[Adopted 7-13-1998 by Ord. No. 28]
This article shall be known as the "Cable Television Ordinance."
Unless the particular provision or context requires, the definition
and provisions contained in this section shall govern the construction,
meaning and application of words and phrases used in this article.
The definition of each word or phrase shall constitute, to the extent
applicable, the definition of each word or phrase which is derivative
from it, or from which it is a derivative.
The simultaneous delivery by the grantee to the television,
radio or other appropriate communications receiver of a subscriber
of all signals of over-the-air broadcasters required by the Federal
Communications Commission or this article to be carried by the cable
television system of the grantee, together with such additional public,
educational, governmental, leased or other access channels or signals
as may be likewise required by law, but not including pay or subscription
television as defined by the Federal Communications Commission.
A committee of the Township Board consisting of three board
members, appointed by the Township Supervisor, which shall be directly
responsible for overseeing and controlling the granting of a franchise
pursuant to this article, and for overseeing any franchise which may
be granted.
A system employing antennas, microwaves, wires, wave guides,
coaxial cables or other conductors, equipment or facilities designed,
constructed or used for the purpose of:
Collecting and amplifying local or distant broadcast television
or radio signals and distributing and transmitting same;
Transmitting original cablecast programming not received through
television broadcast signals;
Transmitting television pictures, film and videotape programs
not received through broadcast television signals, whether or not
encoded or processed to permit reception by only selected receivers;
provided, however, that any of the services permitted hereunder to
be performed as described above shall be those performed by the grantee
for subscribers, as herein defined, in the operation of a cable television
or CATV system franchised by the Township and not otherwise, and provided
further that such term shall not include any such facility or system
that serves only the residents of one or more apartment dwelling or
commercial establishments under common ownership, control or management.
Includes any authorization granted hereunder in terms of
a franchise, privilege, permit, license or otherwise to construct,
operate and maintain a cable television system within the Township
of Three Oaks.
The territory within the Township throughout which the grantee
shall be authorized hereunder to construct, maintain and operate its
system.
Any person, firm or corporation receiving the grant of any
franchise hereunder, and shall include any lawful successor to the
interest of such person, firm or corporation.
Any person or entity receiving for any purpose any service
of the grantee's cable television system, including, but not limited
to, the conventional cable television system service of retransmission
of television broadcast, radio signals, the grantee's original cablecasting
and the local government, education and public access channels; and
other services, such as leasing of channels, data and facsimile transmission,
pay television, and police, fire and similar public service communication.
The Township of Three Oaks.
The Board of the Township of Three Oaks.
A nonexclusive franchise to install, construct, operate and
maintain a cable television system on streets and public ways within
the Township of Three Oaks, pursuant to the terms of this article
and any amendments hereto, is hereby granted to Michiana Cablevision
LLC.
Any franchise granted pursuant to the provisions of this article,
including the franchise herein granted, shall authorize and permit
the grantee to do the following:
A.Â
Erect, install, construct, repair, replace, reconstruct, maintain
and retain in, on, over, under, across and along any public street,
alley, way or place now laid out and dedicated and all extensions
thereof, such poles, wires, cable, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments and other property as
may be necessary and appurtenant to the CATV system; and, in addition,
so to use, operate and provide similar facilities or properties rented
or leased from other persons, firms, or corporations, including, but
not limited to, any public utility or other grantee of any franchise
of the Township.
B.Â
Maintain and operate facilities and properties for the collection,
transmission, conduction, amplification, conversion and distribution
of programs and other services by use of electricity, radiation or
other energy source.
C.Â
Solicit, sell, distribute and make charge to subscribers within the
Township for connection to the CATV system or grantee.
The grantee of a franchise to construct, operate or maintain
any CATV system in the Township shall file with the Township Clerk,
not later than the date of its acceptance of the franchise, the following:
A.Â
The name, address and telephone number of the grantee.
B.Â
A detailed statement of the corporate or other business entity organization
of the applicant, including, but not limited to, the following:
(1)Â
The names, residence addresses and business addresses of all
officers, directors and partners or business associates of the grantee.
(2)Â
The names, residence addresses and business addresses of all
persons and entities having an ownership interest in the grantee and
the respective ownership share of each such person or entity.
(3)Â
The names and addresses of any parent or subsidiary of the grantee
and of any other business entity owning or controlling in whole or
in part or owned or controlled in whole or in part by the grantee,
and a statement describing the nature of any such parent or subsidiary
business entity, including, but not limited to, all CATV or similar
systems owned or controlled by the grantee, its parent or subsidiary
and the area served thereby.
(4)Â
A detailed and complete financial statement of the grantee prepared
by a certified public accountant, for the fiscal year next preceding
the date of the franchise hereunder, or a letter or other acceptable
evidence, in writing, from a responsible lending institution or funding
source, addressed to both the grantee and the Board, containing a
clear statement of its intent as a lending institution or funding
source to provide whatever capital shall be required by the grantee
to construct and operate the proposed system in the Township, or a
statement from a certified public accountant, certifying that the
grantee has available sufficient free, net and uncommitted cash resources
to construct and operate the proposed system in this Township.
C.Â
A detailed description of the plan of operation of the grantee, which
shall include, but not be limited to, the following:
(1)Â
A detailed map indicating all areas proposed to be served, routes
to be taken, a diagram of the equipment which will be exposed and
a time schedule for the installation of all equipment necessary to
become operational throughout the entire area to be served.
(2)Â
A detailed statement describing the actual equipment and operational
standards to be used by the grantee.
D.Â
A copy of the form of any agreement, undertaking or other instrument
to be entered into between the grantee and any subscriber.
E.Â
Any other information pertinent to the grant of the franchise and
requested by the Township Board.
In addition to any other franchise requirements hereunder, or
made or adopted as herein provided, the following requirements shall
apply to any franchise granted or renewed by the Township Board under
this article.
A.Â
Franchise payments, operations within franchise area. In consideration
of the granting and exercise of a franchise to use the streets of
the franchise area for the purpose of operating a cable television
system for the use and benefit of subscribers therein, the grantee
shall pay yearly to the Township, during the entire time of any franchise
granted pursuant to this article, an annual franchise fee equal to
3% of the grantee's yearly gross revenues derived from all cable services
provided by grantee within the Township, or $250, whichever is greater.
B.Â
Franchise payments not in lieu of taxes. Any franchise payments to
the Township by the grantee shall not be in lieu of any occupation,
income, license or property tax or similar levy, assessment or charge
which would otherwise apply to and be payable by the grantee.
C.Â
Corporate surety bond re: Township. The grantee shall file with the
Township Clerk and shall thereafter during the entire term of such
franchise maintain in full force and effect a corporate surety bond
or other adequate surety agreement in the amount of $15,000 and conditioned
that, in the event the grantee shall fail to comply with any one or
more of the provisions of such franchise, then there shall be recoverable
jointly and severally from the principal and surety any damages or
costs suffered or incurred by the Township or by any subscriber as
a result thereof, including attorneys' fees and costs of any action
or proceeding, and including the full amount of any compensation,
indemnification, cost of removal of any property or other costs which
may be incurred up to the full principal amount of such bond; and
said condition shall be a continuing obligation during the entire
term of such franchise and thereafter until the grantee shall have
satisfied in full any and all obligations to the Township and any
subscriber which arise out of or pertain to said franchise. Neither
the provisions of this section, nor any bond accepted by the Township
pursuant hereto, nor any damages recovered by the Township thereunder
shall be construed faithful to excuse performance by the grantee,
or limit the liability of the grantee under any franchise.
D.Â
Comprehensive liability insurance. Upon acceptance of such franchise,
the grantee shall file with the Township Clerk and shall thereafter,
during the entire term of such franchise, maintain in full force and
effect a comprehensive liability policy of insurance with limits of
not less than $500,000 for property damage to any one person, $500,000
for property damage in any one accident, $500,000 for personal injury
to any one person and $1,000,000 for personal injury in any one accident,
or such higher amounts as the Township Board may fix in any amendment
hereto, and of such insuring institution, form, and substance as shall
be approved by the Committee, and which shall assure grantee, and
shall provide primary coverage for the Township, its officers, board,
committees, agents and employees against liability for loss or damage
for personal injury, death, and property damage occasioned by any
activity or operation of grantee under such franchise.
E.Â
Hold harmless agreement. The grantee shall indemnify and hold harmless
the Township, its officers, board, committees, agents and employees
against and from any and all claims, demands, causes of actions, actions,
suits, proceedings, damages (including, but not limited to, damages
to Township property and damages arising out of copyright infringements,
and damages arising out of any failure by grantee to secure consents
from the owners, authorized distributors or licensees of programs
to be delivered by the grantee's cable television system), costs or
liabilities (including costs or liabilities of the Township with respect
to its employees) of every kind and nature whatsoever, including,
but not limited to, damages for injury or death or damage to person
or property, and regardless of the merit of any of the same, against
all liability to others, and against any loss, cost and expense resulting
or arising out of any of the same, including any attorney fees, accountant
fees, expert witness or consultant fees, court costs, per diem expense,
traveling and transportation expense or other costs or expense arising
out of or pertaining to the exercise or the enjoyment of any franchise
hereunder by the grantee or the granting thereof by the Township.
F.Â
Defense of litigation. The grantee shall, at the sole risk and expense
of the grantee, upon demand of the Township made by and through the
Township Attorney, appear in and defend any and all suits, actions
or other legal proceedings, whether judicial, quasi-judicial, administrative,
legislative or otherwise, brought or instituted or had by third persons
or duly constituted authorities, against or affecting the Township,
its officers, board, committees, agents or employees, and arising
out of or pertaining to the exercise or the enjoyment of such franchise,
or the granting thereof by the Township.
A.Â
Within 30 days after acceptance of any franchise, the grantee shall
proceed with due diligence to obtain all necessary permits and authorizations
which are required in the conduct of its business, including, but
not limited to, any utility joint-use attachment agreements, microwave
carrier licenses, and any other permits, licenses and authorizations
to be granted by duly constituted regulatory agencies having jurisdiction
over the operation of cable television systems, or associated microwave
transmissions facilities. In connection therewith, copies of all petitions,
applications and communications submitted by the grantee to the Federal
Communication Commission, or any federal or state regulatory commission
or any agency having jurisdiction in respect to any matters affecting
the grantee's cable television operations, shall also be submitted
simultaneously to the Committee.
B.Â
Within 30 days after obtaining all necessary permits, licenses and
authorizations, including right of access to poles and conduits, the
grantee shall commence construction and installation of the CATV system.
C.Â
The grantee shall extend trunk cable to those sections of the franchise
area which meet the general density of standard of at least eight
single households per 1,056 feet of cable or 40 single households
per mile of cable. Whenever the grantee shall receive a request for
service from at least eight households within 1,056 feet of its distribution
cable, it shall extend its system to such households at no cost to
the subscriber for system extension other than the usual connection
fees for all subscribers, provided that such extension is technically
and physically feasible. The 1,056 feet shall be measured in extension
length of the grantee's cable required for service located within
the public way or easement and shall not include length of necessary
service drop to the subscriber's residence or premises. For unusual
circumstances, such as more than 300 feet of distance from distribution
cable to connection of service to subscriber, or a density of less
than eight single households per 1,056 feet of strand plant, in order
that existing subscribers shall not be unfairly burdened, service
may be made available on the basis of an installation or connection
payment by the prospective subscriber(s) to the grantee to reimburse
the grantee for its costs of materials, labor and easements.
D.Â
The CATV system constructed by the grantee shall conform to the information
and specifications contained in its proposal to the Township and which
formed part of the basis for granting this franchise.
E.Â
Within two years after the commencement of construction and installation
of the system, the grantee shall complete construction of the facilities
needed to permit the reception of broadcast signals, the origination
of programming within the Township and the distribution of signals
to the franchise area; provided, however, the Board may approve exceptions
to this requirement upon a showing by the grantee of undue hardship
or expense.
F.Â
Failure on the part of the grantee to commence and diligently pursue
each of the foregoing requirements and to complete each of the matters
set forth herein shall be grounds for termination of such franchise.
G.Â
The 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 without first securing
the written approval of the Committee. Any poles, conduits or other
facilities of the grantee to be installed in, under, over, along,
across or upon a public street, alley, way or place shall be so located
so as to cause minimum interference with the public use of the streets
and to cause minimum interference with the rights of other users of
the streets, alleys, ways or places or of property owners who adjoin
any of the streets, alleys, ways, or places. In the event of disturbance
of any public street, alley, place or way by the grantee, it shall,
at its own expense, promptly replace and restore such street to as
good a condition as before the work causing such disturbance was performed,
and to the satisfaction of the Committee.
H.Â
In all sections of the Township where all existing cables or other
like facilities of utility companies are presently or subsequently
placed underground, the grantee shall place its cable or like facilities
underground at the grantee's expense.
I.Â
The Township shall have the right, free of charge, to make additional
use, for any public or municipal purpose, whether governmental or
proprietary, of any poles, conduits or other facilities erected, controlled,
or maintained exclusively by or for the grantee in any street or other
public way or public place, provided such use by the Township does
not interfere with the use by the grantee.
J.Â
The grantee shall, at the expense of the grantee, protect, support,
temporarily disconnect, or temporarily relocate any property of the
grantee when, in the opinion of the Committee, the same is required
by reason of street construction, change or establishment of street
grade, installation of sewers, drains, water pipes, power lines, or
signal lines.
K.Â
In the event the use of any part of the system of the grantee is
discontinued for any reason for a continuous period of 30 days, without
prior written notice to and approval by the Committee, or in the event
any part of such system has been installed in any street or other
area without complying with the requirements hereof, or in the event
any franchise shall be terminated, canceled, or shall expire, the
grantee shall, at the option of the Township, and at the expense of
the grantee and at no expense to the Township, promptly remove from
any street or other area all property of the grantee, and the grantee
shall promptly restore the street or other area from which such property
has been removed to such condition as the Committee shall approve,
provided the Township Board may, upon written application therefor
by the grantee, approve the abandonment of any such property in place
by the grantee and under such terms and conditions as the Township
Board may prescribe; and upon abandonment of any such property in
place, the grantee shall cause to be executed, acknowledged and delivered
to the Township such instruments as shall be approved by the Committee,
conveying the ownership of such property to the Township.
L.Â
Upon the failure, refusal or neglect of the grantee to cause any
work or other act required by law or by this article to be completed
in, on, over, or under any street within any time prescribed therefor,
or upon notice given, where notice is prescribed, the Committee may
cause such work or other act to be completed in whole or in part,
and upon so doing shall submit to the grantee an itemized statement
of the costs thereof, and the grantee shall, within 30 days after
receipt of such statement, pay unto the Township the entire amount
thereof.
A.Â
General rules. The CATV system of a grantee receiving a franchise
shall:
(1)Â
Be capable of relaying to subscriber terminals television and
radio broadcast signals;
(2)Â
Be constructed with the capability of two-way digital signal
transmission;
(3)Â
Distribute color television signals which it receives;
(4)Â
Be constructed and operated so as not to interfere with the
television reception of persons not served by the grantee and so as
not to interfere with, obstruct or hinder in any manner the operation
of any utility serving the Township;
(5)Â
Be initially constructed to provide a channel capacity of 35
channels and be easily upgradable to 55 channels;
(6)Â
Be equipped with an emergency alert override enabling emergency
interruption of all programs for the delivery of signals necessitated
by the occurrence of an emergency;
(7)Â
Provide at least one channel, without charge, for exclusive
use of the Township and other governmental agencies;
(8)Â
Provide at least one channel, without charge, for use by the
public school system; provided, however, the Township Board may waive
this requirement at the time a franchise is granted if the franchise
so granted provides for the addition of said channel by the grantee
at the request of the Township Board, after the Township Board has
determined there is a demand for said channel;
(9)Â
Provide at least one channel as a public access channel for
use by civic groups and interested citizens; provided, however, the
Township Board may waive this requirement at the time a franchise
is granted if the franchise so granted provides for the addition of
said channel by the grantee at the request of the Township Board after
the Township Board has determined there is a demand for said channel.
B.Â
Additional services. The cable television system may also engage
in the business of:
(1)Â
Transmitting the original cablecast programming not received
through television broadcast signals;
(2)Â
Transmitting television pictures, film and videotape programs
not received through broadcast television signals, whether or not
encoded or processed to permit reception by only selected receivers
or subscribers;
(3)Â
Transmitting and receiving all other signals: digital, voice
and audiovisual.
C.Â
Refusal of service. No person, firm or corporation within the service
area of the grantee, and where trunk lines are in place, shall be
refused service; provided, however, that the grantee shall not be
required to provide service to any subscriber who does not pay the
applicable connection fee or service charges.
D.Â
Service standards. The grantee shall:
(1)Â
Correct malfunctions promptly but in no event later than 24
hours after occurrence; in the event it should be impossible or impractical
to correct any malfunctions within 24 hours, then each subscriber
whose reception is so disrupted shall receive a rebate from the grantee
in the amount of 1/30 of such subscriber's monthly charge for every
additional twenty-four-hour period that said subscriber's television
reception is so disrupted, unless said disruption in service was entirely
beyond the control of the grantee;
(2)Â
Answer all complaints by subscribers;
(3)Â
Planned interruptions of service, insofar as possible, shall
be preceded by a notice given to subscribers 24 hours in advance and
shall occur during periods of minimum use of the system;
(4)Â
Maintain an office in the Township, which office shall be open
during the usual business hours, with a local telephone number listed
in directories of the telephone company serving the Township, which
office shall be so operated that complaints and requests for repairs
or adjustments may be received at any time, 24 hours a day, seven
days a week; provided, however, that the Township Board may waive
the requirements of maintaining an office in the Township if the grantee
shall maintain an office in the area subject to the same standards
as if in the Township, and provide an agent in the Township to receive
payments and accept complaints; and
(5)Â
Provide notice of such office, or area office and local agent,
and the grantee's complaint procedure to each subscriber at the time
of initial subscription to the system.
E.Â
Complaint procedures. The committee shall have primary responsibility
for the administration of complaints regarding cable television franchises,
and shall adopt procedures to be followed in resolving and processing
such complaints.
F.Â
Content. The grantee shall not send, transmit, retransmit or otherwise
pass through its system any material, audio or visual, which is obscene
under state or local law or any motion picture which has been rated
"X" by the Motion Picture Film Board.
G.Â
Failure to provide service. Any grantee of any franchise hereunder
who shall, within one year after the payment of any installation charge
by any subscriber, fail to operate its system or make its system available
to such subscriber on a regular and continuous basis shall refund
the installation charge to such subscriber, together with interest
thereon at not less than 5% per year.
H.Â
The grantee shall provide, without charge, one cable television outlet
on each floor of all existing or future police stations, fire stations,
public schools and private schools located in the Township. The grantee
shall provide, without charge, basic service to each of the above-mentioned
cable television outlets. In addition, the grantee shall, without
charge, provide C-Span to each outlet in each public or private school.
The grantee shall provide, without charge, one cable television outlet
to the Three Oaks Township Hall.
In addition to any other franchise limitations hereunder or
as herein provided, the following limitations shall apply to any franchise
granted or renewed by the Township Board under this article.
A.Â
Nature of franchise. The franchise shall be nonexclusive, and neither the granting thereof nor any of the provisions contained herein shall limit, abridge, diminish, alter, or affect the right, privilege, power, or authority of the Township Board; and the Township Board hereby reserves and preserves the right to grant any identical or similar or different franchise to any person, firm or corporation other than grantee either within or without or partly within or partly without the franchise area of any grantee, subject only to the restrictions provided in § A400-14 of this article. No privilege or exemption shall be granted or conferred by any franchise except those specifically prescribed in this article.
B.Â
Subordination of franchise privileges. The grant of any privilege
by any franchise hereunder shall be subordinate to any prior lawful
occupancy of any street or public property or to the grant of any
privilege under any other franchise of prior date, insofar as there
shall be any conflict.
C.Â
Transfer of franchise.
(1)Â
Any franchise granted hereunder shall be a privilege to be held
in personal trust by the original grantee. It cannot, in any event,
be sold, transferred, leased, assigned, or disposed of in whole or
in part, either by forced or involuntary sale, or by voluntary sale,
merger, consolidation, or otherwise without prior written consent
of the Township Board and then only under such conditions as may therein
be prescribed. Notice and request for approval of any proposed sale
or transfer of this franchise must be given to the Township Board
not later than 90 days before the proposed sale or transfer. Any such
transfer or assignment shall be made only by an instrument in writing,
such as a bill of sale or similar document, a duly executed copy of
which shall be filed in the office of the Township Board within 30
days after any such transfer or assignment. The said consent of the
Township Board may not be unreasonably refused; provided, however,
the proposed assignee must show financial responsibility as determined
by the Township Board and must agree to comply with all the provisions
of the franchise and of this article; and provided, further, that
no such consent shall be required for a transfer in trust, mortgage
or otherwise, in whole or in part, to secure an indebtedness, except
that when such transfer shall exceed 50% of the market value of the
property used by the franchisee in the conduct of the cable television
system, prior consent of the Township Board shall be required for
such a transfer. Such a consent shall not be withheld unreasonably.
(2)Â
Prior approval of the Township Board, expressed by resolution,
shall be required where there is an actual change in control or where
ownership of more than 30% of the voting stock of the grantee is acquired
by a person or group of persons acting in concert, none of whom already
own 30% or more of the voting stock, singly or collectively.
D.Â
Term of franchise. The franchise granted by the Township Board under
this article shall be for a term of 15 years, from the date of acceptance
of this franchise by the grantee, unless terminated prior to its expiration
as herein provided. Any franchise renewal shall be subject to the
prior approval of the Township Board.
E.Â
Review of franchise. Every five years after the effective date of
the franchise, the Board and the grantee shall jointly review the
performance of the grantee's operation and, specifically, the Township
Board will inquire whether the grantee is supplying a level and variety
of services equivalent to those being generally offered at the time
in the industry in comparable market situations. In the event that
the grantee desires to change or modify its obligations under its
franchise, it may negotiate with the Township Board to do so at that
time. Within 60 days of the conclusion of the review, the Township
Board and the grantee shall report in public proceeding the result
of their review and their conclusions. The Township Board may then
order unilateral changes in the franchise rights and obligations of
the grantee where said changes cause no economic impact. Any changes
that cause substantial adverse economic impact shall be the subject
of negotiations with the grantee. Any disputes hereunder shall be
resolved by arbitrators, one selected by each party and the third
selected by the other two, whose decision shall be final. The arbitrators
are to base their decision on what is fair and equitable to all concerned.
F.Â
Recourse against Township. The grantee shall have no recourse or
remedy whatsoever against the Township for any loss, cost, expense,
or damage arising out of or with respect to any franchise hereunder,
or this article, or the enforcement thereof.
G.Â
Township rules and regulations. The grantee shall be subject to all
ordinances, rules, regulations, and specifications of the Township
heretofore or hereafter established, including, but not limited to,
those pertaining to works and activities in, on, over, under and about
streets.
H.Â
Prohibited activities of grantee. The grantee shall be prohibited
from directly or indirectly doing any of the following:
(1)Â
Engaging in the business of selling at retail, leasing, renting,
repairing or servicing of television sets or radios;
(2)Â
Soliciting, referring, or causing or permitting the solicitation
or referral of any subscriber to persons engaged in any business herein
prohibited to be engaged in by the grantee;
(3)Â
Providing information concerning the viewing patterns of identifiable
individual subscribers to any person, group or organization for any
purpose, without the consent of the subscriber;
(4)Â
Entering or encroaching upon or interfering with or obstructing
any private property without the express consent of the owner;
(5)Â
Providing any repair service to its subscribers for a fee, which
repair extends beyond the connection of its service or the determination
by the grantee of the quality of its signals to the recipients thereof.
A.Â
At the start of providing CATV service to the Township, the grantee
shall provide and distribute through the CATV system at least those
channels and services shown in Exhibit A, which is attached hereto
and incorporated herein by this reference.[1] The initial rates and charges allowable to the grantee
shall not be greater than the rates and charges shown in the above-mentioned
Exhibit A attached hereto. The grantee shall not request an increase
in the above-referred-to rates during its first year of providing
CATV service to the Township, unless said increase, if granted, would
not become effective until the completion of the first year of service
to the Township.
[1]
Editor's Note: Exhibit A is on file in the Township office.
B.Â
The rates and charges provided for in this section shall not be change
at any time after the granting of the franchise, except by authority
of the Township Board, and upon written request by the grantee, provided
that prior to authorizing the change of any rates or charges of the
grantee to subscribers at any time after granting of the franchise,
the Township Board shall first pass its resolution of intention to
do so, describing and stating any rates or charges to be changed,
the reasons of the Township Board therefor, fixing a day, hour, and
place certain when and where any persons having an interest therein
may appear before the Township Board and be heard and directing the
Township Clerk to publish notice of such hearing at least once. The
Township Clerk shall cause such notice to be published in a newspaper
of general circulation within the Township, and the same shall be
published and a copy thereof shall be mailed to the grantee hereunder
at least 10 days prior to the date specified for hearing thereon.
At the time set for such hearing, or at any adjournment thereof, the
Township Board shall proceed to hear and pass on all presentations
made before it, and the decision of the Township Board thereon shall
be final and conclusive. If the Township Board shall find that a change
of rates or charges is justified by a change in cost of operation,
the Township Board shall approve the changes in rates.
A.Â
The grantee shall at all reasonable times, and to the extent necessary
to carry out the provisions of this article, permit any duly authorized
agent or representative of the Township to examine all franchise property
of the grantee, together with any appurtenant property of the grantee
situated within or without the Township, and to examine and transcribe
any and all maps and other records kept or maintained by the grantee
or under the control or direction or at the request of the grantee
which appertain to the franchise operations, affairs, transactions
or property of the grantee.
B.Â
The grantee shall prepare and furnish to the Committee, at such times
and in such form as prescribed by the Committee, reference and materials
with respect to the operations, affairs, transactions, or property
of the grantee as may be reasonably necessary or appropriate to the
performance of any of the duties of the Committee.
Failure, refusal, or neglect by the grantee to comply with any
requirement herein or any term or condition of a franchise issued
hereunder shall be sufficient cause for termination of any franchise
by the Township as follows:
A.Â
Upon the continuing of any such failure, refusal, or neglect for
a period or 10 days next following written demand by the Committee
that the grantee do or comply with any such requirement, limitation,
term or condition, the Committee may cause to be placed on the agenda
of a regular session of the Township Board its request for termination
of such franchise, and in such case, the Committee shall cause to
be served upon such grantee, at least 15 days prior to the date of
such session of the Township Board, a written notice of its intent
to request such termination at the time and place of such session.
B.Â
At such session of the Township Board, or any adjournment thereof,
the Township Board shall consider the request of the Committee and
shall hear any persons desiring to be heard, and shall determine whether
or not such failure, refusal, or neglect by the grantee was with just
cause.
C.Â
If the Township Board shall determine such failure, refusal, or neglect
by the grantee was without just cause, then the Township Board may
pass its resolution declaring that the franchise of such grantee shall
be terminated and forfeited unless there be compliance by the grantee
within 15 days, and such resolution shall operate to declare such
franchise terminated and forfeited on the 15th day next following
the passage thereof, and without further notice to the grantee, unless
the grantee shall so comply within such fifteen-day period, such termination
and forfeiture to become effective for all purposes 180 days thereafter.
D.Â
Within 180 days after such declaration of termination and forfeiture, the grantee may sell, remove, or transfer the entire systems of the grantee, subject to the provisions of § A400-19C of this article, and upon any such sale or transfer in addition to any other rights hereunder or otherwise, the Township shall have a lien (next in order of preference to any liens or encumbrances existing of record on the date of such termination and forfeiture) against any and all proceeds thereof in the full amount of any loss, cost, expense or other financial detriment incurred by the Township in the exercise of any right hereunder, or by reason of such termination and forfeiture.
E.Â
If the grantee shall fail to or refuse to sell, remove or transfer
the entire system of the grantee as hereinabove provided, and regardless
of the exercise of any other right of the Township hereunder, then
the Township may institute appropriate court action to enforce requirements
of this section.
If any section, subsection, sentence, clause, phrase or portion
of this article is for any reason held to be invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent provision, and such holding
shall not affect the validity of the remaining portions hereof.
A.Â
The franchise herein granted shall not become effective for any purpose
unless and until a written acceptance thereof shall have been filed
with the Township Clerk, and such written acceptance shall operate
as an acceptance of each and every term and condition and limitation
contained in this article.
B.Â
Such written acceptance shall be filed by the grantee with the Township
Clerk not later than 30 days after grant of the franchise as provided
above, and in default of such written acceptance as herein required,
the grantee shall be deemed to have rejected the same and the franchise
herein granted shall be null and void.
If the grantee accepts the franchise herein granted, then the
grantee shall assume the cost of publication of this article as such
publication is required by law. Upon the grantee's acceptance of the
franchise as provided herein, the Township Clerk shall present the
bill for publication to the grantee which the grantee shall pay at
that time. In addition, the grantee shall pay the cost of publication
of any notice which is required to be published pursuant to this article.
This article was adopted by the Three Oaks Township Board on
the 13th day of July, 1998.
