(a) Performance Review.
(1) In order to monitor a franchisee's performance and adherence to this chapter and the franchise agreement, the Village, through the Cablecasting Board, and a franchisee may hold scheduled review sessions within thirty days after the first, fourth, seventh and tenth anniversary dates of the effective date of the franchise and each three years thereafter during the remaining initial term of the franchise and any extension or renewal thereof. All such review sessions shall be open to the public and notice thereof shall be published not less than ten days nor more than thirty days before each review session in a local newspaper of general circulation. The published notice shall specify the topics to be discussed. Notice shall be given in accordance with the provisions of subsection (o) hereof.
(2) Unless waived by resolution of the Cablecasting Board in writing four months prior to each scheduled review session, a franchisee shall submit to the Cablecasting Board the results of an independent opinion survey which shall elicit constructive criticisms and identify unmet needs among subscribers and nonsubscribers in the franchise area. The Cablecasting Board shall establish standards and controls with respect to the opinion survey, the preparation and implementation of which shall be without expense to the Village or the Cablecasting Board, and shall approve in advance the survey form and the person conducting the survey.
(3) Special review sessions may be held at any time during the term of the franchise by the Village or by the Cablecasting Board upon not less than thirty-days' notice to a franchisee of the time and place of the review sessions and the topics to be covered. All such review sessions shall be open to the public and public notice of the review sessions shall be given in accordance with the provisions of subsection (o) hereof.
(4) All or any of the following topics may be designated for discussion and review at any review session:
A. Judicial and Federal communications rulings.
B. Rate structures.
C. Application of new technology or new developments.
D. System performance.
E. System extension policy.
F. Service provided.
G. Programming offered.
H. Customer complaints.
I. Privacy.
J. Amendments to the ordinance authorizing the franchise.
K. Interconnection.
L. Underground progress.
M. Public, governmental and educational access programs and performance.
N. Studio facilities and service.
O. Insurance.
P. New services.
Other topics may be added by either party. Members of the general public may also request discussion of additional topics.
(5) The Cablecasting Board at its discretion may utilize the services of a consultant to gain additional information for use during the review sessions. A franchisee shall cooperate with such consultant and the Cablecasting Board in all aspects of the performance review. In the event the consultant's review reveals or leads to the discovery of a significant default or violation of the franchise, the reasonable fees of such consultant relating to such default or violation shall be borne by a franchisee.
(6) The Cablecasting Board shall, at the conclusion of all review sessions, issue a public report to the Village Council announcing its findings and recommendations for enforcement of or modifications to this chapter or the franchise agreement.
(b) Security Fund.
(1) Within thirty days after the effective date of franchises between a franchisee and each of the Cablecasting Board's member communities, a franchisee shall deposit with the Cablecasting Board, and maintain on deposit through the term of the franchise, the sum of ten thousand dollars ($10,000). Such sum shall stand as security for the obligations of a franchisee to the member communities of the Cablecasting Board and be administered by the Cablecasting Board as set forth below.
A. The faithful performance by it of all the provisions of this chapter and the franchise;
B. Compliance with all orders, permits and directions of any agency, commission, board or department of the member communities having jurisdiction over its acts or defaults under the franchise agreements; and
C. The payment by the franchisee of any claims, liens and taxes due the member communities which arise by reason of the construction, operation or maintenance of the system.
(2) Within ten days after notice to it that any amount has been withdrawn from the security fund, the franchisee shall pay to or deposit with the Cablecasting Board a sum of money in the full amount withdrawn.
(3) If the franchisee fails to pay to the member communities any fees within the time fixed in this chapter; or fails, after ten days' written notice, to pay to the member communities any taxes due and unpaid; or fails to repay the member communities within such ten days, any damages, costs, or expenses which the member communities shall be compelled to pay by reason of any act or default of the franchisee in connection with the franchise, or fails, after three days' notice of such failure, to comply with any provisions of the franchise which the member communities reasonably determines can be remedied by a withdrawal from the security, the member communities may immediately withdraw the amount thereof, with interest and any penalties, or liquidated damages from the security fund. Upon such withdrawal, the member communities shall notify the franchisee of the amount and date thereof.
(4) The security fund deposited pursuant to this section, including all interest thereon, shall become the property of the member communities if the franchise is rescinded or revoked by reason of the default of the franchisee. The franchisee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the franchisee. Interest earned by the investment of the security fund shall become part of the security fund and unless consumed by the payment of penalties, fees or other charges under this chapter, shall be returned to the franchisee at the expiration of the franchise term, provided that there is then no outstanding default on the part of the franchisee.
(5) The payment of a penalty from the security shall not constitute a cure of any violation or any act of noncompliance. The rights reserved to the member communities with respect to the security fund are in addition to all other rights of the member communities whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the member communities may have.
(c) Performance Bond/Letter of Credit.
(1) Upon the effective date of the franchise agreement, at the Village's discretion, a franchisee shall file with the Village a performance bond, in favor of the Village, in the sum of two hundred fifty thousand dollars ($250,000), or in any greater amount specified in the franchise agreement, conditioned that the franchisee shall well and truly observe, fulfill and perform each term and condition of this chapter and the franchise agreement. This bond shall be maintained by the franchisee throughout the construction period and until such time as determined by the Village Council. At the request of the Village Council, additional municipalities may be named as additional secured parties in such bond. In lieu of all or part of the amount of such performance bond, at the Village's discretion, a franchisee shall file with the Village an unconditional and irrevocable letter of credit, in form and content satisfactory to the Village, in the sum specified in this section or in any greater amount specified in the franchise agreement. Failure to furnish such bond or letter of credit and to maintain the same in effect in the full amount required hereby during the entire term of the franchise agreement, and any extension or renewal thereof, shall constitute a violation of this section and a material breach of the franchise agreement.
(2) If a franchisee fails to comply with any law, ordinance or regulation governing the franchise, or fails to well and truly observe, fulfill and perform each term and condition of the franchise, including the franchisee's proposal, there shall be recoverable, jointly and severally, from the principal and surety of the bond, and/or from the letter of credit, any damages or loss suffered by the Village as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of a franchisee, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond or letter of credit.
(3) The Village may, upon completion of initial or subsequent construction, waive or reduce the requirement of the franchisee to maintain such bond or letter of credit. However, the Village may require a performance bond or letter of credit to be posted by a franchisee for any construction subsequent to the completion of the initial service areas, in a reasonable amount and upon such terms as determined by the Village Council.
(4) The bond or letter of credit shall contain the following or substantially similar endorsement: It is hereby understood and agreed that the bond or letter of credit may not be canceled nor the intention not to renew be stated until thirty days after receipt by the Village, by registered mail, of a written notice of such intent to cancel or not to renew.
(d) Insurance.
(1) A franchisee shall maintain throughout the term of the franchise, insurance insuring the Village and franchisee in the minimum amount of:
A. Workers' compensation. As required by all applicable Federal, State, maritime or other laws, including franchisee's liability, with a limit of at least one hundred thousand dollars ($100,000) for each occurrence.
B. Comprehensive general liability and extended coverage endorsement. Including nonownership and hired car coverage as well as owned vehicles, with minimum limits as follows: Bodily injury for each person, one million dollars ($1,000,000), and each occurrence, one million dollars ($1,000,000); property damage for each occurrence, five hundred thousand dollars ($500,000).
C. Excess liability. Bodily injury and property damage, five million dollars ($5,000,000) for each occurrence.
(2) The insurance policies obtained by a franchisee in compliance with this section must be approved by the Village Attorney as being in compliance with this chapter and the franchise agreement within thirty days of the execution of the franchise agreement. Certified copies of such insurance policies, or certificates of insurance in lieu of the policies, along with
written evidence of payment of required premiums, shall be filed and maintained with the Village Clerk during the term of the franchise. Such certified copies may be changed from time to time to reflect any increase in liability limits. A franchisee shall immediately advise the Village of any litigation covered by the insurance.
(3) Neither the provisions of this section nor any damages recovered by the Village thereunder shall be construed to limit the liability of a franchisee under any franchise issued under this chapter or for damages.
(4) All insurance policies maintained pursuant to a franchise shall name the Village, its employees, agents, boards and officers as additional named insured parties with respect to all actions, inactions, errors and omissions of the franchisee, its agents or subcontractors, and shall contain the following or substantially similar endorsement: It is hereby understood and agreed that this insurance policy may not be canceled by the insurer nor the intention not to renew be stated by the insurer until at least thirty days after receipt by the Village, by registered mail, of a written notice of such intention to cancel or not to renew.
(5) Each policy of insurance shall be noncancellable except upon giving such notice to the Village. If deemed appropriate by the Village attorney, the franchisee shall also provide an owners and contractors protective liability policy.
(e) Indemnification.
(1) A franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the Village, its officers, boards, commissions and employees against any and all claims, suits, actions, liability and judgments for damages, including, but not limited to, expenses for reasonable legal fees and disbursements and liabilities assumed by the Village in connection therewith:
A. In any way arising out of or through the acts or omissions of a franchisee, its servants, agents, or employees, or to which the franchisee's negligence shall in any way contribute with respect to any claim attributable to the operation or existence of any part of the cable communications system.
B. Arising out of any claim for invasion of the right of privacy, for defamation of any person, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, excluding claims arising out of or relating to Village programming.
C. Arising out of a franchisee's failure to comply with the provisions of any Federal, State or local statute, ordinance or regulation applicable to the franchisee in its business hereunder.
(2) The foregoing indemnity is conditioned upon the following:
A. The Village shall give a franchisee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section.
B. Nothing in this section shall be deemed to prevent the Village from cooperating with a franchisee and participating in the defense of any litigation by its own counsel at its sole cost and expense.
C. No recovery by the Village of any sum by reason of the security fund shall be any limitation upon the liability of a franchisee to the Village under the terms of this section, except that any sum so received by the Village shall be deducted from any recovery which the Village might have against a franchisee under the terms of this section.
(f) Foreclosure. Upon foreclosure or other judicial sale of all or a substantial part of the cable communications system, or upon the termination of any lease covering all or a substantial part of the cable communications system, a franchisee shall notify the Village of such fact. Such notification shall be treated as notification that a change in control of the franchisee has taken place, and the provisions of this chapter governing transfer shall apply.
(g) Receivership. A franchise granted under this chapter shall, at the option of the Village, cease and terminate ninety days after the appointment of a receiver, or trustee, to take over and conduct the business of a franchisee, whether in receivership, reorganization, bankruptcy or other action or proceedings, unless such receivership or trusteeship shall have been vacated prior to the expiration of such ninety days.
(h) Reports.
(1) On not less than thirty days' advance notice, the franchisee shall submit reports on such matters as the Village or Cablecasting Board may request from time to time. All reports and records of the franchise required under this chapter or the franchise agreement shall be furnished at the sole expense of the franchisee. Any materially false or misleading statement or report made by a franchisee under this chapter or the franchise agreement shall be deemed a violation of this chapter and a material breach of the franchise agreement.
(2) A franchisee shall fully cooperate in making available at reasonable times, and representatives of the Cablecasting Board and the Village Administrator or designated representatives shall have the right to inspect, the books, records, maps, plans and other like materials of a franchisee applicable to the cablecasting system, at any time during normal business hours within the Village. Where volume and convenience necessitate, a franchisee may require inspection to take place on its premises within the Village.
(3) The Village and the Cablecasting Board, whenever consistent with its public records ordinance and the State's Freedom of Information Act (M.C.L. 15.231 et seq., M.S.A. 4.1801(1) et seq.), shall attempt to protect, within reasonable limits, the privacy of a franchisee's financial records, unless such records are otherwise available to the public.
(i) Other Petitions and Applications. Upon request by the Village or the Cablecasting Board, copies of all petitions, applications, communications and reports submitted by a franchisee to the Federal Communications Commission, Securities and Exchange Commission, or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications operations authorized pursuant to the franchise, shall be provided no later than the filing date for such petitions, applications, communications and reports.
(j) Other Business Activities. In the conduct of a business franchised under this chapter, neither a franchisee nor its officers, employees, or agents shall directly or indirectly:
(1) Sell, lease, repair, install or maintain; or
(2) Recommend for sale, lease, repair or maintenance television sets or receivers.
Nothing under this section shall be construed to prohibit a franchisee, at a customer's request and without payment, from examining and adjusting the customer's receiver set to determine whether reception difficulties originate in the set or in the franchisee's system.
(k) Nondiscrimination Requirements.
(1) A franchisee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, age, handicap, national origin or sex. A franchisee shall comply at all times with all applicable Federal, State, and local laws and regulations, and all executive and administrative orders relating to nondiscrimination.
(2) A franchisee shall strictly adhere to the equal employment opportunity requirements of the FCC and Federal, State, and local regulations, as amended from time to time.
(l) Compliance With Laws. Notwithstanding any other provisions of this chapter to the contrary, a franchisee shall at all times comply with all laws and regulations of the Federal, State, County and Village governments or any administrative agencies thereof. If any such Federal, State or County law or regulation shall require a franchisee to perform any service or shall permit a franchisee to perform any service or shall prohibit a franchisee from performing any service in conflict with the terms of the franchise or of any law or regulation of the Village, then as soon as possible following its knowledge thereof, a franchisee shall notify the Village Council of the point of conflict believed to exist between such regulation or law and the laws or regulations of the Village or the terms of the agreement. The Village Council shall review the possible conflict and determine what action, if any, it shall take regarding the point of possible conflict.
(m) Theft of Services and Tampering.
(1) No person shall intentionally or knowingly:
A. Damage or cause to be damaged any wire, cable, conduit, equipment, apparatus or appurtenance of a franchisee or commit any act with intent to cause such damage.
B. Tap, tamper with or otherwise, connect any wires or device to a wire, cable, conduit, equipment, apparatus or appurtenances of a franchisee with the intent to obtain or send a signal or impulse from the cable system without authorization from or compensation to the franchisee, or to obtain or send cable television or other communication service with intent to obtain or send cable television or other communication service with intent to defraud a franchisee of any lawful compensation to which it is otherwise entitled.
(2) Each day's violation of this section shall be considered a separate offense.
(n) Approval by Village Engineer. Where provisions of this chapter require approval of the Village Engineer, the Engineer shall grant approval only upon the Engineer's determination that the proposed construction, installation or other activity for which approval is required will not endanger or adversely affect the public health, safety or welfare.
(o) Public Notice. Unless otherwise specifically set forth in this chapter, minimum public notice of any public hearing relating to a franchise shall be by publication, at least once per week, in a local newspaper of general circulation beginning fifteen days prior to the meeting, and by announcement, in a format approved by the Village Council, on at least two channels of the cable communications system between the hours of 7:00 p.m. and 9:00 p.m. for five consecutive days prior to the hearing.
(p) Charge to Security Fund. The Village shall be entitled to be paid liquidated damages, and may draw upon the security fund, performance bond, or letter of credit, for the same as follows:
(1) For failure to complete initial system construction and for all other construction or activation obligations of a franchisee including, without limitation, upgrades of the system, or provide services, equipment or personnel in accordance with Sections 820.06(c), 820.07(c), 820.07(f), or 820.07(i), unless the Village Council specifically approves the delay by motion or resolution, due to the occurrence of conditions beyond the franchisee's control, two thousand, five hundred dollars ($2,500) per day for each day, or part thereof, the deficiency continues.
(2) For failure to provide dates, documents, reports, information as required by Section 820.08(b), and subsections (a) and (h) hereof, fifty dollars ($50.00) per day each violation occurs or continues.
(3) For failure to test, analyze and report on the performance of the system following a request pursuant to Section 820.07(r), fifty dollars ($50.00) per day for each day, or part thereof, that such noncompliance continues.
(4) For failure to restore the cash deposit as required in Section 820.09(b) within the specified ten days, fifty dollars ($50.00) per day for each day, or part thereof, that such violation continues.
(5) For failure to comply, after thirty days' notice by the Village Engineer with the standards set forth in Section 820.07(r), one hundred dollars ($100.00) per day for each day, or part thereof, that such violation continues, unless the penalty is waived by the Village Council upon a showing by a franchisee that it has made a reasonable effort to correct the deficiency, but has been unable to do so due to the occurrence of conditions beyond its control.
(6) Except as otherwise provided in Section 820.11(k), for any other violation or default under the franchise agreement or this chapter, one hundred dollars ($100.00) per day for each day that such violation or default continues.
(q) Penalties and Charges to Tenants for Services Prohibited. Neither the owner of any multiple-unit residential dwelling nor his or her agent or representative shall penalize, charge or surcharge a tenant or resident or forfeit or threaten to forfeit any right of such tenant or resident, or discriminate in any way against such tenant or resident who requests or receives cable communications service from a franchisee operating under a valid and existing cable communications franchise issued by the Village.
(r) Solicitation of Subscribers. Neither a franchisee nor its agents or employees shall solicit subscribers to the cable communications system by any threatening or harassing means. Harassment shall include the following actions when undertaken with the purpose of soliciting a cable communications subscription:
(1) Entry into a dwelling unit without an oral invitation to do so;
(2) A telephone call to a dwelling unit between the hours of 10:00 p.m. and 7:00 a.m.;
(3) A telephone call to a dwelling unit within three months of a prior rejection of a cable communications subscription by any person residing at that dwelling unit, unless some person residing therein has expressly indicated an interest in subscribing to the cable communications system; and
(4) Visiting a dwelling unit within three months of a prior rejection of a cable communications subscription by any person residing at that dwelling unit, unless some person residing therein has expressly indicated an interest in subscribing to the cable communications system.
(Ord. 2000-59. Passed 7-10-00.)