A.
In the event that Borough shall grant to the grantee a nonexclusive,
revocable franchise to construct, operate, and maintain a cable communications
system within the Borough, said franchise shall constitute both a
right and an obligation to provide the services of a cable communications
system as regulated by the provisions of this chapter and the franchise.
B.
Any franchise granted by the Borough is hereby made subject to the
general ordinances provisions now in effect and hereafter made effective.
Nothing in the franchise shall be deemed to waive the requirements
of the various codes and ordinances of the Borough regarding permits,
fees to be paid, or manner of construction.
For the purpose of operating and maintaining a cable communications
system in the Borough, the grantee may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under, upon,
across and along the public streets and ways within the Borough such
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment
as are necessary to the operation of the cable communications systems;
provided, however, that grantee complies with all design, construction,
safety, and performance provisions contained in this chapter, the
franchise agreement, and other applicable laws.
No poles shall be erected by the grantee without prior approval
of the Borough with regard to location, height, type and any other
pertinent aspect. However, no location of any pole of the grantee
shall be a vested right, and such poles shall be removed or modified
by the grantee at its own expense whenever the Borough determines
that the public convenience would be enhanced thereby. Grantee shall
utilize existing poles and conduits, where possible. The Borough shall
have the right, during the life of the franchise, to install and maintain
free of charge upon the poles owned by the grantee, any wire and pole
fixtures that do not unreasonably interfere with the operations of
the grantee.
No cable communications system shall be allowed to occupy or
use the streets of the Borough or be allowed to operate without a
franchise.
The term of any franchise granted pursuant to this chapter shall
be specified in the franchise.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The Borough specifically reserves the right to:
Whenever this chapter shall set forth any time for an act to
be performed by or on behalf of the grantee, such time shall be deemed
of the essence and any failure of the grantee to perform within the
time allotted shall always be sufficient ground for the Borough to
invoke an appropriate penalty, including possible revocation of the
franchise.
In any controversy or dispute under this chapter, the law of
the state shall apply.
If any section, subsection, sentence, clause, phrase or portion
of this chapter or the franchise is for any reason held invalid or
unconstitutional by any court of competent jurisdiction, or by any
federal, state, or local statute or regulation, such portion shall
be deemed a separate, distinct and independent provision and such
holding shall not affect the validity of the remaining portions thereof.
A.
Transfer of franchise. Any franchise granted hereunder shall not
be transferred without the prior consent of the Borough, and then
only under such reasonable conditions as the Borough may establish.
B.
The grantee shall promptly notify the Borough of any actual or proposed
transfer.
C.
For the purpose of determining whether it shall consent to a transfer,
the Borough may inquire into the legal, financial, character, technical,
customer service, and operations qualifications of the prospective
controlling party, and the grantee shall assist the Borough in any
such inquiry. Failure to provide all information reasonably requested
by the Borough as part of said inquiry shall be grounds for denial
of the proposed transfer. If the Borough finds the results of its
inquiry are satisfactory, its consent to such transfer shall not be
unreasonably withheld.
D.
Assumption of control. Any financial institution having a pledge
of the franchise or its assets for the advancement of money for the
construction and/or operation of the franchise shall have the right
to notify the Borough that it or its designees satisfactory to the
Borough will take control and operate the cable television system.
Further, said financial institution shall also submit a plan for such
operation that will insure continued service and compliance with all
franchise obligations during the term the financial institution exercises
control over the system. The financial institution shall not exercise
control over the system for a period exceeding one year, unless extended
by the Borough at its discretion and during said period of time it
shall have the right to petition for transfer of the franchise to
another grantee. If the Borough finds that such transfer, after considering
the legal, financial, character, technical, customer service, and
operations qualifications of the applicant are satisfactory, the Borough
will transfer and assign the rights and obligations of such franchise
as in the public interest. The consent of the Borough to such transfer
shall not be unreasonably withheld.
E.
The consent or approval of the Borough to any transfer of the grantee
shall not constitute a waiver or release of the rights of the Borough
in and to the streets, and any transfer shall, by its terms, be expressly
subject to the terms and conditions of this chapter and the franchise.
F.
In the absence of extraordinary circumstances, the Borough will not
approve any transfer or assignment of the franchise prior to completion
of construction of the proposed system. This provision shall not apply
to routine line extensions.
G.
The Borough reserves the right to review the purchase price of any transfer or assignment of the cable television system. Any negotiated sale value which the Borough deems unreasonable will not be considered in the rate base for any subsequent request for rate increases, if permitted by applicable law and § 233-21 of this chapter.
H.
Any approval by the Borough of transfer of ownership or control shall
be contingent upon the prospective controlling party becoming a signatory
to the franchise.
I.
Except as otherwise provided in Subsection D above, the Borough reserves the right of first purchase in any transfer of the system. Should the Borough exercise this option, it shall do so within 30 days of notification and thereafter shall make payment therefore under the same terms and conditions as the proposed Transferee, or as the parties might otherwise agree.
Upon completion of the term of any franchise granted under this
chapter, the Borough shall proceed with the renewal process in accordance
with the provisions of the Cable Act. The grantee shall own the cable
communications system, but shall have no property right in the public
rights-of-way upon the completion of the franchise term.
A.
Because the Borough finds that: the streets of the county, state,
and Borough to be used by the grantee in the operation of its system
within the boundaries of the franchise area are valuable public properties
acquired and maintained by the county, state, and Borough at great
expense to its taxpayers; the grant to the grantee to the said streets
is a valuable property right without which the grantee would be required
to invest substantial capital in right-of-way costs and acquisitions;
the administration of this chapter and the franchise imposes upon
the Borough additional regulatory responsibility and expense. A grantee
of any franchise hereunder shall pay to the Borough a franchise fee
in an amount as designated in the franchise, but in no event less
than 5% of gross annual revenues, or the maximum amount permitted
under applicable federal, state, or local law, if such maximum is
greater than 5%.
B.
Franchise fee in addition to other tax or payment. This payment shall
be in addition to any tax, fee, or assessment of general applicability,
including any such tax, fee, or assessment imposed on both utilities
and cable operators or their services, but not including a tax, fee,
or assessment which is unduly discriminatory against cable operators
or cable subscribers, or payment owed to the government or other taxing
jurisdiction by the grantee. Payment of the franchise fee made by
grantee to the Borough shall not be considered in the nature of a
tax, but shall be in addition to any and all taxes which are now or
may be required hereafter to be paid by any federal, state, or local
law.
C.
Acceptance by the Borough. No acceptance of any payment by the Borough
shall be construed as a release or as an accord and satisfaction of
any claim the Borough may have for further or additional sums payable
as a franchise fee under this chapter or for the performance of any
other obligation of the grantee.
D.
Failure to make required payment. In the event that any franchise
payment or recomputed amount is not made on or before the dates specified
herein, grantee shall pay as additional compensation an interest charge,
computed from such due date, at the annual rate equal to the commercial
prime interest rate of the Borough primary depository bank during
the period that such unpaid amount is owed.
E.
Payments to be made quarterly. The franchise fee and any other cost
or damage assessed against the grantee shall be payable quarterly
to the Borough of Narberth and shall commence as of the effective
date of the franchise. The Borough shall be furnished at the time
of said payment with a statement certified by the grantee's chief
financial officer reflecting the total amounts of quarterly gross
revenues and the above charges and computations for the period covered
by the payment. An annual statement of gross revenues shall be furnished
to the Borough by an independent, certified public accountant. Said
quarterly payments shall be made to the Borough no later than 45 days
following the end of each calendar quarter. Quarterly computation
dates are the last day in the months of March, June, September and
December.
F.
The Borough's right of inspection. The Borough shall have the right
to inspect the grantee's income records and the right to audit and
to recompute any amounts determined to be payable under this chapter
for a period of four years from the date of payment. Audits shall
be at the expense of the Borough unless the audit discloses an underpayment
in any one year of 5% or more, in which case the costs of the audit
shall be borne by the grantee. Any additional amount due the Borough
as a result of the audit shall be paid within 30 days following written
notice to the grantee by the Borough which notice shall include a
copy of the audit report unless written notice of disagreement is
filed by the grantee with the Borough within such time. In case of
such dispute, the issue shall be resolved through binding arbitration
in accordance with the procedures of the American Arbitration Association.
A.
Grounds for revocation. The Borough reserves the right to revoke
any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the following circumstances, each
of which shall represent a default and breach under the ordinance
and the franchise grant:
(1)
If the grantee shall default in the performance of any of the material
obligations under this chapter or under such documents, contracts
and other terms and provisions entered into by and between the Borough
and the grantee.
(2)
If the grantee shall fail to provide or maintain in full force and
effect the liability and indemnification coverage or the performance
bond as required herein.
(3)
If the grantee shall violate any lawful orders or rulings of any
regulatory body having jurisdiction over the grantee relative to this
chapter or the franchise.
(4)
If the grantee practices any fraud upon the Borough.
(5)
The grantee's construction schedule is delayed later than the schedule
contained in the franchise or beyond any extended date set by the
Borough.
(6)
The grantee becomes insolvent, unable or unwilling to pay its debts
or is adjudged bankrupt.
(7)
Failure to restore service after 96 consecutive hours of total system outage in 40% or more of the system, except when approval of such interruption is obtained from the Borough or is excused pursuant to Subsection B.
(8)
If the grantee transfers the franchise without the consent of the
Borough.
B.
Effect of circumstances beyond control of grantee. The grantee shall
not be declared at fault or be subject to any sanction under any provision
of this chapter in any case, in which performance of any such provision
is prevented for acts of God or other reasons beyond the grantee's
control. A fault shall not be deemed to be beyond the grantee's control
if committed by a corporation or other business entity in which the
grantee holds a controlling interest whether held directly or indirectly.
C.
Pending litigation or any appeal to any regulatory body or court
having jurisdiction over the grantee shall not excuse the grantee
from the performance of its obligations under this chapter or the
franchise. Failure of the grantee to perform such obligations because
of pending litigation or petition may result in forfeiture or revocation
pursuant to the provisions of this section. The Borough shall comply
with any related court orders.
D.
Procedure prior to revocation.
(1)
The Borough shall make written demand that the grantee do so comply
with any such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the grantee continues for a period of 30 days
following such written demand, the Borough may place its request for
termination of the franchise upon a regular Board meeting agenda.
The Borough shall cause to be served upon such grantee at least seven
days prior to the date of such Board meeting, a written notice of
this intent to request such termination, and the time and place of
the meeting, notice of which shall be published by the Borough Secretary
at least once, seven days before such meeting in a newspaper of general
circulation within the Borough.
(2)
The Board shall hear any persons interested therein, and shall determine
in its discretion, whether or not any failure, refusal or neglect
by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee was with just
cause, as determined by the Board, the Board shall direct the grantee
to comply within such time and manner and upon such terms and conditions
as are reasonable.
(4)
If the Board shall determine such failure, refusal, or neglect by
the grantee was without just cause, then the Board may, by resolution,
declare that the franchise of the grantee shall be terminated and
the performance bond forfeited.
E.
Disposition of facilities. In the event a franchise expires, is revoked
or otherwise terminated, the Borough may in its sole discretion, do
any of the following:
(1)
Order the removal of the system facilities from the Borough within
a reasonable period of time as determined by the Borough;
(2)
Require the grantee to maintain and operate its system for a period
of up to 18 months or such further time as may be mutually agreed
upon. During any time the grantee continues to operate the system
it shall do so pursuant to the terms of this chapter and its franchise
and shall be entitled to the revenues from the system.
F.
Restoration of property. In removing its plant, structures and equipment,
the grantee shall refill, at its own expense, any excavation that
shall be made by it and shall leave all public ways and places in
as good a condition or better as that prevailing prior to the grantee's
removal of its equipment and appliances without affecting the electrical
or telephone cable wires or attachments. The Borough shall inspect
and approve the condition of the public ways and public places and
cables, wires, attachments, and poles after removal. The liability,
indemnity, insurance and performance bond as provided herein shall
continue in full force and effect during the period of removal and
until full compliance by the grantee with the terms and conditions
of this subsection, this chapter and the franchise.
G.
Restoration by Borough; reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§ 233-6 and 233-7 and/or Subsection F above, or any other work required by Borough law or ordinance within the time as may be established and to the satisfaction of the Borough, the Borough may cause such work to be done and the grantee shall reimburse the Borough the cost thereof within 30 days after receipt of an itemized list of such costs or the Borough may recover such costs through the performance bond or letter of credit provided by grantee. The Borough shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
A.
Termination by insolvency. The franchise granted hereunder shall,
at the option of the Borough, cease and terminate 120 days after the
appointment of a receiver or receivers or trustee or trustees to take
over and conduct the business of the grantee whether in a receivership,
reorganization, bankruptcy or similar action or proceeding unless
such receivership or trusteeship shall have been vacated prior to
the expiration of said 120 days, or unless:
(1)
Such receivers or trustees shall have, within 120 days after their
election or appointment, fully complied with all the terms and provisions
of this chapter and the franchise granted pursuant hereto, and the
receivers or trustees within said 120 days shall have remedied all
defaults under the franchise; and
(2)
Such receivers, or trustees shall, within said 120 days, execute
an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be
bound by each and every term, provision and limitation of the franchise
herein granted.
B.
Termination by judicial action. In the case of a foreclosure or other
judicial sale of the plant, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the Borough
may serve notice of termination upon the grantee and the successful
bidder at such sale, in which event the franchise and all rights and
privileges of the grantee granted hereunder shall cease and terminate
30 days after service of such notice, unless:
Equal opportunity employment shall be afforded by all grantees
to all qualified persons, and no person shall be discriminated against
in employment because of race, color, religion, age, national origin,
sex, or physical handicap. Grantee shall comply with all equal opportunity
provisions enacted by federal, state and local authorities, as well
as all such provisions contained in this chapter and the franchise.
[Amended 4-21-2021 by Ord. No. 1032]
All notices from grantee to the Borough pursuant to this chapter
and the franchise shall be to the Borough Manager or their designee.
Grantee shall maintain with the Borough, throughout the term of the
franchise, an address for service of notices by mail. Grantee shall
also maintain with the Borough, a local office and telephone number
for the conduct of matters related to the franchise during normal
business hours. The grantee shall be required to advise the Borough
of such address(es) and telephone numbers and any changes thereof.
