[HISTORY: Adopted by the Township Board of the Township of New Buffalo as indicated in article histories. Amendments noted where applicable.]
[Adopted 3-26-1981 by Ord. No. 810326]
As used in this article, the following terms shall have the meanings indicated:
BASIC SERVICE
The provision by the company to television receivers of all signals of over-the-air television stations required by the Federal Communications Commission (hereby FCC), public channels and additional channels at the option of the company.
COMMUNITY ANTENNA TELEVISION SYSTEM, CATV, or SYSTEM
Any facility that receives over the air or by other means, and amplifies or otherwise modifies the signals broadcast by television or radio stations as will as signals containing other information, and distributes such signals by cable and/or other means to the public.
COMPANY
Berrien County Cablevision or anyone who succeeds the company in accordance with the provisions contained herein.
FRANCHISE
The grant of authority to the company to operate a CATV. system in the Township.
GROSS REVENUES
The total revenues received by the company from all services to the Township.
PUBLIC WAYS
Streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, alleys, all other public rights-of-way, and public grounds of waters within or belonging to the Township of New Buffalo.
SUBSCRIBER
A purchaser of any service delivered over the system to an individual dwelling unit, where the service is not to be utilized in connection with a business, trade, or profession.
TOWNSHIP
The Township of New Buffalo, Michigan.
TOWNSHIP BOARD
The Board of the Township of New Buffalo, Michigan.
TOWNSHIP CHANNEL
A channel on the system, which is reserved for use by the Township or for public access.
A. 
There is hereby awarded to the company a nonexclusive franchise for the occupation or use of the public ways within the Township for the construction, operation, and maintenance of a CATV. system.
B. 
This franchise shall remain effective for 15 years unless sooner revoked as herein provided in § A470-3 hereof. The company shall give not later than 90 days prior to the end of the original term, notice of renewal to the Township, and if the Township fails to respond upon expiration of 90 days, then the franchise shall be considered renewed for a successive fifteen-year term.
C. 
Nothing in the franchise shall affect the right of the Township to grant to any other person a franchise to occupy and use the public ways for construction, operation, and maintenance of CATV. or similar facilities, within the Township. The Township shall give the company no less than two weeks' notice of the hearing date of any application for any additional franchise to another. Nothing contained in this franchise shall prohibit the company from appearing before the Township Board and being heard on any application for any additional franchise to another.
A. 
The franchise granted herein shall be subject to the right of the Township to revoke an ordinance as regulated by state statute upon the Township Boards determination that the company has violated the terms or intent of the CATV franchise ordinance. The company will be notified in writing at least 30 days prior to any public hearing date being set by the Township Board.
B. 
Any franchise granted hereunder shall be subject to all applicable provisions of the Township ordinance, and any amendments thereto.
C. 
Any franchise granted hereunder shall be subject to all applicable state and federal laws, including rules and regulations established by the FCC.
A. 
This franchise applies only to the operation of a CATV system as provided herein, and does not take the place of any other franchise, license or permit which might be required by federal, state and local law.
B. 
In the operation of its system, the company shall not deprive an inhabitant of any building, by contract or otherwise, of any existing right to use an individual or master antenna for the purpose of receiving television signals.
The company shall not sell or transfer its system to another, no transfer any rights under this Franchise to another without approve by the Township Board, provided that no sale or transfer shall be effective until the vendee, assignee or lessee has filed with the appropriate office of the Township a written instrument, or instruments, properly executed, setting forth the terms and conditions or such sale, assignment or lease, the same to include an acceptance of the terms of this franchise and an agreement to perform all conditions of such sale, assignment or lease, the same to include an acceptance of the terms of this franchise and an agreement to perform all conditions thereof not less than 90 days before such transfer or sale. Approval or disapproval by the Township shall not be unreasonably withheld. During such time period the company shall continue to maintain quality service and perform in good faith in accordance with the terms of the franchise. The Township Board shall treat any such transfer requests with due haste and care so as not to unnecessarily hinder the operations of the company and the Board shall determine approval or disapproval within 90 days of said written notice. The provisions of this § A470-5 shall not apply to the collateral assignment of this franchise for financing purposes.
Subject to the provisions and restrictions of this franchise and the ordinance of the Township, the company shall have the right:
A. 
To construct, erect, operate and maintain in, upon, along, across, above, over and under the public ways, poles, cables, underground conduit, manholes and other conductors and fixtures necessary for the maintenance and operation of a CATV system in the Township; and
B. 
To lease, rent or in any other lawful manner, obtain the use of towers, poles, lines, cables, and other equipment and facilities from any and all holders of public licenses and franchises within the limits of the Township, including but not limited to Michigan Bell Telephone Company and Indiana and Michigan Electric Company, and to use company's distribution system shall be those erected and maintained by Michigan Bell Telephone Company, Indiana and Michigan Electric Company, or any others, or the Township, when and where applicable, providing mutually satisfactory rental arrangements can be entered into with said utilities or Township.
C. 
No tower shall be placed or constructed without the prior approval of the Township Assessor/Zoning Administrator.
A. 
All transmissions and distribution structures, lines, and equipment erected by the company within the Township shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said public ways.
B. 
In case of disturbances of any public way or paved area, the company shall at its own cost and expense replace and restore such public way or paved area in as good a condition as it was in before the work involving such disturbance was done.
C. 
If, at any time during the period of this franchise, the Township shall lawfully elect to alter or change the grade of any public way, the company, upon reasonable notice by the Township shall remove and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense.
D. 
Any poles or other fixtures placed in public way by the company shall be placed in such manner as not to interfere with the usual travel on such public way.
E. 
The company shall, on request of any person holding a building moving permit issued in the Township, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary raising or lowering of wires shall be paid by the person requesting the same, and the company shall be given not less than 48 hours' advance notice to arrange for such temporary wire changes. The Township, or any other nonprofit organization, including historical societies, shall be exempt from any charges.
F. 
The company shall, after giving notice to the Township, have the authority to trim trees upon and hanging over public ways and places in the Township so as to prevent the branches of such trees from coming in contact with the wires and cables of the CATV system.
G. 
In all sections of the Township where all existing cable or other like facilities of utility companies are presently or subsequently placed underground, the company shall place its cables or other like facilities underground.
A. 
The company shall at 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.
B. 
The company shall install and maintain its cables, fixtures, and other equipment in accordance with all applicable federal, state, and local laws, ordinances, codes, rules and regulations, and in such Township or of a public utility serving the Township.
C. 
All structures and all lines, equipment, and connections in, over, under, and upon the public ways or places in the Township, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.
A. 
Poles or other wire holding structures shall be erected by the company only with prior approval of the Township Board.
B. 
Where a public utility serving the Township desires to make use of the poles or the other wire holding structures of the company, but agreement therefore with the company cannot be reached, the Township may require the company to permit such use for reasonable and just compensation, provided that such use would not unduly interfere with the company's operation.
A. 
The Township shall have the right to install and maintain free of charge upon the poles and cables of the company any wire and pole fixtures necessary for a police or fire alarm system, on the condition that such wire or pole fixtures do not interfere with the CATV operation of the company, and that such installations shall be installed in a safe manner, in conformance with state and Township regulations.
B. 
At the expiration of this franchise or upon its revocation, as provided for herein, the Township shall have the right to require the company to remove at its own expense all portions of the CATV system from all public ways and places within the Township.
The company shall, on or before the first day of April of each year file with the Township Clerk, true and accurate maps or plats, showing the location of all existing cables, whether leased or owned outright. Attached to such maps or plate shall be a list by address of current subscribers.
A. 
The company shall comply with all rules and regulations of the FCC with respect to the reception, carriage, and distribution of signals.
B. 
Minimum channel complement shall include all VHF channels significantly viewed, public, community, and education channels as required by the FCC.
C. 
The company shall transmit and deliver over Township channels the signals designated therefore by the Township council.
A. 
The company shall operate facilities capable of distributing color television signals, free from ghost images, interferences, or distortions, and accompanied with proper sound, to produce good pictures on state-of-the-art television sets in good repair without interfering with other electrical or electrical systems.
B. 
For purpose of this section, the standards to be applied in determining whether or not the company is producing a good picture or transmitting signals of adequate strength to produce same are those acceptable standards as set forth in the rules and regulations of the FCC relative to CATV systems.
C. 
The company shall demonstrate by instruments or otherwise to subscribers, upon request, that a signal of adequate strength and quality is being delivered. Such demonstration shall be made by taking a standard production state-of-the- air television set with a screen of sufficient area as to clearly demonstrate the relative merit of the delivered signal.
A. 
The company shall maintain an office in the area which shall be open all normal business hours, have a listed local telephone, and be so operated that complaints and requests for repairs or adjustment may be received at anytime, 24 hours per day.
B. 
The company shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as is possible, shall be preceded by notice, and shall occur during periods of minimum use of the system.
C. 
The company agrees to use its best efforts to restore service to individual customers within 24 hours of interruption and in the event of a general outage caused by an act of God or acts beyond the control of the company, to use its best efforts to restore service within five days and in such event to notify the Township Clerk of anticipated restoration of service so that citizens and customers may be properly informed.
D. 
Should it be impossible or impractical to correct any malfunctions within 24 hours or less then each subscriber whose television reception is so disrupted shall receive a rebate from the company in the amount of 1/13 of such subscriber's monthly charge for every additional twenty-four-hour period that said subscriber's television reception is disrupted, unless said disruption in service was entirely beyond its control.
E. 
Any rebate made to any subscriber under this section, in any month, shall not exceed said subscriber's normal monthly fee paid to the company.
F. 
Complaint procedures shall be given to each new subscriber by the company at the time of initial subscription to the CATV system. In the instance of existing subscribers, changes in complaint procedures shall be included with the next monthly billing.
A. 
Rates are adopted from time to time by resolution of the Township Board in accordance with the franchise agreement. Contact the Clerk's Office for further information.
[Amended 6-9-1983; at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
B. 
If, in the future, the State of Michigan regulates the rates of the company for the services provided under this franchise, those portions of this section so regulated by the State of Michigan shall be of no effect during such state regulation to the extent of any conflict therewith.
C. 
Where an unusually difficult or abnormal installation is encountered or requested, the company reserves the right to require additional charges to reasonably recover the company's costs. Such charges may, at the subscriber's request, be added to the subscriber's monthly charge over a negotiable period of time.
A. 
The company shall extend the installation of cables amplifiers, and related equipment throughout the Township as rapidly as is practicable.
B. 
Within one year from the date of certification from the FCC. the company shall be capable of providing basic service on a regular basis to residence in the Township where density is at least 40 homes per cable mile contiguous with the existing system.
C. 
Initial channel capacity of the system shall be no less than 54 channels. Two channels additional to the local channels reserved in the basic line up are to be designated for Township use.
D. 
The company shall provide basic service to one outlet on each floor of all existing or future police and fire stations, the Township Hall, and all public and private schools located within 300 feet of the company's cables within the Township without any charge therefor.
E. 
In the event of an emergency situation, the Township may interrupt signals otherwise being distributed by the company for the delivery of signals necessitated by such emergency.
F. 
No person, firm or corporation in the company's franchise area shall be arbitrarily refused service. For unusual circumstances, such as weather conditions affecting requirements for underground cable construction, or more than 200 feet of distance from distribution cable to connection of service to subscribers, service may be made available on the basis of an installation payment by the prospective subscriber(s) to the company, to reimburse the company for its costs. This section is in the interest of not unfairly burdening existing subscribers with higher than normal incidental costs of said installations.
A. 
The company shall maintain throughout the term of its franchise, liability insurance insuring the Township and the company with regard to all damages for which the Township and/or the company may be liable, including, but not limited to, damages arising from the installation, operation, maintenance or removal of the company's CATV system, whether or not any act or omission complained of is authorized, allowed or prohibited by the franchise.
B. 
The company, by its acceptance of this franchise, agrees to indemnify the Township and hold the Township harmless from all claims, demands, penalties and expense (including reasonable attorney fees) which the Township may be required to pay as a result of the company's acts or negligence in the installation, operation or maintenance of the cable television system authorized herein. Further, following the receipt of notice of the Township of the filing or assertion of any such claim or demand against Township and/or company, the company will promptly assume responsibility and prosecute to a conclusion the adjustment and settlement of any such claim or demand and the defense of any legal action filed incident thereof. The company shall notify the company's representatives thereof. The company shall carry and pay the cost of the following liability insurance in support of its undertaking to hold the Township harmless from loss sustained by either on account or the acts or negligence of the company, in at least the amounts indicated below, for injury to or death of persons and injury to or destruction of property.
C. 
The liability insurance referred to in this section shall be in the following amounts:
(1) 
$500,000 for personal injury or death to any one person, with a limit of $1,000,000 for personal injury and property damage combined resulting from any one accident.
(2) 
$500,000 for property damage resulting from any one accident, with a limit of $1,000,000 for personal injury and property damage combined resulting from any one accident.
(3) 
$500,000 for all other types of liability.
The company shall, within 30 days of the grant of a franchise to it pursuant to this Cable Communications Ordinance, file with the Township Clerk, and at all times thereafter maintain in full force and effect for the term of the franchise, at its expense, a corporate surety bond, or such other surety arrangement as the Board may approve, in the amount of $25,000, conditioned upon the faithful performance by such cable communications company of its obligations under its franchise as herein set forth, and upon the further condition that if such cable communications company shall fail to comply with any one or more provisions of this Cable Communications Ordinance, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the Township as result thereof, including the full amount of any compensation, indemnification, or cost of removal of any property of such cable communications company as provided in the Cable Communications Ordinance plus attorney's fees and costs, up to the full amount of the bond, said condition to be a continuing obligation for the full duration of any franchise granted under this Cable Communications Ordinance and any renewal thereof and thereafter until such cable communications company has liquidated all of its obligations with the Township which may have arisen under the franchise or from the exercise of any privilege or right granted thereby. Any bond provided under this section shall provide that at least 30 days' prior notice of any intention not to renew, to cancel or to make a material changer therein shall be filed with the Township Clerk. Nothing herein shall be construed to excuse faithful performance by any cable communications company or in any way to limit its liability for damages or otherwise.
The company shall keep full, true, accurate and current books of accounts reflecting its investment and its operation under this franchise, which financial books and records shall be kept and maintained by the company and shall be made available for inspection and copying by the Chairman of the Finance Committee of the Township or his authorized representative, at all reasonable times at the company's normal place of business, with reasonable prior notice, during regular business hours.
The company shall assume the cost of publication of this franchise as such publication is required by law. A bill for publication costs shall be presented to the company by the appropriate Township officials upon the company's filing of is acceptance of this franchise and the said publication costs shall be paid at that time by the company.
Commencing one year from the effective date of this ordinance, and each year thereafter, the company shall pay to the Township treasurer a franchise fee equal to 3% of the company's gross revenues derived from all cable services include basic midband tier and premium pay charges within the Township, or $250, which ever is greater.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional, by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.
This ordinance shall be effective on the date ratified by the company in writing after having been awarded by the Township Board in accordance with applicable laws.
[Adopted 9-17-2018 by Res. No. 18-0917]
Indiana Michigan Power Company, its successors and assigns (hereinafter called "grantee") is hereby granted the right, privilege, franchise, and authority to acquire, construct, maintain, and operate in, above, under, across, and along the streets, thoroughfares, alleys, bridges, and public places (as the same now exist or may hereafter be laid out) of the Township of New Buffalo, Berrien County, State of Michigan, lines for the transmission and distribution of electric energy, either by means of overhead or underground conductors, with all the necessary or desirable appurtenant equipment (the "facilities"), to render public utility service in said Township and to the inhabitants thereof by supplying electric energy to said Township and the inhabitants thereof, and persons or corporations beyond the limits thereof for all purposes for which electric energy is now or may hereafter be used, and the transmission and distribution of the same within, through, or across said Township of New Buffalo, State of Michigan, subject to such reasonable regulation of the placement and operation of the facilities as the Township Board shall prescribe from time to time and as is permitted under applicable state law.
Said facilities shall be constructed in a manner that shall not unreasonably interfere with the traveling public in its use of the streets, thoroughfares, alleys, bridges, and public places.
A. 
The rights, privileges, and franchise hereby granted shall be in force and effect for a period of 30 years from the date of the passage of this ordinance, but revocable at the will of the Township Board unless approved by vote of the electors.
B. 
The rights, privileges, and franchise hereby granted shall not be construed to be exclusive and the Board of the Township of New Buffalo hereby reserves the power to grant similar rights, privileges, and franchises to any other person or persons, firm or firms, corporation or corporations.
Said grantee shall save the Township harmless from any and all liability arising in any way from grantee's negligence in the erection, maintenance, or operation of said facilities, except to the extent arising out of the Township's negligence or willful misconduct. If any demand is made or any action is commenced against the Township resulting from grantee's acts or omissions (or the actions of grantee's officers, agents, employees, contractors, successors, or assigns), in connection with the electric system or the grantee's use of the public ways, grantee shall, upon notice, defend and indemnify the Township and save it free and harmless from all loss, cost and damage arising out of such negligent construction and maintenance. Except when arising out of or related to any negligent act or omission of the Township or its agents, employees, or contractors, the Township and its agents, employees, and contractors shall not be liable to the grantee for any interference with or disruption in the operation of the electric system, or the provision of service over or through the electric system, or for any damages arising out of the grantee's use of the public ways.
Whenever said grantee shall begin the erection or installation of any lines or equipment, it shall promptly and diligently prosecute the work to completion and leave the streets, thoroughfares, alleys, bridges, and public places where such work is done in as good condition of repair as before such work was commenced.
The Township may require the grantee to vacate or relocate any portion of the electric system within the public ways at the grantee's expense if such vacation or relocation is necessary to secure the public health and welfare or is otherwise required by the Township in the exercise of a governmental function. If grantee's electrical system components located within the public highways physically interfere with Township improvements made in furtherance of the rights of the public to the public highways under the jurisdiction of the Township, the grantee shall relocate components of the electrical system to a mutually agreeable alternative location within the public highways at no charge to the Township; provided, however, that nothing in this provision shall be construed as a waiver by grantee of any of its existing or future rights under state or federal law.
Wherever in this ordinance reference is made to the Township or the grantee, it shall be deemed to include the respective successors or assigns of either; and all rights, privileges, franchises, and obligations herein contained by or on behalf of said Township, or by or on behalf of said grantee, shall be binding upon, and inure to the benefit of the respective successors or assigns of said Township, or of said grantee, whether so expressed or not.
This ordinance shall be accepted by the grantee within 60 days from the date of the passage of same.
This franchise shall take effect after its adoption, acceptance and publication as required by law.