Chapter A230
CABLE TELEVISION FRANCHISE
[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere
12-14-1989 as Ord. No. 246. Amendments noted where applicable.]
~ A230-1. Grant of franchise.
A.
Grant generally. Heritage is hereby granted for itself and its duly
approved (as provided herein) successors and assigns, subject to the terms and
conditions of this Agreement and Elsmere Ordinance Number 246 (the "Elsmere
Franchise Grant Ordinance"), the nonexclusive right, privilege and
authority to construct, operate, maintain and reconstruct a cable communication
system within the streets, alleys and public ways of the town (the
"franchise").
B.
Condition of grant. The grant of this nonexclusive franchise is expressly
conditioned on the operation and maintenance of the current CATV system within
the Town of Elsmere in such manner that the residents of the town shall be
provided a modern, state-of-the-art and uniform townwide cable communications
system as more particularly described in this Agreement.
C.
Rights-of-way. For the purpose of operating and maintaining a cable
communications system in the town, Heritage may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under or upon, across and
along the public streets, alleys and ways within the town such wires, cables,
conductors, ducts, conduits, walls, manholes, amplifiers, appliances, pedestals,
attachments, and other property and equipment as are necessary and pertinent to
the operation of a cable communication system in conformance with this
Agreement. None of the foregoing shall be erected or installed in any manner
which conflicts with existing law.
D.
Effective date of franchise. The effective date of the franchise granted
herein shall be January 1, 1990.
E.
Term.
(1)
The term of the franchise shall be for a period of twelve (12) years from
the date set forth in Subsection D hereof, unless sooner terminated as
hereinafter provided, at which time it shall expire and be of no further force
or effect. The franchisee shall have the option within the last thirty-six (36)
months of this franchise to request a renewal of this franchise for an
additional period not to exceed eight (8) years.
(2)
Should the franchisee seek further renewals of this franchise, the town
shall hold public hearings upon prior notice and shall provide an opportunity
for all interested persons to be heard. The decision to renew or to decline to
renew must be in accordance with the renewal provisions of the CCPA. Should the
franchise be further renewed by the town, all of the terms and provisions
contained herein shall be controlling during the renewal period except to the
extent that such terms and provisions are modified in accordance with law or
unless this Agreement is superseded by a new Agreement.
(3)
In the event the franchise is not renewed at the expiration of the term
of this Agreement, or is terminated, the town may elect, at its sole option, to
purchase all of Heritage's plant and/or equipment located within the town's
jurisdiction at the then fair market value or effect a transfer of ownership of
Heritage's plant and/or equipment located within the town's jurisdiction to
another cable television operator and cause such other operator to pay Heritage
the fair market value of such plant and/or equipment.
F.
Franchise nonexclusive. This franchise shall not be construed as any
limitation upon the right of the town to grant to other persons rights,
privileges or authorities similar to the rights, privileges, and authorities
herein set forth, in the same streets, alleys or other public places. The town
specifically reserves the right to grant at any time during the term of this
Agreement or renewal thereof, if any, such additional franchises for a cable
communications system as it deems appropriate.
~ A230-2. Service area.
A.
Town-wide service. Heritage agrees to maintain its current system in good
operating condition and further agrees to offer cable television services to all
persons, institutions or firms in the town as provided in Subsections B and C
hereof.
B.
Line extension formula.
(1)
Heritage shall provide service to any new residences within the initial
franchise area and any additional area annexed by the town where there are at
least forty (40) residences per cable plant mile, or where there are less than
forty (40) of the above, there are at least twenty-five (25) prospective
customers, who agree to take service for at least one (1) year.
(2)
In areas of lesser density, Heritage shall offer a cost sharing
arrangement with potential single unit residential subscribers as follows:
(a)
On request of any potential subscriber desiring service, Heritage shall
prepare, at such potential subscriber's cost, a feasibility study to determine
the cost of plant extension required to provide service to each subscriber from
the closest point where available signals exist.
(b)
A portion of the cost of construction shall be paid by the subscribers
served by the line extension which portion shall be equal to the total cost of
construction multiplied by a fraction, the numerator of which is equal to forty
(40) minus the average number of single unit residences passed per mile of line
extension and the denominator of which is forty (40). Such amount shall be
equally divided among all persons who become subscribers as a result of the line
extension.
(c)
During the one-year period following the commencement of cable service
within such extension area, if additional persons within such extension area
choose to subscribe to Heritage's service, such persons shall be assessed a pro
rata portion of the original total amount of shared construction cost assessed
against the original contributing customers served by the extension and pro rata
refunds of such additional contributions shall be made to the original
subscribers.
(3)
In situations where public utilities are to be placed underground, and
the developer or property owner gives Heritage sixty (60) days' written notice
by certified mail of the particular date on which open trenching will be
available for the installation of cable, conduit, pedestals and/or vaults,
Heritage will be required to bear the cost of new trenching if, after a sixty
(60) day period from the date of which notice is given, the trench has been
closed without cable being installed therein.
C.
Service to institutions. Heritage will provide one (1) free basic cable
drop for the subscriber network to all public buildings and facilities and to
private and parochial schools that currently have drops or that are within a
reasonable distance from the existing cable plant. The basic service and one (1)
converter will be provided with the free drop, at no additional charge. All
attachments to the schools and public buildings shall be at Heritage's expense,
but distribution of the system within these buildings shall be at the expense of
the schools or responsible public agency.
~ A230-3. System construction, maintenance and technical standards.
A.
Construction, installation and all maintenance of the cable
communications system shall be performed in an orderly and workmanlike manner.
All cables and wires shall be installed, where possible, parallel with electric
and telephone lines. New, different or additional poles, conduits or other
facilities shall not be constructed unless Heritage has explored all reasonable
alternatives and it is unable to obtain permission to use existing facilities at
reasonable costs or unless there are no existing facilities. Multiple cable
configurations shall be arranged in parallel and bundled with due respect for
engineering considerations. Good engineering practices shall be followed at all
times. The cable communications system shall be constructed, installed and
operated in a manner consistent with the National Electric Code and the National
Electric Safety Code, as such codes shall from time to time, be amended and all
applicable federal, state and local laws, ordinances and regulations,
construction standards, governmental requirements and FCC technical standards,
which (as the same may from time to time be amended) are by reference hereby
fully incorporated into this Agreement.
B.
Heritage shall render efficient cable service, make repairs promptly, and
interrupt cable service only for good cause and for the shortest time reasonably
possible. Such interruptions shall, to the extent reasonably possible, be
preceded by notice and shall occur during periods of minimum system use.
C.
Heritage shall comply with all rules and regulations promulgated by the
Federal Communications Commission that govern the technical operation of its
cable television system and that govern other users of the electromagnetic
spectrum.
D.
In all portions of the franchise area where the cables, wires and other
facilities of all public utilities are placed underground after the date hereof,
Heritage shall place all of its wires, cables and facilities underground to the
extent reasonably possible.
E.
The town shall have the right to inspect, at no charge to Heritage, all
construction or installation work performed and to make such tests as it shall
find necessary to ensure compliance with the terms of this Agreement and other
pertinent provisions of law.
F.
Heritage shall maintain on file at its offices maps or plots showing all
existing streets or subdivisions served by its system as built. Such maps shall
be updated annually and shall be available for inspection by the town during
business hours.
G.
In the event of the relocation, construction, reconstruction, maintenance
or repair by the town of any of its facilities or services now owned or
hereafter acquired (including, but not limited to, any street, alley, sewer,
fire alarm, policy communication, civil defense system or other communication,
or traffic control facility or any part thereof), or in the event that access to
any street, alley or other public place, or to or from any property of the town
is required, and it is necessary to move, alter or relocate, either permanently
or temporarily, any of Heritage's property or part thereof on public property,
public rights-of-way or public easements (including, but not limited to, posts,
poles, wires, manholes, fixtures, appliances and appurtenances), in order for
the town to relocate, construct, reconstruct, maintain or repair any such
facility, sewer, street, alley or other public place or any such sewer, fire
alarm, policy communication, civil defense system or traffic control or other
facility, or any part thereof, or to obtain access to or from such property,
upon sixty (60) days' written notice from the town, Heritage will move, relocate
or otherwise alter any such property or part thereof, at its own cost and
expense; and should Heritage fail, refuse or neglect to comply with such notice,
such property or part thereof may be removed, altered or relocated by the town
at the sole cost of Heritage, and the town shall not be liable to Heritage for
damages resulting from such removal, alteration or relocation. Heritage agrees,
as a condition of this Agreement, that it will do everything reasonably
necessary, in a timely manner, to prevent any delays in construction projects of
the town.
H.
If, at any time in case of fire, disaster, or other emergency, it shall
appear necessary in the judgment of the town to cut, move or otherwise interfere
with any of the wires, cables, amplifiers, appliances or appurtenances thereto
of Heritage as a result of such cutting, moving or interfering. The town shall
notify Heritage as soon as possible of any such action.
~ A230-4. System design and capacity.
A.
System. The parties understand that Heritage has constructed or will
construct a fifty-one-channel, four-hundred-Megahertz (MHz) cable communication
system with two-way capacity [four (4) upstream channels].
B.
Addressability. Heritage shall construct and activate an addressable
system. Heritage shall provide a sufficient number of addressable converters in
its converter inventory to service its subscribers.
C.
Signal quality verification. In order to establish a reference point and
an audit track of the picture quality and RF signal levels for subscriber
service, Heritage shall use the following procedures:
(1)
Installation and service call forms will be printed with a space provided
for recording signal levels and visual picture quality indication at the
subscriber's television set.
(2)
The cable installer, as part of the installation, will fill in the
requested data.
(3)
Service technicians will also provide this data for each service call.
(4)
All work orders will be reviewed on a daily basis by Heritage supervisory
personnel. If picture quality levels fall below levels required by this
agreement as a result of defects in Heritage's equipment, Heritage shall
forthwith take whatever steps are necessary to restore picture quality.
(5)
All work orders will be filed and retained for a period of three (3)
years.
D.
Converters. Heritage shall, to the extent technically feasible and
legally permissible, permit subscribers to have video tape recorders connected
to the cable system. Heritage shall, to the extent feasible, construct its
system and install equipment which permits the utilization of cable-ready
television receivers. In addition, Heritage shall permit subscribers, where
technically feasible and legally permissible, and where system security will not
be impaired, to purchase compatible converters of their own and use them for
cable reception without the payment of any charge (other than installation or
repair fees) or security fee to Heritage; provided, however, that nothing herein
shall permit a subscriber to obtain services over the cable communications
system, to expand existing services, or to install additional service outlets
without proper authorization from Heritage and payment of appropriate fees
therefore; provided further, that all subscribers who connect video tape
recorders, cable-ready television receivers, radio receivers, compatible
converters or any other device owned by subscribers to the cable system
("subscriber device connections"), shall at all times comply with all
rules governing subscriber device connections promulgated by Heritage and all
regulations governing cable television promulgated by the Federal Communications
Commission, including, without limitation, those FCC Regulations governing
signal leakage from cable television systems (the "subscriber device rules
and regulations"). If Heritage or the Federal Communications Commission
detects any violation of the subscriber device rules and regulations by any
subscriber, Heritage shall either correct such violation and charge the
subscriber a reasonable fee therefor or terminate service to such subscriber, if
such subscriber fails to cooperate promptly with Heritage to correct such
violation within twenty-four (24) hours after oral or written notice of such
violation from Heritage.
E.
Parental control devices. Heritage shall provide to any subscriber who so
requests a parental control device enabling the subscriber to lock out the video
portion of any channel transmitted by Heritage and received by the subscriber.
Heritage agrees to make such parental control devices available either through
purchase or by lease, at Heritage's option, to its subscribers.
~ A230-5. Service and programming.
A.
Service. Heritage shall use every reasonable effort to furnish persons
located in the Town of Elsmere with service within fourteen (14) days after
reasonable request therefor. A request shall be unreasonable for the purpose of
this subsection if occurring prior to the construction and activation of the
cable television system serving such person's premises or if direct access
cannot reasonably be obtained to such person's premises and all other means of
access are unreasonable.
B.
Heritage will initially activate thirty-three (33) of the fifty-one (51)
available channels. Service may be expanded to full capacity as additional
programming becomes available and market conditions warrant. Heritage may add,
delete, substitute or alter such services in response to market conditions.
Heritage will provide a wide range and assortment of programming services
serving a variety of community needs and interests, and shall provide the same
programming services to the town that it provides to the unincorporated areas of
New Castle County.
C.
Heritage shall provide an audio service consisting of a wide variety of
FM broadcast audio simulcast signals.
~ A230-6. Public education and governmental access (PEG).
Channels. Heritage
agrees to make available without charge to the town up to eight (8) hours of
broadcast time per month on its system to be used by the town. All production or
programming costs of broadcasts made by the town shall be borne by the town. In
order to promote full utilization of public, educational, and governmental
access programming capacity throughout the Town of Elsmere area, the town agrees
to make part or all of its eight (8) hours per month of broadcast time available
for use by other Heritage franchising authorities in New Castle County on such
terms as the town and other franchising authority shall agree upon.
~ A230-7. Consumer services and rights.
A.
Solicitation. At the time Heritage solicits residents for subscription to
new services, Heritage shall provide such residents with a simple, but thorough,
written explanation of all services offered, including the basic service, the
price of such services, the parental lockout device, installation procedures,
refund policy and privacy rights of the subscriber as set forth in Section 551
of the CCPA.
B.
Converter deposits. Heritage shall continue its policy of returning
converter deposits and not requiring converter deposits from subscribers who
have been and remain in good standing after a period of three (3) years.
Customers shall pay deposits for converters supplied by Heritage. Interest shall
be computed on such deposit at a minimum rate of six percent (6%) per annum to
each customer on an annual basis at the end of each calendar year. The deposit
shall be returned to the customer at such time as service is discontinued or
terminated or thirty-six (36) months from payment of the deposit, whichever is
earlier, after crediting Heritage for any sums owed to Heritage by such
customer. The deposit shall be forfeited to Heritage when such equipment is lost
or damaged beyond economical repair by the customer. Customers who receive
replacement converters in such circumstances shall pay Heritage the cost for
each such converter as set forth in the rates and tariffs filed by Heritage with
the Delaware Public Service Commission.
C.
Senior citizen discounts. Heritage agrees to extend to all subscribers
sixty-five (65) years of age and over residing at the address where the service
is provided, a fifty percent (50%) discount on the converter deposit.
D.
Customer service.
(1)
Heritage shall employ sufficient telephone lines and operators to handle
incoming customer service calls properly and promptly. Resolution of complaints
shall, to the extent possible, be accomplished within five (5) days from the
receipt of the complaint. Heritage shall maintain records pertaining to
complaints for a period of three (3) years from the date of complaint.
(2)
Heritage shall not disconnect service for nonpayment until at least
thirty (30) days after the due date of the bill for which service disconnection
is contemplated. The thirty-day period shall include ten (10) days' written
notice to the delinquent subscriber of the intent to disconnect. Such notice
shall also specify steps required to avoid termination of cable service.
E.
Credit for outages or faulty equipment. The cable system shall be
designed for operation twenty-four (24) hours per day, subject to available
programming. It shall be the policy of Heritage to issue credit to its
subscribers for outages of more than twenty-four (24) continuous hours caused by
defective equipment supplied by Heritage or by other fault of Heritage. Credits
given in accordance with the provisions of this subsection shall be on a pro
rata basis. Notwithstanding any other provision of this agreement to the
contrary, no credit shall be required where the outage is a result of misuse of
equipment by the subscriber, defective equipment which is not provided by
Heritage, denial to Heritage of access to the subscribers' premises, or acts of
the town.
F.
Continuity of service. It shall be the right of all subscribers to
receive all available services insofar as their financial and other obligations
to Heritage are honored. If Heritage elects to rebuild or modify its cable
television system, Heritage shall use its best efforts to provide continuous,
uninterrupted services to its subscribers who continue to fulfill all of their
obligations to Heritage. In the event of a termination of the franchise for any
reason, including an election by Heritage not to renew the franchise, Heritage
shall have no obligation to provide any service to subscribers after the
termination or expiration date of the franchise; provided, however, that if the
town has awarded another cable television operator a franchise to operate the
cable television system of Heritage after the termination or expiration date of
this franchise, Heritage shall cooperate with the town in maintaining continuity
of service to all subscribers for a period of up to thirty (30) days after the
termination or expiration of the franchise. During any such period, Heritage
shall be entitled to reasonable compensation for all services rendered.
~ A230-8. Franchise renewal.
This franchise may be
renewed for an additional eight-year period, upon agreement of the parties, and
upon a determination by vote of the Town Council, following public hearings, of
satisfactory performance by Heritage of its obligations under this Agreement in
accordance with the performance standards set forth in Section 626 of the CCPA
as of its effective date or as amended thereafter, which standards, unless
expressly waived by written agreement of Heritage and the town, shall govern any
renewal proceedings notwithstanding any provision of this Agreement to the
contrary.
~ A230-9. Reports.
A.
Annual report. During the term of this Agreement, unless otherwise
specified by the town, Heritage shall submit a written annual report to the town
within four (4) months of the end of Heritage's fiscal year which includes the
following information:
(1)
A summary of the previous year's activities in development of the cable
system, including services begun or discontinued, total number of subscribers
and subscribers added or discontinued during the reporting year.
(2)
An annual financial statement for the town franchise area. Said
statements may include allocations of expenses and other items which cannot be
specifically identified to the town franchise area. The financial statements
shall separately state all items of gross operating revenue subject to the
franchise fee imposed by ~ A230-11 of this Agreement, in a manner and form that
clearly shows actual income received from the operation of the Heritage cable
franchise in Elsmere.
(3)
A list of Heritage's officers, members of its Board of Directors, and
general manager having charge of the franchise.
B.
Billings. Heritage shall maintain fiscal and financial data sufficient to
accurately reflect all its customer billings. Such records shall be retained for
a three-year period and may be inspected by the town during such period subject
to Section 631 of the CCPA.
~ A230-10. Indemnity and insurance.
Heritage agrees to
indemnify and hold harmless the town from any and all liability to property or
to persons (including death), from any and all claims, demands, actions,
judgments, costs, expenses and liabilities of every kind and nature which may or
could arise or result, directly or indirectly, from the installation or removal,
maintenance and use of any and all wires and equipment, any and all property of
Heritage, and any and all acts of Heritage's officers, employees or agents in
the operation of the franchise, excluding claims arising out of or relating to
acts of the town, its officers, employees or agents in installing, moving,
removing, maintaining, using, or modifying any or all wires, equipment, or other
property of Heritage or arising out of or relating to programming produced or
provided by the town or its designates. Heritage shall maintain insurance, at
its cost, against liability due to damage to property in a sum not less than
five hundred thousand dollars ($500,000.) as to any one (1) accident and subject
to this limit per accident, and aggregate of one million dollars ($1,000,000.)
during the policy year, and against liability due to injury to or death of
persons, one million dollars ($1,000,000.) as to any one (1) person and three
million dollars ($3,000,000.) as to any one (1) accident. Heritage shall also
carry such insurance as will protect it from all claims under any workmen's
compensation laws in effect that may be applicable to any period. To the extent
permitted Heritage under its agreement with any other utility, Heritage may
satisfy the requirement of this subsection by making the town an additional
insured thereunder and filing a copy of such insurance policy or policies with
the town. Failure to carry such insurance in the required amounts may, at the
discretion of the town, result in termination of the rights granted by this
Agreement, provided that the town shall provide Heritage with notice of such
default and provide Heritage with a reasonable opportunity to cure such default.
Should the town be sued for damages for injury to persons or property caused by
the activities of Heritage, its agents, employees, servants or independent
contractors, while engaged in construction, installing, maintaining or operating
the services described herein, Heritage shall be notified of such suit by the
town, and it shall be the duty of Heritage to defend or settle such suit; and,
further, if a judgment is entered against the town in any such case, the town
shall recover the amount thereof with costs including its reasonable attorney's
fees from Heritage. The record of judgment against the town in any such cases
shall be conclusive evidence entitling the town to so recover against Heritage.
~ A230-11. Payment of fees and costs.
A.
Franchise fee. Following the issuance and acceptance of the franchise,
Heritage shall pay the town a franchise fee of five percent (5%) of all gross
revenues (as defined below) received from all operation of the Heritage system
within the town for each fiscal year of Heritage thereafter. For purposes of
this Agreement, "gross revenues" shall be defined as all revenues
received for installation, connection, reconnection, wiring, basic service, pay
service, remote device rent, converter rent, pay-per-view service, extra outlets
and any and all such other services or operations provided in the town from
which Heritage derives revenue, including any service or operation commenced by
Heritage after the date of this Agreement; provided, however, that "gross
revenues" shall not include any amounts of Delaware Public Utilities Tax
imposed by Chapter 55 of Title 30 of the Delaware Code that Heritage collects
from its subscribers and pays to the state or any amounts of advertising,
production or leased access revenues. This franchise fee shall be paid quarterly
within thirty (30) days of the end of the quarter for which it is payable, based
on estimates of quarterly revenue with an annual reconciliation. If such annual
reconciliation shows that Heritage has paid franchise fees to the town in excess
of five percent (5%) of all gross revenues derived from all operation of the
Heritage system within the town during the fiscal year of Heritage, the town
shall credit such overpayment against the franchise fee payable to the town for
the next quarter.
B.
Payments to town. No acceptance of any payment shall be construed as an
accord that the amount paid is in fact the correct amount, nor shall such
acceptance of payment for further or additional sums payable under the
provisions of this Agreement. Subject to Section 631 of the CCPA, the town shall
have the right to inspect the books and records of Heritage during the normal
business hours and the right to audit and recompute any amounts determined to be
payable under this Agreement; provided, however, that such audit shall take
place within twelve (12) months following the close of Heritage's fiscal year;
and provided, further, that if any audit by the town determines a material
discrepancy, the town may audit the two (2) fiscal years immediately preceding.
Any additional amount due to the town as a result of such audit shall be paid
within thirty (30) days following written notice to Heritage by the town, which
notice shall include a copy of the audit report.
~ A230-12. Performance bond.
Heritage shall file
with the town a performance bond or other surety device acceptable to the town
in the amount of one hundred thousand dollars ($100,000.) which shall be
maintained for the duration of the term of the franchise as security for the
performance and discharge of all obligations of Heritage under this Agreement.
Said bond with surety approved by the town or other surety device running to the
town shall be conditioned upon faithful performance of all terms of this
Agreement and the law, and shall specify that in the event Heritage fails to
faithfully perform or is in default under any of its obligations, then in such
event, and provided that Heritage has been given notice of such default and an
opportunity to cure not exceeding thirty (30) days, the obligor shall make good
and otherwise meet the obligations of Heritage under this Agreement and the law
up to the limit of the undertaking. The failure of Heritage to establish and
maintain the full amount of either the performance bond or other acceptable
surety device for the term of the franchise shall constitute a material breach
of this Agreement.
~ A230-13. Remedies.
A.
Waiver. Heritage shall not be excused from complying with any of the
terms and conditions of this Agreement by any failure of the town upon any one
(1) or more occasions to insist upon or to seek compliance with any such terms
or conditions. No waiver by the town of any breach of any provision of this
Agreement shall be construed as a waiver of any succeeding breach of such
provision, or as a waiver of the provision itself.
B.
Cumulative rights. The rights and remedies available to the town or
Heritage under this Agreement are cumulative and shall be in addition to and not
in derogation of any other rights or remedies which the town or Heritage may
have with respect to the subject matter of this Agreement, and a waiver thereof
at any time shall not have effect on the enforcement of such rights or remedies
at a future time.
C.
Time of essence. Whenever this Agreement sets forth any time for any act
to be performed by either of the parties, such time shall be deemed to be of the
essence of this Agreement.
~ A230-14. Force majeure.
If Heritage is
prevented or delayed in the performance of any of its obligations under this
Agreement by reason of acts of God, floods, fires, hurricanes, tornadoes,
earthquakes or other unavoidable casualty, acts of public enemy, insurrection,
war, riot, sabotage, vandalism, strikes, boycotts, lockouts, labor disputes,
shortage of labor, epidemic, freight embargoes, shortages or unavailability of
materials or supplies, unusually severe weather conditions, or the failure of a
utility to provide pole attachments or the make ready for Heritage's cable
communication system construction work, after timely request by Heritage, the
unlawful denial of any permit application by the town, or the failure of the
town to respond to any permit application or approval request by Heritage within
a reasonable time period considering the scope of the request (any of which is
hereinafter called "force majeure"), then the time within such
obligations must be performed under the terms of this Agreement shall be
extended for a reasonable period.
~ A230-15. Transfer or assignment.
The franchise granted
herein shall be a privilege personal to Heritage. No interest in the franchise
shall be directly or indirectly transferred or assigned without the prior
approval of the town, which shall not be unreasonably withheld. For the purposes
of this section, a merger or consolidation, or the formation of a joint venture
or partnership in which Heritage is a party and/or participant shall not be
deemed a direct or indirect transfer or assignment subject to the provisions of
this section.
~ A230-16. Right to amend.
Heritage acknowledges
and accepts the legal right of the town to issue this franchise, and Heritage
agrees that it shall not now or at any time hereafter challenge this lawful
right. Heritage and the town understand that this franchise is being granted
pursuant to local, state and federal law as it now exists, and agrees that in
the event of any changes in such laws which conflict with the terms of this
Agreement, they will negotiate in good faith with one another to amend this
Agreement to replace any affected provision.
~ A230-17. Termination.
The franchise may not
be terminated except for a substantial breach of this Agreement. As a condition
precedent to termination, the town shall provide Heritage with written notice of
such substantial and material breach and of its intent to terminate. The town
shall allow Heritage ninety (90) days during which to cure such breach or to
commence diligent efforts to effect cure. If the nature of the breach is such
that it cannot be reasonably remedied in ninety (90) days, after notice from the
town, Heritage shall have a reasonable time within which to cure the breach, and
if it does not satisfactorily do so, the town may terminate the franchise under
this Agreement.
~ A230-18. Construction of agreement.
A.
Police powers. In accepting the franchise, Heritage acknowledges that its
privileges thereunder are subject to the police power of the town to adopt and
enforce laws, regulations, resolutions and ordinances necessary for the general
health, safety, and welfare of the public, and Heritage agrees to comply with
all applicable laws, regulations, resolutions and ordinances presently enforced
or subsequently enacted by the town pursuant to such power. Nothing in this
Agreement shall be construed as an abrogation by the town of any of its police
powers.
B.
Controlling law. This Agreement shall be governed, construed and enforced
in accordance with the Elsmere franchise grant ordinance and the laws of the
State of Delaware, except that the parties' respective rights and obligations
hereunder shall be subject to any applicable provision of the CCPA, as now
existing or as amended from time to time, any applicable rules, regulations and
orders of the Federal Communications Commission and any applicable rules,
regulations, legislation or orders of any other public body having jurisdiction
over the subject matter hereof; provided, further, that if the Elsmere franchise
grant ordinance be amended after the adoption of this Agreement in such a way
that it conflicts from the terms of this Agreement, then the terms of this
Agreement shall be controlling.
C.
Entire agreement. This Agreement and all attachments hereto represent the
entire understanding and agreement between the parties hereto with respect to
the subject matter thereof, and supersede all prior oral negotiations between
the parties. This Agreement can be amended, supplemented, modified or changed
only by an agreement in writing executed with the same formalities as this
agreement or pursuant to the provisions of Section 625 of the CCPA.
D.
Severability. If any section, subsection, sentence, clause, phrase or
portion of this Agreement is, for any reason, held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed a separate,
distinct and independent provision and such holding shall not affect the
validity of the remaining portions of this Agreement.
E.
No joint venture. Nothing herein shall be deemed to create a joint
venture or principal/agent relationship between the parties, and neither party
is authorized to, nor shall either party act toward third persons or the public
in any manner which would indicate any such relationship with one another.
~ A230-19. Notices.
All notices from
Heritage to the town or from the town to Heritage pursuant to this Agreement
shall be sent in writing. Heritage shall maintain an office within New Castle
County to which all notices by the town may be addressed. All notices required
to be given under this Agreement shall be deemed to have been delivered when
actually delivered by hand or when mailed to any party, certified mail, return
receipt requested. For purposes of this Agreement, the notice described above
may be sent to the following addresses:
In the case of Heritage, to:
Heritage Cablevision of Delaware, Inc.
2215 N. DuPont Highway
New Castle, DE 19720
Attention: President
With a copy to:
Heritage Communications, Inc.
Legal Department
2195 Ingersoll Avenue
Des Moines, IA 50312
In the case of the town, to:
Town of Elsmere
11 Poplar Avenue
Elsmere, DE 19805
ATTN: Town Manager