[HISTORY: Adopted by the Township Council
of the Township of Bristol 10-19-2001 by Ord. No. 2001-14[1]. Amendments noted where applicable.]
[1]
Editor's Note: This ordinance superseded former
Ch. A210, Cable Television Franchise, adopted 11-19-1991 by Ord. No.
91-26.
In consideration of and with the foregoing recitals
deemed essential and material parts of this agreement and incorporated
by reference hereby of the mutual promises and covenants contained
herein, the parties do mutually agree as follows:
A.
Purpose. Franchise shall ensure quality cable service
in compliance with FCC standards and requirements.
B.
Enactment. Franchisee is hereby granted a nonexclusive
franchise to operate a cable system within the Township in accordance
with the ordinance of this title, which establishes standards, regulations
and procedures for the granting of a cable communications system franchise,
this franchise and the ordinances, rules and regulations adopted by
the Township and all applicable rules and regulations of the Federal
Communications Commission and the commonwealth.
C.
Effective date. This franchise shall not become finally
effective until signed by both parties. Immediately upon the taking
effect of this franchise agreement, the prior franchise granted to
AT&T shall be superseded and of no further force and effect; provided,
however, vested rights relating to billings and the Township's right
to accrued franchise fees or other fees shall not be affected thereby.
D.
Use of public ways. For the purpose of operating and
maintaining a cable system in the Township, franchisee may erect in,
over, under, or upon, across, and along the public streets, alleys,
and ways within the Township such wires, cables, fiber optics, conductions,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments, and other property and equipment as are necessary and
appurtenant to the operation of the cable system in the Township and
in accordance with this franchise and the ordinance.
Franchisee acknowledges and accepts the legal
right of the Township to issue this franchise.
Unless terminated sooner in accordance with
other provisions of this agreement, the franchise granted pursuant
to this agreement shall commence on the effective date of the franchise
and shall automatically expire at midnight, December 1, 2011. Notwithstanding
the term expressed in the foregoing sentence, this agreement shall
automatically expire at midnight, December 1, 2013, but only in the
event:
This franchise agreement shall be adopted as
an ordinance of the Township (the "ordinance").
A.
Service area. The service area of Comcast shall be
the entire corporate boundaries of Bristol Township and include any
areas annexed to the Township in the future.
B.
New residential construction. Franchisee shall extend
service to all new residences in all unwired developments within 30
days of a request by a subscriber, weather permitting and subject
to receipt of all required access by the developer and/or landowner.
Franchisee shall use its best efforts to provide such service as soon
as possible and shall request all easements and access in a timely
manner. Franchisee shall use its best efforts to coordinate joint
trenching with any public utilities which will be constructed in and
along the same public rights-of-way in new developments. The Township
will provide notice of any new subdivisions to Comcast and will endeavor
to amend its subdivision ordinance[1] to ensure that Comcast is able to obtain reasonable access
to new developments as they are being constructed.
C.
Residential and nonresidential service. Franchisee
shall, upon request, make service available to all residences, commercial/industrial
establishments and public institutions which are located within 125
feet of the system at franchisee's standard installation rate expense.
For extensions beyond 125 feet, franchisee shall, upon request, make
service available on the basis of an incremental capital contribution
in aid of construction, including cost of material, labor, and easements.
D.
House moving. Franchisee shall, upon the request of
the Township made no less than 15 days in advance, move and replace
its facilities to accommodate house moves conducted on behalf of the
Township, free of charge to the Township. Wherever feasible, the Township
shall endeavor to ensure that house moves follow the same or similar
path. Franchisee may charge for and require advance payment for house
moves by parties other than the Township.
No later than December 31, 2001, franchisee
shall have rebuilt its cable system to the following minimum capacities
(the "rebuild"):
A.
System.
(1)
Franchisee's cable system shall use at least 750 MHz
equipment of high quality and reliability capable of delivering a
minimum of 80 downstream channels, and shall also be capable of two-way
interactive services.
(2)
The interconnections from the head end to the hubs
and from the hubs to the nodes will be fiber optics.
(3)
Franchisee shall use equipment and components generally
used in high quality, reliable, modern systems of similar design and
which are capable of passing through signals received at the head
end with a minimum of alteration or deterioration.
(4)
Franchisee's system shall be capable of cablecasting
digital technology by utilizing digitally compressed signal technology.
(5)
Franchisee shall comply with the rules of the FCC
concerning the compatibility of its equipment with consumer electronic
equipment.
(6)
Franchisee's system shall be Internet capable.
B.
Construction oversight. Franchisee will inspect 100%
of all fiber and coaxial cable to insure that it meets manufacturers'
and governmental technical specifications. Franchisee shall designate
an employee to act as a franchisee representative by responding to
public service complaints on a daily basis during the rebuild and
provide the Township with the person's name and telephone number.
Construction shall be overseen by an employee or agent of the franchisee.
C.
Compliance with applicable law. In constructing, operating
and maintaining the system, franchisee shall at all times comply with
this franchise agreement and all applicable laws and regulations.
D.
Equipment quality. Equipment used for the distribution
system, head end and reception facilities shall be of good and durable
quality and be serviced and repaired on a regular basis.
E.
Parental control devices. Franchisee shall provide
to subscribers, upon request, parental control devices that allow
any channel or channels to be locked out. Such devices shall block
both the video and the audio portion of such channels to the extent
that both are unintelligible.
F.
Performance testing. Franchisee shall perform all
system tests and maintenance procedures as required by and in accordance
with this franchise agreement, franchisee's standards of good operating
practice, FCC regulations, and the National Cable Television Association's
test procedure guidelines.
G.
Cost treatment of rebuild requirements. Franchisee
has advised the Township that the rebuild requirements described in
this franchise constitute franchisee's own rebuild plan that predated
the negotiations of' this agreement. Any cost that franchisee incurs
to meet the rebuild of its physical plant as set forth in this agreement
shall not be offset against any sums due the Township as a tax, franchise
fee or otherwise regardless of whether the combination of franchise
fees and said costs exceeds 5% of franchisee's gross revenue in any
twelve-month period, nor shall said costs be the basis for an increase
of regulated basic service tier rates.
H.
Emergency alert. Franchisee shall comply with emergency
and disaster notification requirements of the Federal Communications
Commission and state, county and local emergency or disaster agencies.
Franchisee and franchising authority shall negotiate in good faith
to enter into a mutually acceptable license agreement for franchising
authority's use of the cable system for emergency communications.
I.
Technical standards. Any FCC technical standards or
guidelines related to one cable system and facilities shall be deemed
to be regulations under this franchise. At such time as the FCC does
not regulate technical standards, franchisee will continue to comply
with the FCC standards which were in effect on the effective date
of this franchise.
J.
Employee identification. Franchisee shall provide
a standard identification document to all employees, including employees
of subcontractors, who will be in contact with the public. Such documents
shall include a telephone number that can be used to verify identification.
In addition, franchisee shall use its best efforts to clearly identify
all field personnel, vehicles, and other major equipment that are
operating under the authority of franchisee.
K.
Stereo. Upon completion of the rebuild, the cable
system will have the capability and shall pass Broadcast Television
Systems Committee (BTSC) stereo signals or other stereo signals for
those broadcast, satellite, and locally originated services.
The franchisee shall notify franchising authority
regarding its need to trim trees or other natural growth upon and
overhanging public ways so as to prevent the branches of such trees
from coming in contact with the cable system of the franchisee; at
the option of the franchising authority, such trimming may be done
by the franchising authority at the reasonable expense of the franchisee,
or by the franchisee under the franchising authority's supervision
and direction. Trimming shall be limited to the area required for
clear cable system passage and shall not include major structural
branches which materially alter the appearance and natural growth
habits of the tree. Except in the event of an emergency, franchisee
shall give franchising authority five business days prior written
notice of its intent to trim trees or other natural growth pursuant
to this section.
A.
Initial residential subscriber services. During the
rebuild period, franchisee shall initially provide the same mix, level,
and quality of programming as provided on the effective date of this
franchise.
B.
Additional services. Franchisee shall make available
broad categories of programming to subscribers, which shall, at a
minimum, include the following:
C.
Leased access channels. Franchisee shall offer leased
access channels at such terms and conditions and rates as may be negotiated
with each lessee subject to the requirements of Section 612 of the
Cable Act.
D.
Cable drops and monthly service. Franchisee shall
provide one free cable drop and free basic and tier services, but
excluding premium services and pay-per-view, to all public and parochial
schools and libraries that are within 150 feet from the cable system.
Franchisee shall provide one free cable drop and free basic and tier
services, but excluding premium services and pay-per-view, to all
staffed Township buildings, fire stations and rescue squads, the Bob
Hope Veteran's Memorial Service Center, and the James J. A. Gallagher
Community and Senior Center in the Township that are within 150 feet
from the cable system. The Township may pay the incremental cost to
have any drops installed in excess of 150 feet. All nonpremium programming
and closed-circuit training programming shall be transmitted to all
of these locations on the cable system, free of charge.
E.
Closed-captioning. Franchisee shall pass through all
closed-circuit signals received by the system for the hearing impaired.
F.
State of the art. Notwithstanding anything to the
contrary, the Township unilaterally may amend the franchise so as
to require the franchisee to incorporate the state of the Art (the
"state-of-the-art option").
(1)
In order to initiate the state-of-the-art option,
the Township shall first commence a review of the cable system to
determine whether it is state of the art. Commencement of such review
shall occur no earlier than 36 months after the effective date and
shall be completed no later than 48 months after the effective date.
(a)
The review described in this Subsection F(1) shall, at a minimum, take into account the following:
[1]
Characteristics of the existing franchisee's
cable system;
[2]
The state of the art;
[3]
The additional benefits provided to customers
by the state of the art;
[4]
The marketplace demand for state of the art
taking into account any associated rate increases; and
[5]
Any additional factors deemed relevant by mutual
agreement of the Township and franchisee.
(b)
If, after conducting such a review, the Township
determines that the exercise of the state-of-the-art option may be
warranted, the Township shall hold at least two public hearings to
enable the general public and franchisee to comment and present additional
evidence.
(2)
If, following such hearings, Township determines that
the exercise of the state-of-the-art option is warranted, it may order
the state of the art be implemented (the "order"). The order shall
be in writing and shall set forth the basis for the Township's decision,
including a reasonable period of time for franchisee to implement
the state of the art, which implementation shall not be required prior
to the ninth anniversary of the effective date. Upon agreement, the
parties may amend this agreement accordingly. If, however, franchisee
is not willing to comply with such order, the franchisee may, within
60 days after the Township's order:
(a)
Appeal the Township's order to any court of
competent jurisdiction in the Commonwealth of Pennsylvania; or
(b)
Notify the Township pursuant to Section 626
of the Communications Act that it wishes to commence proceedings to
renew its franchise. Such notice shall be deemed to shorten the term
of the franchise such that this agreement will expire 36 months from
the date of the franchisee's notice. Franchisee shall not be deemed
to be in violation of the order or of this agreement if such renewal
proceedings are commenced or have already been commenced pursuant
to the Act.
(3)
If the court finds that franchisee has demonstrated Township's order is not supported by a preponderance of the evidence based upon the record of the proceeding from Subsection F(1) above, the court shall grant appropriate relief.
(4)
"State of the art" shall mean equipment and/or facilities
that:
(a)
Are readily available with reasonable delivery
schedules from two or more sources of supply;
(b)
Have the capability to perform the intended
functions demonstrated within cable systems with similar characteristics
(including but not necessarily limited to population, density, subscriber
penetration, etc.) under actual operation conditions for purposes
other than test or experimentation; and
(c)
Can be implemented by franchisee in an economically
feasible manner taking into account economic waste (i.e., early retirement
of assets).
(5)
Township may not initiate the state-of-the-art option,
or issue any order, at a time when franchisee is subject to effective
competition as defined from time to time by federal law.
(6)
The term "state of the art" does not include equipment
and/or facilities for public, educational or governmental access.
In order to develop and promote public, educational,
and government access programming, franchisee hereby agrees to provide
the following:
A.
At franchisee's sole cost and expense, franchisee
shall provide a return line as set forth in this section from each
of the following locations: Township Municipal Building; Harry S.
Truman Senior High School; the Bob Hope Veteran's Memorial Service
Center; and the James J. A. Gallagher Community and Senior Center.
"Return line" in this section means that the franchisee shall provide,
from and including the modulator, all necessary equipment, except
radio equipment, to feed audio and video signals directly over the
cable system in the service area, except studio equipment, from each
of the aforesaid locations. The return lines will be activated within
120 days of written request from the Township.
B.
Upon the effective data, franchisee shall provide
a channel reserved for educational use to be shared and programmed
for educational purpose and use in a manner set forth by rules and
regulations adopted by the franchising authority.
C.
In the event that franchisee changes its cable format,
size or technical requirements, or transmits digital signals, at the
election of the franchising authority, franchisee shall make any necessary
adjustments to facilities and equipment provided by franchisee at
no cost or expense to the franchising authority so that franchisee
shall be able to transmit clearly on the channels reserved for public
access, educational and governmental use.
D.
Franchisee shall reserve as part of its cable service
no less than one channel for the exclusive use of the Township to
be shown over the cable system in the service area (government access
channels). Such channel shall be activated only if and when notice
to commence operation is received from the franchising authority,
in which event activation and programming shall occur within 90 days
of franchisee's receipt of the aforementioned notice. Until such time
as such channel has been so activated, franchisee may utilize such
channel.
E.
Franchisee shall reserve as part of its cable service
no less than one channel for public access use to be shown over the
cable system in the service area. Such channel shall be activated
only if and when notice to commence operation is received from the
franchising authority, in which event activation and programming shall
occur within 90 days of franchisee's receipt of the aforementioned
notice. Until such time as such channel has been so activated, franchisee
may utilize such channel.
F.
Franchisee shall reserve as part of its cable service
no less than two additional channels for educational use to be shown
over the cable system in the service area. Such channels shall be
activated only if and when one or more notices to commence operation
of a channel are received from the franchising authority, in which
event activation of such channel(s) and programming shall occur within
90 days of franchisee's receipt of the aforementioned notice. Until
such time as such channel has been so activated, franchisee may utilize
such channel.
G.
In the event governmental, educational or public access
use channels of other cable systems owned or operated by franchisee
within Bucks County, Pennsylvania, shall be interconnected with franchisee's
other cable systems within Bucks County, Pennsylvania, franchisee
shall provide interconnection of such other cable system(s) with franchisee's
cable system in the service area upon six months of written request
of the franchising authority. "Interconnected" shall mean the provision
of an electronic linkage between cable systems and cable services
or any part, designated channel or signal pathway thereof and any
other designated cable system and cable services or any part, designated
channel or signed pathway thereof, with the result that cable services
of high quality may be transmitted between such cable systems. Franchising
authority and franchisee mutually shall decide the allocation between
them of the cost of interconnection.
H.
Equipment. Franchisee shall provide a grant of $150,000
to the Township for capital equipment. The funds will be provided
in the following manner: $25,000 shall be provided within two years
of the effective date; $50,000 shall be provided within 48 months
of the effective date; $55,000 shall be provided within 72 months
from the effective date; and $20,000 shall be provided within 96 months
from the effective date. The parties agree that such grant will not
be deducted from the franchise fee or itemized on subscriber bills.
I.
Public access to facilities. Residents of the Township
will be allowed to use such facilities and equipment at franchisee's
public access center within Bucks County.
J.
Franchisee shall continue to program and distribute
over its cable system a community information channel, such as Comcast
Newsmakers.
A.
Business offices and personnel. Franchisee shall establish
and maintain at least one payment office within the Township which
shall, at a minimum, be open to receive payments during franchisee's
normal business hours. Franchisee shall also provide personnel, telephone
service, including a locally listed or toll-free telephone number,
and other equipment as needed within the service area, to ensure timely,
efficient and effective service to consumers and for the purpose of
receiving inquiries, requests and complaints concerning all aspects
of the construction, installation, operation, and maintenance of the
cable system and for the payment of subscribers' service charges.
B.
Subscriber complaints. Pursuant to the ordinance,
franchisee shall promptly respond to and resolve all subscriber complaints.
However, nothing herein shall require franchisee to maintain or repair
any equipment not owned by it.
C.
Major outages. Franchisee shall maintain records of
all major outages defined as a discontinuation of cable service from
one or more fiber nodes in Bristol Township. Such records shall indicate
the estimated number of subscribers affected, the date and time service
was restored, the duration of the outage, the cause of the outage
and a description of the corrective action taken. Such records shall
be available to the Township during normal business hours upon reasonable
prior notice and retained in franchisee's files for not less than
one year. Upon written request of the Township, a statistical summary
of such records shall be prepared by franchisee and submitted to the
Township.
D.
Outages. Franchisee, upon subscriber request, shall
credit the subscriber's account for verifiable outages of six hours
or more for the levels of service affected by such outages. The franchisee
shall provide annual written notice to subscribers of the availability
of credits for outages.
E.
Customer handbook. Franchisee shall provide written
customer policies or a handbook to all new subscribers and, thereafter,
upon request. Franchisee's written customer policies or handbook shall,
at a minimum, comply with all notice requirements in the ordinance
and those promulgated by the FCC. If franchisee's operating rules
are changed, subscribers shall be notified in a timely manner. Rate
and consumer complaint information will be distributed annually to
subscribers. Franchisee shall file a consumer handbook with the Township
whenever it is changed.
F.
Subscriber contracts. Franchisee shall file a copy
of the form of franchisee's subscriber contract with the Township
initially and wherever changed.
G.
TDD. Franchisee shall maintain a TDD machine or equivalent
to receive consumer messages from the hearing impaired.
Franchisee agrees that it shall not discriminate
in providing service to the public nor against any employee or applicant
for employment because of race, color, creed, religion, sex, disability,
national origin, age, or marital status. In the employment of persons,
franchisee shall fully comply with applicable local, state and federal
law, and shall take affirmative action to ensure that applicants are
employed and that employees are treated during employment without
regard to their race, color, creed, religion, sex, disability, national
origin, age or marital status.
A.
Mandatory arbitration. Except as may be required by
federal, state, or local law, all claims, disputes and other matters
in question arising out of, or relating to, this agreement shall be
submitted to arbitration: definitions, including company or franchisee,
effective date, FCC, franchise, franchise authority, gross revenue,
person, public way, service area, state of the art, street, highway,
system, subscriber, Township, user; §§ A210-2,
Franchise granted; A210-4, Term; A210-6, Service area; A210-7, System
and capacity; A210-8, Trimming of trees and natural growth; A210-9,
System Services After Rebuild; A210-9F, State-of-the-art option; A210-10,
PEG channels; A210-14, Police powers; A210-15, Franchise fees and
performance bond; and A210-17, Remedies, notice of violation, franchisee's
right to cure or respond, liquidated damages. Arbitration may be initiated
by either the franchising authority or the franchisee by filing a
written demand for arbitration by certified mail with the other party.
B.
Denial of renewal. Notwithstanding anything to the
contrary, any final denial of franchisee's proposal for renewal that
has been submitted in compliance with the franchise and the Cable
Act or has been adversely affected by a failure of the franchising
authority to act in accordance with the procedural requirements of
the Cable Act shall afford the franchisee the right to appeal such
final decision or failure pursuant to the Cable Act (47 U.S.C. § 555).
D.
Arbitration panel.
(1)
Each arbitration shall be conducted by a panel of
three arbitrators. One arbitrator shall be appointed by the franchising
authority, one arbitrator shall be appointed by the franchisee, and
the third arbitrator shall be the Chairperson of the panel, and shall
be appointed by the other two arbitrators. If the other two arbitrators
are unable to agree upon at appointment, the third arbitrator shall
be appointed by the President Judge of the Court of Common Pleas for
Bucks County. No member of the panel shall be an officer, employee
or attorney of the franchising authority or of the franchisee or any
affiliate thereof.
(2)
The franchising authority and the franchisee shall
each appoint its arbitrator and send written notice by certified mail
to the other party of its selection not later than 15 calendar days
following receipt by the party not initiating the arbitration of the
written demand for arbitration. The third arbitrator shall be appointed
not later than 30 calendar days following receipt of the demand for
arbitration.
E.
Arbitration hearing. The Chairperson of the arbitration
panel shall select the site of the hearing, in Bucks County, Pennsylvania,
retain a stenographic reporter to report the hearing, and, in consultation
with the other members of the panel and the parties, schedule the
hearing. The hearing shall be scheduled to commence not later than
75 calendar days following receipt by the party not initiating the
arbitration of the demand for arbitration. The Chairperson of the
panel shall send by certified mail written notice of the time, date
and place of the hearing to the other two arbitrators, the franchising
authority, the franchisee and legal counsel to the franchising authority
and the franchisee.
F.
Arbitration costs.
(1)
Unless otherwise provided in this franchise, the compensation
and expenses of the arbitrator appointed by the franchising authority
shall be borne and paid solely by the franchising authority. The compensation
and expenses of the arbitrator appointed by the franchisee shall be
borne and paid solely by the franchisee. The franchising authority
and the franchisee shall each bear and solely pay their own attorney's
fees, expert and other witness fees and other expenses incurred in
preparing and prosecuting their respective cases. In proceedings where
the record of a public hearing of the franchising authority is to
be considered by the arbitration panel, the costs of transcribing,
typing and copying the record shall be borne and paid solely by the
franchisee.
(2)
The compensation and expenses of the Chairperson of
the arbitration panel, rental, if any, for the place of the hearing,
per diem costs of the stenographic reporter, costs of transcribing
and typing and transcripts of the arbitration hearing, and any other
costs of the arbitration proceeding shall be divided equally between,
borne and paid by the franchising authority and the franchisee. The
arbitration panel shall not be empowered to order a division of costs,
fees or expense, different from that prescribed by this section.
G.
Arbitration award. The arbitration award shall be
determined by a majority of the members of the arbitration panel and
shall be in writing. If it is necessary for the panel to make determinations
of fact, it shall include findings of fact and conclusions with the
award if requested by any party to the proceeding. The award shall
be issued and sent by certified mail to the parties not later than
90 calendar days following the close of the arbitration hearing.
H.
Limitation of powers. The arbitration panel shall
have no authority to add to, delete or alter any provisions of this
agreement, but shall limit its interpretation to the express terms
of this agreement. Under no circumstances shall an arbitration panel
be vested with authority or jurisdiction to determine or award monetary
damages (by way of setoff, counterclaim, directly or otherwise) or
any other relief against the franchising authority or its officers,
agents or employees.
I.
Award final. The award rendered by the arbitrators
shall be final, and judgment may be entered upon it in any court having
jurisdiction thereof.
The franchisee shall, at all times during the
term of this agreement, be subject to the exercise of the police power
by the franchising authority and to such other lawful ordinances,
rules and regulations as franchising authority shall hereafter adopt.
There is hereby reserved to franchising authority every right and
power which is required to be herein reserved or provided by any ordinance,
rule or regulation of the franchising authority, and the franchisee
shall comply with any action or requirements of franchising authority
in its exercise of such right or power heretofore or hereafter enacted
or established. The franchisee shall comply with all ordinances, codes,
statutes, rules and regulations of the franchising authority, County
of Bucks, Commonwealth of Pennsylvania, and the United States of America
which are now in effect or hereafter enacted.
A.
Unless reduced, waived or increased by the franchising
authority, franchisee shall pay to franchising authority a franchise
fee equal to 5% of annual gross revenue. Said franchise fee may be
increased at the sole and exclusive election of the franchising authority
to an amount not to exceed the maximum amount allowed by law in such
increments and in such amounts as the franchising authority may elect,
upon 180 days prior written notice to the franchisee. Franchising
authority reserves the right to change such amount one or more times
and the failure to make any such election shall not constitute a waiver
hereunder.
B.
"Gross revenue" means all revenue received from all
sources attributable to the operation of the cable system by the franchisee
and its affiliates within the municipal boundaries of the Township
from cable service including, but not limited to, subscription fees,
additional set fees, converter fees, remote fees, late fees, installation
fees, sales commissions, pay-per-view fees, cable-related publications,
sales or other commissions, channel leasing payments, and revenue
received from the sale of time or programming on leased channels,
the sale of commercial time or programs, and the revenue received
from provision of any lawful cable service. But for a decision of
the franchisee not to conduct operations directly by the franchisee,
all revenues collected by an affiliate, shall be considered gross
revenue and subject to the franchise fee if such revenue reasonably
could have been derived from operations within the Township directly
by the franchisee. Excluded are the following:
(1)
The revenue of any affiliate including, without limitation,
a supplier of programming to the franchisee, but such exclusion shall
apply only to the extent that said revenue is also included in the
gross revenue of the franchisee;
(2)
The gross revenue of any affiliate of franchisee,
which serves as representative or agent for cable operators and which
is in the business of aggregating cable operators for the purpose
of selling advertising time on cable systems, which gross revenue
is not distributed, in cash or in-kind; or in combination of cash
and in-kind, to franchisee, which exclusion, in all events, shall
not exceed 60% of such affiliate's gross revenue;
(3)
Amounts collected by the franchisee from subscribers
on behalf of leased access channel programmers, but such exclusion
shall apply only to the extent said amounts are passed on by the franchisee
to said programmers in toto.
(4)
The revenue of the franchisee or any affiliate from
the operation of a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Communications
Act of 1934.
C.
"Affiliate" means a person or entity:
(1)
With a direct or indirect ownership interest in the
subject entity of 5% or more or controls such interest, including
forms of ownership such as general, limited, or other partnership
interests, direct ownership interests, limited liability companies
and other forms of business organizations and entities but not including
corporations; or
(2)
With a stock interest in the subject entity where
the subject entity is a corporation and such stockholder or its nominee
is an officer or director of the franchisee or who directly or indirectly
owns or controls 5% or more of the outstanding stock, whether voting
or nonvoting; or
(3)
Any entity which controls franchisee, is controlled
by, or is under common control with such person or entity.
D.
The franchise fee shall be assessed on a calendar
quarterly basis and shall be payable to the franchising authority
no later than 45 days after the expiration of the calendar quarter
for which payment is due. Franchisee shall file a complete and accurate
verified statement, under notarial seal, at the end of each calendar
year quarter, certified as true and correct by a representative of
franchisee duly authorized to make such certification, explaining
how the payment was calculated. Said statement, in the form as may
be required by the Township, shall include information as of the last
day of such calendar quarter regarding the number of subscribers for
each service tier or other cable service, the rate charged for each,
the amount of revenue collected for each during the applicable calendar
quarter and a breakdown by category of revenue from all other sources.
Said statement shall accompany each payment. Upon request by the franchising
authority, franchisee shall provide such additional information as
may be reasonably required. In connection with the franchise fee payment
due on February 14, the franchisee shall also submit to the franchising
authority, on that date or no later than six months thereafter, a
detailed statement by an officer of the franchisee verifying the accuracy
of the gross revenue and franchise fee payments for the previous fiscal
year, with a detailed breakdown for each month.
E.
Upon 10 days prior written notice, franchising authority
shall have the right to inspect and copy at franchisee's offices the
financial records of franchisee for the purpose of verifying or identifying
revenue owed to the franchising authority. Where in the opinion of
the franchising authority the records are reasonably necessary to
verify or supplement franchisee's records, the franchisee shall cooperate
with franchising authority to request financial records of affiliate(s)
to be made available to the franchising authority which are related
to the provision of cable service to subscribers in the Township or
which are related in any way to the gross revenue attributable to
the operation of the cable system in the Township. Franchising authority
shall have the right to audit and to recompute any amounts determined
to be payable under this or any other section; provided, however,
that such audit shall take place within 36 months following the close
of each of franchisee's fiscal years. Any additional amount due to
franchising authority as a result of the audit shall be paid within
30 days following written notice to franchisee by the franchising
authority, which notice shall include a copy of the audit report.
In the event such audit reflects an underpayment in any such year
to be 3% or more, the cost of said audit, at the election of the franchising
authority, shall be borne by the franchisee.
F.
In the event that any franchise or other payment is
not made or the requisite documentation and certification is not provided
on or before the applicable dates heretofore specified, interest shall
be compounded daily and set at the one-year United States treasury
bill rate existent on the date payment was due, plus three percentage
points. Any amount recomputed to reflect correct payment due shall
bear interest as described from the date such payment was originally
due.
G.
Bonds. Franchisee shall furnish a construction bond
to the Township during the construction of the rebuild in the amount
of $150,000. Franchisee shall initially furnish a performance bond
in the amount of 1/2 the value of the franchise fee for the year prior
to the effective date of the franchise. The construction and performance
bonds shall be replenished within 10 days of use by the Township.
To offset the effects of inflation, the amounts of the performance
bond provided for herein shall be increased at the end of every three
years to equal one half of the franchise fee paid for the last year
of such three-year period. Franchisee shall provide such performance
bond to the Township within 30 days of the effective date of this
franchise. The construction bond shall be provided to the Township
30 days prior to rebuilding construction. The Township shall certify
that the rebuild is completed within 45 days after requested by the
franchisee. Upon receipt of such certification, the franchisee may
cancel the construction bond. The performance bond shall be maintained
during the life of the franchise, to guarantee the faithful performance
of its obligations.
The Township shall exercise appropriate regulatory
authority in the enforcement of the provisions of the ordinance and
this franchise.
A.
Schedule of liquidated damages. Because franchisee's
failure to comply with certain material provisions of this agreement
will result in injury to the Township or to subscribers, and because
it will be difficult to estimate the extent of such injury, the Township
and franchisee hereby agree that, unless otherwise addressed in this
agreement by other enforcement, the liquidated damages stated in this
agreement represent both parties' best estimate of the damages resulting
from the specified injury.
B.
Violations. The Township shall provide franchisee
with a detailed written notice of any franchise violation upon which
it proposes to take action, and there shall be a thirty-day period
within which franchisee may demonstrate that a violation does not
exist or cure an alleged violation or, if the violation cannot be
corrected in 30 days, submit a plan satisfactory to the Township to
correct the violation. If an alleged violation is proven to exist,
and no cure or action on a plan acceptable to the Township has been
received by the Township within 30 days, such liquidated damages shall
be chargeable to the performance bonds set forth in this agreement,
if not tendered by franchisee within 30 days. Franchisee may petition
the Township for relief with just cause. The imposition of liquidated
damages shall not preclude the Township from exercising the other
enforcement provisions of this agreement, including revocation, or
other statutory or judicially imposed penalties. Liquidated damages
may be imposed as follows:
(1)
For failure to complete construction, the rebuild
or extend service in accordance with franchise: $250 per day for each
day the violation continues;
(2)
For failure to comply with requirements for public
access educational and government channels: $150 per day for each
day the violation continues;
(3)
For failure to submit reports, maintain records, provide
documents or information: $75 per day for each day the violation continues;
(4)
For violation of customer service standards required
by this franchise, this agreement, or by FCC regulation: $75 per day
per standard violated;
(5)
For violation of the books and financial records provisions
of this franchise and this agreement: up to $150 per day for each
day the violation continues; and
(6)
For violation of other material provisions of this
franchise: up to $150 per day for each day the violation continues.
In any action by the franchisee and franchising
authority or representative thereof mandated or permitted under the
terms hereof, such party shall act in a reasonable, expeditious and
timely manner, time being of the essence.
The failure of the Township at any time to require
performance by franchisee of any provision hereof shall in no way
affect the right of the Township thereafter to enforce the same, nor
shall the waiver by the Township of any breach of any provision hereof
be taken to be a waiver of any succeeding breach of such provision,
or as a waiver of the provision itself, or as a waiver of any other
provision of this agreement.
The rights and remedies reserved to the Township
by this franchise are cumulative and shall be in addition to and not
in derogation of any other rights or remedies which the Township may
have with respect to the subject matter of this franchise, and a waiver
thereof at any time shall have no effect on the enforcement of such
rights or remedies at a future time.
Nothing herein shall be deemed to create civil
liability by one party for the action, omissions or negligence of
the other party, or of a party's agents, employees, officers or assigns.
Each party shall be solely liable for claims against it by third parties,
whether arising under the Cable Television Consumer Protection and
Competition Act of 1992 or under any other provision of law.
All notices from Comcast to the Township pursuant
to this agreement shall be sent to the following addresses for the
conduct of matters related to the franchise.
|
If to the Township:
|
Mr. Samuel Fenton
Mayor, Bristol Township
2501 Bath Road
Bristol, PA 19007
|
|
With a copy to:
|
Ms. Susan Newsome
Manager, Bristol Township
2501 Bath Road
Bristol, PA 19007
|
|
If to Comcast:
|
Mr. David Breidinger
Comcast Communications
122 West State Street
Trenton, New Jersey 08608
|
|
With a copy to:
|
General Counsel Comcast Communications
1500 Market Street
Centre Square
Philadelphia, PA 19102
|
Captions to sections throughout this franchise
are solely to facilitate the reading and reference to the sections
and provisions of this agreement. Such captions shall not affect the
meaning or interpretation of the agreement.
Nothing herein shall be deemed to create a joint
venture or principal/agent relationship between the parties, and neither
party is authorized to, nor shall either party act toward third person;
or the public, in any manner which would indicate any such relationship
with the other.
If any section, sentence, paragraph, term or
provision of this agreement is determined to be illegal, invalid or
unconstitutional, by any court of competent jurisdiction or by any
state or federal regulatory agency having jurisdiction thereof, such
determination shall have no effect on the validity of any other section,
sentence, paragraph, term or provision thereof, all of which shall
remain in full force and effect for the term of this agreement.
The franchise herein granted is personal to
the franchisee. It cannot be transferred, leased, assigned or disposed
of as a whole, or in part either by sale of stock, forced sale, merger,
consolidation, change in control of franchisee, or otherwise, without
prior written consent of the Township expressed by resolution or ordinance
and then only under such conditions as may be therein prescribed.
Notwithstanding the above, upon written notice to the Township, the
franchisee may, without obtaining the prior consent of the Township,
make any assignment or transfer to any firm or corporation which franchisee
controls, is controlled by, or is under common control with such person
or entity.
Notwithstanding anything to the contrary set
forth herein, all information specifically marked by the franchisee
as proprietary or confidential in nature and furnished to the Township
or its designated representatives shall be treated as confidential
and its officially designated representatives agree in advance to
treat any such information as confidential and only to disclose it
to employees, agents or representatives thereof that have a need to
know or in order to enforce the provisions hereof, or shall be treated
otherwise in conformity with Pennsylvania law. The franchisee shall
not be required to provide subscriber information in violation of
Section 631 of the Communications Act.
