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FRANCHISE PROVISIONS
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BASIC SERVICE. The simultaneous delivery by the grantee to the television, radio or other appropriate communications receiver of a subscriber of all signals of over-the-air broadcasters required by the Federal Communications Commission or this subchapter to be carried by the cable television system of the grantee, together with such additional public, educational, governmental, leased or other access channels or signals as may be likewise required by law, but not including pay or subscription television as defined by the Federal Communications Commission.
COMMITTEE. A committee of the Village Council consisting of three Council members, appointed by the Village President, which shall be directly responsible for over-seeing and controlling the granting of a franchise pursuant to this subchapter and for over-seeing any franchise which may be granted.
COMMUNITY ANTENNA TELEVISION SYSTEM or CATV or CABLE TELEVISION SYSTEM. A system employing antenna, microwave, wires, wave guides, coaxial cables or other conductors, equipment or facilities designed, constructed or used for the purpose of:
(1) Collecting and amplifying local or distant broadcast television or radio signals and distributing and transmitting same;
(2) Transmitting original cablecast programming not received through television broadcast signals; or
(3) Transmitting television pictures, film and video tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; provided, however, that any of the services permitted hereunder to be performed, as described above, shall be those performed by the grantee for subscribers, as herein defined in the operation of a cable television or CATV system franchised by the village and not otherwise, and provided further that such term shall not include any such facility or system that serves only the residents of one or more apartment dwelling or commercial establishments under common ownership, control or management.
FRANCHISE. Any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a cable television system within the village.
FRANCHISE AREA. The territory within the village throughout which the grantee shall be authorized hereunder to construct, maintain and operate its system.
GRANTEE. Any person, firm or corporation receiving the grant of any franchise hereunder and shall include any lawful successor to the interest of such person, firm or corporation.
SUBSCRIBER or USER. Any person or entity receiving for any purpose any service of the grantee’s cable television system including, but not limited to, the conventional cable television system service of re-transmission of television broadcast, radio signals, the grantee’s original cablecasting and the local government, education and public access channels; and other services, such as leasing of channels, data and facsimile transmission, pay television and police, fire and similar public service communication.
VILLAGE. The Village of Three Oaks.
VILLAGE COUNCIL. The Council of the village.
(Ord. 77, passed 8-6-1981)
A nonexclusive franchise to install, construct, operate and maintain a cable television system on streets within the village may be granted by the Village Council to any person whether operating under an existing franchise, or not, who offers to furnish and provide such system under and pursuant to the terms and provisions of this subchapter. No provision of this subchapter may be deemed or construed to require the granting of a franchise when, in the opinion of the Council, it is in the public interest to restrict the number of the grantees to one or more, and competitive franchises covering the same territory shall be restricted to those instances where the applicant for the second franchise can offer a unique or legally protected service which is not available and cannot be made available to the grantee of the existing franchise.
(Ord. 77, passed 8-6-1981)
(A) Any franchise granted pursuant to the provisions of this subchapter shall authorize and permit the grantee to do the following:
(1) Erect, install, construct, repair, replace, re-construct, maintain and retain, in, on, over, under, across and along any public street, alley, way or place now laid out and dedicated and all extensions thereof, such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations, including, but not limited to, any public utility or other grantee of any franchise of this village;
(2) Maintain and operate facilities and properties for the collection, transmission, conduction, amplification, conversion and distribution of programs and other services by use of electricity, radiation or other energy source; or
(3) Solicit, sell, distribute and make charge to subscribers within the village for connection to the CATV system of the grantee.
(B) A franchise granted solely to traverse any portion of the village in order to provide service outside the village, shall not authorize nor permit the grantee to solicit, sell, distribute or make any charge to subscribers within the village, nor to render any service or connect any subscribers within the village to the CATV system of the grantee.
(Ord. 77, passed 8-6-1981)
All applications to construct, operate or maintain any CATV system in this village or to traverse any portion of the village for transmitting or conveying of such service elsewhere, shall be filed with the Village Clerk, and each application shall set forth, contain or be accompanied by the following:
(A) The name, address and telephone number of the applicant;
(B) A detailed statement of the corporate or other business entity organization of the applicant including, but not limited to, the following;
(1) The names, residence addresses and business addresses of all officers, directors and partners or business associates of the applicant;
(2) The names, residence addresses and business addresses of all persons and entities having an ownership interest in the applicant and the respective ownership share of each such person or entity;
(3) The names and addresses of any parent or subsidiary of the applicant and of any other business entity owning or controlling in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including, but not limited to, all CATV or similar systems owned or controlled by the applicant, its parent or subsidiary and the areas served thereby;
(4) A detailed description of all previous experience of the applicant as to providing CATV service or related or similar services;
(5) A detailed and complete financial statement of the applicant, prepared by certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a responsible lending institution or funding source, addressed to both the applicant and the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the village, or a statement from a certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system in this village; and
(6) A statement indentifying, by place and date, any other cable television franchise(s) awarded to the applicant, its parent or subsidiaries; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such system(s); and the amount of applicant’s and its parent’s or subsidiary’s resources committed to the completion thereof.
(C) A detailed description of the proposed plan of operation of the applicant, which shall include, but not be limited to, the following:
(1) A detailed map indicating all areas proposed to be served, routes to be taken, a diagram of the equipment which will be exposed and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served;
(2) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of any said classification, including installation charges, service charges and special, extraordinary or other charges. The purchase price, terms and nature of any optional or required equipment, device or other thing to be offered for sale to any subscriber shall be described and explained in detail; and
(3) A detailed statement describing the actual equipment and operational standards proposed by the applicant.
(D) A copy of the form of any agreement undertaking or other instrument proposed to be entered into between the applicant and any subscriber;
(E) Any other information pertinent to the subject matter of such application and requested by the Committee; and
(F) An application fee in the sum of $250 which shall be in the form of cash, certified or cashier’s check or money order to pay the costs of studying, investigating and otherwise processing such application and shall not be returnable or refundable in whole or in part except to the extent that such fee exceeds the actual cost incurred by the village in studying, investigating and otherwise processing the application.
(Ord. 77, passed 8-6-1981)
(A) The Village Council may, by advertisement or any other means, solicit and call for application for CATV franchises, and may determine and fix the time for filing such applications.
(B) Upon receipt of any application for franchise, in manner, time and form as herein or otherwise provided, the Village Clerk shall forward and deliver same to the Committee.
(C) Upon receiving the same from the Village Clerk, as aforesaid, the Committee shall cause such application to be investigated, shall prepare a report of such investigation, shall make its recommendations respecting such application, and shall cause said report and recommendations to be placed upon the agenda of a regular or special session of the Village Council. A copy of such report and recommendations and notice of the date it will be presented to the Village Council shall be mailed or otherwise delivered to the applicant at the address listed in the application. The Village Clerk shall cause notice of such meeting to be published at least once in a newspaper of general circulation in the village, stating the hour, date and place of the meeting, stating that the proposed franchise will be considered, and stating that comments from the public will be heard.
(D) The Village Council shall receive the report and recommendations of the Committee, shall consider the same together with such application, and comments of the public and shall make its determination either that such application be accepted upon such terms and conditions as the Village Council shall determine, or that such application be rejected. The Village Council may make its determination at the regular or special session at which the Committee report is received or may defer the decision to a subsequent regular session of the Village Council. In making any determination as to any application, the Council shall consider the quality of the service proposed, the rates to subscribers, income to the village, experience, character and financial responsibility of the applicant and its management and owners, the technical and performance quality of the equipment to be used, the willingness and ability of the applicant to meet construction and physical requirements, policy considerations, franchise limitations and requirements imposed by this subchapter and any other considerations deemed pertinent by the Village Council.
(E) If the Village Council shall determine that such application shall be rejected, such determination shall be final and conclusive. If the Village Council shall determine that such application shall be accepted, the Council shall:
(1) Decide and specify the terms and conditions of any franchise to be granted hereunder and as herein provided; and
(2) Pass an ordinance or resolution granting such franchise, stating the name of the grantee, the character of the franchise and the terms and conditions upon which such franchise is granted.
(Ord. 77, passed 8-6-1981)
(A) No franchise hereunder shall become effective for any purpose unless and until a written acceptance thereof shall have been filed with the Village Clerk, and such written acceptance shall operate as an acceptance of each and every term and condition and limitation contained in this subchapter, and in such franchise.
(B) Such written acceptance shall be filed by the grantee not later than 30 days after grant of the franchise as provided above, and in default of such written acceptance as herein required, the grantee shall be deemed to have rejected the same.
(Ord. 77, passed 8-6-1981)
In addition to any other franchise requirements hereunder, or made or adopted as herein provided, the following requirements shall apply to any franchise granted or renewed by the Village Council under this subchapter.
(A) Franchise payments, operations within franchise area. In consideration of the granting and exercise of a franchise to use the streets of the franchise area for the purpose of operating a cable television system for the use and benefit of subscribers therein, the grantee shall pay yearly to the village during the entire time of any franchise granted pursuant to this subchapter, an annual franchise fee equal to 3% of the grantee’s yearly gross revenues derived from all cable services provided by the grantee within the village, or $250, whichever is greater.
(B) Franchise payments, operations outside franchise area. In consideration of the granting and exercise of a franchise to use the streets of the franchise area solely for the purpose of providing cable television service to subscribers outside the franchise area, the grantee shall pay to the village during the entire life of the franchise, a franchise fee as specified by the Council when such franchise is granted, which fee shall be separate and distinct from that specified in division (A) above.
(C) Franchise payments not in lieu of taxes. Any franchise payments to the village by the grantee shall not be in lieu of any occupation, income, license or property tax or similar levy, assessment or charge which would otherwise apply to and be payable by the grantee.
(D) Corporate surety bond re: village. The franchise granted shall specify that upon acceptance of such franchise, the grantee shall file with the Village Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond or other adequate surety agreement in the amount and kind specified in the franchise granted and conditioned that in the event the grantee shall fail to comply with any one or more of the provisions of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by the village or by any subscriber as a result thereof, including attorneys’ fees and costs of any action, or proceeding, and including the full amount of any compensation, indemnification, cost of removal of any property or other costs which may be incurred up to the full principal amount of such bond; and said condition shall be a continuing obligation during the entire term of such franchise and thereafter until the grantee shall have satisfied in full any and all obligations to the village and any subscriber which arise out of or pertain to said franchise. Neither the provisions of this section, nor any bond accepted by the village pursuant hereto nor any damages recovered by the village thereunder shall be construed to excuse faithful performance by the grantee, or limit the liability of the grantee under any franchise issued pursuant to this subchapter.
(E) Comprehensive liability insurance. Upon acceptance of such franchise, the grantee shall file with the Village Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a comprehensive liability policy of insurance with limits of not less than $500,000 for property damage to any one person, $500,000 for property damage in any one accident, $500,000 for personal injury to any one person and $1,000,000 for personal injury in any one accident or such higher amounts as the Village Council may fix in the franchise, or any amendment thereto, and of such insuring institutions, form and substance as shall be approved by the Committee, and which shall assure the grantee, and shall provide primary coverage for the village, its officers, board, committees, agents and employees against liability for loss or damage for personal injury, death and property damage occasioned by any activity or operation of the grantee under such franchise.
(F) Hold harmless agreement. The grantee shall indemnify and hold harmless the village, its officers, board, committees, agents and employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages, (including, but not limited, to damages to village property and damages arising out of copyright infringements, and damages arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee’s cable television system), costs or liabilities (including costs or liabilities of the village with respect to its employees), of every kind and nature whatsoever including, but not limited to, damages for injury or death or damage to person or property, and regardless of the merit of any of the same, against all liability to others, and against any loss, cost and expense resulting or arising out of any of the same including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travelling and transportation expense or other costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by the grantee or the granting thereof by the village.
(G) Defense of litigation. The grantee shall at the sole risk and expense of the grantee, upon demand of the village, made by and through the Village Attorney, appear in and defend any and all suits, actions or other legal proceedings whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting the village, its officers, board, committees, agents or employees and arising out of or pertaining to the exercise or the enjoyment of such franchise, or the granting thereof by the village.
(Ord. 77, passed 8-6-1981)
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