[Amended by Ord. No. 183]
This chapter shall be known and cited as the "Dresser Cable
Television Franchise," hereinafter "Franchise" or "chapter."
For the purpose of this chapter, the following terms, phrases
and words and their derivations shall have the meanings given herein:
(1) BASIC SERVICE — All subscriber services provided by the grantee
in one or more service tiers, which includes the delivery of local
broadcast stations, and public, educational and government access
channels. Basic service does not include optional program and satellite
service tiers, a la carte services, per channel, per program, or auxiliary
services for which a separate charge is made. However, grantee may
include other satellite signals on the basic service tier.
(2) CABLE SERVICE —
(a)
The transmission to subscribers of:
2.
Other programming services.
(b)
Subscriber interaction, if any, that is required for the selection
or use of such video programming or other programming services.
(3) CABLE SYSTEM or SYSTEM or CABLE TELEVISION SYSTEM — 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 the following:
(a)
A facility that serves only to retransmit the television signals
of one 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 the Telecommunications Act
of 1996, except that such facility shall be considered a cable system
other than for purposes of sec. 621(c) to the extent such facility
is used in transmission of video programming directly to subscribers.
(d)
Any facilities of any electric utility used solely for operating
its electric utility system.
(4) CLASS IV CHANNEL — A signaling path provided by a cable communications
system to transmit signals of any type from a subscriber terminal
to another point in the cable communications system.
(5) CONTROL or CONTROLLING INTEREST — Actual working control or
ownership of a system in whatever manner exercised. A rebuttable presumption
of the existence of control or a controlling interest shall arise
from the ownership, directly or indirectly, by any person or legal
entity (except underwriters during the period in which they are offering
securities to the public) of 40% or more of a cable system or the
Franchise under which the system is operated. A change in the control
or controlling interest of a legal entity which has control or a controlling
interest in a grantee shall constitute a change in the control or
controlling interest of the system under the same criteria. Control
or controlling interest, as used herein, may be held simultaneously
by more than one person or legal entity.
(6) CONVERTER — An electronic device which converts signals to
a frequency not susceptible to interference within the television
receiver of a subscriber and by an appropriate channel selector also
permits a subscriber to view more than 12 channels delivered by the
system at designated converter dial locations.
(7) DWELLING UNIT — Any building or part of a building that is
used as a home or residence.
(8) FCC — The Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
(9) FRANCHISE — An initial authorization, or renewal thereof, issued
by the Village, as the franchising authority, to a grantee to construct
or operate a cable system.
(10) FRANCHISE AGREEMENT — A contractual agreement entered into
between the Village and any grantee hereunder that is enforceable
by the Village and by the grantee, and which sets forth the rights
and obligations between the Village and grantee in connection with
the Franchise.
(11) GRANTEE — A person or legal entity to whom or to which a Franchise
under this chapter is granted by the Village, along with the lawful
successors or assigns of such person or entity.
(12) GROSS REVENUES — All revenue collected by the grantee arising
from or attributable to the provision of cable service by the grantee
within the Village including, but not limited to, periodic fees charged
subscribers for any basic, optional, premium, per-channel or per-program
service; Franchise fees; installation and reconnection fees; leased
channel fees; converter rentals and/or sales; program guide revenues;
late or administrative fees; upgrade, downgrade or other change-in-service
fees; local advertising revenues; revenues from home shopping; revenues
from the sale, exchange, use or cable cast of any programming developed
on the system for community or institutional use; provided, however,
that this shall not include any taxes on services furnished by the
grantee herein imposed directly upon any subscriber or user by the
State, local or other governmental unit and collected by the grantee
on behalf of the governmental unit.
(13) INITIAL SERVICE AREA — All areas in the Village having a density
of at least 40 dwelling units per street mile.
(14) INSTALLATION — The connection of the system from feeder cable
to a subscriber's terminal.
(15) LOCAL ADVERTISING REVENUES — Local and regional advertising
revenues derived from the sale of locally and regionally inserted
advertising, except such advertising sold by or through grantee's
national representative firm.
(16) MAY — "May" is permissive.
(17) MONITORING — Observing a communications signal, or the absence
of a signal, where the observer is neither the subscriber nor the
programmer, whether the signal is observed by visual or electronic
means, for any purpose whatsoever, provided monitoring shall not include
system-wide, nonindividually addressed sweeps of the system for purposes
of verifying system integrity, controlling return paths transmissions
or verification of billing for premium or other services.
(18) NORMAL BUSINESS HOURS — As applied to the grantee, shall mean
those hours during which similar businesses in the Village are open
to serve customers. In all cases, normal business hours shall include
some evening hours at least one night per week and/or some weekend
hours.
(19) NORMAL OPERATING CONDITIONS — Those service conditions that
are within the control of the grantee. Those conditions that are not
within the control of the grantee include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages and severe or unusual weather conditions. Those conditions
which are ordinarily within the control of the grantee include, but
are not limited to, special promotions, pay-per-view events, rate
increases, regular peak or seasonal demand periods, and maintenance
or upgrade of the cable system.
(20) PERSON — Any natural person or any association, firm, partnership,
joint stock company, limited liability company, joint venture, corporation
or other legally recognized entity, private or public, whether for-profit
or not-for-profit.
(21) SHALL — "Shall" is mandatory.
(22) SERVICE INTERRUPTION — The loss of either picture or sound
or both for a single or multiple subscriber.
(23) STREET — The surface of and all rights-of-ways and the space
above and below any public street, road, highway, freeway, lane, path,
public way or place, sidewalk, alley, court, boulevard, parkway, drive
or easement now or hereafter held by the Village for the purpose of
public travel and shall include other easements or rights-of-way as
shall be now held or hereafter held by the Village which shall, within
their proper use and meaning entitle the grantee to the use thereof
for the purposes of installing poles, wires, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments and
other property as may be ordinarily necessary and pertinent to the
cable television system.
(24) SUBSCRIBER — Any person, firm, grantee, corporation or other
legal entity or association lawfully receiving any service provided
by a grantee pursuant to this chapter.
(25) USER — A party utilizing a cable television system channel
for purposes of production or transmission of material to subscribers,
as contrasted with receipt thereof in a subscriber capacity.
(26) VILLAGE — The Village of Dresser, Wisconsin.
Any Franchise granted by the Village pursuant to § 66.0419,
Wis. Stats., shall grant to the grantee the right and privilege to
erect, construct, operate and maintain in, upon, along, across, above,
over and under the streets, now in existence and as may be created
or established during the term of the Franchise, any poles, wires,
cable, underground conduits, manholes and other television conductors
and fixtures necessary for the maintenance and operation of a cable
system.
(1) Upon adoption of any Franchise agreement and execution thereof by
the grantee, the grantee agrees to be bound by all the terms and conditions
contained herein.
(2) Any grantee also agrees to provide all services specifically set
forth in its application and to provide cable television service within
the confines of the Village, and, by its acceptance of the Franchise,
the grantee specifically grants and agrees that its application is
thereby incorporated by reference and made a part of the Franchise.
Any Franchise is for the legally incorporated territorial limits
of the Village and for any area henceforth added thereto during the
term of the Franchise.
Any Franchise and the rights, privileges and authority granted
under this chapter shall take effect and be in force from and after
final Village approval thereof, as provided by law, and shall continue
in force and effect for a term of no longer than 15 years, provided
that within 45 days after the date of final Village approval of the
Franchise, the grantee shall file with the Village its unconditional
acceptance of the Franchise and promise to comply with and abide by
all its provisions, terms and conditions. Such acceptance and promise
shall be in writing duly executed. Such Franchise shall be nonexclusive
and revocable.
(1) Current Federal procedures and standards pursuant to 47 U.S.C. § 546
shall govern the renewal of any Franchise awarded under this chapter.
(2) In the event that any or all of the applicable provisions of Federal
law are repealed or otherwise modified, the following relevant sections
shall apply:
(a)
At least 24 months prior to the expiration of the Franchise,
the grantee shall inform the Village, in writing, of its intent to
seek renewal of the Franchise.
(b)
The grantee shall submit a proposal for renewal that demonstrates:
1.
That it has been and continues to be in substantial compliance
with the terms, conditions and limitations of this chapter and its
Franchise.
2.
That its system has been installed, constructed, maintained
and operated in accordance with the FCC and this chapter and its Franchise.
3.
That it has the legal, technical and financial qualifications
to continue to maintain and operate its system.
4.
That it has made a good faith effort to provide services and
facilities which accommodate the demonstrated needs of the community,
taking into account the cost of meeting such needs.
(c)
After giving public notice, the Village shall proceed to determine
whether the grantee has satisfactorily performed its obligations under
the Franchise. To determine satisfactory performance, the Village
shall consider technical developments and performance of the system,
cost of services and any other particular requirements set forth in
this chapter. The Village shall also consider the grantee's reports
made to the Village and to the FCC, and the Village may require the
grantee to make available specified records, documents and information
for this purpose, and may inquire specifically whether the grantee
will supply services sufficient to meet future community needs and
interest, taking into account the cost of meeting such needs. Industry
performance on a national basis shall also be considered. Provisions
shall be made for public comment with adequate prior notice of at
least 10 days.
(d)
Grantee shall be entitled to the same due process rights included
in Sec. 626 [47 U.S.C. § 546].
(e)
The Village shall then prepare any amendments to this chapter
that it believes necessary.
(f)
If the Village finds the grantee's performance satisfactory
and finds the grantee's technical, legal and financial abilities
acceptable and finds the grantee's renewal proposal meets the
future cable-related needs of the Village, taking into account the
cost of meeting such needs, a new Franchise shall be granted pursuant
to this chapter, as amended, for a period to be determined.
(g)
If the grantee is determined by the Village to have performed
unsatisfactorily, new applicants may be sought and evaluated and a
Franchise award shall be made by the Village according to franchising
procedures adopted by the Village.
(1) In accepting a Franchise, the grantee acknowledges that its rights
thereunder are subject to the police power of the Village to adopt
and enforce general ordinances necessary to the safety and welfare
of the public, and it agrees to comply with all applicable general
laws and ordinances enacted by the Village pursuant to such power.
(2) Any conflict between the provisions of a Franchise and any other
current or future lawful exercise of the Village's police powers
shall be resolved in favor of the latter, except that any such exercise
that is not of general application in the jurisdiction or applies
exclusively to the grantee or cable television systems which contains
provisions inconsistent with this chapter shall prevail only if, upon
such exercise, the Village finds a danger to health, safety, property
or general welfare or if such exercise is mandated by law.
No cable television system shall be permitted to operate or
to occupy or use the streets for system installation and maintenance
purposes without a Franchise.
The Village shall have the right to install and maintain upon
the poles of the grantee at a charge equal to grantee's costs
any wire or pole fixtures that do not unreasonably interfere with
the cable television system operations, including future plans, of
the grantee. The Village shall indemnify and hold harmless the grantee
from any claim that might arise due to or as a result of the Village's
use.
Costs to be borne by a grantee shall include any requirements
or charges incidental to the awarding or enforcing of its initial
Franchise, but shall not be limited to all costs of publications of
notices prior to any public meeting provided for pursuant to this
chapter and any costs not covered by application fees incurred by
the Village in its study, preparation of proposal documents, evaluation
of all applications, and examinations of the applicant's qualifications.
All notices from the grantee to the Village pursuant to any
Franchise shall be to the Clerk-Treasurer. The grantee shall maintain
with the Village, throughout the term of the Franchise, an address
for service of notices by mail. The grantee shall maintain a central
office to address any issues relating to operating under this chapter.
(1) Within 60 days after the award of an initial or renewal Franchise,
the grantee shall deposit with the Village a bond in the amount of
$5,000 with the form to be established by the Village. The form and
content of such bond shall be approved by the Village Attorney. This
instrument shall be used to ensure the faithful performance of the
grantee of all provisions of this chapter and to ensure compliance
with all orders, permits and directions of any agency, commission,
board, department, division or office of the Village having jurisdiction
over its acts or defaults under this chapter, and to ensure the payment
by the grantee any damages assessed against the grantee under sec.
20.46 of this chapter or any claims, liens and taxes due the Village
which arise by reason of the construction, operation or maintenance
of the system.
(2) The bond shall be maintained at the amount established in par. (1)
above for the entire term of the Franchise even if amounts have to
be withdrawn pursuant to this chapter.
(3) If the grantee fails to pay to the Village any amounts owed under
the Franchise agreement that is not on appeal to the court of proper
jurisdiction within the time fixed herein, or fails after 15 days'
notice to pay to the Village any taxes due and unpaid, or fails to
repay the Village within 15 days any damages, costs or expenses which
the Village is compelled to pay by reason of any act or default of
the grantee in connection with the Franchise, or fails, after three
days' notice of such failure by the Village, to comply with any
provision of the Franchise which the Village reasonably determines
can be remedied by demand on the bond, the Village may immediately
demand payment of the amount thereof, with interest and any penalties,
from the bond. Upon such demand for payment, the Village shall notify
the grantee of the amount and date thereof.
(4) The rights reserved to the Village with respect to the bond are in
addition to all other rights of the Village, whether reserved by the
Franchise or authorized by law, and no action, proceeding or exercise
of a right with respect to such letter of credit shall affect any
other right the Village may have.
(5) The bond shall contain an endorsement agreeing that the bond may
not be cancelled by the surety nor the intention not to renew be stated
by the surety until 30 days after receipt by the Village, by registered
mail, of a written notice of such intention to cancel or not to renew.
(6) In the event the Village receives a thirty-day notice from a surety,
it shall have the right to demand payment from the bond unless grantee
provides appropriate assurance that a replacement bond will be presented
before the expiration of the thirty-day period. Assurance shall be
determined by the Village at its sole discretion. This section shall
not apply if the Village and the grantee agree that a bond is no longer
required or if the bond is, by agreement between the Village and the
grantee, in the process of being reduced.
(7) The Village may, at any time during the term of this chapter, waive
the grantee's requirement to maintain a bond. The waiver of the
requirement may be initiated by the Village or may be requested by
the grantee.
(1) Within 60 days after the award of an initial or renewal Franchise,
the grantee shall file with the Village a performance bond in the
amount of not less than $50,000 in favor of the Village. This bond
shall be maintained throughout the construction period and until such
time as determined by the Village unless otherwise specified in the
Franchise agreement.
(2) If the grantee fails to comply with any law, ordinance or resolution
governing the Franchise, or fails to observe, fulfill and perform
each term and condition of the Franchise, as it relates to the conditions
relative to the construction of the system, including the Franchise
agreement that is incorporated herein by reference, there shall be
recoverable jointly and severally, from the principal and surety of
the bond, any damages or losses suffered by the Village, including
the full amount of any compensation, indemnification or cost of removal
or abandonment of any property of the grantee plus a reasonable allowance
for attorney's fees, including the Village's legal staff,
and costs up to the full amount of the bond. This section shall be
an additional remedy for any and all violations outlined in sec. 20.13
of this chapter.
(3) The Village shall, upon completion of construction of the service
area, waive the requirement of the grantee to maintain the bond. However,
the Village may require a performance bond to be posted by the grantee
for any construction subsequent to the completion of the initial service
areas in a reasonable amount not to exceed $50,000 and upon such terms
as determined by the Village.
(4) The bond shall contain an endorsement stating that the bond may not
be cancelled by the surety nor the intention not to renew be stated
by the surety until 30 days after receipt by the Village, by registered
mail, a written notice of such intent to cancel and not to renew.
(5) Upon receipt of a thirty-day notice and following a thirty-day period
to cure, this shall be construed as default granting the Village the
right to demand payment on the bond.
(6) The Village, at any time during the term of this chapter, may waive
grantee's requirement to maintain a performance bond. The waiver
of the requirement can be initiated by the Village or the Grantee.
(1) The grantee shall maintain and, by its acceptance of the Franchise,
specifically agrees that it will maintain throughout the term of the
Franchise liability insurance insuring the Village and the grantee
in the minimum amount of:
(a)
$1,000,000 for property damage to any one person.
(b)
$1,000,000 for property damage from any one occurrence.
(c)
$1,000,000 for personal injury to any one person.
(d)
$1,000,000 for personal injury from any one occurrence.
(2) The certificate of insurance obtained by the grantee in compliance
with this section shall be filed and maintained with the Village during
the term of the Franchise. The grantee shall immediately advise the
Village Attorney of any litigation that may develop that would affect
this insurance.
(3) Neither the provisions of this section nor any damages recovered
by the Village thereunder shall be construed to or limit the liability
of the grantee under any Franchise issued hereunder.
(1) Disclaimer of liability. The Village shall not at any time be liable
for injury or damage occurring to any person or property from any
cause whatsoever arising out of the construction, maintenance, repair,
use, operation, condition or dismantling of the grantee's cable
television system or due to the act or omission of any person or legal
entity other than the Village or those persons or legal entities for
which the Village is legally liable as a matter of law.
(2) Indemnification. The grantee shall, at its sole cost and expense,
indemnify and hold harmless the Village and its respective officers,
boards, departments, commissions and employees (hereinafter referred
to as "indemnitees") from and against:
(a)
Any and all liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses, including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants,
which may be imposed upon, incurred by or asserted against the indemnitees
by reason of any act or omission of the grantee, its personnel, employees,
agents, contractors or subcontractors, resulting in personal injury,
bodily injury, sickness, disease or death to any person, or damage
to, loss of or destruction of tangible or intangible property, libel,
slander, invasion of privacy and unauthorized use of any trade mark,
trade name, copyright, patent, service mark or any other right of
any person, corporation or other legal entity which may arise out
of or be in any way connected with the construction, installation,
operation, maintenance or condition of the cable television system
caused by grantee or its subcontractors or agents or the grantee's
failure to comply with any Federal, State of local law.
(b)
Any and all liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses, including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants,
imposed upon indemnitees by reason of any claim or lien arising out
of work, labor, materials or supplies provided or supplied to grantee
or its contractors or subcontractors for the installation, construction,
operation or maintenance of the cable television system. Upon written
request by the Village, such claim or lien shall be discharged or
bonded within 15 days following such request.
(c)
Any and all liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses, including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants,
which may be imposed upon, incurred by or asserted against the indemnitees
by reason of any financing or securities offering by grantee or its
affiliates for violations of the common law or any laws, statutes
or regulations of the State or of the United States, including those
of the Federal Securities and Exchange Commission, whether by the
grantee or otherwise, excluding therefrom, however, claims which are
based upon and arise out of information supplied by the Village to
the grantee in writing and included in the offering materials with
the express written approval of the Village prior to the offering.
(3) Assumption of risk.
(a)
The grantee undertakes and assumes for its officers, directors,
agents, contractors and subcontractors and employees all risk of dangerous
conditions, if any, on or about any Village-owned or controlled property,
including public rights-of-way, and the grantee hereby agrees to indemnify
and hold harmless the indemnitees against and from any claim asserted
or liability imposed upon the indemnitees for personal injury or property
damage to any person arising out of the installation, operation, maintenance
or condition of the cable television system or the grantee's
failure to comply with any Federal, State or local law.
(b)
The Village shall hold grantee harmless for any damages resulting
from the negligence or misconduct of the grantor or its officials,
boards, departments, commissions or employees.
(4) Defense of indemnitees. In the event any action or proceeding shall
be brought against any or all of the indemnitees by reason of any
matter for which the indemnitees are indemnified hereunder, the grantee
shall, upon notice from any of the indemnitees, at the grantee's
sole cost and expense, defend the same, provided further, however,
that the grantee shall not admit liability in any such matter on behalf
of the indemnitees without the written consent of the Village Attorney
or the Village Attorney's designee.
(5) Notice, cooperation and expenses. The Village shall give the grantee
reasonably prompt notice of the making of any claim or the commencement
of any action, suit or other proceeding covered by the provisions
of this section. Nothing herein shall be deemed to prevent the Village
from cooperating with the grantee and participating in the defense
of any litigation by the Village's own counsel at the Village's
own expense. No recovery by the Village of any sum under the bond
shall be any limitation upon the liability of the grantee to the Village
under the terms of this section, except that any sum so received by
the Village shall be deducted from any recovery which the Village
might have against the grantee under the terms of this section.
(6) Nonwaiver of statutory limits. Nothing in this chapter is intended
to express or imply a waiver by the Village of statutory provisions,
privileges or immunities of any kind or nature as set forth in § 893.80,
Wis. Stats., et seq., including the limits of liability of the Village.
(1) The grantee shall not deny service, deny access or otherwise discriminate
against subscribers, channel users or general citizens on the basis
of race, color, religion, national origin, income, sex, marital status,
sexual preference or age. The grantee shall comply at all times with
all other applicable Federal, State and local laws and regulations
and all executive and administrative orders relating to nondiscrimination
which are hereby incorporated and made part of this chapter by reference.
(2) The grantee shall strictly adhere to the equal employment opportunity
requirements of the FCC and of State and local governments, as amended
from time to time.
(3) The grantee shall, at all times, comply with the privacy requirements
of State and Federal law.
(4) The grantee is required to make all services available to all residential
dwellings throughout the service area located in areas having a density
of at least 40 dwelling units per street mile.
Minimum public notice of any public meeting relating to the
Franchise shall be governed by the provisions of the State open meetings
law and shall be on at least one channel of the grantee's system
between the hours of 7:00 p.m. and 9:00 p.m. for five consecutive
days prior to the meeting.
The grantee shall provide cable television service throughout
the entire Franchise area pursuant to the provisions of the Franchise
and shall keep a record for at least three years of all requests for
service received by the grantee. This record shall be available for
public inspection at the local office of the grantee during regular
office hours.
(1) New construction timetable.
(a)
Within two years from the date of the award of an initial Franchise,
the grantee shall make cable television service available to every
dwelling unit within the initial service area.
1.
The grantee shall make cable television service available to
at least 20% of the dwelling units within the initial service area
within six months from the date of the award of the Franchise.
2.
The grantee shall make cable television service available to
at least 50% of the dwelling units within the initial service area
within one year from the date of the award of the Franchise.
(b)
The grantee, in its application, may propose a timetable of
construction which will make cable television service available in
the initial service area sooner than the above minimum requirements,
in which case the said schedule shall be made part of the Franchise
agreement and shall be binding upon the grantee.
(c)
Any delay beyond the terms of this timetable, unless specifically
approved by the Village, shall be considered a violation of this chapter
for which the provisions of either sec. 20.38 or sec. 20.46 shall
apply, as determined by the Village.
(d)
In special circumstances, the Village may waive 100% completion
within the two year time frame, provided substantial completion is
accomplished within the allotted time frame, substantial completion
to be not less than 95%. Justification for less than 100% shall be
submitted subject to the approval of the Village.
(2) Line extensions.
(a)
In areas of the Franchise territory not included in the initial
service areas, a grantee shall be required to extend its system pursuant
to the following requirements:
1.
No customer shall be refused service arbitrarily. Grantee is
hereby authorized to extend the cable system as necessary within the
Village. To expedite the process of extending the cable system into
a new subdivision, the Village shall forward to the grantee an approved
engineering plan of each project. Subject to the density requirements,
the grantee shall commence the design and construction process upon
receipt of the final engineering plan. Upon notification from the
Village that the first home in the project has been approved for a
building permit, the grantee shall have a maximum of three months,
weather permitting, to complete the construction/activation process
within the applicable project phase.
2.
The grantee shall extend and make cable television service available
to every dwelling unit in all unserved, developing areas having at
least 40 dwelling units per street mile, as measured from the existing
system from which service can be provided.
3.
The grantee shall extend and make cable television service available
to any isolated resident outside the initial service area requesting
connection at the standard connection charge if the connection to
the isolated resident would require no more than a standard 150 foot
drop line.
(b)
Early extension. In areas not meeting the requirements for mandatory
extension of service, the grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the grantee's
costs required to extend service to the subscriber. The grantee shall
then extend service upon request of the potential subscriber. The
grantee may require advance payment or assurance of payment satisfactory
to the grantee. In the event the area reaches the density required
for mandatory extension within two years, such payments shall be refunded
to the subscriber upon request.
(c)
New development undergrounding. In cases of new construction
or property development where utilities are to be placed underground,
the developer or property owner shall give the grantee reasonable
notice of such construction or development and of the particular date
on which open trenching will be available for the grantee's installation
of conduit, pedestals and/or vaults, and laterals. The grantee shall
also provide specifications as needed for trenching. Costs of trenching
and easements required to bring service to the development shall be
borne by the developer or property owner, except that, if the grantee
fails to install its conduit, pedestals and/or vaults, and laterals
within five working days of the date the trenches are available, as
designated in the notice given by the developer or property owner,
then should the trenches be closed after the five-day period, the
cost of new trenching is to be borne by the grantee. Except for the
notice of the particular date on which trenching will be available
to the grantee, any notice provided to the grantee by the Village
of a preliminary plat request shall satisfy the requirement of reasonable
notice if sent to the local general manager of the grantee prior to
approval of the preliminary plat request.
(3) Special agreements. Nothing herein shall be construed to prevent
the grantee from serving areas within the legally incorporated boundaries
of the Village not covered under this section upon agreement with
developers, property owners, residents or businesses, provided that
5% of the gross revenues from those areas are paid to the Village
as Franchise fees under sec. 20.28 of this chapter.
(4) A grantee may propose a line extension policy that will result in
serving more residents of the Village than as required above, in which
case the grantee's policy shall be incorporated into the Franchise
agreement and will be binding on the grantee.
(5) The violation of this section following a thirty-day period to cure
shall be considered a breach of the terms of this chapter, for the
which the provisions of either sec. 20.38 or sec. 20.46 of this chapter
shall apply, as determined by the Village.
(1) Compliance with construction and technical standards. The grantee
shall construct, install, operate and maintain its system in a manner
consistent with all laws, ordinances, construction standards, governmental
requirements and FCC technical standards. In addition, the grantee
shall provide the Village, upon request, a written report of the results
of the grantee's annual proof of performance tests conducted
pursuant to FCC standards and requirements.
(2) Additional specifications.
(a)
Construction, installation and maintenance of the cable television
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. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(b)
The grantee shall at all times comply with the applicable:
1.
National Electrical Safety Code (National Bureau of Standards).
2.
National Electrical Code (National Bureau of Fire Underwriters).
3.
Applicable FCC or other Federal, State and local regulations.
(c)
In any event, the system shall not endanger or interfere with
the safety of persons or property in the Franchise area or other areas
where the grantee may have equipment located.
(d)
Any antenna structure used in the system shall comply with construction,
marking and lighting of antenna structure, required by the United
States Department of Transportation.
(e)
All working facilities and conditions used during construction,
installation and maintenance of the cable television system shall
comply with the standards of the Occupational Safety and Health Administration.
(f)
Radio frequency (RF) leakage shall be checked at reception locations
for emergency radio services to prove no interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed
aeronautical navigation radio sites to prove no interference to airborne
navigational reception in the normal flight patterns. FCC rules and
regulations shall govern.
(g)
The grantee shall maintain equipment capable of providing standby
power for headend, transportation and trunk amplifiers for a minimum
of two hours.
(h)
In all areas of the Village where all cables, wires and other
like facilities of public utilities are placed underground, the grantee
shall place its cables, wires and other like facilities underground.
When all public utilities relocate their facilities from pole to underground,
the cable operator shall concurrently do so.
(1) Interference with persons and improvements. The grantee's system,
poles, wires and appurtenances shall be located, erected and maintained
so that none of its facilities shall endanger or interfere with the
lives of persons or interfere with the rights or reasonable health,
safety or welfare of property owners who adjoin any of the streets
and public ways or interfere with any improvements the Village may
make or hinder or obstruct the free use of the streets, alleys, bridges,
easements or public property.
(2) Restoration to prior condition. In case of any disturbance of pavement,
sidewalk, landscaping, driveway or other surfacing, the grantee shall,
at its own cost and expense and in a manner approved by the Village,
replace and restore all paving, sidewalk, driveway, landscaping or
surface of any street or alley disturbed in as good condition as before
the work was commenced and in accordance with standards for such work
set by the Village. After 30 days, if restoration measures are not
performed to the reasonable satisfaction of the Village, the Village
may undertake remedial restoration activities, such activities to
be performed at the grantee's cost.
(3) Erection, removal and common uses of poles.
(a)
No poles or other wire-holding structures shall be erected by
the grantee without prior approval of the Village with regard to location,
height, types and any other pertinent aspect. However, no location
or any pole or wire-holding structure of the grantee shall be a vested
interest and such poles or structures shall be removed or modified
by the grantee at its own expense whenever the Village determines
that the public health, safety or welfare would be enhanced thereby.
(b)
Where poles or other wire-holding structures already existing
for use in serving the Village are available for use by the grantee,
but it does not make arrangements for such use, the Village may require
the grantee to use such poles and structures if it determines that
the public health, safety or welfare would be enhanced thereby and
the terms of the use available to the grantee are just and reasonable.
(c)
Where the Village desires to make use of the poles or other
wire-holding structures of the grantee and the use will not unduly
interfere with the grantee's operations, the Village may require
the grantee to permit such use for reasonable consideration and terms.
(4) Relocation of facilities. If at any time during the period of the
Franchise, the Village shall lawfully elect to alter or change the
grade of any street, alley or other public ways, the grantee, upon
reasonable notice by the Village, shall remove or relocate, as necessary,
its poles, wires, cables, underground conduits, manholes and other
fixtures at its own expense.
(5) Cooperation with building movers. The grantee shall, at the request
of any person holding a building moving permit issued by the Village,
temporarily raise or lower its wires to permit the moving of buildings.
Expenses of such temporary removal, raising or lowering of wires shall
be paid by the person making the request, and the grantee shall have
the authority to require such payment in advance. The grantee shall
be given at least 10 days advance notice to arrange for such temporary
wire changes.
(6) Tree trimming. The grantee shall not remove any tree or trim any
portion of any tree within any public street, as defined herein, without
the prior consent of the Village, except in an emergency situation.
The grantee shall provide notice to any affected residents at the
same time that the grantee applies to the Village for consent to perform
tree trimming. The Village shall have the right to do the trimming
requested by the grantee at the cost of the grantee. Regardless of
who performs the work requested by the grantee, the grantee shall
be responsible and shall defend and hold the Village harmless from
any and all damages to any tree as a result of grantee's trimming
or to the property surrounding any tree, whether such tree is trimmed
or removed.
(7) Road cuts. The grantee shall not use road cuts for the laying of
cable or wires without the prior approval of the Village. In the absence
of such approval, the grantee shall utilize auguring.
(1) The grantee shall maintain all parts of the system in good condition
throughout the entire Franchise period.
(2) Upon the reasonable request for service by any person located within
the Franchise territory, the grantee shall, within 30 days, furnish
the requested service to such person within terms of the line extension
policy. A request for service shall be unreasonable for the purpose
of this subsection if no distribution line capable of servicing that
person's block has been installed.
(3) Temporary service drops.
(a)
The grantee shall put forth every effort to bury temporary drops
within 25 days after placement. Any delays for any other reason than
listed shall be communicated to the Village. Delays such as weather,
ground conditions, street bores, system redesign requirements and
any other unusual obstacle such as obstructive landscaping that is
created by the customer will be found understandable and within the
course of doing business.
(b)
The grantee shall provide reports to the Village, upon request,
on the number of drops pending.
(4) The grantee shall render efficient service, make repairs promptly
and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
(5) The grantee shall not permit its cable or other operations to interfere
with television reception of subscribers or persons not served by
the grantee nor shall the system interfere with, obstruct or hinder
in any manner the operation of the various utilities serving the customers
within the confines of the Village nor shall other utilities interfere
with the grantee's system.
(1) Nothing in this chapter shall be construed to prohibit the enforcement
of any Federal, State or local law or regulation concerning customer
service or consumer protection that imposes customer service standards
or consumer protection requirements that exceed the customer service
standards set out in this chapter or that address matters not addressed
in this chapter.
(2) The grantee shall maintain a local or toll free telephone access
line which is available to its subscribers and shall have knowledgeable,
qualified representatives available to respond to customer telephone
inquiries regarding repairs 24 hours per day seven days per week.
(3) Under normal operating conditions, telephone answer time, including
wait time, and the time required to transfer the call, shall not exceed
30 seconds. This standard shall be met no less than 90% of the time
as measured on a quarterly basis.
(4) Under normal operating conditions, the customer will receive a busy
signal less that 3% of the total time that the office is open for
business.
(5) A centrally-located customer service center shall be open for walk-in
customer transactions a minimum of eight hours per day Monday through
Friday unless there is a need to modify those hours because of the
location or customers served. The grantee and Village, by mutual consent,
shall establish supplemental hours on week days and weekends as fits
the needs of the community.
(6) Under normal operating conditions, each of the following standards
shall be met no less than 95% of the time as measured on an annual
basis:
(a)
Standard installations shall be performed within seven business
days after an order has been placed. A standard installation is one
that is within 150 feet of the existing system.
(b)
Excluding those situations that are beyond its control, the
grantee shall respond to any service interruption promptly and in
no event later than 24 hours from the time of initial notification.
All other regular service requests shall be responded to within 36
hours during the normal work week for that system. The appointment
window alternatives for installations, service calls and other installation
activities shall be "morning" or "afternoon", not to exceed a four-hour
"window" during normal business hours for the system or at a time
that is mutually acceptable. The grantee shall schedule supplemental
hours during which appointments can be scheduled based on the needs
of the community. If at any time an installer or technician is running
late, an attempt to contact the customer shall be made and the appointment
rescheduled as necessary at a time that is convenient to the customer.
(7) Subscriber credit for outages. Upon service interruption of a subscriber's
cable service, the following shall apply:
(a)
For service interruptions of more than four hours and up to
four days, the grantee shall provide, at the subscriber's request,
a credit of 1/30th of one month's fees for affected services
for each twenty-four-hour period service is interrupted for four or
more hours for any subscriber, with the exception of subscribers disconnected
because of nonpayment or excessive signal leakage.
(b)
For interruptions of seven days or more in one month, the grantee
shall provide, at the subscriber's request, a full month's
credit for affected services for all affected subscribers.
(8) The grantee shall provide written information for each of the following
areas at the time of installation and at any future time upon the
request of the customer:
(a)
Product and services offered.
(b)
Prices and service options.
(c)
Installation and service policies.
(d)
How to use the cable television services.
(9) Bills will be clear, concise and understandable, with all charges
for cable services itemized.
(10) Credits shall be issued promptly, but not later than the customer's
next billing cycle following the resolution of the request and the
return of the equipment by the grantee if service has been terminated.
(11) The grantee shall notify customers a minimum of 30 days in advance
of any rate or channel change.
(12) The grantee shall maintain and operate its network in accordance
with the rules and regulations incorporated herein or as may be promulgated
by FCC, the United States Congress or the State of Wisconsin.
(13) The grantee shall continue, through the term of the Franchise, to
maintain the technical standards and quality of service set forth
in this chapter. Should the Village find, by resolution, that the
grantee has failed to maintain these technical standards and quality
of service and should it, by resolution, specifically enumerate improvements
to be made, the grantee shall make such improvements. Failure to make
such improvements within three months of such resolution shall constitute
a breach of a condition for which penalties contained in sec. 20.46
of this chapter are applicable.
(14) The grantee shall keep a monthly service log that indicates the nature
of each service complaint received in the last 24 months, the date
and time each complaint was received, the disposition of each complaint
and the time and date thereof. This log shall be made available for
periodic inspection by the Village.
(1) It shall be the right of all subscribers to continue receiving service
as long as their financial and other obligations to the grantee are
honored. If the grantee elects to overbuild, rebuild, modify or sell
the system or the Village gives notice of intent to terminate or fails
to renew the Franchise, the grantee shall act so as to ensure that
all subscribers receive continuous, uninterrupted service regardless
of the circumstances.
(2) If there is a change of Franchise or if a new operator acquires the
system, the grantee shall cooperate with the Village, new Franchisee
or new operator to maintain continuity of service to all subscribers.
(3) If the grantee fails to operate the system for seven consecutive
days without prior approval of the Village or without just cause,
the Village may, at its option, operate the system or designate an
operator until such time as the grantee restores service under conditions
acceptable to the Village or a permanent operator is selected. If
the Village is required to fulfill this obligation for the grantee,
the grantee shall reimburse the Village for all reasonable costs or
damages in excess of revenues from the system received by the Village
that are the result of the grantee's failure to perform.
(1) The Village Board or its designee has primary responsibility for
the continuing administration of the Franchise and implementation
of complaint procedures.
(2) During the term of the Franchise and any renewal thereof, the grantee
shall maintain a central office, designated by the grantee, for the
purpose of receiving and resolving all complaints regarding the quality
of service, equipment malfunctions and similar matters. The office
shall be reachable by a local and/or toll-free telephone call to receive
complaints regarding quality of service, equipment functions and similar
matters. The grantee shall make good faith efforts to arrange for
one or more payment locations in a central location where customers
may pay bills or drop off equipment.
(3) As subscribers are connected or reconnected to the system, the grantee
shall, by appropriate means such as a card or brochure, furnish information
concerning the procedures for making inquiries or complaints, including
the name, address and local telephone number of the employee or employees
or agent to whom such inquiries or complaints are to be addressed.
(4) When there have been similar complaints made or where there exists
other evidence which, in the judgment of the Village, casts doubt
on the reliability or quality of cable service, the Village shall
have the right and authority to require the grantee to test, analyze
and report on the performance of the system. The grantee shall fully
cooperate with the Village in performing such testing and shall prepare
results and a report, if requested, within 30 days after notice. Such
report shall include the following information:
(a)
The nature of the complaint or problem that precipitated the
special tests.
(b)
The system components tested.
(c)
The equipment used and procedures employed in testing.
(d)
The method, if any, in which such complaint or problem was resolved.
(e)
Any other information pertinent to the tests and analysis which
may be required.
(5) The Village may require that tests be supervised, at the grantee's
expense, unless results are found to be in compliance by an independent
professional engineer or equivalent of the Village's choice.
The engineer shall sign all records of special tests and forward to
the Village such records with a report interpreting the results of
the tests and recommending actions to be taken.
(6) The Village's rights under this section shall be limited to
requiring tests, analysis and reports covering specific subjects and
characteristics based on complaints or other evidence when and under
such circumstances as the Village has reasonable grounds to believe
that the complaints or other evidence require that tests be performed
to protect the public against substandard cable service.
The grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the grantee to exercise
its rights and perform its obligations under the Franchise and to
assure uninterrupted service to each and all of its customers, provided,
however, that such rules, regulations, terms and conditions shall
not be in conflict with the provisions hereof or applicable State
and Federal laws, rules and regulations.
(1) A grantee shall pay to the Village a Franchise fee in the amount
designated in the Franchise agreement. Unless otherwise specified
in the Franchise agreement, such Franchise fee shall be 5% of the
grantee's gross revenues.
(2) The Franchise fee payment shall be in addition to any other tax or
payment owed to the Village by the grantee and shall not be construed
as payment in lieu of municipal property taxes or other State, County
or local taxes.
(3) The Franchise fee and any other costs or penalties assessed shall
be payable quarterly on a calendar year basis to the Village within
45 days of the end of each quarter. The grantee shall also file a
complete and accurate verified statement of all gross revenues as
previously defined within 45 days of the end of each quarter.
(4) The Village shall have the right to inspect the grantee's income
records and to audit and recompute any amounts determined to be payable
under this chapter, provided, however, that such audit shall take
place within 60 days following the close of each of the grantee's
fiscal years that 7s the subject of the audit. Any additional amount
due the Village as a result of an audit shall be paid within 30 days
following written notice to the grantee by the Village, which shall
include a copy of the audit report.
[Amended by Ord. No. 223]
(5) If any Franchise fee payment or recomputed amount, cost or penalty
is not made on or before the applicable dates heretofore specified,
interest shall be charged from such date at an annual rate of 12%.
The grantee shall reimburse the Village for any additional expenses
and costs incurred by the Village by reason of the delinquent payments,
including, but not limited to, attorney's fees, consultant fees
and audit fees.
(1) A Franchise shall not be assigned or transferred, either in whole
or in part, or leased or sublet in any manner nor shall title thereto,
either legal or equitable, or any right, interest or property therein
pass to or vest in any person without the prior written consent of
the Village. The grantee may, however, transfer or assign the Franchise
to a wholly owned subsidiary of the grantee and such subsidiary may
transfer or assign the Franchise back to the grantee without such
consent, providing that such assignment is without any release of
liability of the grantee. Any proposed assignee shall show legal,
technical and financial responsibility as determined by the Village
and shall agree to comply with all provisions of the Franchise. The
Village shall have 120 days to act upon any request for approval of
a sale or transfer submitted in writing that contains or is accompanied
by all such information as is required in accordance with FCC regulations
and by the Village. The Village shall be deemed to have consented
to a proposed transfer or assignment if its refusal to consent, including
the reasons therefor, is not communicated in writing to the grantee
within 120 days following receipt of written notice together with
all necessary information as to the effect of the proposed transfer
or assignment upon the public unless the requesting party and the
Village agree to an extension of time. The Village shall not unreasonably
withhold consent to a proposed transfer.
(2) The Grantee shall promptly notify the Village of any actual or proposed
change in or transfer of or acquisition by any other party of control
of the grantee. The word "control" as used herein is not limited to
major stockholders, but includes actual working control in whatever
manner exercised. A rebuttable presumption that a transfer of control
has occurred shall arise upon the acquisition or accumulation by any
person or group of persons of 40% of the voting shares of the grantee.
Every change, transfer or acquisition of control of the grantee shall
make the Franchise subject to cancellation unless and until the Village
shall have consented thereto, which consent shall not be unreasonably
withheld. For the purpose of determining whether it shall consent
to such change, transfer or acquisition of control, the Village may
inquire into the legal, technical, financial and other qualifications
of the prospective controlling party, and the grantee shall assist
the Village in such inquiry.
(3) The consent or approval of the Village to any transfer of the grantee
shall not constitute a waiver or release of the rights of the Village
in and to the streets, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of the Franchise.
(4) In the absence of extraordinary circumstances, the Village shall
not be required to approve any transfer or assignment of a new Franchise
prior to substantial completion of construction of the proposed system.
(5) In no event shall a transfer of ownership or control be approved
without the successors in interest agreeing in writing to abide by
the terms and conditions of the Franchise agreement.
(1) The grantee shall fully cooperate in making available at reasonable
times, and the Village shall have the right to inspect, at the grantee's
office, upon reasonable notice and where reasonably necessary for
the enforcement of the Franchise, books, records, maps, plans and
other like materials of the grantee applicable to the cable television
system at any time during normal business hours.
(2) Unless prohibited by law, rule or regulation, the following records
and/or reports are to be made available to the Village upon request,
but no more frequently than on an annual basis if so mutually agreed
upon by the grantee and the Village.
(a)
A yearly review and resolution or progress report submitted
by the grantee to the Village.
(b)
Periodic preventive maintenance reports.
(c)
Copies of FCC form 395-A or successor form or any supplemental
forms related to equal opportunity or fair contracting policies.
(d)
Subscriber inquiry/complaint resolution data, but not including
names or addresses, and the right to review documentation concerning
these inquiries and/or complaints periodically.
(e)
Periodic construction update reports including, where appropriate,
the submission of strand maps.
Copies of all petitions, applications, communications and reports
submitted by the grantee to the FCC to the Securities and Exchange
Commission or to any other Federal or State regulatory commission
or agency having jurisdiction in respect to any matters affecting
cable television operations authorized pursuant to the Franchise or
received from such agencies shall be provided to the Village upon
request.
The grantee shall file annually with the Village no later than
120 days after the end of the grantee's fiscal year a copy of
a gross revenues statement certified by an officer of the grantee.
At the expiration of the term for which the Franchise is granted
or when any renewal is denied or upon its termination as provided
herein, the grantee shall forthwith, upon written notice by the Village,
remove, at its own expense, all aerial portions of the cable television
system from all streets and public property within the Village within
six months. If the grantee fails to do so within six months, the Village
may perform the work at the grantee's expense. Upon such notice
of removal, a bond shall be furnished by the grantee in an amount
sufficient to cover this expense.
(1) The cable television system shall have a minimum channel capacity
of 77 channels.
(2) The grantee shall provide the following:
(a)
At least one specially designated channel for use by local education
authorities.
(b)
At least one specially designated channel for local governmental
uses.
(c)
If required by the Franchise agreement, an institutional network
(I-Net) of cable, optical, electrical or electronic equipment, including
cable television systems, used for the purpose of transmitting two-way
video signals interconnecting designated entities to be determined
by the Village. The cost of such network shall be borne by the Village
as negotiated between the grantee and the Village. Such network may
be provided as needed by utilizing capacity on the system.
(d)
Provided, however, these uses may be combined on one or more
channels until such time as additional channels become necessary in
the opinion of the Village. Studios and associated production equipment
shall be located in a mutually agreed upon site to meet the need for
educational and local governmental access as noted in pars. (a), (b)
and (c) above. Financial and technical support and replacement and
maintenance of equipment of this facility shall be separately incorporated
into the Franchise by agreement.
(3) The grantee shall incorporate into its cable television system the
capacity to permit the Village, in times of emergency, to override
by remote control the audio, video and/or text of all channels simultaneously
which the grantee may lawfully override. The grantee shall provide
emergency broadcast capacity pursuant to FCC rules. The grantee shall
cooperate with the Village in the use and operation of the emergency
alert override system.
(1) In addition to the inherent powers of the Village to regulate and
control any cable television Franchise and those powers expressly
reserved by the Village or agreed to and provided for herein, the
right and power is hereby reserved by the Village to promulgate such
additional regulations as it shall find necessary in the exercise
of its lawful powers and furtherance of the terms and conditions of
the Franchise, provided, however, that such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof
or applicable State and Federal laws, rules and regulations and do
not appreciably increase the burdens or appreciably impair the rights
of the grantee under the Franchise agreement.
(2) The Village may also adopt such regulations at the request of grantee
upon application.
(1) The Village and the grantee may hold scheduled performance evaluation
sessions within 30 days of the third and sixth anniversary dates of
the grantee's award or renewal of the Franchise and as may be
required by Federal and State law. All such evaluation sessions shall
be open to the public.
(2) Special evaluation sessions may be held at any time during the term
of the Franchise at the request of the Village or the grantee.
(3) All evaluation sessions shall be open to the public and announced
in a newspaper of general circulation in accordance with legal notice.
The grantee shall notify its subscribers of all evaluation sessions
by announcements on at least one channel of its system between the
hours of 7:00 p.m. and 9:00 p.m. for five consecutive days preceding
each session.
(4) Topics which may be discussed at any scheduled or special evaluation
session may include, but are not limited to, service rate structures;
Franchise fee, penalties or free or discounted services; application
of new technologies; system performance; services provided; programming
offered; customer complaints; privacy; amendments to the chapter;
judicial and FCC rulings line extension policies; and grantee or Village
rules. The Village acknowledges that, pursuant to Federal law, it
does not have jurisdiction nor enforcement rights over all the standards
and services mentioned above, including programming and the application
of all new technologies under a cable television Franchise. Nothing
in this subsection shall be construed as requiring the renegotiation
of the cable Franchise agreement.
(5) Members of the general public may add topics either by working through
the negotiating parties or by presenting a petition. If such a petition
bears the valid signatures of 50 or more residents of the Village,
the proposed topic or topics shall be added to the list of topics
to be discussed at the evaluation session.
Pursuant to the Cable Television Consumer Protection and Competition
Act of 1992, if the Village is currently certified to regulate the
basic service rates charged by grantee, it may, under these rules,
require the grantee to obtain approval from the Village for a rate
increase for any change to the rates for basic service. Should Federal
or State law permit further rate regulations beyond basic service,
the Village may, if certified, assume such rate regulation and adopt
appropriate procedures for such regulation.
(1) Pursuant to sec. 20.47 of this chapter, in addition to all other
rights and powers retained by the Village under this chapter or otherwise,
the Village reserves the right to forfeit and terminate the Franchise
and all rights and privileges of the grantee hereunder in the event
of a substantial breach of its terms and conditions following the
required thirty-day period to cure. A substantial breach by the grantee
shall include, but shall not be limited to the following:
(a)
Violation of any material provision of the Franchise or any
material rule, order, regulation or determination of the Village made
pursuant to the Franchise.
(b)
Attempt to evade any material provision of the Franchise or
to practice any fraud or deceit upon the Village or its subscribers
or customers.
(c)
Failure to begin or complete system construction or system extension
as provided under sec. 20.20 of this chapter.
(d)
Failure to provide the services promised in the grantee's
initial application as incorporated herein by sec. 20.24 of this chapter.
(e)
Failure to restore service after 168 consecutive hours of interrupted
service, except when approval of such interruption is obtained from
the Village.
(f)
Material misrepresentation of fact in the application for or
negotiation of the Franchise.
(2) The foregoing shall not constitute a major breach if the violation
occurs, but is without fault of the grantee or occurs as a result
of circumstances beyond its control. The grantee shall not be excused
by mere economic hardship nor by misfeasance or malfeasance of its
directors, officers or employees.
(3) The Village may make a written demand that the grantee comply with
any such provision, rule, order or determination under or pursuant
to the Franchise. If the violation by the grantee continues for a
period of 30 days following such written demand without written proof
that the corrective action has been taken or is being actively and
expeditiously pursued, the Village may place the issue of termination
of the Franchise before the Village Board. The Village shall cause
to be served upon the grantee, at least 20 days prior to the date
of such meeting, a written notice of intent to request such termination
and the time and place of the meeting. Public notice shall be given
of the meeting and the issues which the Board is to consider.
(4) The Village Board shall hear and consider the issues and shall hear
any person interested therein and shall determine in its discretion
whether or not any violation by the grantee has occurred.
(5) If the Village Board determines that the violation by the grantee
was the fault of the grantee and within its control, the Board may,
by resolution, declare that the Franchise of the grantee shall be
forfeited and terminated unless there is compliance within such period
as the Board may fix, such period to be not less than 30 days, provided,
however, that no opportunity for compliance need be for fraud or material
misrepresentation.
(6) The issue of forfeiture and termination shall automatically be placed
upon the Village Board agenda at the expiration of the time set by
it for compliance. The Board may then terminate the Franchise forthwith
upon finding that the grantee has failed to achieve compliance or
it may further extend the period at its discretion.
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering
all or a substantial part of the system, the grantee shall notify
the Village of such fact, and such notification shall be treated as
a notification that a change in control of the grantee has taken place
and the provisions of the Franchise governing the consent of the Village
to such change in control of the grantee shall apply.
Federal regulations as per 47 U.S.C. § 537 shall apply
to approval of transfer issues and the right of acquisition by the
Village.
The Village shall have the right to cancel a Franchise 120 days
after the appointment of a receiver or trustee to take over and conduct
the business of the grantee unless such receivership or trusteeship
shall have been vacated prior to the expiration of 120 days or unless:
(1) Within 120 days after his election or appointment, such receiver
or trustee shall have fully complied with all the provisions of this
chapter and remedied all defaults thereunder.
(2) Such receiver or trustee, within the 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this chapter and the Franchise
granted to the grantee.
(1) Notwithstanding any other provisions of the Franchise to the contrary,
the grantee shall at all times comply with all laws and regulations
of the State and Federal government or any administrative agencies
thereof, provided, however, if any such State or Federal law or regulation
shall require the grantee to perform any service or shall permit the
grantee to perform any service or shall prohibit the grantee from
performing any service in conflict with the terms of the Franchise
or of any law or regulation of the Village, then as soon as possible
following knowledge thereof, the grantee shall notify the Village
of the point of conflict believed to exist between such regulation
or law and the laws or regulations of the Village or the Franchise.
(2) If the Village determines that a material provision of this chapter
is affected by any subsequent action of the State or Federal government,
the Village and the grantee shall negotiate to modify any of the provisions
herein to such reasonable extent as may be necessary to carry out
the full intent and purpose of this chapter.
(3) If any section, sentence, paragraph, term or provision hereof is
determined to be illegal, invalid or unconstitutional by any court
of competent jurisdiction thereof, such determination shall have no
effect on the validity of any other section, sentence, paragraph,
term or provision hereof, all of which shall remain in full force
and effect for the term of the Franchise or any renewal or renewals
thereof.
(1) Interference with cable service prohibited. Neither the owner of
any multiple unit residential dwelling nor his agent or representative
shall interfere with the right of any tenant or lawful resident thereof
to receive cable television service, cable installation or maintenance
from a cable television grantee regulated by and lawfully operating
under a valid and existing Franchise issued by the Village.
(2) Penalties and charges to tenants for service prohibited. Neither
the owner of any multiple unit residential dwelling nor his agent
or representative shall penalize, charge or surcharge a tenant or
resident or forfeit or threaten to forfeit any right of such tenant
or resident or discriminate in any way against such tenant or resident
who requests or receives cable television service from a grantee operating
under a valid and existing cable television Franchise issued by the
Village.
(3) Reselling service prohibited. No person shall resell, without the
expressed written consent of the grantee, any cable service, program
or signal transmitted by a cable television grantee under a Franchise
issued by the Village.
(4) Protection of property permitted. Nothing in this chapter shall prohibit
a person from requiring that cable television system facilities conform
to laws and regulations and reasonable conditions necessary to protect
safety, functioning, appearance and value of premises or the convenience
and safety of persons or property.
(1) All bids received by the Village from the applicants for an initial
Franchise shall become the sole property of the Village.
(2) The Village reserves the right to reject any and all bids and waive
informalities and/or technicalities where the best interest of the
Village may be served.
(3) All questions regarding the meaning or intent of this chapter or
application documents shall be submitted to the Village in writing.
Replies shall be issued by addenda mailed or delivered to all parties
recorded by the Village as having received the application documents.
The Village reserves the right to make extensions of time for receiving
bids as it deems necessary. Questions received less than 14 days prior
to the date for the opening of bids shall not be answered. Only replies
to questions by written addenda shall be binding. All bids shall contain
an acknowledgement of receipt of all addenda.
(4) Bids shall be sealed and submitted at the time and place indicated
in the application documents for the public opening. Bids may be modified
at any time prior to the opening of the bids, provided that any modifications
shall be duly executed in the manner that the applicant's bid
shall be executed. No bid shall be opened or inspected before the
public opening.
(5) Before submitting a bid, each applicant shall:
(a)
Examine this chapter and the application documents thoroughly.
(b)
Familiarize himself with local conditions that may in any manner
affect performance under the Franchise.
(c)
Familiarize himself with Federal, State and local laws, ordinances,
rules and regulations affecting performance under the Franchise.
(d)
Carefully correlate the bid with the requirements of this chapter
and the application documents.
(6) The Village may make such investigations as it deems necessary to
determine the ability of an applicant to perform under the Franchise
and the applicant shall furnish to the Village all such information
and data for this purpose as the Village may request. The Village
reserves the right to reject any bid if the evidence submitted by,
or investigation of, such applicant fails to satisfy the Village that
such applicant is properly qualified to carry out the obligations
of the Franchise and to complete the work contemplated therein. Conditional
bids shall not be accepted.
(7) All bids received shall be placed in a secure depository approved
by the Village and shall not be opened nor inspected prior to the
public opening.
(1) No initial Franchise shall be granted to any applicant unless all
requirements and demands of the Village regarding financial, contractual,
shareholder and system disclosure have been met.
(2) Applicants, including all shareholders and parties with any interest
in the applicant, shall fully disclose all agreements and undertakings,
whether written or oral, or implied with any person, firm, group,
association or corporation with respect to the Franchise and the proposed
cable television system. The grantee of a Franchise shall disclose
all other contracts to the Village as the contracts are made. This
section shall include, but not be limited to, any agreements between
local applicants and national companies.
(3) Applicants, including all shareholders and parties with any interest
in the applicant, shall submit all requested information as provided
by the terms of this chapter or the application documents which are
incorporated herein by reference. The requested information shall
be complete and verified as true by the applicant.
(4) Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose the numbers of shares of stock, and
the holders thereof, and shall include the amount of consideration
for each share of stock and the nature of the consideration.
(5) Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose any information required by the application
documents regarding other cable systems in which they hold an interest
of any nature, including, but not limited to, the following:
(a)
Locations of all other Franchises and the dates of award for
each location.
(b)
Estimated construction costs and estimated completion dates
for each system.
(c)
Estimated number of miles of construction and number of miles
completed in each system as of the date of this application.
(d)
Date for completion of construction as promised in the application
for each system.
(6) Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose any information required by the application
documents regarding pending applications for other cable systems,
including, but not limited to, the following:
(a)
Location of other Franchise applications and date of application
for each system.
(b)
Estimated dates of Franchise awards.
(c)
Estimated number of miles of construction.
(d)
Estimated construction costs.
For the violation of any of the following provisions of this
chapter, damages shall be chargeable to the bond in sec. 20.13 of
this chapter, the letter of credit or corporate guarantee in lieu
of bond, whichever applies, as follows, and the Village may determine
the amount of the forfeiture for other violations that are not specified
in a sum not to exceed $250 for each violation, with each day constituting
a separate violation.
(1) Failure to furnish, maintain or offer all cable services to any potential
subscriber within the Village pursuant to sec. 20.20 of this chapter
herein upon order of the Village, the forfeiture shall be $250 per
day per violation for each day that such failure occurs or continues
up to a maximum of $1,000.
(2) Failure to obtain or file evidence of required insurance, construction
bond, performance bond or other required financial security, the forfeiture
shall be $250 per day per violation for each day such failure occurs
or continues up to a maximum of $1,000.
(3) Failure to provide access to data, documents, records or reports
to the Village as required by secs. 20.19, 20.29, 20.30, 20.31 and
20.37 of this chapter, the forfeiture shall be $250 per day per violation
for each day such failure occurs or continues up to a maximum of $1,000.
(4) Failure to comply with applicable construction, operation or maintenance
standards, the forfeiture shall be $250 per day per violation up to
a maximum of $1,000.
(5) Failure to comply with a rate decision or refund order, the forfeiture
shall be $500 per day per violation for each day such a violation
occurs or continues up to a maximum of $1,000.
(6) Any violations for noncompliance with the customer service standards
of secs. 20.23 and 20.25 of this chapter, the grantee shall pay $250
per day for each day, or part thereof, that such noncompliance continues
up to a maximum of $1,000.
(7) Any other violations of a Franchise agreement to be determined by
the grantor in a public hearing, but not specifically noted in this
section, shall not exceed $250 per day per violation up to a maximum
of $1,000.
(1) Whenever the Village believes that the grantee has violated one or
more terms, conditions or provisions of the Franchise and wishes to
impose penalties, a written notice shall be given to the grantee informing
it of such alleged violation or liability. The written notice shall
describe in reasonable detail the specific violation as to afford
the grantee an opportunity to remedy the violation. The grantee shall
have 30 days subsequent to receipt of the notice in which to correct
the violation before the Village may impose penalties unless the violation
is of such a nature so as to require more than 30 days and the grantee
proceeds diligently within the 30 days to correct the violation. In
any case where the violation is not cured within 30 days of notice
from the Village or such other time as the grantee and the Village
may mutually agree to, the Village may proceed to impose liquidated
damages.
(2) The grantee may, within 10 days of receipt of notice, notify the
Village that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the grantee to the Village
shall specify, with particularity, the matter disputed by the grantee
and shall stay the running of the thirty-day cure period pending Village
Board decision as required below. The Board shall hear the grantee's
dispute. Grantee shall be given at least five days' notice of
the hearing. At the hearing, the grantee shall be entitled to the
right to present evidence and the right to be represented by counsel.
After the hearing, the Village shall provide grantee a copy of its
action, along with supporting documents. In the event the Village
upholds the finding of a violation, the grantee shall have 15 days
subsequent or such other time period as the grantee and the Village
mutually agree to correct the violation.
(3) The rights reserved to the Village under this section are in addition
to all other rights of the Village, whether reserved by this chapter
or authorized by law or equity, and no action, proceeding or exercise
of a right with respect to penalties shall affect any other right
the Village may have.
The grantee 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, including termination,
cancellation or revocation of the Franchise, where such noncompliance
or alleged defaults occurred or were caused by strike, riot, war,
earthquake, flood, tidal wave, severe weather conditions or other
catastrophic act of nature, labor disputes, inability to obtain necessary
contract labor or materials, governmental, administrative or judicial
order or regulation or other event that is reasonably beyond the grantee's
ability to anticipate and control and that makes performance impossible.