oath describing the extent of
operations under the franchise or license. If any such annual report
shows no revenue-producing services or no active offering of revenue-producing
services or no active offering of revenue-producing services in the
case of franchises and licenses, or non-use in whole or in part, the
Township of Springfield may direct to the franchisee or licensee an
order to show cause why such franchise or license shall not be deemed
abandoned, returnable in not less than 30 days. After a hearing, if
requested in a timely manner by the franchisee or licensee, the Township
of Springfield may find that the franchise or license has been abandoned
and declare it forfeited. Thereupon, the Township of Springfield may
either take possession of some or all of the licensee's or franchisee's
facilities in the public rights-of-way or require the licensee or
franchisee or its bonding company to remove some or all of the licensee's
or franchisee's facilities from the public rights-of-way and to restore
the public rights-of-way to their prior condition.
A.
Every franchise agreement shall specify the construction
schedule that will apply to any required construction, upgrade or
rebuild of the communications facility. The schedule shall provide
for prompt completion of the project considering the amount and type
of construction required.
B.
No construction, operation or repair of the communications
facility within the public rights-of-way shall be commenced until
written permits have been properly filed for and obtained from the
proper Township of Springfield officials and all permit and associated
fees paid. In any permit so issued, the Township of Springfield may
impose such conditions and regulations as a condition of the granting
of the permit as are necessary for the purpose of protecting any structures
in the public rights-of-way, for the proper restoration of such public
rights-of-way and structures and for the protection of the public
and the continuity of pedestrian and vehicular traffic.
C.
No franchisee, licensee or holder of any work permit
for any communications facility shall dig, trench or otherwise excavate
in the public rights-of-way without complying with the applicable
state and local "Miss Utility" or other construction programs or its
successors.
D.
No franchisee, licensee or holder of any work permit
for any communications facility shall erect new aerial plant in or
on a public right-of-way in which one or more public service providers
(electricity, telephone, cable television) has placed its lines underground
or in an area where the Township of Springfield by ordinance, has
forbidden new aerial plant to be constructed or existing aerial plant
to be maintained.
E.
The Township of Springfield shall have the right to
install and maintain free of charge upon any poles or in any conduit
owned by a franchisee or licensee any wire and pole fixtures that
do not unreasonably interfere with the cable operations of the franchisee
or licensee, provided that, if the Township of Springfield uses a
franchisee's or licensee's conduit or poles to install a communications
facility that competes with that of franchisee or licensee in the
provision of video programming services to residential subscribers,
the franchise or license agreement may provide that the franchisee
or licensee may charge the Township of Springfield a fair market rate
pursuant to that franchise or license agreement. Franchisee or licensee
shall notify the Township of Springfield when it enters into an agreement
for use of its poles and conduits. Copies of agreements for use of
franchisee's or licensee's conduits or poles in the public rights-of-way
or on other public property shall be available for review upon the
Township of Springfield's request. A franchise or license agreement
may include a provision under which the Township of Springfield shall
indemnify, defend and hold a franchisee or licensee harmless for all
claims arising out of the Township of Springfield's use of that franchisee's
or licensee's poles and conduits where the franchisee or licensee
and the Township of Springfield do not have a joint pole or conduit
use agreement.
F.
Every franchisee, licensee and holder of any work
permit shall make available to any franchisee or licensee space on
its poles to the extent practicable and at a reasonable charge, calculated
in accordance with Section 224 of the Communications Act of 1934,
as amended, 47 U.S.C. § 224; and any franchisee or licensee
under this ordinance may request another franchisee or licensee to
rearrange its facilities or change out its pole to reasonably accommodate
the requesting franchisee's or licensee's facilities at the reasonable
expense of the requesting franchisee or licensee.
G.
Every franchisee, licensee or holder of any work permit
shall make available to other franchisees or licensees any of its
conduits that are excess, so long as they are excess, at a reasonable
rental fee; provided, further, that the Township of Springfield may
require as a condition of issuing any work permit for underground
conduit the installation of which requires excavation in or under
or along or across any traveled way that the franchisee, licensee
or holder of the work permit emplace accommodating other franchisees
and licensees for a reasonable charge.
H.
Each franchisee, licensee or holder of any work permit
for any communications facility shall, upon written notice from the
Township of Springfield, reasonably in advance, promptly relocate
its lines at its own expense to accommodate realignment or construction
of public streets, sidewalks, curbs, drains, sewers and public improvements
of any sort.
I.
Every franchisee or licensee that ceases operating
or maintaining any communications facility in a public right-of-way
shall, upon written request of the Township of Springfield within
two years of the cessation or maintenance of such communications facility,
promptly remove it. Should the franchisee or licensee neglect, refuse
or fail to remove such facility, the Township of Springfield may remove
the facility at the expense of the franchisee or licensee. The obligation
to remove shall survive the termination of the franchise or license
for a period of two years and shall be bonded.
J.
A franchisee or licensee shall have the authority
to trim trees that overhang public rights-of-way of the Township of
Springfield so as to prevent the branches of such trees from coming
in contact with the communications facility of the franchisee or licensee.
Notwithstanding that grant of authority, if the franchisee or licensee
performs the work, it shall be fully liable for any damages caused
thereby and shall be responsible for replacing damaged trees and shrubs.
Such franchisee or licensee shall be responsible for notifying abutting
property owners prior to trimming trees and shall obtain permission
from the Township Manager or a designee pursuant to the General Laws
of the Township of Springfield. At the option of the Township of Springfield,
such trimming may be done by it.
No franchise, license or work permit shall be
valid until the franchisee, licensee or permittee, as the case may
be, shall have filed with the Township Manager a bond or letter of
credit, in acceptable form, running in favor of the Township of Springfield
to guarantee the franchisee's, licensee's or permittee's obligations
under this ordinance. The amount of the bond or letter of credit shall
be no less than the cost of removal of the facilities authorized by
such franchise, license or work permit or as specified in another
article of this ordinance, whichever amount is greater.
A.
Surety bond.
(1)
In any franchise agreement entered into before the
effective date of this ordinance, the township and franchisee may
agree that a franchisee may, in lieu of the security fund, file and
maintain with the township a bond with an acceptable surety in the
amount of $100,000 to indemnify the township against any losses it
may suffer in the event that the franchisee fails to comply with one
or more of the provisions of its franchise. Said bond shall be obtained
at the sole expense of the franchisee and remain in effect for the
full term of the franchise plus an additional six months thereafter.
The franchisee and its surety shall be jointly and severally liable
under the terms of the bond for any damages or loss suffered by the
township as a result of the franchisee's nonperformance, including
the full amount of any compensation, indemnification or cost of removal
of any property of the franchisee in the event of default, and a reasonable
allowance for attorneys' fees and costs, up to the full amount of
the bond. The bond shall provide for 30 days' prior written notice
to the township of any intention on the part of the franchisee to
cancel, fail to renew or otherwise materially alter its terms. Neither
the filing of a surety bond with the township nor the receipt of any
damages recovered by the township thereunder shall be construed to
excuse faithful performance by the franchisee or limit the liability
of the franchisee under the terms of its franchise for damages, either
to the full amount of the bond or otherwise.
(2)
Security fund in addition to all other township rights.
The rights reserved to the township with respect to any security fund
or an indemnity bond are in addition to all other rights of the township,
whether reserved by this ordinance or authorized by other law or the
franchise agreement, and no action, proceeding or exercise of a right
with respect to such security fund or indemnity bond will affect any
other right the township may have.
(3)
Procedures. The franchise agreement shall provide
for the procedures to be followed with respect to drawing upon the
security fund and surety bond.
B.
Security deposit. A franchise agreement may provide
that, prior to the franchise's becoming effective, the franchisee
shall post with the township a cash security deposit to be used as
a security fund to ensure the franchisee's faithful performance of
and compliance with all provisions of this ordinance, the franchise
agreement and other applicable law and compliance with all orders,
permits and directions of the township and the payment by the franchisee
of any claims, liens, fees or taxes due the township which arise by
reason of the construction, operation or maintenance of the system.
The amount of the security fund shall be $20,000.
C.
Performance bond.
(1)
Establishment of performance bond. Prior to any system
construction, upgrade or other work in the streets, a franchisee shall
establish in the township's favor a performance bond in an amount
specified in the franchise agreement or other authorization as necessary
to ensure the franchisee's faithful performance of the construction,
upgrade or other work. The amount of such performance bond shall equal
one half of the proposed construction costs, reduced to 10% of the
total costs of the project after the township certifies satisfactory
completion of the project.
(2)
Recovery under performance bond. In the event that a franchisee subject to such a performance bond fails to complete the cable system construction, upgrade or other work in the streets in a safe, timely and competent manner in accord with the material provisions of the franchise agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the township as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the franchisee or the cost of completing or repairing the system construction, upgrade or other work in the streets, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The township may also recover against the bond any amount recoverable against the security fund or surety bond where such amount exceeds that available under the security fund or surety bond. Before seeking recovery under this Subsection C(2), the township shall provide to franchisee reasonable notice and opportunity to cure.
(3)
Changes to amount of performance bond. The franchise
agreement shall specify that upon completion of the system construction,
upgrade or other work in the streets and payment of all construction
obligations of the cable system to the satisfaction of the township,
the township shall eliminate the bond or reduce its amount after a
time appropriate to determine whether the work performed was satisfactory,
which time shall be established considering the nature of the work
performed. The township may subsequently require a new bond or an
increase in the bond amount for any subsequent construction, upgrade
or other work in the streets. In any event, the total amount of the
bond shall at all times equal 10% of the cost of the work.
(4)
Qualifications of sureties. The performance bond shall
be issued by a surety with an A-1 or better rating of insurance in
Best's Key Rating Guide, Property/Casualty Edition; shall be subject
to the approval of the township; and shall contain the following endorsement:
"This bond may not be canceled, or allowed to lapse, until 60 days
after receipt by the township, by certified mail, return receipt requested,
of a written notice from the issuer of the bond of intent to cancel
or not to renew."
(5)
Performance bond in addition to all other township
rights. The rights reserved by the township with respect to any performance
bond established pursuant to this ordinance are in addition to all
other rights and remedies the township may have under this ordinance,
the franchise agreement or at law or equity.
D.
Insurance required.
(1)
A franchisee shall maintain, and by its acceptance
of a franchise specifically agrees that it will maintain, throughout
the entire length of the franchise period, at least the following
liability insurance coverage insuring the township and the franchisee:
workers' compensation and employer liability insurance to meet all
requirements of Pennsylvania law and comprehensive general liability
insurance with respect to the construction, operation and maintenance
of the cable system and the conduct of franchisee's business in the
township, in the minimum amounts of:
(2)
Qualifications of sureties. All insurance policies
shall be with sureties qualified to do business in the Commonwealth
of Pennsylvania; shall be with sureties with an A-1 or better rating
of insurance by Best's Key Rating Guide, Property/Casualty Edition;
and in a form approved by the Township Manager.
(3)
Policies available for review. All insurance policies
shall be available for review by the township, and a franchisee shall
keep on file with the township certificates of insurance.
(4)
Additional insured; prior notice of policy cancellation.
The township may require in a franchise agreement that all insurance
policies shall name the township, its officers, boards, commissions,
commissioners, agents and employees as additional insureds and shall
further provide that any cancellation or reduction in coverage shall
not be effective unless 30 days' prior written notice thereof has
been given to the township. A franchisee shall not cancel any required
insurance policy without submission of proof that the franchisee has
obtained alternative insurance satisfactory to the township which
complies with this ordinance.
(5)
No limit of liability. Neither the provisions of this
section nor any damages recovered by the township shall be construed
to limit the liability of the franchisee for damages under any franchise
issued hereunder.
E.
Remedies cumulative. All remedies under this ordinance
and the franchise or license agreement are cumulative unless otherwise
expressly stated. The exercise of one remedy shall not foreclose use
of another, nor shall the exercise of a remedy or the payment of liquidated
damages or penalties relieve a franchisee or licensee of its obligations
to comply with its franchise or license. Remedies may be used singly
or in combination; in addition, the Township of Springfield may exercise
any rights it has at law or equity.
F.
Relation to insurance and indemnity requirements.
Recovery by the Township of Springfield of any amounts under insurance,
the performance bond or letter of credit or otherwise does not limit
a franchisee's or licensee's duty to indemnify the Township of Springfield
in any way nor shall such recovery relieve a franchisee or licensee
of its obligations under a franchise or license, limit the amounts
owed to the Township of Springfield or in any respect prevent the
Township of Springfield from exercising any other right of remedy
it may have.
A.
The franchisee or licensee shall, at its sole cost
and expense, indemnify, hold harmless and defend the Township of Springfield,
its officials, boards, commissions, Commissioners, agents and employees
against any and all claims, suits, causes of action, proceedings and
judgments for damages or equitable relief arising out of the construction,
maintenance or operation of its system; copyright infringements or
a failure by the franchisee or licensee to secure consents from the
owners, authorized distributors or franchisees or licensees of programs
to be delivered by the video programming system, if applicable; the
conduct of the franchisee or licensee's business in the Township of
Springfield; or in any way arising out of the franchisee's or licensee's
enjoyment or exercise of the franchise or license, regardless of whether
the act or omission complained of is authorized, allowed or prohibited
by this ordinance or the franchisee or licensee agreement.
B.
Specifically, the franchisee or licensee shall fully
indemnify, defend and hold harmless the Township of Springfield and
in its capacity as such the officers, agents, and employees thereof
from and against any and all claims, suits, actions, liability and
judgments for damages or otherwise subject to 47 U.S.C. § 558
arising out of or alleged to arise out of the installation, construction,
operation or maintenance of the system, including but not limited
to any claim against the franchisee or licensee for invasion of the
right of privacy, defamation of any person, firm or corporation or
the violation or infringement of any copyright, trade name, service
mark or patent or of any other right of any person, firm or corporation.
This indemnity does not apply to programming carried on any channel
set aside for public educational or governmental use or channels leased
pursuant to 47 U.S.C. § 532, unless the franchisee or licensee
was in any respect engaged in determining the editorial content of
the program or adopts a policy of prescreening programming for the
purported purpose of banning or regulating indecent or obscene programming.
C.
The indemnity provision includes, but is not limited
to, the Township of Springfield's reasonable attorney's fees incurred
in defending against any such claim, suit or proceeding.
D.
No limit of liability. Neither the provisions of this
section nor any damages recovered by the Township of Springfield shall
be construed to limit the liability of the franchisee or licensee
for damages under the franchise or license.
No franchise, license or work permit shall estop
or limit the Township of Springfield in the full exercise of its governmental
powers to protect the health and safety of the public, and all other
governmental powers may be fully exercised except as expressly provided
herein. The Township of Springfield expressly reserves the right to
amend this ordinance from time to time in the exercise of its legislative
powers.
A.
A franchise or license shall be deemed a revocable
privilege that is held in the public trust and personal to the original
franchisee or licensee. Notwithstanding any provision of the franchise
or license agreement, no transfer of a franchise or license, no assignment
of the franchise or license agreement and no delegation of the franchisee's
or licensee's rights or duties under its franchise or license agreement
to a person other than franchisee or licensee shall be effective or
permitted without prior notification to, and express approval by,
the Township of Springfield.
B.
No franchise or license shall be sold, transferred
or assigned nor shall a change in control of a franchise, franchisee,
license or licensee, de facto or de jure, take effect until an application
in proper form has been filed with and accepted by the Township of
Springfield. Additional approvals are required in the cases of cable
franchises and any franchise or license under which specific services
or facilities are required to be provided to the Township of Springfield.
C.
Notwithstanding the foregoing, a franchise or license
agreement may provide that transfers to affiliates of a franchisee
or licensee shall be excepted from the requirements of this section
where the affiliate is wholly-owned and managed by an entity that
will guarantee the performance under a franchise or license agreement
and the transferee affiliate:
(1)
Notifies the Township of Springfield of the transfer
at least 60 days before it occurs and, at that time, provides the
agreements and warranties required by this section, describes the
nature of the transfer and submits complete information describing
who will have direct and indirect ownership and control of the facility
after the transfer.
(2)
Warrants that it has read, accepts and agrees to be
bound by each and every term of the franchise or license and related
amendments, regulations, ordinances and resolutions then in effect.
(3)
Agrees to assume all responsibility for all liabilities,
acts and omissions known and unknown of its predecessor franchisees
or licensees for all purposes, including renewal.
(4)
Agrees that the transfer shall not permit it to take
any position or exercise any right which could not have been exercised
by its predecessor.
(5)
Warrants that the transfer will not substantially
increase the financial burdens upon or substantially diminish the
financial resources available to the franchisee or licensee (the warranty
to be based on comparing the burdens upon and resources that will
be available to the transferee compared to its predecessors) or otherwise
adversely affect the ability of the franchisee or licensee to perform.
(6)
Warrants that the transfer will not in any way adversely
affect the Township of Springfield or subscribers (including by increasing
rates).
(7)
Notifies the Township of Springfield that the transfer
is complete within five business days of the date the transfer is
complete.
(8)
Agrees that the transfer in no way affects any evaluation
of its legal, financial or technical qualifications that may occur
under the franchise or license or applicable law after the transfer
and does not directly or indirectly authorize any additional transfers.
D.
At least 120 calendar days prior to the contemplated
effective date of a transfer, the franchisee or licensee shall submit
to the Township of Springfield an application for approval of the
transfer. Such an application shall provide complete information on
the proposed transaction, including details on the legal, financial,
technical and other qualifications of the transferee, and on the potential
impact of the transfer on subscriber rates and service. At a minimum,
the following information must be included in the application, provided
that a franchisee or licensee is not required to duplicate information
that it submits to the Township of Springfield to comply with its
obligations under federal or state law:
(1)
All information and forms required under federal law
or the equivalent of such forms if no longer required by federal law.
(3)
A detailed statement of the corporate or other business
entity organization and management structure of the proposed transferee,
together with an explanation of how decisions regarding cable services
will be made if the proposed transaction is approved.
A.
A franchise or license may be revoked by the Township
of Springfield on the recommendation of the Township Manager and with
the approval of the Board of Commissioners for failure to construct,
emplace, reconstruct, replace, operate or maintain the communications
facility as required by this ordinance or the franchise or license
agreement or for any other material breach of this ordinance or the
franchise or license agreement, franchise or license. The Township
of Springfield must give a franchisee or licensee written notice that
it is in material breach of this ordinance or the franchise or license
agreement. If the franchisee or licensee does not correct the breach
within 30 days of the notice, or corrective action is not being actively
and expeditiously pursued and is not completed to the Township of
Springfield's satisfaction within 90 days of the notice, the Township
of Springfield must give written notice to the franchisee or licensee
of its intent to revoke the franchise or license. The Township of
Springfield must give the franchisee or licensee written notice of
the basis for a revocation, stating its reasons. Upon timely demand
by the franchisee or licensee, an administrative hearing must be held
before the Township of Springfield may revoke a franchise or license.
The hearing procedures may be modified by the township by resolution
where appropriate.
B.
The presiding officer must issue a recommended decision
after the administrative hearing. The Township Manager may provide
for the filing of written comments in response to the recommended
decision. After the comment period, the Township Manager must submit
written recommendations to the Board of Commissioners.
C.
The Board of Commissioners must give notice and hold
a public hearing, unless waived by the franchisee or licensee, and
then determine by written resolution or other form of decision whether
or not to revoke the franchise or license based on the recommended
decision, the recommendations of the Township Manager, information
presented at the public hearing and other evidence in the record.
The resolution or other form of decision must include reasons for
the Board of Commissioners' decision.
D.
Any franchise or license will automatically be revoked
120 days after an assignment for the benefit of creditors or the appointment
of a receiver or trustee to take over the business of the franchisee
or licensee, whether in a receivership, reorganization, bankruptcy
assignment for the benefit of creditors or other action or proceeding
unless the township consents to a waiver of such revocation. The Township
of Springfield must hold a public hearing before revoking a franchise
or license under this subsection upon timely demand of the franchisee
or licensee. The Township of Springfield may not revoke a franchise
or license under this subsection if, during the one-hundred-twenty-day
period:
(1)
The assignment, receivership or trusteeship is vacated;
or
(2)
The assignee, receiver or trustee has fully complied
with the terms and conditions of this ordinance and the franchise
or license agreement and has executed an agreement, approved by the
court having jurisdiction, assuming and agreeing to be bound by the
terms and conditions of the franchise or license with any changes
reasonably deemed necessary by the Township of Springfield.
E.
The Township of Springfield may revoke the franchise
or license if there is a foreclosure or other judicial sale of any
of the facilities, equipment or property of a franchisee or licensee
by serving notice on the franchisee or licensee and the successful
bidder. The franchise or license and all rights and privileges of
the franchise or license will be revoked 30 days after the Township
of Springfield serves notice under this subsection unless:
(1)
The Township of Springfield has approved a transfer
of the franchise or license.
(2)
The successful bidder has agreed with the Township
of Springfield to assume and be bound by the terms and conditions
of the franchise or license with any changes reasonably deemed necessary
by the Township of Springfield.
(3)
If the Township of Springfield revokes a franchise
or license or the franchisee or licensee surrenders its franchise
or license or if for any other reason a franchisee or licensee abandons,
terminates or fails to operate or maintain service to its subscribers,
the Township of Springfield may require the franchisee or licensee
to remove its facilities and equipment at the franchisee's or licensee's
surety's expense.
F.
Notwithstanding any provision in this ordinance or
under the franchise agreement or license agreement, a franchise or
license and the corresponding franchise or license agreement shall
terminate automatically in the event any of the following occurs:
(1)
The franchisee or licensee fails to provide the services,
facilities, equipment or capacity for use by the Township of Springfield
and other public agencies required by the franchise agreement or license
agreement for a period exceeding three days.
(2)
The franchisee or licensee fails for 120 days after
the expiration of the time period provided for under the franchise
or license agreement to construct, emplace, reconstruct, replace,
operate or maintain the communications system as required by the franchise
agreement or license agreement.
(3)
The franchisee or licensee fails to pay to the Township
of Springfield any of the franchise fee and annual fee payments required
by this ordinance or the franchise or license agreement, for a period
of 30 days after the due dates specified in this ordinance.
G.
In the event that a franchise or license and corresponding franchise agreement or license agreement are terminated by operation of Subsection F, ownership of the system shall be deemed abandoned and forfeited to the Township of Springfield unless the Township of Springfield has, at any time prior or subsequent to the termination of the franchise or license and corresponding franchise or license agreement, notified the franchisee or licensee that the franchisee or licensee is required to remove its facilities and equipment, in which case the franchisee or licensee shall remove its communications system, communications facilities and equipment at the franchisee's or licensee's or surety's expense.
Each franchisee and licensee and the affiliates
thereof, wherever located, shall maintain books, records and plant
accounts sufficient to document the obligations of each franchisee
and licensee under this ordinance. Such books, records and accounts
shall be maintained and available for inspection for a period of four
years; provided, however, that such books, records and accounts shall
be maintained and available during the continuation of any audit by
or on behalf of the Township of Springfield commenced during such
four-year period or during any dispute or litigation with respect
thereto.
