[HISTORY: Adopted by the Village Board of the Village of Theresa 6-3-1996 as Title 9, Ch. 3 of the 1996 Code. Amendments noted where applicable.]
For the purposes of this chapter, the following terms, phrases, words and their derivation shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and directory.
- ANNUAL GROSS SUBSCRIBER REVENUES
- Those revenues derived from the supplying of regular subscriber service, that is, the installation fees, disconnect and reconnect fees, and fees due to other cable benefits, including transmission of broadcast or origination channels, and revenues derived from per-program of per-channel charges, if any. It does not include revenues derived from leased channel revenues, advertising revenues, or any other income derived from the system.
- CABLE TELEVISION SYSTEM
- Hereinafter referred to also as "cable system" or "system," means a system of coaxial cables or other electrical conductors and transmission equipment used or to be used primarily to receive television or radio signals directly or indirectly off the air and transmit them and other related service to subscribers for various fees.
- Marcus Cable, Inc., or any partnership of which Marcus Cable, Inc., acts as sole general partner, or anyone who succeeds it in accordance with the provisions of this chapter.
- Any individual, firm, partnership, association, corporation, company or organization of any kind.
- The Village of Theresa.
The Village hereby grants to the company a nonexclusive franchise for a period of 15 years from the effective date hereof, unless sooner terminated pursuant to the provisions of this chapter, to install and operate above, over and under the streets, alleys, easements (including utility easements), public ways and public places as now laid out or dedicated, and all extensions thereof, and additions thereto, a system of wires, cable, underground conduits, ducts, trenches, conductors, amplifying equipment, manholes, fittings and any and all other fixtures, appliances and appurtenances necessary for the installation, ownership, maintenance and operation in the Village of a cable television system for the purpose of distribution of cable television and related service to inhabitants within the limits of the Village. The rights are granted herein by the Village after due consideration and approval by the Village of the legal, character, financial, technical, and other qualifications of the company, and the adequacy and feasibility of its construction arrangements, as part of a full public proceeding affording due process, which included specific notice of the consideration of the company's construction policy.
The company at all times during the period of this chapter and any renewal thereof shall be subject to all lawful exercise of the police power by the Village as the Village shall provide pursuant to § 356-19. The company shall comply with all laws, statutes, codes, ordinances, rules, or regulations applicable to its business, including those of the Federal Communications Policy Act of 1984, as it may be amended from time to time, and will comply with the Equal Employment Opportunity Act.
Upon final passage and publication hereof as provided by law, and upon acceptance by the company, this chapter shall take effect and shall then continue in full force and effect for a period of 15 years upon the terms and conditions set forth herein.
This chapter shall apply to the present territorial limits of the Village and to any area henceforth added thereto during the period of this franchise. The company shall build in areas of the Village it deems financially feasible. A project shall be deemed financially feasible if the construction passes at least 40 homes per strand mile. The Village can require the company to provide justification as to financial feasibility if it refuses to extend service to a particular area. Nothing herein contained is intended to preclude the company from extending its cables and equipment to other portions of the Village or outside the Village for the purpose of serving other areas, provided the company is legally authorized to service the other areas.
The company shall pay all damages and penalties which the Village, its officers, boards, commissions, agents and employees may legally be required to pay as a result of the grant of authority to it under the terms of this chapter. These damages or penalties shall be for all damages arising out of the installation, operation and maintenance of the cable system authorized herein, whether or not any act or omission complained of is authorized, allowed, or prohibited by this chapter.
The company shall pay all expenses incurred by the Village, its officers, boards, commissions, agents, and employees in defending itself with regard to all damages and penalties mentioned in Subsection A above. These expenses shall include all out-of-pocket expenses, such as attorney fees. The company shall be liable for payment of damages and penalties mentioned in Subsection A above and/or expenses in this section only if the company has been adequately notified of pending actions and has been allowed, at its own expense, to hire its own counsel and to direct the prosecution or defense of the action at the company's discretion.
The company shall maintain throughout the period of this chapter liability insurance insuring the Village, its officers, boards, commissions, agents, and employees and the company in the minimum amounts of:
The insurance policies mentioned above shall contain an endorsement stating that the policies are extended to cover the liability assumed by the grantee under the terms of this chapter and shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be cancelled nor the amount of coverage thereof reduced without Board approval. Insurance coverage shall remain in effect throughout the term of the franchise. The company shall provide to the Village Clerk-Treasurer written evidence of payment of required premiums, which shall be filed and maintained with the Village Clerk-Treasurer during the term of any franchise granted hereunder or any renewal hereof."
The company shall apply for the licenses and permits necessary for the construction and operation of the cable television system herein described within 60 days of the filing of the company's unconditional acceptance of the permit.
The company shall provide and maintain its services in accordance with the best accepted standards of the industry, so as to provide its subscribers with the highest possible level of quality and reliability. The company's service shall include same day service response, seven days a week, for all complaints and requests for repair or adjustments received prior to 2:00 p.m. each day. In no event shall the response time for calls received subsequent to 2:00 p.m. exceed 27 hours.
Whenever it shall be necessary to shut off or interrupt service for purpose of making repairs, adjustments or installations, the company shall do so at such times as will cause the least amount of inconvenience to its subscribers; if reasonably practical, the company shall give reasonable notice thereof to its subscribers.
In the event of any interruption of service, whether planned or unforeseen, the company shall proceed with due diligence and restore service as quickly as possible under the circumstances.
The company shall be responsible for adopting procedures for the investigation and resolution of complaints related to the operation of the company's cable television system, and the Village shall have no responsibility for the administration and implementation of such procedures. Notice of the procedures for reporting and resolving complaints will be given to each subscriber at the time of initial subscription to the cable system. The company shall have a local toll-free telephone number.
The community antenna television and audio communications system will be so designed, engineered and maintained by the grantee as not to interfere with the television reception of residents of the Village who do not subscribe to its service. Neither the Village nor the grantee shall require the removal, or offer to remove, or provide an inducement for removal, of any potential existing subscriber's antenna as a condition of provision of services.
The grantee will provide a free connection to all schools (public, parochial, nonprofit, or private) and Village buildings as long as the cable system passes the building.
The company shall at all times employ reasonable care in conducting its operations and shall install and use generally accepted methods and devices for preventing failure and accidents which are likely to cause damage, injuries, or nuisances to the public.
The company shall install and maintain its wires, cable, fixtures, and other equipment in accordance with the applicable requirements of the National Safety Code and local ordinances.
The company shall maintain at all times its structures, lines, equipment, and connections in, over, under or upon the streets, sidewalks, alleys, and public ways or places of the Village, wherever situated or located, in a safe, suitable, substantial condition, and in good order and repair.
It shall be the policy of the Village to amend this chapter liberally, upon application of the company, to take advantage of any developments in the field of transmission of television signals and related service which will afford the company an opportunity more effectively, efficiently, or economically to serve its customers. The Village shall amend this chapter to enable the company to respond to changes in Federal Communications Commission regulations, or other applicable governmental rules or requirements. Such amendments shall be made by the Village within one year from the date of any such changes in such rules, regulations, or requirements, or at the time of permit renewal, whichever occurs first.
All transmission and distribution structures, lines and equipment erected by the company within the Village shall be located so as to cause minimum interference with the proper use of streets, alleys, and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners whose land may adjoin any of said streets, alleys, or other public ways and places.
In case disturbance of any street, sidewalk, alley, public way, or paved area is caused by the company's construction or operations, the company shall, at its own cost and expense and in a manner approved by the Village's appropriate authority, replace and restore such street, sidewalk, alley, public way, or paved area to a condition as good as its condition before the work causing such disturbance was performed.
The company shall have the right, under the supervision of the Village's appropriate authority, to trim trees upon or overhanging streets, alleys, sidewalks, and public ways and places of the Village so as to prevent the branches of such trees from coming in contact with the wires and cable of the company or otherwise interfering with the operations of the company.
The company shall, at the request of any person holding a building moving permit issued by the Village, temporarily raise or lower its wires to permit the moving of the building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same, and the company shall have the authority to require such payment in advance. The company shall be given not less than 72 hours' advance notice to arrange for such temporary wire change.
Any franchise granted hereunder shall not relieve the grantee of any obligation involved in obtaining pole or conduit use agreements from the gas, electric and telephone companies or others maintaining poles or conduits in the streets or roads of the Village, whenever the grantee finds it necessary to make use of said poles or conduits. In areas where either telephone or electric utility facilities are above ground at the time of installation, the grantee may install its service above ground, provided that at such time as those facilities are required to be placed underground by the Village or are placed underground, the grantee shall likewise place its services underground without additional cost to the Village or to the residents of the Village. The distribution system shall be placed underground by the grantee in such areas of the Village where both telephone and electric power utilities are underground.
The company shall not, as to rates, charges, service, service facilities, rules, regulations, or in any other respect, make or grant any undue preference or advantage within a given class of subscribers in the Village.
Upon termination of service to any subscriber, the company shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request.
The company may transfer or assign its rights and obligations under this chapter to any wholly owned subsidiary, or any partnership of which the company is the sole general partner, by filing a duly executed copy of a written instrument with the Village within 30 days of any such transfer or assignment. Any other transfer or assignment of the company's rights or obligations shall be made only upon written approval of the Village, which approval shall not be unreasonably withheld.
The Village of Theresa does hereby consent to any subsequent transfers of the franchise to Marcus Cable, Inc., or any limited partnership or partnerships of which Marcus Cable, Inc., is a general partner, or any joint venture or general partnership of which Marcus Cable, Inc., or one or more of such limited partnerships is a constituent partner, or to any other entity controlled by, controlling or under common control with Marcus Cable, Inc. (any such subsequent transferee or transferees shall be included in the term "franchisee" for purposes of this franchise).
Within 90 days after the end of the company's fiscal year, the company shall file with the Village a report showing the gross subscriber revenues for basic cable service received by the company from subscribers in the Village since the preceding report.
The company shall pay to the Village an annual fee in an amount equal to 3% of the annual gross revenues derived from basic cable service only. This payment shall be in addition to any other payment(s) owed by the company to the Village, county or state for property or other taxes. The annual fee shall be paid to the Village Clerk-Treasurer on or before March 31 of each year. In the event such a franchise fee based upon annual gross revenue is determined to be invalid on a state-wide basis by a court of competent jurisdiction, the fee required by this section shall be subject to renegotiation by the parties.
The right is hereby reserved to the Village to adopt, in addition to the provisions contained herein and in existing applicable agreement, such additional regulations as it shall find necessary in the lawful exercise of its police power; provided that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein granted.
The Village shall have the right to supervise all construction or installation work performed subject to the provisions of this chapter and make such inspections as it shall find necessary to ensure compliance with the terms of this chapter and other pertinent provisions of law.
The Village may revoke any franchise granted hereunder and rescind all rights and privileges associated therewith upon the occurrence of one of the following events:
Failure of the company to pay all fees due the Village of Theresa, provided that said fees are not subject to a legal dispute;
Failure to comply with the completion schedule as set forth herein;
Bankruptcy, insolvency, or assignment for the benefit of creditors by the company; and
Other substantial breach of any material term or condition of this agreement.
The company shall be notified in writing fully explaining the details of any such deficiency and the company will be allowed no less than 60 days to correct any such deficiency. If during the sixty-day period the cause shall be cured, the notice and right to terminate shall be null and void. The company shall be given an opportunity to be heard before the Board regarding termination, and the company shall be afforded all due process rights regarding termination. In the event of termination, the Board shall provide a written summary of its reasons for termination. A public hearing to consider revocation with a twenty-day notice given to the company shall be held prior to termination. The company must be given the opportunity to be heard at such public hearing.
The company shall have the right to establish different classifications of service for residential and commercial users and to adopt charges and rate schedules applicable to subscribers within said classifications.
The company retains the right to increase its subscriber rates during the period of the franchise. All rate schedules shall be filed with the Village 30 days before going into effect.
Unauthorized connections prohibited. It shall be unlawful for any firm, person, group, company, corporation, or governmental body or agency, without the expressed consent of the grantee, to make or possess any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a franchised community antenna television and audio communications system for any purpose whatsoever.
Removal or destruction prohibited. It shall be unlawful for any firm, person, group, company, corporation or governmental body or agency to willfully interfere or tamper with, remove, obstruct, or damage any part, segment or content of a franchised community antenna television and audio communication system for any purpose whatsoever.
Penalty. Any firm, person, group, company, corporation or governmental body or agency convicted of a violation of this section may, for each offense, forfeit a sum of not less than $1 nor more than $200, together with costs of such prosecution.
Legal action. The company shall have the right at all times to take such legal action as it deems necessary to preserve the security of its cable television system and to assure only authorized use thereof by its subscribers or other persons. Any person who willfully or maliciously damages, or causes to be damaged, any wire, cable, apparatus or equipment of the company with intent to obtain a signal or impulse therefrom without authorization of the company shall be liable to the company in the amount of $200 per occurrence or actual damage to the equipment, whichever is greater.
The company shall have the right to provide service for which a per-program or per-channel charge is made (commonly referred to as "pay television").
A performance bond in the amount of $16,500 will be secured by the grantee prior to starting construction of the cable system. It will remain in effect until completion of construction of the initial service area (Exhibit B on file with Clerk-Treasurer) when at that time it will be allowed to be terminated by the grantee.
This franchise will be renewed to the grantee under the provisions of the Federal Cable Communications Policy Act of 1984.
The company will request attachment agreements with all utilities within 30 days after the award of the franchise. The company will make the request within 30 days of the award of the contract for permits and the completion of make-ready work. Notification shall be given to the Village that the request for full attachment, permits, and make-ready work was made.
Substantial steps shall be taken toward completion of the initial service area (Exhibit B on file with Clerk-Treasurer) within 12 months of the granting of the franchise. The company shall report 12 months after the granting of the franchise all steps which have been taken by the company to complete the system.
It is anticipated that make-ready work and the award of permits will be completed within six months after the grant of the franchise. The company shall notify the Village if permits are not awarded and make-ready work is not completed within six months after date of the award of the contract. Within 18 months of the completion of the make-ready work and the award of the permits, the company shall complete construction of the initial service area (Exhibit B) within the Village.
Upon request the company shall provide full information to the Village as to the stage of completion of the construction within 20 days after receipt of a written request for said information from the Village.
Time is of the essence in regards to performance. Failure to perform in the time required shall result in the award of the franchise being subject to revocation.