[HISTORY: Adopted by the Township Council
of Horsham Township 3-10-2021 by Ord. No. 2021-03.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 86,
Cable Television, adopted 9-23-2019 by Ord. No. 2019-06.
Except as otherwise provided herein, the definitions and word
usages set forth in the Communications Act (as hereinafter defined)
are incorporated herein and shall apply in this agreement. In addition,
the following definitions shall apply:
A video channel that franchisee shall make available to the
Township without charge for educational or governmental use for the
transmission of video programming as directed by Township.
Any person who, directly or indirectly, owns or controls,
is owned or controlled by, or is under common ownership or control
with, the franchisee.
Any service tier that includes the retransmission of local
television broadcast signals as well as the EG channel(s) required
by this franchise.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(6), as may be
amended, which currently states: "the one-way transmission to subscribers
of video programming or other programming service, and subscriber
interaction, if any, which is required for the selection or use of
such video programming or other programming service."
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(7), as may be
amended, which currently states "a facility, consisting of a set of
closed transmission paths and associated signal generation, reception,
and control equipment that is designed to provide cable service which
includes video programming and which is provided to multiple subscribers
within a community, but such term does not include (A) a facility
that serves only to retransmit the television signals of 1 or more
television broadcast stations; (B) a facility that serves subscribers
without using any public right-of-way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of
[Title II of this Act], except that such facility shall be considered
a cable system (other than for purposes of section 621(c) to the extent
such facility is used in the transmission of video programming directly
to subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (D) an open video system that complies
with section 653 of this title; or (E) any facilities of any electric
utility used solely for operating its electric utility system." The
cable system shall be limited to the optical spectrum wavelength(s),
bandwidth, or future technological capacity that is used for the transmission
of cable services directly to subscribers within the Township and
shall not include the tangible network facilities of a common carrier
subject in whole or in part to Title II of the Communications Act
or of an information services provider.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(4), as may be
amended, which currently states "a portion of the electromagnetic
frequency spectrum which is used in a cable system and which is capable
of delivering a television channel (as television channel is defined
by the FCC by regulation)."
The Communications Act of 1934, as amended.
Any written communication, including electronic mail, by
a subscriber expressing dissatisfaction with any aspect of franchisee's
cable system or cable operations.
The ability to exercise de facto or de jure control over
day-to-day policies and operations or the management of the franchisee's
affairs.
The standards for customer service as set forth in Exhibit
B.[1]
An access channel available for the use of the local schools
in the Township.
Educational or governmental.
The United States Federal Communications Commission, or successor
governmental entity thereto.
The franchisee's network that transmits noncable services
pursuant to the authority granted under the laws of the Commonwealth
of Pennsylvania and under Title II of the Communications Act, which
noncable services are not subject to Title VI of the Communications
Act, and provides cable services from the operation of a cable system.
An event or events reasonably beyond the ability of the franchisee
to anticipate and control. This includes, but is not limited to, the
following: severe or unusual weather conditions, labor strikes, slowdowns,
stoppages, and lockouts, war or act of war (whether an actual declaration
of war is made or not), insurrection, riots, act of public enemy,
including terrorist attacks, orders of the government of the United
States or the Commonwealth of Pennsylvania, actions or inactions of
any government instrumentality or public utility other than franchisee
(including condemnation to the extent not foreseeable), accidents
for which the franchisee is not responsible, fire, flood, or other
acts of God, or work delays caused by waiting for utility providers
to service or monitor utility poles to which the franchisee's
FTTP network is attached, and unavailability of materials and/or qualified
labor to perform the work necessary to the extent that such unavailability
of materials and/or qualified labor was reasonably beyond the ability
of the franchisee to foresee or control.
Verizon Pennsylvania LLC, and its lawful and permitted successors,
assigns, and transferees.
An access channel available for the use of the Township for
governmental purposes.
All revenue, as determined in accordance with generally accepted
accounting principles, which is derived by the franchisee or its affiliates,
from the operation of the cable system to provide cable service in
the Township, including, but not limited to:
Basic service fees;
Fees charged to subscribers for any service tier other than
basic service;
Fees charged to subscribers for premium cable services;
Fees for video-on-demand and pay-per-view;
Fees charged to subscribers for any optional, per-channel or
per-program cable services;
Revenue from the provision of any other cable services;
Charges for installation, additional outlets, relocation, disconnection,
reconnection and change-in-service fees for video programming;
Fees for changing any level of cable service programming;
Fees for service calls;
Early termination fees (solely to the extent such early termination
fee can be proportionately attributable to cable service);
Fees for leasing of channels;
Rental of any and all subscriber equipment, including digital
video recorders, converters and remote control devices;
Advertising revenues (on a pro rata basis) as set forth herein;
Revenue from the sale or rental of subscriber lists;
Revenues or commissions received from the carriage of home shopping channels (on a pro rata basis as set forth herein) subject to Subsection C(5) below;
Fees for music services that are cable services over the cable
system;
Fees for DVR;
Regional sports programming fees;
Late payment fees;
NSF check charges;
Franchise fees for the provision of cable services over the
cable system in the Township; and
Foregone revenue that the franchisee chooses not to receive in exchange for trades, barters, services, or other items of value consistent with Subsection C(8) below.
For the avoidance of doubt, advertising revenues shall include the amount of the franchisee's gross advertising revenue calculated in accordance with generally accepted accounting principles (i.e., without deducting commissions paid to independent third parties). Advertising and home shopping revenue, as described in Subsections A(13) and A(15) above, is based upon the ratio of the number of subscribers as of the last day of the period for which gross revenue is being calculated to the number of the franchisee's subscribers within all areas covered by the particular revenue source as of the last day of such period. By way of illustrative example, the franchisee sells two ads: Ad "A" is broadcast nationwide; Ad "B" is broadcast only within Pennsylvania. The franchisee has 100 subscribers in the Township, 500 subscribers in Pennsylvania, and 1,000 subscribers nationwide. Gross revenue as to the Township from Ad "A" is 10% of the franchisee's revenue therefrom. Gross revenue as to the Township from Ad "B" is 20% of the franchisee's revenue.
Gross revenue shall not include:
Revenues received by any affiliate or other person in exchange
for supplying goods or services used by the franchisee to provide
cable service over the cable system;
Bad debts written off by the franchisee in the normal course
of its business; provided, however, that bad debt recoveries shall
be included in gross revenue during the period collected;
Refunds, rebates, or discounts made to subscribers or other
third parties;
Any revenues classified, in whole or in part, as noncable services
revenue under federal or state law including, without limitation,
revenue received from telecommunications services; revenue received
from information services, including, without limitation, internet
access service, electronic mail service, internet-derived electronic
bulletin board service, or similar online computer services; charges
made to the public for commercial or cable television that is used
for two-way communication that are classified as noncable services;
and any other revenues classified as noncable services in accordance
with applicable laws or regulations;
Any revenue of the franchisee or any other person that is received
directly from the sale of merchandise through any cable service distributed
over the cable system, notwithstanding that portion of such revenue
which represents or can be attributed to a subscriber fee or a payment
for the use of the cable system for the sale of such merchandise,
which portion shall be included in gross revenue;
The sale of cable services on the cable system for resale in
which the purchaser is required to collect cable franchise fees from
purchaser's customer;
Any tax of general applicability imposed upon the franchisee
or upon subscribers by a local, state, federal, or any other governmental
entity and required to be collected by the franchisee and remitted
to the taxing entity (including, but not limited to, sales/use tax,
gross receipts tax, excise tax, utility users tax, public service
tax, communication taxes, and noncable franchise fees);
Any forgone revenue that the franchisee chooses not to receive
in exchange for its provision of free or reduced cost cable or other
communications services to any person, including, without limitation,
employees of the franchisee and public institutions or other institutions
designated in the franchise; provided, however, that such forgone
revenue that the franchisee chooses not to receive in exchange for
trades, barters, services, or other items of value shall be included
in gross revenue;
Sales of capital assets or sales of surplus equipment that are
not deemed to be a cable service;
Program launch fees;
Directory or internet advertising revenue including, but not
limited to, yellow page, white page, banner advertisement, and electronic
publishing; and
Any fees or charges collected from subscribers or other third
parties for any EG grant.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(24), as may be
amended in the future, which states "the offering of a capability
for generating, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information via telecommunications,
and includes electronic publishing, but does not include any use of
any such capability for the management, control, or operation of a
telecommunications system or the management of a telecommunications
service."
Dial-up or broadband access service that enables subscribers
to access the internet.
Any service that is not a cable service as defined herein,
including, but not limited to, information services and telecommunications
services.
Those service conditions that are within the control of the
franchisee. Those conditions that are not within the control of the
franchisee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe
or unusual weather conditions. Those conditions that are ordinarily
within the control of the franchisee include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular
peak or seasonal demand periods, and maintenance or rebuild of the
cable system. See 47 CFR 76.309(c)(4)(ii).
An individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
The surface and the area across, in, over, along, upon, and
below the surface of the public streets, roads, bridges, sidewalks,
lanes, courts, ways, alleys, and boulevards, including public utility
easements and public lands and waterways used as public rights-of-way,
as the same now or may thereafter exist, which are under the jurisdiction
or control of the Township. Public rights-of-way do not include the
airwaves above a right-of-way with regard to cellular or other nonwire
communications or broadcast services.
All portions of the Township where cable service is being
offered.
The loss of picture or sound on one or more cable channels.
A person who lawfully receives cable service over the cable
system with the franchisee's express permission.
Shall be defined herein as it is defined under Section 3
of the Communications Act, 47 U.S.C. § 153(53), as may be
amended in the future, which states "the offering of telecommunications
for a fee directly to the public, or such classes of users as to be
effectively available directly to the public, regardless of the facilities
used."
Franchisee's existing telecommunications services and
information services facilities and its FTTP network facilities.
Title II of the Communications Act, Common Carriers, as amended,
which governs the provision of telecommunications services.
Title VI of the Communications Act, cable Communications,
as amended, which governs the provision of cable services by franchisee.
The incorporated area (entire existing territorial limits)
of the Township and such additional areas as may be included in the
corporate (territorial) limits of the Township during the term of
this franchise.
Any transaction in which:
The right, title, control or other interest in the franchisee
is transferred, directly or indirectly, from one person or group of
persons to another person or group of persons, so that control of
the franchisee is transferred; or
At least 30% of the equitable ownership of the franchisee is
transferred or assigned; or
The rights held by the franchisee pursuant to this agreement
are transferred or assigned to another person or group of persons.
However, notwithstanding Subsection A(1), (2), and (3), a transfer of the franchise shall not include transfer of an ownership or other interest in the franchisee to the parent of the franchisee or to another affiliate of the franchisee; transfer of an interest in the franchise or the rights held by the franchisee under the franchise to the parent of the franchisee or to another affiliate of the franchisee; any action that is the result of a merger of the parent of the franchisee; or any action that is the result of a merger of another affiliate of the franchisee.
Shall be defined herein as it is defined under Section 602
of the Communications Act, 47 U.S.C. § 522(20), which currently
states "programming provided by, or generally considered comparable
to programming provided by, a television broadcast station."
Any entity using wired facilities occupying a substantial
portion of the public rights-of-way as the primary means of delivery
to provide video programming services to multiple subscribers within
the territorial boundaries of the Township, for purchase, barter,
or free of charge, regardless of the transmission method, facilities
or technologies used. A VSP shall include, but is not limited to,
any entity that provides cable services, video programming services
or internet-protocol-based services within the territorial boundaries
of the Township.
[1]
Editor's Note: Said exhibit is included as an attachment to this chapter.
A.Â
Grant of authority. Subject to the terms and conditions of this agreement and applicable laws and regulations, the Township hereby grants to the franchisee the right to own, construct, operate, and maintain a cable system to provide cable services along the public rights-of-way within the Township. No privilege or power of eminent domain is bestowed or waived by this grant. Furthermore, consistent with Subsection B below, the Township's grant of authority to provide cable services pursuant to this franchise does not include the authority to provide any noncable services.
B.Â
Township's regulatory authority. The parties recognize that
the franchisee's FTTP network has been constructed and is operated
and maintained as an upgrade to and/or extension of its existing telecommunications
Facilities for the provision of noncable services. The jurisdiction
of the Township over the franchisee's telecommunications Facilities
is governed by federal and state law, and the Township will not assert
jurisdiction over the franchisee's FTTP network in contravention
of those laws. Therefore, as provided in Section 621 of the Communications
Act, 47 U.S.C. § 541, the Township's regulatory authority
under Title VI of the Communications Act is not applicable to the
construction, installation, maintenance, or operation of the franchisee's
FTTP network to the extent the FTTP network is constructed, installed,
maintained, or operated for the purpose of upgrading and/or extending
Verizon's existing telecommunications Facilities for the provision
of noncable services. This agreement shall not be construed to limit
whatever existing regulatory authority the Township may have under
federal and state law with respect to the FTTP network facilities.
C.Â
Term. This franchise shall become effective on March 10, 2023 (the "effective date"). The term of this franchise shall be five years from the effective date until March 9, 2028, unless the franchise is earlier terminated by franchisee pursuant to the terms of § 86-2D or E of this agreement or revoked by the Township pursuant to § 86-12D of this agreement.
D.Â
Termination generally. If, at any time during the renewal term, franchisee
experiences a net decline of 6% or greater of its subscribers in the
franchise area in any prior twelve-month period (for purposes of clarification,
any such twelve-month evaluation period shall not commence prior to
the effective date), franchisee shall thereafter have the right to
terminate the franchise upon 12 months' written notice to the
Township.
E.Â
Modification/termination based on VSP requirements/competitive equity:
(1)Â
If there is a change in federal, state, or local law that reduces
any material financial and/or operational obligation that the Township
has required from or imposed upon a VSP, or if the Township enters
into any franchise, agreement, license, or grant of authorization
to a VSP to provide video programming services to residential subscribers
in the Township and the agreement, license or grant of authorization,
taken as a whole upon consideration of all of its material obligations,
is less burdensome than those imposed by this franchise, franchisee
and the Township shall, within 60 days of the Township's receipt
of franchisee's written notice, commence negotiations to modify
this franchise to create reasonable competitive equity between franchisee
and such other VSPs.
F.Â
Grant not exclusive. The franchise and the rights granted herein
to use and occupy the public rights-of-way to provide cable services
shall not be exclusive, and the Township reserves the right to grant
other franchises for similar uses or for other uses of the public
rights-of-way, or any portions thereof, to any person, or to make
any such use itself, at any time during the term of this franchise.
Any such rights that are granted shall not materially interfere with
existing facilities of the cable system or the franchisee's FTTP
network.
G.Â
Franchise Subject to Federal, State, and Local law. Notwithstanding
any provision to the contrary herein, this franchise is subject to
and shall be governed by all applicable provisions of federal, state,
and local laws and regulations.
H.Â
No waiver:
(1)Â
The failure of the Township on one or more occasions to exercise
a right or to require compliance or performance under this franchise,
the Communications Act, or any other applicable state or federal law
shall not be deemed to constitute a waiver of such right or a waiver
of compliance or performance by the Township, nor to excuse the franchisee
from complying or performing, unless such right or such compliance
or performance has been specifically waived in writing.
(2)Â
The failure of the franchisee on one or more occasions to exercise
a right under this franchise or applicable law, or to require performance
under this franchise, shall not be deemed to constitute a waiver of
such right or of performance of this agreement, nor shall it excuse
the Township from performance, unless such right or performance has
been specifically waived in writing.
I.Â
Construction of agreement:
(1)Â
The provisions of this franchise shall be liberally construed to
effectuate their objectives.
(2)Â
Nothing herein shall be construed to limit the scope or applicability
of Section 625 Communications Act, 47 U.S.C. § 545.
(3)Â
Should any change to federal or state law have the lawful effect
of materially altering the terms and conditions of this agreement
making it commercially impracticable for franchisee to continue the
provision of cable services in the Township, then the parties shall
modify this franchise to the mutual satisfaction of both parties to
ameliorate the negative effects on the franchisee and the Township
of the material alteration. Any modification to this franchise shall
be in writing and signed by both parties. If the parties cannot reach
agreement on the above-referenced modification to the franchise, then
upon either party's initiative, the parties agree to submit the
matter to binding arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association.
J.Â
Police powers. Nothing in this franchise shall be construed to prohibit
the reasonable, necessary, and lawful exercise of the police powers
of the Township. The Township shall not subject the franchisee to
any ordinances or regulations that are that are in conflict with this
franchise.
K.Â
Compliance with federal and state privacy laws. Franchisee shall
comply with the privacy provisions of Section 631 of the Communications
Act, 47 U.S.C. § 551, and all other applicable federal and
state privacy laws and regulations. The parties agree that, during
the term hereof, franchisee shall not be subject to any local laws
or ordinances which, directly or indirectly, conflict with or exceed
the scope of such applicable federal and/or state privacy laws.
L.Â
Permits. Nothing herein shall be construed to limit the Township's
lawful authority to require permits and applicable fees for certain
activities in the public rights-of-way; provided, however, that the
franchisee shall not be required to obtain permits for cable service
drops for individual subscribers.
A.Â
Service area:
(1)Â
Service area. Subject to the issuance of all necessary permits by
the Township, the franchisee shall offer cable service to all residential
households in the service area and may make cable service available
to businesses in the service area, except:
(a)Â
For periods of Force Majeure;
(b)Â
For periods of unreasonable delay caused by the Township;
(c)Â
For periods of delay resulting from the franchisee's inability
to obtain authority to access rights-of-way in the service area;
(d)Â
In areas where developments, buildings or other residential
dwelling units are subject to claimed exclusive arrangements with
other providers;
(e)Â
In areas, developments, buildings or other residential dwelling
units where the franchisee cannot gain access under reasonable terms
and conditions after good faith negotiation, as reasonably determined
by the franchisee;
(f)Â
In areas, developments, buildings or other residential dwelling
units where the franchisee is unable to provide cable service for
technical reasons or which require nonstandard facilities which are
not available on a commercially reasonable basis, including, but not
limited to, circumstances where the franchisee cannot access the areas,
developments, buildings or other residential dwelling units by using
the franchisee's existing network pathways and which would thus
require the construction of new trunk, feeder, or distribution lines;
(g)Â
In areas where the occupied residential household density does not meet the density requirements set forth in Subsection A(2); and
(h)Â
In areas, developments, buildings or other residential dwelling
units that are not habitable or have not been constructed as of the
effective date.
(2)Â
Density requirement. Subject to Subsection A(1) above, the franchisee shall make cable services available to residential dwelling units in all areas of the Township where the minimum density is 30 occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on the active FTTP network trunk or feeder line.
B.Â
Availability of cable service. Franchisee shall make cable service available to all residential dwelling units and may make cable service available to businesses within the service area in conformance with Subsection A, the franchisee shall not discriminate between or among any individuals in the availability of cable service. In the areas in which the franchisee shall provide cable service, the franchisee shall be required to connect, at the franchisee's expense, other than a standard installation charge, all residential dwelling units that are within 200 feet of trunk or feeder lines not otherwise already served by the franchisee's FTTP network. The franchisee shall be allowed to recover, from a subscriber that requests such connection, no more than the actual costs incurred in excess of 200 feet for residential dwelling unit connections that exceed 200 feet and actual costs incurred to connect any nonresidential dwelling unit subscriber.
C.Â
Cable service to public buildings. If there is final determination or ruling of any agency or court having jurisdiction, after exhaustion of all appeals related thereto, that the provision of free or discounted cable service to public buildings pursuant to a cable franchise should no longer be included in the calculation of franchise fees subject to the 5% statutory cap under the Communications Act, then, subject to Subsection A if requested by the Township pursuant to written notice to franchisee, Verizon shall provide, without charge, one service outlet activated for basic service to the following:
(1)Â
Each current municipal building, fire station, and public library
as may be designated by the Township in Exhibit A[1]; provided, however, that if it is necessary to extend
franchisee's trunk or feeder lines more than 200 feet solely
to provide service to any such public building, the Township shall
have the option either of paying franchisee's direct costs for
such extension in excess of 200 feet, or of releasing franchisee from
the obligation to provide service to such public building. Furthermore,
franchisee shall be permitted to recover, from any public building
owner entitled to free service, the direct cost of installing, when
requested to do so, more than one outlet, or concealed inside wiring,
or a service outlet requiring more than 200 feet of drop cable; provided,
however, that franchisee shall not charge for the provision of basic
service to the additional service outlets once installed.
[1]
Editor's Note: Said exhibit is included as an attachment to this chapter.
(2)Â
Each public K-12 school, and each nonpublic K-12 school that a) receives
funding pursuant to Title I of the Elementary and Secondary Education
Act of 1965, 20 U.S.C. § 6301 et seq. and b) is considered
a nonpublic, nonlicensed school under the Pennsylvania Private Academic
Schools Act, 24 P.S. §§ 6702 through 6721, located
in the Township, as may be designated by the Township in Exhibit A;
provided, however, that franchisee shall not be obligated to provide
any service outlets activated for basic service to home schools; also
provided, however, that if it is necessary to extend franchisee's
trunk or feeder lines more than 200 feet solely to provide service
to any such school building, the Township shall have the option either
of paying franchisee's direct costs for such extension in excess
of 200 feet, or of releasing franchisee from the obligation to provide
service to such school building. Furthermore, franchisee shall be
permitted to recover, from any school building owner entitled to free
service, the direct cost of installing, when requested to do so, more
than one outlet, or concealed inside wiring, or a service outlet requiring
more than 200 feet of drop cable; provided, however, that franchisee
shall not charge for the provision of basic service to the additional
service outlets once installed.
A.Â
Technical requirement. The cable system shall meet or exceed any
and all applicable technical performance standards of the FCC, the
National Electrical Safety Code, the National Electric Code and any
other applicable federal laws and the laws of the Commonwealth of
Pennsylvania, to the extent not in conflict with federal law and regulations.
B.Â
System characteristics. The franchisee's cable system shall
meet or exceed the following requirements:
(1)Â
The cable system shall be operated with operated with an initial
digital carrier passband between 57 MHz and 861 MHz.
(2)Â
The cable system shall be operated as an active two-way system that
allocates sufficient portion of said bandwidth to deliver reliable
two-way cable services.
(3)Â
The cable system must conform to all applicable FCC technical performance
standards, as amended from time to time, and any other future applicable
technical performance standards, and shall comply with all technical
standards of the following:
C.Â
Interconnection. The franchisee shall operate its cable system so
that it may be interconnected with other cable systems in the Township.
Interconnection of systems may be made by direct cable connection,
microwave link, satellite, or other appropriate methods.
D.Â
No interference. The cable system shall be operated in such a manner
as to comply with all applicable FCC requirements regarding i) consumer
electronic equipment and ii) interference with the reception of off-the-air
signals of licensed FCC operators.
E.Â
Standby power. The system shall incorporate equipment capable of
providing standby powering of the system.
F.Â
Emergency alert system. The franchisee shall comply with the applicable
requirements of the FCC with respect to the operation of an Emergency
Alert System ("EAS") requirements of the FCC and applicable state
and local EAS plans in order that emergency messages may be distributed
over the cable system.
A.Â
EG set aside; interconnection:
(1)Â
In order to ensure universal availability of educational and government access programming, franchisee shall reserve on the basic service tier capacity for the use of one dedicated educational access channel and one dedicated government access channel (collectively, "EG channels") for exclusive use by the Township or its designee. The Township will comply with all laws and regulations related to use of the EG channels. The parties agree that franchisee shall retain the right to utilize all such reserved EG channel capacity, in its sole discretion, during the term of this franchise until such time as the Township begins using the EG channel pursuant to Subsection A(2) for educational and/or governmental purposes and/or if the Township ceases to use the access channel(s) during the term of this agreement.
(2)Â
The Township reserves the right to obtain from the franchisee, upon
120 days' written notice, one EG channel for exclusive use by
the Township. Such notification shall constitute authorization to
the franchisee to transmit such programming within and without the
Township. The franchisee shall assign the EG channel number to the
extent such channel number assignments do not interfere with the franchisee's
existing or planned channel number lineup and contractual obligations,
provided it is understood that the franchisee specifically reserves
the right to make such assignments in its sole discretion. The EG
channel shall be used for community programming related to educational
and/or governmental activities. The Township shall have complete control
over the content, scheduling, and administration of the EG channel
and may delegate such functions, or a portion of such functions, to
an appropriate designee. The franchisee shall not exercise any editorial
control over EG channel programming. If an EG channel provided under
this chapter is not being utilized by the Township, the franchisee
may utilize such EG channel, in its sole discretion, after receiving
written approval by the Township until such time as the Township elects
to utilize the EG channel for its intended purpose. In the event that
the Township decides to exercise its right to use EG capacity, the
Township shall provide the franchisee with 90 days' prior written
notice of such request.
(3)Â
The Township shall comply with the law regarding the noncommercial
use of EG channels.
B.Â
The Township and/or its designee shall be solely responsible for
operating its switching equipment and the picture and audio quality
of all EG channel programming up to the demarcation points and for
ensuring all EG channel programming is inserted on the appropriate
upstream EG channel. All EG channel programming shall be transmitted
to the franchisee in baseband or SD-SDI format with either mono or
stereo audio signals, and with signals received by franchisee in stereo
cablecast by franchisee in stereo. Notwithstanding the foregoing,
the franchisee shall not be obligated to provide the Township or its
designee with either cablecast equipment and facilities or the personnel
responsible for maintaining and operating equipment and facilities
on the Township's side of the demarcation point and used to generate
or administer any EG channel access signals, except as necessary to
implement the franchisee's responsibilities specified herein.
The Township and the franchisee shall work together in good faith
to resolve any connection issues. If the Township issues a franchise
to, or renews a franchise with, a competing VSP, the competing VSP
may not connect its system to franchisee's system for the purposes
of obtaining EG channel programming from the EG channels transmitted
on franchisee's system without franchisee's prior written
consent.
(1)Â
Franchisee may, in its sole discretion, use reasonable efforts to
interconnect its cable system with the existing cable operator(s).
If interconnection is pursued, franchisee may, in its sole discretion,
use reasonable efforts to interconnect its cable system with the existing
cable operator(s). If interconnection is pursued, for purposes of
providing EG channels, no earlier than 12 months after written notice
by the Township to activate an EG channel, the Township may require
the franchisee to provide a video link, without charge to the Township,
to a location within the Township where EG access programming is originated
for the purpose of cablecasting EG programming; provided, however,
that the franchisee shall not be obligated to provide the Township
with either cablecast equipment and facilities or personnel responsible
for maintaining and operating such equipment and facilities or generating
any such EG programming.
C.Â
Indemnity for EG. The Township shall require all local producers
and users of any of the EG facilities or channels to agree in writing
to authorize the franchisee to transmit programming consistent with
this agreement and to defend and hold harmless the franchisee and
the Township from and against any and all liability or other injury,
including the reasonable cost of defending claims or litigation, arising
from or in connection with claims regarding an EG programming facility,
not including the actual FTTP network, or channel or EG channel programming,
including claims for failure to comply with applicable federal laws,
rules, regulations or other requirements of local, state, or federal
authorities; for claims of libel, slander, invasion of privacy, or
the infringement of common law or statutory copyright; for unauthorized
use of any trademark, trade name, or service mark; for breach of contractual
or other obligations owing to third parties by the producer or user;
and for any other injury or damage in law or equity. The Township
shall establish rules and regulations for use of EG facilities, consistent
with, and as required by, Section 611 of the Communications Act, 47
U.S.C. § 531. Notwithstanding the foregoing, the Township
shall not indemnify the franchisee for any damages, liability, or
claims resulting from acts of willful misconduct or negligence of
the franchisee, its officers, employees, or agents.
(1)Â
Recovery of costs. The franchisee shall be allowed to recover any
costs arising from the provision of EG services as set forth in 47
U.S.C. § 622, and to include such costs as a separately
billed line item on each subscriber's bill. Without limiting
the foregoing, if allowed under state and federal laws, franchisee
may externalize, line-item, or otherwise pass-through interconnection
costs to subscribers.
A.Â
Payment to the Township. The franchisee shall pay to the Township
a franchise fee of 5% of annual gross revenue. In accordance with
Title VI of the Communications Act, the twelve-month period applicable
under the franchise for the computation of the franchise fee shall
be a calendar year. Such payments shall be made no later than 45 days
following the end of each calendar quarter. Specifically, payments
shall be due and payable on or before May 15 (for the first quarter),
August 15 (for the second quarter), November 15 (for the third quarter),
and February 15 (for the fourth quarter). In the event that any franchise
fee payment is not made on or before the applicable dates, then interest
shall be added at the rate of 6% of the amount of franchise fee revenue
due to the Township. No acceptance of any payment shall be construed
as an accord that the amount paid is the correct amount. The franchisee
shall be allowed to submit or correct any payments that were incorrectly
omitted, and shall credit any payments that were incorrectly submitted,
in connection with the quarterly franchise fee remittances within
90 days following the close of the calendar year for which such payments
were applicable. If the Township issues or renews any cable franchise(s)
after the effective date that provide(s) for a lower percentage of
a franchise fee, then the percentage of the franchisee's franchise
fee payments shall be immediately thereafter reduced to match such
lower percentage over that same time period.
B.Â
Supporting information. Each franchise fee payment shall be accompanied
by a brief report that provides line items for revenue sources and
the amount of revenue received from each source and is verified by
a financial manager of the franchisee showing the basis for the computation.
C.Â
Limitation on franchise fee actions. The parties agree that the period
of limitation for recovery of any franchise fee payable hereunder
shall be 48 months from the date on which the applicable payment by
the franchisee is due.
D.Â
Audits:
(1)Â
The Township may audit or conduct a franchise fee review of the franchisee's books and records pertaining directly to the franchisee's payment of franchise fees in the Township no more than once every three years during the term. Any audit shall be initiated through written notice to the franchisee by the Township, and the Township or any auditor employed by the Township shall submit its complete request for records within 60 days of the Township's notice; provided, however, that the parties shall work cooperatively on an ongoing basis during the audit review in the event the Township or its designated auditor identifies reasonable follow-up records requests to the extent necessary to complete the audit. Subject to the confidentiality provisions of § 86-8A, and execution of a nondisclosure agreement with the Township or an auditor employed by the Township, all records reasonably necessary for any such audit shall be made available by the franchisee to the Township, in accordance with § 86-8A hereof, at a designated office of the franchisee or such other location in the eastern region of the Commonwealth of Pennsylvania mutually agreed upon by the parties.
(2)Â
The franchisee shall provide the records reasonably necessary for the audit and requested by the Township in a timely manner. Any such audit conducted by the Township or auditor employed by the Township shall be completed in a timely manner. If upon completion of the audit, the Township does not make a claim for additional payments, then the Township shall provide the franchisee with written documentation of closure of the audit. The Township's claim for additional franchise fee payments or its written notice of the audit closure shall be provided to the franchisee within 60 days from the date on which the audit is completed by the Township or its auditor in accordance Subsection D(1), above, or by such other date as is mutually agreed to by the parties.
(3)Â
Each party shall bear its own costs of an audit; provided, however,
that if the results of any audit indicate that the franchisee underpaid
the franchise fees by 5% or more, then the franchisee shall pay the
reasonable, documented, out-of-pocket costs of the audit up to $3,000.
(4)Â
If the results of an audit indicate an underpayment of franchise
fees, the parties agree that such underpayment shall be remitted to
the Township within 45 days; provided, however, that the franchisee
shall be required to remit underpayments to the Township together
with interest at 6% of the amount correctly due from the date such
underpayment would have been due.
(5)Â
Any entity employed by the Township that performs the audit or franchise
fee review shall be a professional firm with recognized expertise
in auditing franchise fees and shall not be permitted to be compensated
on a success-based formula, e.g., payment based on an underpayment
of fees, if any.
E.Â
Bundled services. If cable services are provided to subscribers in
conjunction with noncable services, then the calculation of gross
revenues shall be adjusted, if needed, to include only the value of
the cable services billed to subscribers, as reflected on the books
and records of the franchisee in accordance with FCC rules, regulations,
standards, or orders. Franchisee agrees that it will not intentionally
or unlawfully allocate such revenue for the purpose of evading payments
under this franchise. The parties agree that tariffed telecommunications
services that cannot be discounted by state or federal law or regulation
are to be excluded from the bundled discount allocation basis.
Customer service requirements are set forth in Exhibit B.[1] Such requirements may be amended by written consent of
the parties.
[1]
Editor's Note: Said exhibit is included as an attachment to this chapter.
A.Â
Open books and records. Upon 30 days' written notice to the
franchisee, the Township shall have the right to inspect the franchisee's
books and records pertaining to this agreement or the franchisee's
provision of cable service in the Township at any time during franchisee's
regular business hours as are reasonably necessary to ensure compliance
with the terms of this franchise. Such notice shall specifically reference
the section or subsection of the franchise that is under review, so
that the franchisee may organize the necessary books and records for
appropriate access by the Township. The books and records to be made
available for inspection by the Township shall be made available for
inspection at a designated office of the franchisee or such other
location in the eastern region of the Commonwealth of Pennsylvania
mutually agreed upon by the parties. The franchisee shall not be required
to maintain any books and records for franchise compliance purposes
longer than 48 months. Notwithstanding anything to the contrary set
forth herein, the franchisee shall not be required to disclose information
that it reasonably deems to be proprietary or confidential in nature,
nor disclose any of its or an affiliate's books and records not
relating to this agreement or to the provision of cable service in
the Township. If the franchisee claims any information to be proprietary
or confidential, it shall identify the information and provide an
explanation as to the reason it is claimed to be confidential or proprietary.
The Township shall treat any information disclosed by the franchisee
as confidential so long as it is permitted to do so under applicable
law, and shall only disclose it to employees, representatives, and
agents thereof that have a need to know, or in order to enforce the
provisions hereof. The franchisee shall not be required to provide
subscriber information in violation of Section 631 of the Communications
Act, 47 U.S.C. § 551.
B.Â
Records required. The franchisee shall at all times maintain the following, which may be inspected pursuant to Subsection A above:
(1)Â
Records of all complaints for a period of 48 months after receipt
by the franchisee. Complaints recorded will not be limited to complaints
requiring an employee service call;
(2)Â
Records of significant outages (as defined in the customer service
standards attached as Exhibit B[1]) for a period of 48 months after occurrence, indicating
date, duration, area, and the number of subscribers affected, type
of outage, and cause;
[1]
Editor's Note: Said exhibit is included as an attachment to this chapter.
(3)Â
Records of service calls for repair and maintenance for a period
of 48 months after resolution by the franchisee, indicating the date
and time service was required, the date of acknowledgment and date
and time service was scheduled (if it was scheduled), and the date
and time service was provided, and (if different) the date and time
the problem was resolved; and
(4)Â
Records of installation/reconnection and requests for service extension
for a period of 48 months after the request was fulfilled by the franchisee,
indicating the date of request, date of acknowledgment, and the date
and time service was extended.
A.Â
Insurance:
(1)Â
The franchisee shall maintain in full force and effect, at its own
cost and expense, during the franchise term, the following insurance
coverage:
(a)Â
Commercial general liability insurance in the amount of $3,000,000
per occurrence for property damage and bodily injury. Such insurance
shall cover the construction, operation, and maintenance of the cable
system, and the conduct of the franchisee's cable service business
in the Township.
(b)Â
Automobile liability insurance in the amount of $1,000,000 combined
single limit each accident for bodily injury and property damage coverage.
(c)Â
Workers' compensation insurance meeting all legal requirements
of the Commonwealth of Pennsylvania and Employers' liability
insurance in the following amounts: A) bodily injury by accident:
$100,000; and B) bodily injury by disease: $100,000 employee limit;
$500,000 disease policy limit.
(2)Â
The Township shall be included as an additional insured as its interest
may appear under this franchise on commercial general liability and
automobile liability insurance policies.
(3)Â
Upon receipt of notice of cancellation from its insurer, the franchisee
shall provide the Township with 30 days' prior written notice
of such cancellation.
(4)Â
Each of the required insurance policies shall be with insurers qualified
to do business in the Commonwealth of Pennsylvania, with an A-VII
or better rating for financial condition and financial performance
by Best's Key Rating Guide, Property/Casualty Edition.
(5)Â
Upon written request, the franchisee shall deliver to the Township
Certificates of Insurance showing evidence of the required coverage.
B.Â
Indemnification:
(1)Â
The franchisee agrees to indemnify, save and hold harmless, and defend
the Township, its elected and appointed officials, officers, agents,
boards, and employees, from and against any and all claims for injury,
loss, liability, cost or expense arising in whole or in part from,
incident to, or connected with any act or omission of the franchisee,
its officers, agents, or employees, including the acts or omissions
of any contractor or subcontractor of the franchisee, arising out
of the construction, operation, upgrade, or maintenance of its cable
system. The obligation to indemnify, save, hold harmless and defend
the Township shall include the obligation to pay judgments, injuries,
liabilities, damages, penalties, expert fees, court costs and franchisee's
own attorney's fees. The Township shall give the franchisee timely
written notice of the Township's request for indemnification
within a) 30 days of receipt of a claim or action pursuant to this
subsection or b) 10 days following service of legal process on the
Township or its designated agent of any action related to this subsection.
The Township agrees that it will take all necessary action to avoid
a default judgment. Notwithstanding the foregoing, the franchisee
shall not indemnify the Township for any damages, liability, or claims
resulting from, and Township shall be responsible for, Township's
own acts of willful misconduct, the Township's breach of obligation
under the franchise, or negligence of the Township, or its elected
and appointed officials, officers, agents, boards, and employees.
(2)Â
With respect to the franchisee's indemnity obligations set forth in Subsection B(1), the franchisee shall provide the defense of any claims brought against the Township by selecting counsel of the franchisee's choice to defend the claim, subject to the consent of the Township, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the Township from cooperating with the franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense; provided, however, that after consultation with the Township, the franchisee shall have the right to defend, settle, or compromise any claim or action arising hereunder, and the franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such proposed settlement include the release of the Township, and the Township does not consent to the terms of any such settlement or compromise, the franchisee shall not settle the claim or action, but its obligation to indemnify the Township shall in no event exceed the amount of such settlement.
Transfer; Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, and applicable federal regulations, no transfer of the franchise shall occur without the prior consent of the Township, provided that such consent shall not be unreasonably conditioned or withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of the franchisee in the franchise or cable system in order to secure indebtedness, or for transactions otherwise excluded under § 86-1 above.[1]
[1]
Editor's Note: This refers to the definition of "transfer
of the franchise" in said section.
The Township and the franchisee agree that any proceedings undertaken
by the Township that relate to the renewal of this franchise shall
be governed by and comply with the provisions of Section 626 of the
Communications Act, 47 U.S.C. § 546.
A.Â
Notice of noncompliance: If at any time the Township believes that
the franchisee has not complied with the terms of the franchise, the
Township shall informally discuss the matter with the franchisee.
If these discussions do not lead to resolution of the problem in a
reasonable time, the Township shall then notify the franchisee in
writing of the exact nature of the alleged noncompliance (for purposes
of this chapter, the "noncompliance notice"). If the Township does
not notify the franchisee of any alleged noncompliance, it shall not
operate as a waiver of any rights of the Township hereunder or pursuant
to applicable law.
B.Â
Franchisee's right to cure or respond. The franchisee shall
have 30 days from receipt of the noncompliance notice to: i) respond
to the Township in writing, if franchisee contests (in whole or in
part) the assertion of noncompliance; ii) cure such noncompliance;
or iii) in the event that, by its nature, such noncompliance cannot
be cured within such thirty-day period, initiate reasonable steps
to remedy such noncompliance, diligently pursue such remedy to completion,
and notify the Township of the steps being taken and the date by which
they are projected to be completed. Upon cure of any noncompliance,
the Township shall provide written confirmation that such cure has
been effected.
C.Â
Liquidated damages. After the time period set forth in § 86-12A and B above, in the event that the Township finds that an alleged noncompliance continues to exist and that the franchisee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation, the franchisee agrees that the Township may recover liquidated damages from the franchisee in the amounts set forth below following the notice and opportunity to cure provisions set forth in § 86-12A and B above; provided, however, that if the franchisee disputes the assessment of any liquidated damages hereunder, the franchisee may request and the Township agrees to schedule a public hearing with regard to such dispute. Following the notice and opportunity to cure periods in § 86-12A and B above, the Township shall provide the franchisee with written notice that it intends to elect the liquidated damage remedies set forth herein. If the Township elects to recover liquidated damages for any item set forth in this Subsection C (including customer service violations), the Township agrees that such recovery shall be its exclusive remedy for the time period in which liquidated damages are assessed; provided, however, once the Township has ceased to assess its liquidated damages remedy as set forth in Subsection C(2) it may pursue other available remedies.
(1)Â
Pursuant to Subsection B, the following monetary damages shall apply.
(b)Â
For failure to maintain the FCC technical standards as set forth in § 86-4: $150/day for each day the violation continues;
(c)Â
For failure to provide EG services to the community specified in § 86-5A: $150/day for each day the violation continues;
(d)Â
For failure to comply with franchise fee audit requirements as set forth in § 86-6D: $150/day for each day the violation continues;
(e)Â
For failure to provide the Township with any reports or records
required by the agreement within the time period required: $150/day
for each day the violation continues;
(f)Â
For failure to meet customer service requirements with regard
to Sections 2, 3, and 4 of the Customer service Standards set forth
in Exhibit B: $450 for each quarter in which such standards were not
met;
(2)Â
The amount of all liquidated damages per annum shall not exceed $15,000 in the aggregate. All similar violations or failures from the same factual events affecting multiple subscribers shall be assessed as a single violation, and a violation or a failure may only be assessed under any one of the above-referenced categories. Violations or failures shall not be deemed to have occurred or commenced until they are not cured as provided in § 86-12.
(3)Â
Except as otherwise provided herein, any liquidated damages assessed
pursuant to this section shall not be a limitation upon any other
provisions of this franchise and applicable law, including revocation.
D.Â
Additional enforcement measures. Subject to applicable federal, state
and local law, in the event the Township determines that the franchisee
is in default of any provision of this franchise, the Township may:
E.Â
Revocation. Should the Township seek to revoke this agreement, and
the Township chooses not to impose liquidated damages or ceases to
impose liquidated damages, the Township shall give written notice
to the franchisee of such intent. The notice shall set forth the specific
nature of the noncompliance. The franchisee shall have 60 days from
receipt of such notice to object in writing and to state its reasons
for such objection. In the event the Township has not received a satisfactory
response from the franchisee, it may then seek termination of this
agreement at a public hearing. The Township shall cause to be served
upon the franchisee, at least 30 days prior to such public hearing,
a written notice specifying the time and place of such hearing.
(1)Â
At any designated public hearing at which the Township has informed
the franchisee that revocation is a possible consequence in accordance
with the written notice requirements, the franchisee shall be provided
a fair opportunity for full participation, including the rights to
be represented by legal counsel, to introduce relevant evidence, and
to require the production of evidence. A complete verbatim record
and transcript shall be made of such hearing at the franchisee's
sole cost and expense.
(2)Â
Following the public hearing, the franchisee shall be provided up
to 30 days to submit its proposed findings and conclusions to the
Township in writing, and thereafter the Township shall provide a written
determination to the franchisee setting forth: i) whether an event
of default has occurred under this agreement; ii) whether such event
of default is excusable; and iii) whether such event of default has
been cured by the franchisee. The Township shall also determine whether
it will revoke the franchise based on the information presented or,
in the discretion of the Township, grant additional time to the franchisee
to effect any cure. If the Township determines that it will revoke
the franchise, the Township shall promptly provide the franchisee
with a written determination setting forth the Township's reasoning
for such revocation. The franchisee may appeal such written determination
of the Township to an appropriate court of competent jurisdiction,
which will have the power to review the determination of the Township
consistent with applicable law. Franchisee shall be entitled to such
relief as the court finds appropriate. Such appeal must be taken within
the time frame permitted by law.
A.Â
Actions of parties. In any action by the Township or the franchisee
that is mandated or permitted under the terms hereof, such party shall
act in a reasonable, expeditious, and timely manner.
B.Â
Binding acceptance. This agreement shall bind and benefit the parties
hereto and their respective receivers, trustees, successors, and assigns.
C.Â
Force majeure. The franchisee shall not be held in default under,
or in noncompliance with, the provisions of the franchise, nor suffer
any enforcement or penalty relating to noncompliance or default, where
such noncompliance or alleged defaults occurred or were caused by
a force majeure.
(1)Â
Good faith error. The parties hereby agree that it is not the Township's
intention to subject the franchisee to penalties, fines, forfeitures,
or revocation of the franchise for violations of the agreement where
the violation was a good faith error that resulted in no or minimal
negative impact on subscribers.
D.Â
Delivery of payments. The franchisee may use electronic funds transfer
to make any payments to the Township required under this agreement.
E.Â
Notices. Unless otherwise expressly stated herein, notices required
under the franchise shall be mailed first class, postage prepaid,
to the addressees below. Each party may change its designee by providing
written notice to the other party.
(1)Â
Notices to the franchisee shall be mailed to:
|
President
Verizon Pennsylvania LLC
900 Race Street, 6th Floor
Philadelphia, PA 19107
| |
|
With a copy to:
| |
|
Verizon Legal Department
140 West Street, 6th Floor
New York NY 10007
Attention: Monica Azare, Vice President and Deputy
General Counsel
|
(2)Â
Notices to the Township shall be mailed to:
|
Horsham Township
1025 Horsham Road
Horsham, PA 19044
Attention: Township Manager
| |
|
With a copy to:
| |
|
Cohen Law Group
413 S. Main Street
Pittsburgh, PA 15215
|
F.Â
Entire agreement. This franchise and the Exhibits hereto constitute
the entire agreement between the franchisee and the Township and supersedes
all prior or contemporaneous agreements, representations, or understanding
(whether written or oral) of the parties regarding the subject matter
hereof. Any lawful ordinances or parts of ordinances related to the
provision of cable services over the cable system in the Township
that conflict with the provisions of this agreement are superseded
by this agreement.
G.Â
Amendments. Amendments to this agreement shall be mutually agreed
to in writing by the parties.
H.Â
Captions. The captions and headings of articles and sections throughout
this agreement are intended solely to facilitate reading and reference
to the sections and provisions of this agreement. Such captions shall
not affect the meaning or interpretation of this agreement.
I.Â
Severability. If any section, subsection, sentence, paragraph, term,
or provision hereof is determined to be illegal, invalid, or unconstitutional
by any court of competent jurisdiction or by any state or federal
regulatory authority having jurisdiction thereof, such determination
shall have no effect on the validity of any other section, subsection,
sentence, paragraph, term, or provision hereof, all of which will
remain in full force and effect for the term of the franchise.
J.Â
Recitals. The recitals set forth in this agreement are incorporated
into the body of this agreement as if they had been originally set
forth herein.
K.Â
FTTP network transfer prohibition. Under no circumstance including,
without limitation, upon expiration, revocation, termination, denial
of renewal of the franchise, or any other action to forbid or disallow
the franchisee from providing cable services, shall the franchisee
or its assignees be required to sell any right, title, interest, use,
or control of any portion of the franchisee's FTTP network including,
without limitation, the cable system and any capacity used for cable
service or otherwise, to the Township or any third party. The franchisee
shall not be required to remove the FTTP network or to relocate the
FTTP network or any portion thereof as a result of revocation, expiration,
termination, denial of renewal, or any other action to forbid or disallow
the franchisee from providing cable services. This provision is not
intended to contravene leased access requirements under Title VI or
EG requirements set out in this agreement.
L.Â
Publishing information. The Township hereby requests that the franchisee
omit publishing information specified in 47 CFR 76.952 from subscriber
bills.
M.Â
Parental control. The franchisee shall comply with all applicable
requirements of federal law(s) governing subscribers' capability
to control the reception of any channels being received on their television
sets.
N.Â
Independent review. The Township and the franchisee each acknowledge
that they have received independent legal advice in entering into
this agreement. In the event that a dispute arises over the meaning
or application of any term(s) of this agreement, such term(s) shall
not be construed by the reference to any doctrine calling for ambiguities
to be construed against the drafter of the agreement.
O.Â
If the Township exercises its reasonable, necessary, and lawful police
power rights and such exercise results in a material alteration of
the terms and conditions of this agreement that makes it commercially
impracticable for franchisee to continue the provision of cable services
in the Township, then the parties shall modify this agreement to the
mutual satisfaction of both parties to ameliorate the negative effects
of the Township's exercise of its police power rights on the
franchisee. Any modification to this agreement shall be in writing
and signed by both parties. If the parties cannot reach agreement
on how to ameliorate the negative effects of the Township's exercise
of its police power rights, then the parties agree to submit the matter
to binding arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association.
P.Â
No third party beneficiaries. Except as expressly provided in this
agreement, this agreement is not intended to, and does not, create
any rights or benefits on behalf of any person other than the parties
to this agreement.
Q.Â
Counterparts. This agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and the parties may become
a party hereto by executing a counterpart hereof. This agreement and
any counterpart so executed shall be deemed to be one and the same
instrument. It shall not be necessary in making proof of this agreement
or any counterpart hereof to produce or account for any of the other
counterparts.
