The township finds that the streets and public
rights-of-way of the county, state and township to be used by a franchisee
for the operation of a cable system within the boundaries of the franchise
area granted by the township's issuance of a franchise are valuable
public property acquired and maintained by the county, state and township
at great expense to the taxpayers. The township further finds that
the grant of a franchise to use such streets and public rights-of-way
is a valuable property right without which a franchisee would be required
to invest substantial capital.
The administration of this ordinance and the
franchise imposes upon the township substantial and additional regulatory
responsibilities and expense. Accordingly, each franchisee receiving
the approval of the Board for the grant of a franchise shall pay to
the township a franchise fee in the amount designated by the Board
when the franchise is granted, which amount shall in no event be less
than 5% of its gross annual revenues, or the maximum amount permitted
under applicable federal law, state or local law. If such maximum
is greater than 5%, the franchisee shall pay the increased fee allowed
by law to the township within 60 days after the effective date of
a resolution or ordinance by the township authorizing the imposition
of the increased franchise fee. Immediately after its enactment, the
township shall provide the franchisee with a copy of the resolution
or ordinance authorizing the imposition of the increased franchise
fee.
A.
The franchise fee is in addition to taxes and payments
that the franchisee may be required to pay under any federal, state
or local law and to any tax, fee or assessment imposed by utilities
and cable operators for the use of their services, facilities and
equipment.
B.
Payment of the franchise fee made by franchisee to
the township is not and shall not be considered in the nature of a
tax.
C.
Acceptance by the township. No acceptance of any payment
by the township shall be construed as a release or an accord and satisfaction
of any claim the township may have for further or additional sums
payable as a franchise fee under this ordinance or for the performance
of any other obligation of the franchisee.
D.
Failure to make required payment. In the event any
franchise payment or recomputation amount is not made on or before
the date specified herein, franchisee shall pay additional compensation
and interest charges computed from such due date, at the annual rate
equal to the commercial prime interest rate of the township's primary
depository bank during the period such unpaid amount is owed.
E.
Payments to be made quarterly. The franchise fee and
any other costs assessed by the township against the franchisee shall
be paid quarterly to the township and shall commence as of the effective
date of the franchise, unless otherwise specified in the franchise
agreement. The township shall be furnished at the time of each payment
with a statement verified by a financial representative of the franchisee
reflecting the total amount of gross revenues for the payment period.
Said quarterly payments shall be made to the township no later than
45 days following the end of each calendar quarter, except for the
payment for the last quarter, which shall be paid within 60 days following
the end of the calendar quarter. Quarterly computation dates are the
last days of the months of March, June, September and December.
F.
The township right of inspection. The township shall
have the right to inspect and copy, exclusive of proprietary information,
the franchisee's records and the right to audit and to recompute any
amounts determined to be payable pursuant to this ordinance for a
period of four years from the date of payment. Audits shall be at
the expense of the township unless the audit discloses an underpayment
in excess of 5%, in which case the costs of the audit shall be borne
by the franchisee as a cost incidental to the enforcement of the franchise
agreement. Any additional amounts due to the township as a result
of the audit shall be paid within 30 days following written notice
to the franchisee by the township of the underpayment, which notice
shall include a copy of the audit report, unless written notice of
disagreement is filed by the franchisee with the township within such
time period. In the case of a dispute, the issue shall be resolved
through binding arbitration in accordance with the procedures of the
American Arbitration Association.
G.
Franchisee financial records. Upon request by the
township, the franchisee shall provide the township with a copy of
its SEC Form 10-K Annual Report within 30 days after it is submitted
to the Securities and Exchange Commission (SEC).
A.
Township not liable. The township and the Board shall
not be liable for any injury, damage, costs, either direct or consequential,
to any person or property arising from the use, operation, condition
or maintenance of the franchisee's cable system, whether arising from
the operation of the cable system itself or its location within any
street or public rights-of-way.
B.
Franchisee's indemnification of township. The franchisee
shall, at its sole cost and expense, indemnify, hold harmless and
defend the township, the Board and the township's other officials,
boards, commissions, agents and employees against any and all claims,
suits, causes of action, proceedings and judgments for damages to
persons or to property, or equitable relief arising out of the construction,
maintenance or operation of its cable system, the conduct of franchisee's
business in the township, or any claim, cause of action, proceeding,
suit or judgment arising out of the franchisee's enjoyment or exercise
of a franchise granted hereunder, regardless of whether the act or
omission complained of is authorized, allowed or prohibited by this
ordinance or a franchise agreement. This provision includes, but is
not limited to, the township's reasonable attorneys' fees incurred
in defending against any such claim, suit or proceeding; and claims
arising out of copyright infringements or a failure by the franchisee
to secure consents from the owners, authorized distributors or franchisees
of programs to be delivered by the cable system.
C.
Indemnification for Cable Act claims. A franchisee
shall, at its sole cost and expense, fully indemnify, defend and hold
harmless the township, and the officers, agents and employees thereof,
from and against any and all claims, suits, actions, liability and
judgments for damages or otherwise subject to Section 638 of the Cable
Act, 47 U.S.C. § 558, arising out of or alleged to arise
out of the installation, construction, operation or maintenance of
the cable system, including but not limited to any claim against the
franchisee for invasion of the right to privacy, defamation of any
person, firm or corporation or the violation or infringement of any
copyright, trademark, trade name, service mark or patent, or of any
other right of any person, firm or corporation. Nothing herein shall
prohibit the township from participating in the defense of any litigation
by its own counsel at its own cost and expense.
D.
Notice of claim. The township shall promptly give
the franchisee written notice of any claim, suit or demand requiring
the franchisee's indemnification of the township under the foregoing
paragraphs. The township shall have the right, but not the obligation,
to participate through its attorney in any such claim, suit or proceeding
falling within the subject matter of the indemnification provisions
of this ordinance.
A.
A franchisee shall maintain, and by its acceptance of a franchise issued pursuant to this ordinance, specifically agrees that it will maintain, throughout the entire term of the franchise period, and any renewals thereof, liability insurance protecting the franchisee and the township with regard to damages and/or penalties mentioned in Article IX, § A87-49, in the following minimum amounts:
(1)
One million dollars for bodily injury or death to
any one person, within the limit, however, of $2,000,000 for bodily
injury or death resulting from any one accident, and $5,000,000 for
all injuries or deaths resulting from any one accident.
(2)
Five hundred thousand dollars for property damage
resulting from any one accident.
(3)
Worker's Compensation insurance on all employees engaged
in installation or service of its equipment.
B.
Qualifications of insurers. All insurance policies
shall be issued by companies qualified to do business in the Commonwealth
of Pennsylvania. All insurance policies shall be available for review
by the township.
C.
At the time of acceptance of a franchise, franchisee
shall furnish to the township a certificate of insurance evidencing
compliance with the foregoing requirements and proof that such coverages
are in full force and effect. Renewal certificates shall be delivered
to the township prior to the expiration of any periods of coverage.
D.
Limit of liability. Neither the provisions of this
section nor any damages recovered by the township shall be construed
to limit the liability of the franchisee for damages under any franchise
issued hereunder.
A.
In addition to all other rights which the township
has pursuant to law or equity, the Board reserves the right to revoke,
terminate or cancel this franchise, and all rights and privileges
pertaining thereto, in the event that:
(1)
Franchisee breaches any material term or condition
of the franchise agreement or this ordinance and, after written notice
and an opportunity to cure, has failed to cure said breach within
90 days of receiving notice of breach. If the franchisee cannot cure
said breach within said ninety-day period, the Board shall not revoke
or cancel the franchise, provided that franchisee takes reasonable
steps to cure within the 90 days and fully cures said breach as soon
as reasonably practicable; or
(2)
Franchisee shall apply for or consent to the appointment
of a receiver, trustee or liquidator of itself or any of its property,
admit in writing its inability to pay its debts as they mature, make
a general assignment for the benefit of creditors, be adjudicated
a bankrupt or insolvent, file a voluntary petition in bankruptcy or
a petition or an answer seeking reorganization or an arrangement with
creditors, or take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation law or statute or
an answer admitting the material allegations of a petition filed against
it in any proceeding under any such law, or if an action shall be
taken by franchisee for the purposes of effecting any of the foregoing;
or
(3)
Any order, judgment or decree shall be entered by
any court of competent jurisdiction, approving a petition seeking
reorganization of franchisee or all or a substantial part of the assets
of franchisee, or appointing a receiver, sequestor, trustee or liquidator
of franchisee, or any of its property, and such order, judgment or
decree shall continue unstayed and in effect for any period of 90
days.
In the event that the township determines that
the franchisee has violated any material provisions of the franchise,
or any material applicable federal, state or local law, the township
may make written demand on the franchisee that it remedy such violation
and that continued violation may cause revocation.
A.
A public hearing shall be held by the Board upon 14
days' prior written notice to the franchisee. The notice to the franchisee
shall specify with particularity the time and place of the hearing
and shall afford the franchisee a full and complete opportunity to
be heard in person and by counsel. The grounds upon which the pending
revocation is based shall be alleged with particularity in the written
notice to the franchisee.
B.
If notice is given and, at franchisee's option, a
full public proceeding is held, the township determines that a violation,
breach, failure, refusal or neglect by franchisee exists, the township
shall direct franchisee to correct or remedy the same within such
reasonable additional time, in such a manner and upon such terms and
conditions as the township may direct.
C.
If, after notice is given, and, at township's option,
a full public proceeding is held, the township determines there was
a violation, breach, failure, refusal or neglect, then the township
may declare, by resolution, the franchise revoked and canceled and
of no further force or effect. The township shall have the right in
its discretion to take ownership of the cable system and all associated
equipment and facilities under ownership of the franchisee pursuant
to the township's power of eminent domain.
D.
The issue of revocation shall automatically be placed
upon the Township Board agenda at the expiration of the time set by
it for compliance. The township then may terminate the franchise forthwith
upon finding the franchisee has failed to achieve the plans or may
further extend the period, at its discretion.
E.
If the township, after notice is given and, at franchisee's
option, a full public hearing is held and appeal is exhausted, declares
the franchise breached, the parties may pursue their remedies pursuant
to the franchise or any other remedies, legal or equitable.
Franchisee shall post a bond issued by a bonding
company that is authorized to conduct business within the Commonwealth
of Pennsylvania with the township as security to ensure the franchisee's
faithful performance of this ordinance, the franchise agreement and
other applicable law, and compliance with all orders, permits and
directions of the township, and payment by the franchisee of any claims,
liens, fees or taxes due the township which arise by reason of the
construction, operation or maintenance of the cable system. The amount
of the bond shall be $25,000. The franchisee and the bonding company
shall be required to execute the township's standard form of performance
bond. The township shall have the right to proceed and collect under
the bond for the purpose of curing the franchisee's default of its
obligations under this ordinance, the franchise agreement or other
applicable law.
