[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 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.