[Ord. No. 269 §1, 5-4-1981]
The Village of Marlborough finds that the development of cable
television and communications systems has the potential of having
great benefit and impact upon its citizens. Because of the complex
and rapidly changing technology associated with cable television,
the Village further finds that the public convenience, safety and
general welfare can best be served by establishing regulatory powers
which should be vested in the Village or such persons as the Village
shall designate. It is the intent of this Chapter and subsequent amendments
to provide for and specify the means to attain the best possible public
interest and public purpose in these matters and any franchise issued
pursuant to this Chapter shall be deemed to include this finding as
an integral part thereof.
[Ord. No. 269 §2, 5-4-1981]
This Chapter shall be known and be cited as the "Village of
Marlborough Cable Television Franchise Ordinance".
[Ord. No. 269 §3, 5-4-1981]
For the purpose of this Chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
include the future, words in the singular number include the plural
number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their
common and ordinary meaning.
Any service not included in "basic subscriber television
service", "Basic subscriber radio service" or "institutional service"
including, but not limited, to pay- cable.
A subscriber who received a service in a government or public
agency, school or non-profit corporation.
The provision to all subscribers of such audio services as
the retransmission of broadcast AM and FM radio signals, the retransmission
of shortwave, weather, news, time and other similar audio broadcast
channels, and the transmission of cablecast AM or FM radio signals
as permitted by the FCC.
The total of all the following:
The retransmission to all subscribers of all broadcast television
channel signals authorized by the FCC and provided for herein;
The provision to all subscribers of non-broadcast open channel
signals originating from sources outside the cable communications
system;
The cablecasting to all subscribers of the local origination
channel and the public, educational and government access channel
signals;
The transmission to all subscribers of all other cablecast open-channel
signals.
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Basic subscriber television service may be offered to subscribers
in one (1) or more tiers or combinations of programs.
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A television or radio signal that is transmitted over the
air to a wide geographic audience and is received by a cable communications
system off-the-air or by microwave link.
A system of antennas, cables, amplifiers, towers, microwave
links cablecasting studios and any other conductors, converters, equipment
or facilities designed and constructed for the primary purpose of
distributing video programming to home subscribers and the secondary
purpose of producing, receiving, amplifying, storing, processing or
distributing audio, video, digital, or other forms of electronic or
A linear mile of strandbearing cable as measured on the street
or easement from pole to pole or pedestal to pedestal.
A non-broadcast signal that originates within the facilities
of the cable communications system.
A six (6) megahertz (MHz) frequency band which is capable
of carrying either one (1) standard video signal, a number of audio,
digital or other non-video signals, or some combination of such signals.
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 television system.
Such video, audio, data and other services provided to institutional
users on an individual application, private channel basis. These may
include, but not be limited to, two-way video, audio or digital signals
among institutions or from institutions to residential subscribers.
Time and date when construction of the cable communications
system is considered to have commenced, which shall be when the pre-engineering
(strand mapping) or network design is initiated, and after all necessary
permits and authorizations have been obtained.
Time and date when operation of the cable communications
system is considered to have commenced, which shall be when sufficient
distribution facilities have been installed so as to permit the offering
of full service to at least twenty percent (20%) of the dwelling unites
located within the service area.
A subscriber who receives a service in a place of business
where the service may be utilized in connection with a business, trade
or profession.
An electronic device which converts signal carriers from
one form to another.
The Governing Body of the Village of Marlborough.
Any channel where educational institutions are the only designated
programmers.
The Federal Communications Commission and any legally appointed
or elected successor.
The non-exclusive rights granted pursuant to this Chapter
to construct and operate a cable communications system along the public
ways within all or a specified area in the Village. Any such authorizations,
in whatever form granted, shall not mean or include any license or
permit required for the privilege of transacting and carrying on a
business within the Village as required by other ordinances and laws
of this Village.
A franchise award ordinance accepted on the part of the grantee
containing the specific provisions of the franchise granted, including
referenced specifications, franchise applications and other related
material. The franchise agreement may modify terms of this Chapter
by appropriate ordinance amendment.
All charges imposed for a franchise.
Any channel where local government agencies are the only
designated programmers.
Any person receiving a franchise pursuant to this Chapter
and under the granting franchise ordinance and its lawful successor,
trustee, receiver, transferee or assignee.
The Village of Marlborough as represented by its Governing
Body acting within the scope of its jurisdiction.
The annual gross revenues received by the grantee from all
sources of operations of the cable communications system except that
any sales, excise or other taxes collected for direct pass through
to local, State or Federal Government shall not be included.
The area of the Village which will receive service initially
as set forth in the franchise agreement.
The connection of the system from terminals and the provision
of service.
Any channel available for lease and programming by persons
or entities other than the grantee, including those portions of the
other access channels not in use by their designated programmers.
Any channel where the grantee is the only designated programmer
and provides video programs to subscribers.
Observing a communication 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 systemwide, non-individually
addressed sweeps of the system for purposes of verifying system integrity,
controlling return paths transmissions, or billing for pay services.)
A signal that is transmitted by a cable communications system
and that is not involved in an over-the-air broadcast transmission
path.
That which, when considered as a whole, by the average adult
person applying contemporary community standards:
Predominantly appeals to the prurient interest in sex; and
Depicts, describes or portrays in a patently offensive manner
human sexual intercourse, sodomy, bestiality, oral copulation, masturbation,
urinary and defecatory functions, sadism, masochism, sado-masochistic
abuse, lewd exhibition of the genitals or any touching of the genitals,
pubic areas or buttocks of the human male or female or the breasts
of the female, whether alone or between members of the same or opposite
sex or between humans and animals in an act of apparent sexual stimulation
or gratification; and
When taken as a whole lacks serious social, literary, artistic,
political or scientific value.
Any channel that can be received by all subscribers without
the necessity for special equipment.
The delivery to subscribers, over the cable communications
system, of television signals for a fee or charge over and above the
charge for basic subscriber service on a per-program, per-channel
or other subscription basis.
The result expressed in percentage obtained by dividing the
total number of potential subscribers in the franchise area into the
number of subscribers receiving service.
An individual, partnership, association, organization, corporation,
other entity or any lawful successor, transferee or assignee thereof.
Any channel which is available only to subscribers who are
provided with special converter or terminal equipment to receive signals
on that channel.
Any person or entity who or which produces or otherwise provides
program material or information for transmission by video, audio,
digital or other signals, either live or from recorded tapes or other
storage media, to subscribers by means of the cable communications
system.
Any channel where any member of the general public or any
non-commercial organization may be a programmer, without charge, on
a first-come, first-served, non-discriminatory basis in accordance
with FCC regulations.
Written notice addressed to the grantee at its principal
office or such other office as the grantee has designated to the Village
as the address to which notice should be transmitted, which notice
shall be certified and postmarked not less than four (4) days prior
to that day. In computing said four (4) days, Saturday, Sundays and
holidays recognized by the Village shall be excluded.
A written order not excessive or extreme as to costs or time
to comply.
Any person residing in the Village or as otherwise defined
by applicable law.
A subscriber who receives a service in an individual dwelling
unit, where the service is not to be utilized in connection with a
business, trade or profession.
Includes any sale, exchange, barter or offer for sale.
Any educational institution including primary and secondary
schools, colleges and universities, both public and private.
Any Section, Subsection or provision of this Chapter.
The entire geographic area within the franchise territory.
The State of Missouri.
Includes each of the following which have been dedicated
to the public or hereafter dedicated to the public and maintained
under public authority or by others and located within the Village
limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks,
easements, right-of-way and similar public ways and extensions and
additions thereto, together with such other public property and areas
that the Village shall permit to be included within the definition
of street from time to time.
Any person, firm, corporation or other entity who or which
elects to subscribe to, for any purpose, a service provided by the
grantee by means of or in connection with the cable communications
system.
Sufficient distribution facilities have been installed by
the grantee so as to permit the offering of full network service to
at least ninety percent (90%) of the potential subscribers in the
service area.
Observing a two-way communications signal exchange, where
the observer is neither of the communicating parties, whether the
exchange is observed by visual or electronic means for any purpose
whatsoever.
The remaining portion of 1981. Thereafter, "year" means a full calendar year.
[Ord. No. 269 §4, 5-4-1981]
A.
Grant. In the event that grantor shall grant to a grantee
a non-exclusive, revocable franchise to construct, operate, maintain
and reconstruct a cable communications system within the Village,
said franchise shall constitute both a right and obligation to provide
the services of a cable communications system as required by the provisions
of this Chapter and the franchise agreement. The franchise agreement
shall include those provisions of a grantee's "Application for Franchise"
that are finally negotiated and accepted by the grantor and grantee.
Said franchise is granted under the terms and conditions contained
herein consistent with grantor's Charter and/or applicable Missouri
Statutes which are incorporated by this reference as if fully set
forth herein. In the event of conflict between the terms and conditions
of said franchise and the terms and conditions on which the grantor
can grant a franchise, the Charter and/or Missouri Statutes shall,
without exception, control.
Said franchise is hereby made subject to the general ordinance
provisions now in effect or hereafter made effective. Nothing in said
franchise shall be deemed to waive the requirements of the various
codes and ordinances of the Village regarding permits, fees to be
paid or manner of construction.
B.
Franchise Territory. The grantor may grant a franchise for
all or any defined portion of the Village. The service area shall
be the entire territory defined in the franchise agreement. The initial
service area shall be that portion of the franchise territory scheduled
to receive initial service as stated in the franchise agreement.
C.
Use Of Public Streets And Ways. For the purpose of operating
and maintaining a cable communications system in the Village, the
grantee may erect, install, construct, repair, replace, reconstruct
and retain in, on, over, under, upon, across and along the public
streets and ways within the Village such wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments, and other property and equipment as are necessary and
appurtenant to the operation of the cable communications system. Prior
to construction or alteration, however, the grantee shall in each
case file plans with the appropriate Village agencies and utility
companies and receive written approval before proceeding.
D.
Duration. The term of said franchise and all rights, privileges,
obligations and restrictions pertaining thereto shall be fifteen (15)
years from the effective date of the franchise unless terminated sooner
as hereinafter provided. The effective date of the franchise ordinance
shall be upon final passage by the Council unless a grantee fails
to file within thirty (30) days after the date of notification of
final passage in the appropriate office of the Village a written acceptance
of the franchise, in which event it shall be null and void.
E.
Franchise Non-Exclusive. Any franchise granted shall be
non-exclusive. The grantor specifically reserves the right to grant,
at any time, such additional franchises for a cable communications
system as it deems appropriate.
F.
Transfer Of Ownership Or Control.
1.
Transfer of franchise. Any franchise granted shall be a
privilege to be held for the benefit of the public. Said franchise
cannot in any event be sold, transferred, leased, assigned or otherwise
disposed of in any manner, including, but not limited to, forced or
voluntary sales, merger, consolidation, receivership or other means,
without the prior written consent of the Village, and then only under
such conditions as the Village may establish and upon full disclosure
of all material facts by the grantee. Such consent as required by
the Village shall, however, not be unreasonably withheld.
a.
The
grantee, upon transfer as heretofore described, shall within sixty
(60) days thereafter file with the Village a copy of the deed, agreement,
mortgage, lease or other written instrument evidencing such sale,
transfer or lease certified and sworn to as correct by the grantee.
b.
Every
such transfer as heretofore described, whether voluntary or involuntary,
shall be deemed void and of no effect unless grantee shall, within
sixty (60) days after the same shall have been made, file such certified
copy as is required.
2.
Ownership or control. The grantee shall promptly notify
the Village of any actual ox 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 change, transfer or acquisition
of control has occurred shall arise upon the acquisition or accumulation
by any person or group of persons of twenty percent (20%) or more
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 will not be
unreasonably withheld.
a.
For
the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, the Village may inquire into the
qualifications of the prospective controlling party, and the grantee
shall assist the Village in any such inquiry.
b.
Upon
the event of any transfer of any ownership interest in grantee, grantee
shall notify the Village and shall provide Village with all contracts,
agreements or documents dealing with or affecting said transfer:
3.
Mortgage of assets — when allowed. The grantee shall
not make, execute or enter into any deed, deed of trust, mortgage,
conditional sales contract or any loan, lease, pledge, sale, gift
or similar agreement concerning any of the facilities and property,
real or personal, involved in the operation of the cable TV business
under a franchise granted by the Village except:
a.
Disposition
or replacement of worn out or obsolete equipment, property or facilities
in the normal course of operating a cable TV business, including the
renewal or extension of equipment or property leases and contracts;
or
b.
Acquisition,
transfer, sale or other disposition of leases, licenses, easements,
and other interests in real property in the normal course of operating
a cable TV business and not involving the relinquishment of any right
or power affecting the grantee's ability to provide cable TV services
in whole or in part; or
c.
With
prior approval of the Village based on a finding that the proposed
transaction will not affect the grantee's ability and responsibility
to provide cable TV services in accordance with its franchise and
will not interfere with the Village's interest; or
d.
That
a grantee may pledge or mortgage its assets to a financial institution
in return for sums necessary to construct or operate (or both) the
cable system, provided that such pledge or mortgage and related agreements
are filed with the Village and obligate and limit such financial institution
as follows: Any foreclosure or exercise of lien over the franchise
or facilities shall only be by assumption of control over the entire
system or a self-sufficient, separately operable head-end and its
dependent distribution system of a multiple head-end system. Prior
to assumption of control, the institution shall notify the Village
that it or a designee acceptable to the Village will take control
of and operate the system and shall submit a plan for such operation
insuring continued service and compliance with this Chapter and all
franchise obligations during the term the institution exercises such
control. The institution shall not exercise control for longer than
one (1) year unless extended by the Village for cause and shall be
entitled to petition the Village for transfer of the remaining term
of the franchise or award of a new franchise to another grantee. The
Village shall approve such transfer upon finding that the legal, financial,
character, technical and other qualities of the proposed grantee are
satisfactory and that the transfer will promote the public interest.
Such approval shall not be unreasonably withheld.
4.
Reference for local non-profit corporation. The Village
reserves the right, all other things being equal, in the event of
a request for approval of the transfer of the ownership of the franchise
by the grantee, to grant preference to any local not-for-profit organization
which demonstrates a willingness and capability to meet the terms
and amount of the bona fide offer made to the grantee for purchase
of the franchise and network. In no event, however, shall the Village
delay ruling on any request for approval of the transfer of the ownership
of the franchise by the grantee for more than sixty (60) days from
receipt of said request by the Village.
5.
Consent not waiver. The consent or approval of the Village
to any transfer by 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 anti conditions
of said franchise.
6.
Non-approval of transfer — when. In the absence of
extraordinary circumstances, the Village will not approve any transfer
or assignment of the franchise prior to substantial completion of
construction of the proposed system.
7.
Successor must be signatory. In no event shall a transfer
of ownership control be approved without the successor in interest
becoming a signatory to said franchise agreement.
G.
Franchise Renewal. This franchise may be renewed upon application of the grantee pursuant to the procedure established in Subsection (G)(1)(b) of this Section and in accordance with the then applicable law.
1.
Procedures.
a.
At
least thirteen (13) months prior to the expiration of the franchise,
grantee shall inform the Village in writing of its intent to seek
renewal of the franchise.
b.
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, programming,
other services offered, cost of services, and any other particular
requirements set in the ordinance; also, the Village shall consider
the grantee's annual reports made to the Village and the FCC; industry
performance on a national basis shall also be considered. Provision
shall be made for public comment.
c.
A
four (4) month period shall be provided to determine the grantee's
eligibility for renewal.
d.
The
Village shall then prepare within two (2) months any amendments to
this Chapter that it believes necessary.
e.
If
the Village finds the grantee's performance satisfactory, a new franchise
may be granted pursuant to the ordinance as amended for an additional
period of ten (10) years. Subsequent renewals for ten (10) year periods
may be applied for by grantee in accordance with the procedure outlined
in this Section.
f.
In
the event the grantee is determined by the Village to have performed
unsatisfactorily, new applicants may be sought and evaluated and a
franchise award may be made by the Village.
H.
Police Powers. In accepting this franchise, the grantee
acknowledges that its rights hereunder 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.
1.
Any
conflict between the provisions of this franchise and any other present
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 grantee or cable communications systems which contains provisions
inconsistent with this franchise shall prevail only if the Village
finds an emergency exists constituting a danger to health, safety,
property or general welfare or such exercise is mandated by law.
I.
Franchise Fee.
1.
Annual franchise payment. A grantee of a franchise hereunder
shall pay to the Village an annual fee in an amount designated in
the franchise agreement, but in no event less than three percent (3%)
of the annual gross revenues.
Such payment shall be in addition to any other fee or tax and
commence as of the effective date of the franchise. In the event of
a dispute, the Village, if it so requests, shall be furnished a statement
of said payment by a certified public accountant reflecting the total
amounts of annual gross revenue and the above charges, deductions
and computations for the period covered by the payment. The CPA so
chosen shall be approved by the Village. If the Village disapproves
the grantee's selection, the grantee shall choose another. The CPA
shall be one of at least a regional reputation for honesty and competency.
All charges for the said CPA services shall be borne by the grantee.
2.
Acceptance by Village. No acceptance of any payment by the
Village shall be construed as a release or as an accord and satisfaction
of any claim the Village may have for further or additional sums payable
as a franchise fee under this Chapter or for the performance of any
other obligation of the grantee.
3.
Failure to make required payment. In the event that any
franchise payment or recomputed amount is not made on or before the
dates specified herein, grantee shall pay as additional compensation:
a.
An
interest charge, computed from such due date on such amount due, at
the annual rate equal to the commercial prime interest rate in effect
from time to time during such period until such amounts due are fully
paid.
b.
A
sum of money equal to five percent (5%) of the amount due in order
to defray those additional expenses and costs incurred by the Village
by reason of delinquent payment.
4.
Payments
due the grantor under this provision shall be computed quarterly for
the preceding quarter as of March thirty-first (31st), June thirtieth
(30th), September thirtieth (30th) and December thirty-first (31st).
Each quarterly payment shall be due and payable no later than thirty
(30) days after the dates listed in the previous sentence. Each payment
shall be accompanied by a brief report showing the basis for the computation
and such other relevant facts as may be required by the grantor.
5.
Following
the issuance and acceptance of the franchise, the grantee shall initiate
franchise fee payments to the grantor at the minimum rate of seven
hundred fifty dollars ($750.00) for each population group of one thousand
(1,000) individuals (or increment thereof) as determined by the most
recent estimate of the St. Louis County Government or the 1981 United
States Census, whichever is more recent in time. The remainder of
calendar year 1980 shall be treated as a full year for purposes of
receiving advances on franchise fees. After calendar year 1981 payments
shall be made at the times designated herein. Theses payments are
to be considered advances of payments due in later years of the franchise
insofar as they exceed the actual franchise payments due during any
year.
J.
Forfeiture Or Revocation.
1.
Grounds for revocation. The Village reserves the right to
revoke any franchise granted hereunder and rescind all rights and
privileges associated with the franchise in the following circumstances,
each of which shall represent a default and breach under this Chapter
and the franchise grant:
a.
If
the grantee should default in the performance of any of its material
obligations under this Chapter or under such documents, contracts
and other terms and provisions entered into by and between the Village
and the grantee.
b.
If
the grantee should fail to provide or maintain in full force and effect
the liability and indemnification coverages or the performance bond
as required herein.
c.
If
any court of competent jurisdiction, the FCC or any State regulatory
body by rules, decisions or other action determines that any material
provision of the franchise documents, including this Chapter, is invalid
or unenforceable prior to the commencement of system construction.
d.
If
the grantee should frequently violate any orders or rulings of any
regulatory body having jurisdiction over the grantee relative to this
franchise unless such orders or rulings are being contested by the
grantee in a court of competent jurisdiction.
e.
If
the grantee ceases to provide services for any reason within the control
of the grantee over the cable communications system. The grantee shall
not be declared at fault or be subject to any sanction under any provision
of this Chapter in any case in which performance of any such provision
is prevented for reasons beyond the grantee's control. A fault shall
not be deemed to be beyond the grantee's control if committed by a
corporation or other business entity in which the grantee holds a
controlling interest or which holds, alone or with others, a controlling
interest in grantee, whether held directly or indirectly.
f.
If
the grantee attempts to evade any of the provisions of this Chapter
or the franchise agreement or practices any fraud or deceit upon the
Village.
g.
If
the grantee's construction schedule is delayed for more than eighteen
(18) months later than the schedule contained in the franchise agreement.
h.
If
the grantee becomes insolvent, unable or unwilling to pay its debts,
or is adjudged a bankrupt.
2.
Procedure prior to revocation.
a.
The
Village may make written demand that the grantee do so comply with
any such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the grantee continues for a period of thirty
(30) days following such demand, the Village may place its request
for termination of the franchise upon a regular Trustee meeting agenda.
The Village shall cause to be served upon such grantee, at least ten
(10) business days prior to the date of such Council meeting, a written
notice of this intent to request such termination and the time and
place of the meeting, notice of which shall be published by the Village
Clerk at lease once ten (10) business days before such meeting in
a newspaper of general circulation within the Village.
b.
The
Council shall hear any persons interested therein and shall determine,
in its discretion, whether or not any failure, refusal or neglect
by the grantee was with just cause.
c.
If
such failure, refusal or neglect by the grantee was with just cause,
the Council shall direct the grantee to comply within such time and
manner and upon such terms and conditions as are reasonable.
d.
If
the Council shall determine such failure, refusal or neglect by the
grantee was without just cause, then the Council may, by resolution,
declare that the franchise of such grantee shall be terminated and
bond forfeited unless there be compliance by the grantee within such
period as the Council may fix.
3.
Disposition of facilities. In the event a franchise expires,
is revoked or otherwise terminated, the Village may order the removal
of the system facilities from the Village within a reasonable period
of time as determined by the Village or require the original grantee
to maintain and operate its network until a subsequent grantee is
selected.
4.
Restoration of property. In removing its plant, structures
and equipment, the grantee shall refill, at its own expense, any excavation
that shall be made by it and shall leave all public ways and places
in as good condition as that prevailing prior to the grantee's removal
of its equipment and appliances without affecting the electrical or
telephone cable wires or attachments. The Village shall inspect and
approve the condition of the public ways and public places and cables,
wires, attachments and poles after removal. The liability, indemnity
and insurance as provided herein and the performance bond provided
shall continue in full force and effect during the period of removal
and until full compliance by the grantee with the terms and conditions
of this paragraph and this Chapter.
5.
Restoration by Village, reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection (J)(3) above and/or Subsection (J)(4) above, or any other work required by Village law or ordinance within the time as may be established and to the satisfaction of the Village, the Village may cause such work to be done and the grantee shall reimburse the Village the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the Village may recover such costs through the security fund provided by grantee. The Village shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.
6.
Extended operation. Upon either the expiration or revocation
of a franchise, the Village may require the grantee to continue to
operate the network for an extended period of time not to exceed six
(6) months from the date of such expiration or revocation. The grantee
shall, as trustee for its successor in interest, continue to operate
the cable communications system under the terms and conditions of
this Chapter and the franchise and to provide the regular subscriber
service and any and all of the services that may be provided at that
time. The Village shall be permitted to seek legal and equitable relief
to enforce tie provisions of this Section.
7.
Village's right not affected. The termination and forfeiture
of any franchise shall in no way affect any of the rights of the Village
under the franchise or any provision of law.
K.
Receivership And Foreclosure.
1.
Termination upon bankruptcy. The franchise herein granted
shall, at the option of the Village Trustees, cease and terminate
one hundred twenty (120) days after the appointment of a receiver
or receivers or trustee or trustees to take over and conduct the business
of the grantee whether in a receivership, reorganization, bankruptcy
or other action or proceeding unless such receivership or trusteeship
shall have been vacated prior to the expiration of said one hundred
twenty (120) days, or unless:
a.
Such
receivers or trustees shall have, within said one hundred twenty (120)
days after their election or appointment, fully complied with all
the terms and provision of this Chapter and the franchise granted
pursuant hereto, and the receivers or trustees within said one hundred
twenty (120) days shall have remedied all defaults under the franchise;
and
b.
Such
receivers or trustees shall, within said one hundred twenty (120)
days, execute an agreement duly approved by the court having jurisdiction
in the premises, whereby such receivers or trustees assume and agree
to be bound by each and every term, provision and limitation of said
franchise.
2.
Termination upon foreclosure. In the case of a foreclosure
or other judicial sale of the plant, property and equipment of the
grantee or any part thereof including or excluding this franchise,
the Council may serve notice of termination upon the grantee and the
successful bidder at such sale, in which event said franchise and
all right's and privileges of the grantee thereunder shall cease and
terminate thirty (30) days after service of such notice, unless:
L.
Franchise Required. No cable communications system shall
be allowed to occupy or use the streets of the Village or be allowed
to operate without a franchise in accordance with the provisions of
this Chapter.
[Ord. No. 269 §5, 5-4-1981]
A.
Regulatory Authority. The grantor shall exercise appropriate
regulatory authority under the provisions of this Chapter and applicable
law. Grantor may, at its sole option, participate with other governmental
entities in a joint regulatory agency with delegated responsibility
in the area of cable and related communications.
B.
Regulatory Responsibility. The grantor, if acting jointly
with other grantors, may delegate the following regulatory responsibility:
1.
Administration
and enforcement of the provisions of the cable communications system
franchise(s).
2.
Coordination
of the operation of government and educational channels.
3.
Provision
of technical, programming and operational support to public agency
users, such as Village departments, schools and health care institutions.
4.
Establishment
of procedures and standards for institutional operations and services,
use of dedicated channels, and sharing of public facilities.
5.
Planning
of expansion and growth of cable services, including interconnection
of various cable TV company systems.
6.
Analysis
of the possibility of integrating cable communications with other
City, State or regional telecommunications networks.
7.
Formulation
and recommendation of long-range telecommunications policy for the
Village.
8.
Selection
and implementation of all things necessary to establish an entity
that would ensure access and community channels that serve the public
interest.
C.
Rate Regulation.
1.
Initial rates.
a.
The
grantee shall establish initial rates that must be applied fairly
and uniformly to all subscribers in the Village for its services in
accordance with the rates contained in the franchise agreement.
b.
Initial
basic subscriber rates shall be effective for a minimum of two (2)
years from the date cable operation commences, or until grantee has
completed all construction proposed in its application for the first
(1st) and second (2nd) years, whichever is longer.
2.
Rate modification authority. The grantee may request a rate
change at any time after two (2) years of commencing operation, provided
that not more than one (1) request may be made by the grantee in any
twelve (12) month period.
3.
Assumption by Village of rate modification authority. Between
September first (1st) and November thirtieth (30th) of the years 1983,
1986, 1989 and 1992, the Village shall determine whether it will assume
rate modification authority.
a.
If
the Village declines rate modification authority, then rates may be
changed by the grantee by filing with the Village a schedule of rates
proposed and by notifying its subscribers in writing at least sixty
(60) days prior to implementation of the rate change.
4.
Public hearing. Within ninety (90) days of the filing of
the petition for rate change, the Village shall hold an appropriate
public hearing to consider the proposed rate change, at which hearing
all persons desiring to be heard, including the grantee, shall be
heard on any matter including, but not limited to, the performance
of this franchise, the grantee's services and the proposed new rates.
5.
Notice of hearing. Upon notice of any public hearing as provided in Subsection (C)(4), the grantee shall notify its subscribers of the time, place and subject matter of the public hearing by announcement on at least two (2) channels of its system between the hours of 7:00 P.M. and 9:00 P.M. for at least five (5) consecutive days prior to the hearing. In addition, notice of any public hearing shall be published in a newspaper of general circulation at least once but may be published two (2) or more times, provided that one (1) publication occurs not less than seven (7) nor more than twenty-one (21) days before the public hearing.
6.
Written decision required. Within ninety (90) days after
said hearing, the Village shall render a written decision on the grantee's
petition either accepting, rejecting, modifying or deferring the same
and reciting the basis of its decision. The Village shall consider,
interalia, the following factors in approving or disapproving the
petition:
a.
The
ability of the grantee to render system services and to derive a reasonable
profit therefrom under the existing rate schedule and under the proposed
rate schedule;
b.
The
revenues and profits derived from system services;
c.
The
efficiency of the grantee;
d.
The
quality of the service offered by the grantee;
e.
The
original cost of the system less depreciation;
f.
A
fair rate of return with respect to grantee's investment;
g.
The
extent to which the grantee has adhered to the terms of this agreement;
and
h.
Fairness
to Village residents, subscribers and users.
i.
The
Village shall not consider any valuation based upon this franchise
or the grantee's goodwill and these items of value shall neither be
amortized as an expense nor shall a return be paid on them.
7.
Rates effective upon failure of written decision to be rendered. If the Village fails to a render a written decision either accepting, rejecting, modifying or deferring grantee's petition within one hundred eighty (180) days of the grantee's petition pursuant to Subsection (C)(2) above, the grantee shall thereafter be entitled to put its proposed new rates into effect.
8.
Financial reports required. The grantee's petition for a
rate increase shall include, but not be limited to, the following
financial reports which shall reflect the operations of the system.
a.
Balance
sheet.
b.
Income
statement.
c.
Statement
of sources and applications of funds.
d.
Detailed
supporting schedules of expenses, income, assets and other items as
may be required.
e.
Statement
of current and projected subscribers and penetration.
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The grantee's accounting records applicable to the system shall
be available for inspection by the Village at all reasonable times.
The Village shall have access to records of financial transactions
for the purpose of verifying burden rates or other indirect costs
prorated to the operation. The documents listed above shall include
sufficient detail and/or footnotes as may be necessary to provide
the Village with the information needed to make accurate determinations
as to the financial condition and operating results of the system.
All financial statements shall be certified as accurate by a certified
public accountant and an executive officer of grantee.
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9.
Schedule of rates. A grantee shall maintain and file with
the Village a complete schedule of subscriber rates including all
fees and charges for services not subject to approval by the village.
10.
Disconnections. There shall be no charge for disconnection
from the network. However, if a subscriber has failed to pay monthly
fees due or if a subscriber disconnects for seasonal periods, grantee
may require, in addition to full payment of any delinquent fees, a
reasonable fee for reconnection.
11.
No consideration beyond schedule. The grantee shall receive
no consideration whatsoever for or in connection with its provision
of service to its subscribers other than as set forth in this Section
or as filed with and/or approved by the Council.
12.
Refunds to subscribers and programmers.
a.
If
the grantee fails to provide any service requests by a subscriber
or programmer, the grantee shall, after adequate notification and
being afforded the opportunity to provide the service, promptly refund
all deposits or advance charges paid for the service in question by
said subscriber or programmer.
b.
If
any subscriber terminates any monthly service during the first twelve
(12) months of said service because of the failure of the grantee
to render the service in accordance with the standards set forth in
this Chapter, the grantee shall refund to such subscriber an amount
equal to the installation or reconnection charges paid by the subscriber
multiplied by the fraction of the twelve (12) month period for which
the subscriber will not be receiving service. In the event that said
subscriber has made an annual payment in advance, a similar portion
of said payment shall be refunded by the grantee.
c.
If
any subscriber terminates, for personal reasons, any monthly service
prior to the end of a prepaid period, a pro rata portion of any prepaid
subscriber service fee, using the number of days as a basis, shall
be refunded to the subscriber by the grantee.
D.
Performance Evaluation Sessions.
1.
When held. The Village and the grantee shall hold scheduled
performance evaluation sessions within thirty (30) days of the third
(3rd), sixth (6th), ninth (9th) and twelfth (12th) anniversary dates
of the grantee's award of the franchise and as may be required by
Federal and State law or by the Village.
2.
Special sessions. 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.
Open to public. All evaluation sessions shall be open to
the public and announced in a newspaper of general circulation in
accordance with legal notice. Grantee shall notify its subscribers
of all evaluation sessions by announcement on at least two (2) channels
of its system between the hours of 7:00 P.M. and 9:00 P.M. for five
(5) consecutive days preceding each session.
4.
Topics. Topics which may be discussed at any scheduled or
special evaluation session may include, but not be limited to, service
rate structures; franchise fees; penalties; free or discounted services;
application of new technologies; system performance; response to subscriber
complaints and quality of service.
E.
Access Channel Management.
1.
Intent. In order to achieve utilization of access channels
that is in the best public interest, it is the intent of the grantor
to ensure that the access and community channels are governed by an
appropriate non-profit entity, such that these channels may be free
of censorship, open to all residents of the Village and available
for all forms of public expression, community information and debate
of public issues. The appropriate entity shall be created, chosen
or designated within eighteen (18) months of the award of a franchise
and shall have substantially the following form, functions, procedures
and support:
2.
Functions. The access channel management entity shall have
the following functions:
a.
Responsibility
for program production for and management of the public access channel
and all other channels as may in the franchise agreement be designated
for community-based programming. Community channels may include government
and educational access channels as designated in the franchise agreement.
b.
To
assure that the public access and community channels are made available
to all residents of the Village on a non-discriminatory, first-come,
first-served basis.
c.
To
assure that no censorship or control over program content of the public
access and community channel(s) exist, except as necessary to comply
with the prohibition of material that is obscene, or the FCC prohibition
of material that contains commercial advertising, or conducts a lottery.
d.
To
devise, establish and administer all rules, regulations and procedures
pertaining to the use and scheduling of the public access and community
channels.
e.
To
prepare, in conjunction with the grantee, such regular or special
reports as may be required or desirable.
f.
To
hire and supervise staff.
g.
To
make all purchases of materials and equipment that may be required.
h.
To
develop additional sources of funding, such as foundation or Federal
or State grants, to further community programming.
i.
To
perform such other functions relevant to the public and community
channel(s) as may be appropriate.
3.
Access rules. The access channel management entity shall
complete a set of rules for the use of the access and community channels
which shall be promptly forwarded to the grantor. The rules shall
be prepared in cooperation with the grantee and confirmed by a contractual
agreement between the access channel management entity and the grantee.
The rules shall, at a minimum, provide for:
a.
Access
on a first-come, first-served, non-discriminatory basis for all residents
of the Village;
b.
Prohibition
of advertising for commercial or political purposes as defined by
the FCC;
c.
Prohibition
of any presentation of lottery information or obscene or indecent
material;
d.
Public
inspection of the log of producers which shall be retained by the
grantee for a period of two (2) years;
e.
Procedures
by which individuals or groups who violate any rule may be prevented
from further access to the channel; and
f.
Free
use of such reasonable amounts of channel time, cablecasting facilities
and technical support as are provided for in the agreement between
the access channel management entity and the grantee.
4.
Funding for the access channel management entity. It is
the intent of the grantor that the access channel management entity
obtain partial funding from the grantee to the extent defined in the
franchise agreement.
5.
Grantee support for the access channel management entity. It is the intent of the grantor that the grantee shall provide ongoing
cooperation with and support to the access channel management entity
with the detailed requirements to be specified in the franchise agreement.
As a minimum, the following shall be provided:
a.
The
grantee shall provide a high quality cablecasting studio facility.
This studio shall be separate from the facilities used by the grantee
for local origination, although it may be housed in the same building.
Equipment in this studio shall be comparable to that used by the grantee
for local origination.
b.
The
grantee shall provide operational and technical personnel to support
the access channel management entity in cablecasting activities with
the minimum level of support as specified in the franchise agreement.
6.
Access channel management entity reports to grantor. The
access channel management entity shall provide a report to the grantor,
at least annually, indicating achievements in community-based programming
and services. The access channel management entity also shall provide
a special report each time grantee requests an increase in rates,
indicating the level and quality of grantee's support, during the
period elapsed since any previous rate increase was implemented.
[Ord. No. 269 §6, 5-4-1981]
A.
Performance Bond.
1.
When filed — amount. Within thirty (30) days after
the granting of this franchise and prior to the commencement of any
construction work by the grantee, the grantee shall file with the
Village a performance and surety bond in the amount of fifty thousand
dollars ($50,000.00) in favor of the Village and any other person
who may claim damages as a result of the breach of any duty by the
grantee assured by such bond. In the event the grantee shall faithfully
comply with all applicable statutes, ordinances and regulations governing
the franchise and shall faithfully complete the construction of the
facilities contemplated herein and shall receive a certificate of
completion from the Village, then the obligation under such bond shall
be void, otherwise it shall remain in full force and effect.
2.
Form approved by Village Attorney. Such bond as contemplated
herein shall be in the form approved by the Village Attorney and shall,
among other matters, cover the cost of removal of any properties install
by the grantee in the event said grantee shall default in the performance
of its franchise obligation.
3.
No limitation of liability. In no event shall the amount
of said bond be construed to the liability of the grantee for damages.
4.
Bond coverage if delegated. If the Village shall delegate
the enforcement of this Chapter under contract, as authorized by Article
6 Section 16 of the Missouri Constitution and Chapter 70, RSMo., the
entity to which such authority is delegated shall have authority to
negotiate bond coverage on behalf of the Village as a member of a
group of Cities so as to have one (1) bond for all Cities mutually
contracting.
B.
Compliance Bond.
1.
When filed — amount. In addition to the performance
bond set forth above, the grantee shall, at least thirty (30) days
prior to the commencement of operation, file with the Village a compliance
bond in the amount of one hundred thousand dollars ($100,000.00) in
favor of the Village and any other person who may be entitled to damages
as a result of any occurrence in the operation of termination of the
cable communications system operated under this franchise and including
the payments required to be made to the Village hereunder.
2.
Form approved by Village Attorney. Such bond as contemplated
herein shall be in the form approved by the Village Attorney and shall
among other matters cover the cost of removal of any properties installed
by the grantee in the event said grantee shall default in the performance
of its franchise obligation.
3.
No limitation of liability. In no event shall the amount
of said bond be construed to limit the liability of the grantee for
damages.
4.
Bond coverage if delegated. If the Village shall delegate
the enforcement of this Chapter under contract as authorized by Article
6 Section 16 of the Missouri Constitution and Chapter 70, RSMo., the
entity to which such authority is delegated shall have authority to
negotiate bond coverage on behalf of the Village as a member of a
group of Cities so as to have one (1) bond for all Cities mutually
contracting.
C.
Security Fund.
1.
When filed — amount. Within thirty (30) days after
the effective date of the franchise, the grantee shall deposit into
a bank account established by the Village and maintain on deposit
through the term of this franchise the sum of five thousand dollars
($5,000.00) as security for the faithful performance by it of all
the provisions of this franchise, and compliance with all orders,
permits and directions of any agency of the grantor having jurisdiction
over its acts or defaults under this contract, and the payment by
the grantee of any claims, liens and taxes due the grantor which arise
by reason of the construction, operation or maintenance of the system.
2.
Restoration of fund. Within thirty (30) days after notice to it that any amount has been withdrawn by the Village from the security fund pursuant to Subsection (C)(1) of this criteria, the grantee shall deposit a sum of money sufficient to restore such security fund to the original amount.
3.
Fund use upon failure of grantee payment due. If the grantee
fails after ten (10) business days' notice to pay to the Village any
taxes due and unpaid or fails to repay to the Village; within such
ten (10) business days any damages, costs of expenses which the Village
shall be compelled to pay by reason of any act or default of the company
in connection with this franchise or fails after thirty (30) days'
notice of such failure to comply with any provision of the franchise
which the Village reasonably determines can be remedied by an expenditure
of the security, the Village may immediately withdraw the amount thereof,
with interest and any penalties, from the security fund. Upon such
withdrawal, the grantor shall notify the grantee of the amount and
date thereof.
4.
Cancellation of franchise. The security fund deposited pursuant
to this Section shall become the property of the grantor in the event
that the franchise is cancelled by reason of the default of the grantee
or revoked for cause. The grantee, however, shall be entitled to the
return of such security fund, or portion thereof, as remains on deposit
at the expiration of the term of the franchise or upon termination
of the franchise at an earlier date, provided that there is then no
outstanding default on the part of the grantee.
5.
Reservation of rights. The rights reserved to the grantor
with respect to a security fund are in addition to all other rights
of the grantor whether reserved by this contract or authorized by
law, and no action, proceeding or exercise of a right with respect
to such security fund shall affect any other right the grantor may
have.
D.
Indemnification.
1.
The
grantee shall by acceptance of the franchise granted herein indemnify,
defend and hold harmless the Village, its officers, boards, communications,
agents and employees from any and all claims, suits, judgments or
damages in any way arising out of or through or alleged to arise out
of or through the act of the Village in granting a franchise and the
acts or omissions of grantee, its servants, employees or agents. Both
such indemnifications shall cover such claims arising in tort, contracts,
violations of U.S. or State Constitutions, statutes, ordinances, regulations
or from any source or on the basis of any theory whatsoever.
2.
Tender of defense. In the event any such claims shall arise,
the Village shall tender the defense thereof to the grantee; provided
however, that the Village in its sole discretion may participate in
the defense of such claims at its expense.
E.
Insurance.
1.
Kinds, amounts. The grantee shall maintain throughout the
term of the franchise insurance in amounts at least as follows:
a.
Workmen's Compensation insurance. In such coverage as may
be required by the Workmen's Compensation insurance and safety laws
of the State of Missouri and amendments thereto.
b.
Grantee's liability. Each occurrence five hundred thousand
dollars ($500,000.00); aggregate one million dollars ($1,000,000.00).
c.
Comprehensive general liability. Bodily injury each person
five hundred thousand dollars ($500,000.00) and each occurrence one
million dollars ($1,000,000.00); property damage each accident five
hundred thousand dollars ($500,000.00).
d.
Comprehensive automobile liability. Including non-ownership
and hired car coverage as well as owned vehicles with minimum limits
as follows: bodily injury for each person three hundred thousand dollars
($300,000.00) and each occurrence one million dollars ($1,000,000.00);
property damage for each occurrence one hundred thousand dollars ($100,000.00).
2.
Copies furnished. The grantee shall furnish the Village
with copies of such insurance policies and certificates of insurance.
3.
Endorsement. Such insurance policies provided for herein
shall name the Village, its officers, boards, commissions, agents
and employees as additional insured and shall contain the following
endorsement:
"It is hereby understood and agreed that this insurance policy
may not be cancelled by the surety or the intention not to renew be
stated by the surety until thirty (30) days after receipt by the Village
by registered mail of written notice of such intention to cancel or
not renew."
4.
No limitation of liability. The minimum amounts set forth
herein for such insurance shall not be construed to limit the liability
of the grantee to the Village under the franchise issued hereunder
to the amounts of such insurance.
F.
Adjustment Of Established Amounts. The Village shall have
the power from time to time to review the adequacy of the amounts
of performance and compliance bonds, the amount required in the security
fund, and insurance coverage amounts. If because of changed circumstances,
such as, but not limited to, inflation, costs of materials, and/or
the record of performance of the grantee, the Village determines that
any or all of the amounts set are inadequate, the Village shall notify
the grantee by sending grantee a document detailing the proposed changes.
Grantee shall have thirty (30) days to reply. After consideration
of grantee's reply, if any, the Village shall establish new amounts
as it deems reasonable to protect the public welfare and provide for
the common good.
[Ord. No. 269 §7, 5-4-1981]
A.
System Design. The cable communications system shall be
constructed in accordance with the design requirements contained in
the franchise agreement.
B.
Geographical Radical Coverage. The grantee shall design
and construct the home subscriber network in such a manner as to have
the eventual capability to pass by every single-family dwelling unit,
multiple-family dwelling unit, agency and business establishment within
the area of the franchise. Service shall be provided to subscribers
in accordance with the schedules and line extension policies specified
in the franchise agreement.
C.
Cablecasting Facilities. The grantee shall provide cablecasting
facilities in accordance with the requirements of the franchise agreement.
D.
Early Extension. In areas not meeting the requirement for
mandatory extension of service, grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the costs
required to extend service to said subscriber. Grantee shall then
extend service to said potential subscriber. Grantee may require advance
payment or assurance of payment satisfactory to grantee. The amount
paid by subscribers for early extension shall be non-refundable, even
if the area subsequently reaches the density required for mandatory
extension.
E.
System Construction Schedule.
1.
Requirements. The grantee shall comply with the requirements
of the system construction schedule contained in the franchise agreement.
2.
Service not provided — where. Service need not be
provided where power and telephone utilities are not available.
3.
Provision of plans. In conjunction with construction, the
grantee shall provide a detailed construction plan indicating progress
schedule, area construction maps, test plan and projected dates for
offering service. In addition, the grantee shall update this information
on a monthly basis, showing specifically whether schedules are being
met and the reasons for any delay.
4.
Revocation. Failure to begin construction within six (6)
months after award of the franchise will be grounds for franchise
revocation at the option of the grantor.
F.
Penalties For Delay In Construction. The grantor may, at
its sole option, apply any of the following in connection with delays
in system construction:
1.
Reduction of franchise period. Reduction in the duration
of the franchise on a month for month basis for each month of delay.
2.
Forfeiture of bonds. Forfeiture of performance bonds for
delays exceeding one (1) year.
3.
Termination. Termination of the franchise for delays exceeding
eighteen (18) months.
G.
Provision Of Service. After service has been established
by activating trunk cables for any area, neighborhood or group of
homes meeting the criteria of the initial service area and the line
extension policy thereof, the grantee shall provide service to any
requesting subscriber or resident thereof within ninety (90) days
from the date of request.
H.
Undergrounding Of Cable. The undergrounding of cables is
encouraged. In any event, cables shall be installed underground at
grantee's cost where existing utilities are undergrounded; installed
aerial cable shall be undergrounded in concert, and on a cost-sharing
basis, with other utilities, when such other utilities may convert
from aerial to underground construction.
I.
New Development Undergrounding. In cases of new construction
or property development were utilities are to be placed underground,
the developer or property owner shall give grantee reasonable notice
of such construction or development and of the particular date on
which open trenching will be available for grantee's installation
of conduit, pedestals and/or vaults and laterals to be provided at
grantee's expense. 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 grantee fails to install its conduit, pedestals and/or
vaults and laterals within five (5) 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
(5) day period, the cost of new trenching is to be borne by grantee.
Notice provided to grantee by Village of a preliminary plat request
shall satisfy the requirement of reasonable notice if sent to the
local general manager or system engineer of grantee prior to approval
of the preliminary plat request.
J.
Street Occupancy.
1.
Utilization of existing poles. Grantee shall utilize existing
poles, conduits and other facilities, whenever possible, and shall
not construct or install any new, different or additional poles, conduits
or other facilities whether on public property or on privately owned
property until the written approval of the Village is obtained, which
approval shall not be unreasonably withheld. However, no location
of 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 determine that
the public convenience would be enhanced thereby. The grantee shall
negotiate the lease of pole space and facilities from existing pole
owners.
2.
Notification of construction. Grantee shall notify the Village
at least ten (10) business days prior to the intention of the grantee
to commence any construction in any streets. The Village shall cooperate
with the grantee in granting any permits required, providing such
grant and subsequent construction by the grantee shall not unduly
interfere with the use of such streets and that proposed construction
shall be done in accordance with the pertinent provisions of the ordinances
of the Village.
3.
Minimum interference. All transmission lines, equipment
and structures shall be so installed and located as to cause minimum
interference with the rights and reasonable convenience of property
owners and at all times shall be kept and maintained in a safe, adequate
and substantial condition and in good order and repair. The grantee
shall at all times, employ ordinary care and shall install and maintain
in use commonly accepted methods and devices for preventing failures
and accidents which are likely to cause damage, injuries or nuisances
to the public. Suitable barricades, flags, lights, flares or other
devices shall be used at such times and places as are reasonably required
for the safety of all members of the public. Any poles or other fixtures
placed in any public way by the Grantee shall be placed in such a
manner as not to interfere with the usual travel on such public way.
4.
Restoration of streets. Whenever the grantee shall disturb
the surface of any street, alley, public highway or ground for any
purpose mentioned herein, he/she shall restore the same to the condition
in which it was prior to the opening thereof, and when any opening
is made by the grantee in any hard surfaced pavement in any street,
alley or public highway, the grantee shall promptly refill the opening
and restore the pavement. The grantor may refill and/or repave in
case of neglect of the grantee. The cost thereof, including the cost
of inspection and supervision, shall be paid by the grantee. All excavations
made by the grantee in the streets, alleys and public highways shall
be properly safeguarded for the prevention of accidents. The work
hereby required shall be done in strict compliance with the rules,
regulations and ordinances of the grantor as now or hereafter provided.
5.
Removal of facilities. Whenever, in case of fire or other
disaster, it becomes necessary in the judgment of the Chief of the
Fire Department or Chief of the Police Department to remove any of
the grantee's facilities, no charge shall be made by the grantee against
the Village for restoration and repair, unless such acts amount to
gross negligence by the Village.
6.
Tree trimming. Grantee shall have the authority to trim
trees on public property at its own expense as may be necessary to
protect its wire and facilities, subject to the supervision and direction
of the Village. Trimming of trees on private property shall require
written consent of the property owner.
7.
Improvements by Village. The grantee at his/her expense
shall protect, support, temporarily disconnect, relocate or remove
any property of grantee when, in the opinion of the Village, the same
is required by reason of traffic conditions; public safety; street
vacation; freeway or street construction; change or establishment
of street grade; installation of sewers, drains, water pipes, power
line, signal line, transportation facilities, tracks or any other
types of structures; improvements by governmental agencies, whether
acting in a governmental or a proprietary capacity or any other structure
or public improvement, including, but not limited, to movement of
buildings, urban renewal and redevelopment, and any general program
under which the Village shall undertake to cause all such properties
to be located beneath the surface of the ground. The grantee shall
in all cases have the privilege, subject to the corresponding obligations,
to abandon any property of grantee in place. Nothing hereunder shall
be deemed a taking of the property of grantee and grantee shall be
entitled to no surcharge by reason of anything hereunder.
8.
Payment upon grantee's failure. Upon failure of grantee
to commence, pursue or complete any work required by law or by the
provisions of this Chapter to be done in any street within the time
prescribed and to the satisfaction of the Village, the Village may,
at its option, cause such work to be done and the grantee shall pay
to the Village the cost thereof in the itemized amounts reported by
the Village to grantee within thirty (30) days after receipt of such
itemized report.
9.
Paving cuts. The grantee shall make no paving cuts or curb
cuts unless absolutely necessary, and only after written permission
has been given by the Village.
10.
Installation in conduit. The grantee shall install in conduit
all cable passing under any public roadway.
11.
Reservations of street rights. Nothing in the franchise
shall be construed to prevent the grantor from constructing sewers,
grading, paving, repairing and/or altering any street, alley or public
highway or laying down, repairing or removing water main or constructing
or establishing any other public work. All such work shall be done,
insofar as practicable, in such manner as not to obstruct, injure
or prevent the free use and operation of the poles, wires, conduits,
conductors, pipes or appurtenances of the grantee. If any such property
of the grantee herein shall interfere with the construction or repair
of any street or public improvement, whether it be construction, repair
or removal of a sewer or water main, the improvement of a street or
any other public improvement, all such poles, wires, conduits or other
appliances and facilities shall be removed or replaced in such manner
as shall be directed by the grantor so that the same shall not interfere
with the said public work of the grantor, and such removal or replacement
shall be at the expense of the grantee herein.
12.
Street vacation or abandonment. In the event any street,
alley, public highway or portion thereof used by the grantee shall
be vacated by the grantor or the use thereof discontinued by the grantee
during the term of this franchise, the grantee shall forthwith remove
his/her facilities therefrom unless specifically permitted to continue
the same, and on the removal thereof restore, repair or reconstruct
the street area where such removal has occurred, and place the street
area where such removal has occurred in such condition as may be required
by the grantor. In the event of failure, neglect or refusal of the
grantee after thirty (30) days' notice by the grantor to repair, improve
or maintain such street portion, the grantor may do such work or cause
it to be done, and the cost thereof as found and declared by the grantor
shall be paid by the grantee and collection may be made by court action
or otherwise.
13.
Movement of facilities. In the event it is necessary temporarily
to move or relocate any of the grantee's wires, cables, poles or other
facilities placed pursuant to the franchise in order lawfully to move
a large object, vehicle, building or other structure over the streets,
alleys or highways of the grantor, grantee upon reasonable notice
shall move, at the expense of the person requesting the temporary
removal, such facilities as may required to facilitate such movements.
K.
Construction And Technical Standards.
1.
Construction standard.
a.
Compliance with safety codes. All construction practices
shall be in accordance with all applicable Sections of the Occupational
Safety and Health Act of 1970 and any amendments thereto as well as
all State and local codes where applicable.
b.
Compliance with electrical codes. All installation of electronic
equipment shall be of a permanent nature, durable and installed in
accordance with the provisions of the National Electrical Code as
amended.
c.
Antennas and towers. Antenna-supporting structures (towers)
shall be designed for the proper loading as specified in Electronics
Industry Association's R.S. 222 C. Specifications.
d.
Compliance with aviation requirements. Antennas-supporting
structures (tower) shall be painted, lighted, erected and maintained
in accordance with all applicable rules and regulations of the Federal
Aviation Administration and all other applicable State or local codes,
laws and regulations.
e.
Construction standards and requirements. All of the grantee's
plant and equipment, including, but not limited to, the antenna site,
head-end and distribution system, towers, house connections, structures,
poles, wire, cable, coaxial cable, fixtures and appurtenances, shall
be installed, located, erected, constructed, reconstructed, replaced,
removed, repaired, maintained and operated in accordance with good
engineering practices, performed by experienced maintenance and construction
personnel so as not to endanger or interfere in any manner with the
rights of any property owner or to unnecessarily hinder or obstruct
pedestrian or vehicular traffic on municipal properties.
f.
Safety, nuisance, requirements. The grantee shall at all
times employ ordinary care and shall install and maintain in use commonly
accepted methods and devices preventing failures and accidents which
are likely to cause damage, injury or nuisance to the public.
2.
Technical standards. The cable communications system shall
meet all technical and performance standards contained in the franchise
agreement.
3.
Test and compliance procedure. The grantee shall submit,
within sixty 60) days after the effective date of the franchise agreement,
a detailed test plan describing the methods and schedules for testing
the cable communications system on an ongoing basis to determine compliance
with the provisions of the franchise agreement. The tests for basic
subscriber television services shall be performed periodically, at
intervals no greater than every six (6) months, on a minimum of twenty
(20) subscriber television receivers located throughout the service
area. At least eight (8) of these locations shall be at the far end
of the distribution trunk cables. The tests shall be witnessed by
representatives of the grantor, and written test reports shall be
submitted to the grantor. If more than ten percent (10%) of the locations
tested fail to meet the performance standards, the grantee shall be
required to indicate what corrective measures have been taken, and
the entire test shall be repeated for at least twenty (20) different
locations. A second (2nd) failure of more than ten percent (10%) may
result, at the grantor's option, in an order to reduce subscriber
rates due to degraded service.
4.
Special tests. At any time after commencement of service
to subscribers, the Village may require additional tests, full or
partial repeat tests, different test procedures, or tests involving
a specific subscriber's terminal. Requests for such additional tests
will be made on the basis of complaints received or other evidence
indicating an unresolved controversy or significant non-compliance,
and such tests will be limited to the particular matter in controversy.
The Village will endeavor to so arrange its requests for such special
tests so as to minimize hardship or inconvenience to grantee or to
the subscriber.
L.
Areawide Interconnection.
1.
Interconnection required. The grantee shall interconnect
origination and access channels of the cable communications system
with any or all other cable systems in adjacent areas upon the directive
of the Village. Interconnection of systems shall permit interactive
transmission and reception of program material and may be done by
direct cable connection, microwave link, satellite or other appropriate
method.
2.
Interconnection procedure. Upon receiving the directive
of the Village to interconnect, the grantee shall immediately initiate
negotiations with the other affected system or systems. The cost shall
be borne by both grantees, in proportion to the number of channels
received to total number of channels transmitted and received, under
the assumption that benefits accrue primarily through receipt of additional
channels. In the case of regional or statewide interconnection, the
same principle shall apply.
3.
Relief. The grantee may be granted reasonable extensions
of time to interconnect or the Village may rescind its order to interconnect
upon petition by the grantee to the Village. The Village may grant
said request if it finds that the grantee has negotiated in good faith
and has failed to obtain an approval from the system or systems of
the proposed interconnection, or that the cost of the interconnection
would cause an unreasonable or unacceptable increase in subscriber
rates.
4.
Cooperation required. The grantee shall cooperate with any
interconnection corporation, regional interconnection authority or
City, County, State and Federal regulatory agency which may be hereafter
established for the purpose of regulating, financing or otherwise
providing for the interconnection of cable systems beyond the boundaries
of the Village.
5.
Initial technical requirements to assure future interconnection capability.
a.
All
cable communications systems receiving franchises to operate within
the Village shall use the standard frequency allocations for television
signals.
b.
All
cable communications systems are required to use signal processors
at the head-end for each television signal.
c.
The
Village also urges grantee to provide local origination equipment
that is compatible throughout the area so that video cassettes or
video tapes can be shared by various systems.
[Ord. No. 269 §8, 5-4-1981]
A.
Services To Be Provided. The grantee shall provide, as a
minimum, the services listed in the franchise agreement. Services
shall not be reduced without prior approval of the grantor.
B.
Basic Subscriber Television Signal (BSTS). The "basic subscriber
television service" shall include the FCC-required services, the distant
television broadcast signals, the imported non-broadcast signals,
the provision of all other cablecast open channel signals. This service
shall be provided to all subscribers at the established BSTS subscription
rates.
C.
Basic Subscriber Radio Service. The "basic subscriber radio
service" shall include the provision of all audio services designated
in the franchise agreement, including broadcast FM and AM radio and
cablecast FM signals. This service shall be provided to all subscribers
at the established BSRS monthly subscription rates.
D.
Institutional Service (IS). The "institutional service"
shall include the provision of transmission and/or reception services
to institutional users on a leased channel basis at established IS
rates. Services may include the distribution of video or non-video
signals.
E.
Additional Subscriber Services. "Additional subscriber services",
not included in the BSTS and BSRS services specified above, may be
provided either within the basic subscription rates or on a premium
basis, subject to applicable FCC regulations.
F.
Local Origination Channel. The grantee shall operate the
cablecasting studios on a high quality professional basis for the
purpose of providing cablecast programming responsive to local needs
and interests. The emphasis for the local origination channel shall
be on providing programming that is unavailable to viewers on broadcast
television channels.
G.
Government Access Channel. The grantee shall provide at
least one (1) channel for the use of the grantor at no charge to the
grantor. The grantee shall make every effort to provide advice and
technical expertise to aid in the utilization of this channel.
H.
Educational Access Channel. The grantee shall provide at
least one (1) channel for the use of the local educational institutions
at no charge. The grantor shall provide advice and technical expertise
to aid in the utilization of this channel.
I.
Public Access Channel. The grantee shall make at least one
(1) channel available to the public at no charge. The public access
channel shall be managed and operated by the access channel management
entity as described elsewhere in this Chapter. The grantee shall make
available for programmers of the public access channel the facilities
listed in the franchise agreement under terms of a mutual agreement
with the access channel management entity.
J.
Community Access Channel (Closed Circuit). If the cable
communications system includes a closed circuit institutional network,
the grantee shall make at least one (1) two-way channel available
for community and public use at no charge. The community access channel
shall be managed and operated by the access channel management entity.
The grantee shall make available for programmers of the community
access channel the facilities listed in the franchise agreement under
terms of a mutual agreement with the access channel management entity.
K.
New Developments.
1.
Amendment of franchise. It shall be the policy of the Village
to liberally amend a franchise, upon application of the grantee, when
necessary to enable the grantee to take advantage of any developments
in the field of transmission of television and radio signals which
will afford it an opportunity more effectively, efficiently or economically
to serve its customers. This Section shall not be construed to require
the Village to make any amendment or to prohibit it from authorizing
improvement or redesign of a system without application.
2.
Ordering of improvement. If the Village determines, giving
due regard to limitations in technology and economic reasonableness,
that any part or all of the cable system should be improved or upgraded
including, without limitation, the increasing of channel capacity,
it may by ordinance order such reasonable improvements or upgrading
of the cable system by the grantee within a reasonable time.
L.
Protection Of Subscriber's Privacy.
1.
Use of data from subscriber. A grantee shall not initiate
or use any form, procedure or device for procuring information or
data from subscribers' terminals by use of the network without prior
notification to and approval from each subscriber so affected.
2.
Subscriber lists. The grantee shall not, without prior valid
authorization from each subscriber so affected, provide any list designating
subscribers' names and addresses to any party.
3.
Subscriber transmissions. Grantee shall not permit the installation
of any special terminal equipment in any subscriber's premises that
will permit transmission from subscriber's premises of two-way services
utilizing audio, visual or digital signals without first obtaining
written permission of the subscriber.
4.
Audit unimpeded. No provision of this Section shall be construed
to impede or prevent any audit authorized or required by this Chapter.
M.
Program Alteration. Except as deletions are required by
law, all programs of broadcasting stations carried by the grantee
shall be carried in their entirety as received with announcements
and advertisements and without additions.
N.
Obscenity. No grantee when engaged in origination cablecasting
as defined by 47 CFR 5(W) in its basic services, in its premium services
or in any other service, shall transmit or permit the transmission
of material that is obscene.
[Ord. No. 269 §9, 5-4-1981]
A.
Open Books And Records. The grantee shall maintain an office
within the franchise territory and manage all of its operations in
accordance with a policy of totally open books and records. The grantor
shall have the right to inspect at any time during normal business
hours all books, records, maps, plans, income tax returns, financial
statements, service complaint logs, performance test results and other
like materials of the grantee which relate to the operation of the
franchise. Access to the aforementioned records shall be denied by
the grantee on the basis that said records contain "proprietary" information.
B.
Reports Required. The grantee shall file with the Village:
1.
FCC form 325. An "Annual Report of Cable Television Systems"
(FCC Form 325, Schedules 1, 2, 3 and 4).
2.
Facilities report. An annual total facilities report setting
forth the physical miles of plant constructed, rebuilt or in operation
during the fiscal year. Such report shall also contain any revisions
to the system "as built" maps filed with the Village.
3.
Subscriber data. The grantee's schedule of charges, contract
or application forms for regular subscriber service, policy regarding
the processing of subscriber complaints, delinquent subscriber disconnect
and reconnect procedures, and any other terms and conditions adopted
as the grantee's policy in connection with its subscribers shall be
filed with the Village and conspicuously posted in the grantee's local
office. All such terms and conditions, including schedule of charges,
must be approved by the Village prior to their becoming defective.
4.
Regulatory agencies and utility companies. All petitions,
applications and communications of all types submitted by grantee
to the Federal Communications Commission, Securities and Exchange
Commission, or any other Federal or State regulatory commission or
agency having jurisdiction over any matter affecting the operation
of grantee's system and any utility company from which grantee leases
poles shall be submitted simultaneously to the Village by delivering
to the Village Clerk who shall advise interested Village departments
of such filing. Copies of responses from the regulatory agencies and
utility companies to the grantee shall likewise be furnished simultaneously
to the grantor.
5.
Performance bond. The performance bond or a certified copy
thereof and written evidence of payment of required premium.
6.
Compliance bond. The compliance bond or a certified copy
thereof and written evidence of payment of required premium.
7.
Insurance policies. All policies of insurance or a certified
copy thereof and written notice of payment of required premium.
8.
Ownership report. An ownership report indicating all persons
who at any time during preceding year did control or benefit from
an interest in the franchise.
9.
Conduct of business rules. All rules, regulations, terms
and conditions which it has adopted for the conduct of its business.
10.
Technical measurements. One (1) copy of a report on the
system's technical measurements as set forth herein.
11.
Financial report. An annual fully audited and certified
report for the previous calendar year, including gross revenues from
all sources, gross subscriber revenues from each category of service,
net income and end-of-year balance sheet.
12.
Activities report. An annual summary of the previous year's
activities including, but not limited to, subscriber totals and new
services.
13.
Complaints. An annual summary of complaints received and
handled.
14.
Future plans. An annual projection of plans for the future.
15.
Reports due annually. All reports required in this Section
shall be required annually unless otherwise indicated. Deadlines for
said reports shall be established by regulation.
C.
Information Required.
1.
Maintenance of information. The grantee shall at all times
maintain:
a.
A
record of all complaints received and interruptions or degradation
of service experienced for the preceding three (3) years.
b.
A
full and complete set of plans, records and "as-built" maps showing
the exact location of all cable communication system equipment installed
or in use in the Village, exclusive of subscriber service drops.
2.
Filing. When not otherwise prescribed herein, all matters
required to be filed with the Village shall be filed with the Village
Clerk.
3.
Other records. The Village may impose reasonable requests
for additional information, records and documents from time to time.
4.
Inspection of property and records. At all reasonable times
grantee shall permit examination by any duly authorized representative
of the Village of all franchise property, together with any appurtenant
property of grantee situated within or without the Village. Grantee
shall also permit any duly authorized representative of the Village
to examine and transcribe any and all maps and other records kept
or maintained by grantee or under its control concerning the operations,
affairs, transactions or property of grantee. If any of such maps
or records are not kept in the Village, or upon reasonable request
make available to the Village, and if the Village shall determine
that an examination of such maps or records is necessary or appropriate
to the performance of any of their duties, then all travel and maintenance
expense necessarily incurred in making such examination shall be paid
by grantee.
D.
Maintenance And Complaints.
1.
Business offices. The grantee shall maintain appropriate
business offices in the franchise territory which shall be open during
all usual business hours, have a publicly listed toll-free telephone,
and be so operated to receive subscriber complaints and requests for
repairs or adjustments on a twenty (24) hour basis. A written log
shall be maintained listing all complaints and their disposition.
2.
Interruptions. The grantee shall render efficient service,
make repairs promptly, and interrupt service only for good pause and
for the shortest time possible. Such interruptions, insofar as possible,
shall be preceded by notice and shall occur during periods of minimum
use of the system. A written log shall be maintained for all service
interruptions.
3.
Repair force. The grantee shall maintain a repair force
of technicians capable of responding to subscriber complaints or refer
service within twenty (24) hours after receipt of the complaint or
request. No charge shall be made to the subscriber for this service.
4.
Information to subscribers. The grantee shall furnish each
subscriber at the time service is installed written instructions that
clearly set forth procedures, 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, and furnish information
concerning the Village office responsible for administration of the
franchise with the address and telephone number of the office.
E.
Rights Of Individuals.
1.
Equal rights. Grantee shall not deny service, deny access
or otherwise discriminate against subscribers, channel users or general
citizens on the basis of race, color, religion, natural origin, age
or sex. 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 non-discrimination which are hereby
incorporated and made part of this Chapter by reference.
2.
Equal employment. Grantee shall strictly adhere to the equal
employment opportunity requirements of the FCC and other Federal,
State and local laws and regulations as amended from time to time.
3.
Right of privacy in transmission. No signals of a Class
IV cable communications channel shall be transmitted from a subscriber
terminal for purposes of monitoring individual viewing patterns or
practices without the express written permission of the subscriber.
The request for such permission shall be contained in a separate document
with a prominent statement that the subscriber is authorizing the
permission in full knowledge of its provision. Such written permission
shall be for a limited period of time not to exceed one (1) year,
which shall be renewable at the option of the subscriber. No penalty
shall be invoked for a subscriber's failure to provide or renew such
an authorization. The authorization shall be revocable at any time
by the subscriber without penalty of any kind whatsoever. Such authorization
is required for each type of classification of Class IV cable television
activity planned; provided however, that the grantee shall be entitled
to conduct systemwide or individually addressed "sweeps" for the purpose
of verifying system integrity, controlling return path transmission,
or billing for pay services.
4.
Right of privacy in subscription. The grantee or any of
its agents or employees shawl not, without the specific written authorization
of the subscriber involved, sell or otherwise make available to any
party:
5.
Fairness of accessibility. The entire system of the grantee
shall be operated in a manner consistent with the principles of fairness
and equal accessibility of its facilities, equipment, channels, studios
and other services to all citizens, businesses, public agencies and
other entities having a legitimate use for the network; and no one
shall be arbitrarily excluded from its use; allocation of use of said
facilities shall be made according to the rules or decisions of the
grantee and any regulatory agencies affecting the same.
F.
Continuity Of Service Mandatory.
1.
Right to continuity. It shall be the right of all subscribers
to continue receiving service insofar as their financial and other
obligations to the grantee are honored. In the event that the grantee
elects to overbuild, rebuild, modify or sell the system or the Village
gives notice of intent to terminate or fails to renew this franchise,
the grantee shall act so as to ensure that all subscribers receive
continuous, uninterrupted service regardless of the circumstances.
In the event of a change of franchise or in event a new operator acquires
the system, the grantee shall cooperate with the Village, new franchisee
or operator in maintaining continuity of service to all subscribers.
During such period, grantee shall be entitled to the revenues for
any period during which it operates the system and shall be entitled
to reasonable costs for its services when it no longer operates the
system.
2.
Upon failure Village may operate. In the event grantee fails
to operate the system for seven (7) 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 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.
G.
Grantee Rules And Regulations. 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 said franchise and to assure an 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 local, State and Federal laws, rules and regulations.
Such rules, regulations, terms and conditions shall be submitted to
the Village for its review and Village approval is required prior
to their becoming effective.
[Ord. No. 269 §10, 5-4-1981]
A.
Right To Purchase The System. The grantor may in any lawful
manner and upon the payment of a fair valuation lawfully ascertain,
purchase, condemn, acquire, take over and hold the property and plant
and contract rights of the grantee in whole or in part; if such purchase
or taking over be upon revocation of the franchise or at the expiration
of the term of the franchise, such valuation shall not include any
sum for the value of the franchise under which such plant and property
is being operated.
B.
Right Of Inspection Of Records. There shall be kept in the
grantor's office a separate record for the franchise, which record
shall show the information described below in this Section. The grantee
shall provide such information in such form as may be required by
the grantor for said records.
1.
Costs. The true and entire cost of construction of equipment,
of maintenance and of the administration and operation thereof; the
amount of stock issued, if any; the amount of cash paid in, the number
of par value of shares, the amount and character of indebtedness,
if any; the rate of taxes, the dividends declared; the character and
amount of all fixed charges; the allowance, if any, for interest,
for wear and tear or depreciation; all amounts and sources of income.
2.
Collections. The amount collected annually from the Village
Treasury and the character and extent of the service rendered therefor
to them.
3.
Other revenues. The amount collected annually from other
users of service and the character and extent of service rendered
to them.
4.
Public inspection. The books of records kept by the grantor
shall be open to public examination at any time during the business
hours of the grantor's office. The information, in addition to any
further data which may be required by the grantor, shall be furnished
by the grantee to the grantor upon the request and at the grantee's
own cost and expense. The grantor shall have the right to inspect
all books, records, maps, plans, income tax returns, financial statements
and other like material of the grantee at any time during normal business
hours.
C.
Right Of Inspection Of Construction. The grantor shall have
the right to inspect all construction or installation work performed
subject to the provisions of said franchise and to make such tests
as it shall find necessary to ensure compliance with the terms of
said franchise and other pertinent provision of law.
D.
Right Of Intervention. The grantor shall have the right
of intervention in any suit or proceeding to which the grantee is
party, and the grantee shall not oppose such intervention by the grantor.
E.
Right To Require Removal Of Property. At the expiration
of the term for which the franchise is granted or upon its revocation
or expiration as provided for herein, the grantor shall have the right
to require the grantee to remove, at its own expense, any or all portions
of the cable communications system for all streets and public ways
within the Village.
[Ord. No. 269 §11, 5-4-1981]
Right Of Grantee. Should the grantee become
dissatisfied with any material decision or ruling of the grantor pertaining
to cable communications matters, the grantee may pursue such other
remedies as are available, including the bringing of actions in any
court of competent jurisdiction.
[Ord. No. 269 §12, 5-4-1981]
A.
Compliance With Village, State And Federal Laws. Notwithstanding
any other provisions of this Chapter to the contrary, the grantee
shall at all times comply with all laws and regulations of the Village,
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 this 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 this franchise.
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 shall have the right to modify any of the
herein to such reasonable extent as may be necessary to carry out
the full intent and purpose of this agreement.
B.
Notices. All notices from grantee to the Village pursuant
to this franchise shall be to the Village Clerk. Grantee shall maintain
with the Village, throughout the term of this franchise, an address
for service of notices by mail. Grantee shall also maintain within
the WCCTVC franchise territories, appropriate local offices and telephone
numbers for the conduct of matters related to this franchise during
normal business hours.
C.
Public Notice. Minimum public notice of any public meeting
relating to this franchise shall be by publication at least once in
a newspaper of general circulation in the area at least ten (10) days
prior to the meeting, posting by Village Clerk and by announcement
on at least two (2) channels of the grantee's cable communications
system between the hours of 7:00 P.M. and 9:00 P.M. for five (5) consecutive
days prior to the meeting.
D.
Captions. The captions to Sections throughout this Chapter
are intended solely to facilitate reading and reference to the Sections
and provisions of this Chapter. Such captions shall not affect the
meaning or interpretation of this Chapter.
E.
No Recourse Against The Grantor. The grantee shall have
no recourse whatsoever against the grantor or its officials, boards,
commissions, agents or employees for any loss, cost, expense or damage
arising out of any provision or requirement of the franchise or because
of the enforcement of the franchise.
F.
Non-Enforcement By The Grantor. The grantee shall not be
relieved of its obligation to comply with any of the provisions of
this Chapter or said franchise by reason of any single or repeated
failure of the grantor to enforce compliance.
G.
Liquidated Damages Chargeable Against Grantee. Upon a finding
by the Village, after reasonable notice to the grantee, that the grantee
has failed to timely comply with any requirements of this Chapter
and that such failure was not due to conditions beyond grantee's control,
the Village shall charge grantee five hundred dollars ($500.00) per
day for each day or part thereof the deficiency continues. Liquidated
damages so charged are not in lieu of other damages that might be
recoverable from grantee.
H.
Theft Of Services And Tampering.
1.
Violation. No person whether or not a subscriber to the
cable system may intentionally or knowingly damage or cause to be
damaged any wire, cable, conduit, equipment or apparatus of grantee,
or commit any act with intent to cause such damage, or to tap, tamper
with or otherwise connect any wire or device to a wire, cable, conduit,
equipment and apparatus or appurtenances of grantee with the intent
to obtain a signal or impulse from the cable system without authorization
from grantee and compensation (at grantee's option) to the grantee,
or to obtain cable television or other communications service with
intent to cheat or defraud grantee of any lawful charge to which it
is entitled.
2.
Punishment. Any person convicted of violating any provision
of this Section is subject to a fine of not more than five hundred
dollars ($500.00) for each offense or imprisonment of not more than
ninety (90) days, or both such fine and imprisonment. Each day's violation
of this Section shall be considered a separate offense.
I.
Subsequent Action By State Or Federal Agencies. Should the
State of Missouri, the FCC or any other agency of the Federal Government
subsequently require the grantee to deliver any signals in addition
to those required by this franchise or to perform any act which is
inconsistent with any provisions of the franchise, the grantee shall
so notify the grantor. Upon receipt of such notification, the grantor
shall determine if a material provision of the franchise is affected.
Upon such determination, the grantor shall have the right to modify
or amend any of the Sections of the franchise to such reasonable extent
as may be necessary to carry out the full intent and purpose of the
franchise. The grantor may terminate the franchise in the event the
grantor determines that substantial and material compliance with the
original proposed terms of the franchise has been frustrated by such
State or Federal requirement.
[Ord. No. 269 §13, 5-4-1981]
Franchise Processing Fee. The grantee shall
be required to reimburse the grantor for costs expended in soliciting
and evaluating applications and processing the franchise award to
the extent that such costs are not recovered from application fees.
[Ord. No. 269 §14, 5-4-1981]
A.
Obligation. Any franchise given to a subsidiary of a corporation,
either wholly owned or controlled, shall be guaranteed by the parent
or controlling corporation. Said guarantee by the parent or controlling
corporation shall guarantee faithful performance of all the terms
of said franchise and the payment of all damages, costs and expenses
which by virtue of the franchise might become recoverable by the Village
from the grantee.
B.
Terms Of Guaranty. This guaranty shall continue throughout
the term of the franchise, and the guarantor (the said parent or controlling
corporation) shall not be released of its obligation so long as any
claim of the Village against the grantee arising out of the foregoing
franchise is not settled or discharged in full.
C.
Benefit. The guaranty shall inure to the benefit of the
Village or its assigns, and shall be binding upon the guarantor and
its successors.
D.
Other Ownership. If an entity to which a franchise is awarded
is owned or controlled by something other than a corporation(s), the
Village shall have full authority to require appropriate guaranty
from any individual, partnership, association, organization or any
lawful successor, transferee or assignee as the Village deems necessary
to protect: the public interest. This authority shall likewise exist
if the entity to which a franchise has been awarded is controlled
or owned by a combination of corporation(s) and any entities herein
listed.
[Ord. No. 269 §15, 5-4-1981]
Any ordinance awarding a franchise to a specific company and
this Chapter shall be accepted by the Grantee by written instrument
executed and acknowledged by it as a deed is required to be and filed
with the Village Clerk within thirty (30) days after notification
of the passage of the ordinance awarding a franchise. Such written
instrument shall state and express the acceptance of this Chapter
and the ordinance awarding a franchise and their terms, conditions
and provisions; and said grantee shall agree in said instrument to
abide by, to observe and perform same, and declare that statements
and recitals therein are correct and that it has made and does make
the agreements, statements and admissions in the ordinances recited
to have been or to be made.
