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(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)
(A) Within 30 days after acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited, to any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems, or associated microwave transmissions facilities. In connection therewith, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission or any other federal or state regulatory commission or any agency having jurisdiction in respect to any matters affecting the grantee’s cable television operations, shall also be submitted simultaneously to the Committee.
(B) Within 30 days after obtaining all necessary permits, licenses and authorizations, including right of access to poles and conduits, the grantee shall commence construction and installation of the CATV system.
(C) Within two years after the commencement of construction and installation of the system, the grantee shall complete construction of the facilities needed to permit the reception of broadcast signals, the origination of programming within the village, and the distribution of signals to the franchise area. Provided, however, the Village Council may approve exceptions to this requirement upon a showing by the grantee of undue hardship or expense.
(D) Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein shall be grounds for termination of such franchise.
(E) The grantee shall utilize existing poles, conduits and other facilities whenever possible and shall not construct or install any new, different or additional poles, conduits or other facilities without first securing the written approval of the Committee. Any poles, conduits or other facilities of the grantee to be installed in, under, over, along, across or upon a public street, alley, way or place shall be so located so as to cause minimum interference with the rights of other users of the streets, alleys, ways or places or of property owners who adjoin any of the streets, alleys, ways or places. In the event of disturbance of any public street, alley, place or way by the grantee, it shall, at its own expense, promptly replace and restore such street to as good a condition as before the work causing such disturbance was performed, and to the satisfaction of the Committee.
(F) In all sections of the village where all existing cables or other like facilities of utility companies are presently or subsequently placed underground, the grantee shall place its cables or like facilities underground, at the grantee’s expense.
(G) The village shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits or other facilities erected, controlled, or maintained exclusively by or for the grantee in any street or other public way or public place, provided such use by the village does not interfere with the use by the grantee.
(H) The grantee shall at the expense of the grantee, protect, support, temporarily disconnect or temporarily relocate any property of the grantee when, in the opinion of the Committee, the same is required by reason of street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, power lines or signal lines.
(I) In the event the use of any part of the system of the grantee is discontinued for any reason for a continuous period of 30 days, without prior written notice to and approval by the Committee, or in the event any part of such system has been installed in any street or other area without complying with the requirements hereof, or in the event any franchise shall be terminated, cancelled or shall expire, the grantee shall, at the option of the village, and at the expense of the grantee and at no expense to the village, promptly remove from any street or other area all property of the grantee and the grantee shall promptly restore the street or other area from which such property has been removed to such condition as the Committee shall approve; provided the Village Council may, upon written application therefore by the grantee; approve the abandonment of any such property in place by the grantee and under such terms and conditions as the Village Council may prescribe; and upon abandonment of any such property in place, the grantee shall cause to be executed, acknowledged and delivered to the village such instruments as shall be approved by the Committee, conveying the ownership of such property to the village.
(J) Upon the failure, refusal or neglect of the grantee to cause any work or other act required by law or by this subchapter to be completed in, on, over or under any street within any time prescribed therefor, or upon notice given, where notice is prescribed, the Committee may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to the grantee an itemized statement of the costs thereof, and the grantee shall, within 30 days after receipt of such statement, pay unto the village the entire amount thereof.
(Ord. 77, passed 8-6-1981)
(A) General rules. The CATV system of a grantee receiving a franchise shall:
(1) Be capable of relaying to subscriber terminals television and radio broadcast signals;
(2) Be constructed with the capability of two-way digital signal transmission;
(3) Distribute color television signals which it receives;
(4) Be constructed and operated so as not to interfere with the television reception of persons not served by the grantee and so as not to interfere with, obstruct or hinder in any manner the operation of any utility serving the village;
(5) Provide at least one channel, without charge, for exclusive use of the village and other governmental agencies;
(6) Provide at least one channel, without charge, for use by the public school system; provided, however, the Village Council may waive this requirement at the time a franchise is granted if the franchise so granted provides for the addition of said channel by the grantee at the request of the Village Council, after the Village Council has determined there is a demand for said channel; and
(7) Provide at least one channel as a public access channel for use by civic groups and interested citizens; provided, however, the Village Council may waive this requirement at the time a franchise is granted if the franchise so granted provides for the addition of said channel by the grantee at the request of the Village Council, after the Village Council has determined there is a demand for said channel.
(B) Additional services. The cable television system may also engage in the business of:
(1) Transmitting original cablecast programming not received through television broadcast signals;
(2) Transmitting television pictures, film and videotape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers; and/or
(3) Transmitting and receiving all other signals: digital, voice and audio-visual.
(C) Refusal of service. No person, firm or corporation within the service area of the grantee, and where trunk lines are in place, shall be refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charges.
(D) Service standards. The grantee shall:
(1) Correct malfunctions promptly but in no event later than 24 hours after occurrence; in the event it should be impossible or impractical to correct any malfunctions within 24 hours, then each subscriber whose reception is so disrupted shall receive a rebate from the grantee in the amount of one thirtieth of such subscriber’s monthly charge for every additional 24-hour period that said subscriber’s television reception is so disrupted, unless said disruption in service was entirely beyond the control of the grantee;
(2) Answer all complaints by subscribers;
(3) Planned interruptions of service, insofar as possible, shall be preceded by a notice given to subscribers 24 hours in advance and shall occur during periods of minimum use of the system;
(4) Maintain an office in the village, which office shall be open during the usual business hours, with a local telephone number listed in directories of the telephone company serving the village, which office shall be so operated that complaints and requests for repairs or adjustments may be received at any time, 24 hours a day, seven days a week, provided, however, that the Village Council may waive the requirement of maintaining an office in the village, if the grantee shall maintain an office in the area, subject to the same standards as if in the village, and provide an agent in the village to receive payments and accept complaints; and
(5) Provide notice of such office, or area office and local agent, and the grantee’s complaint procedure to each subscriber at the time of initial subscription to the system.
(E) Complaint procedures. The Committee shall have primary responsibility for the administration of complaints regarding cable television franchises, and shall adopt procedures to be followed in resolving and processing such complaints.
(F) Content. The grantee shall not send, transmit, retransmit or otherwise pass through its system any material, audio or visual, which is obscene under state or local law or any motion picture which has been rated “X” by the Motion Picture Film Board.
(G) Failure to provide service. Any grantee of any franchise hereunder who shall, within one year after the payment of any installation charge by any subscriber, fail to operate its system or make its system available to such subscriber, on a regular and continuous basis, shall refund the installation charge to such subscriber, together with interest thereon at not less than 5% per year.
(Ord. 77, passed 8-6-1981)
In addition to any other franchise limitations hereunder or as herein provided, the following limitations shall apply to any franchise granted or renewed by the Village Council under this subchapter.
(A) Nature of franchise. Such franchise shall be nonexclusive, and neither the granting thereof nor any of the provisions contained herein or in such franchise shall limit, abridge, diminish, alter or affect the right, privilege, power or authority of the Village Council; and the Village Council hereby reserves and preserves the right to grant any identical or similar or different franchise to any person, firm or corporation other than the grantee, either within or without or partly within or partly without the franchise area of any grantee, subject only to the restrictions provided in § 113.04(A) of this subchapter. No privilege or exemption shall be granted or conferred by any franchise granted hereunder except those specifically prescribed in this subchapter.
(B) Subordination of franchise privileges. The grant of any privilege by any franchise hereunder shall be subordinate to any prior lawful occupancy of any street or public property or to the grant of any privilege under any other franchise of prior date, insofar as there shall be any conflict.
(C) Transfer of franchise. Any franchise granted hereunder shall be a privilege to be held in personal trust by the original grantee. It cannot, in any event, be sold, transferred, leased, assigned or disposed of in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise without prior written consent of the Village Council, and then only under such conditions as may therein be prescribed.
(1) Notice and request for approval of any proposed sale or transfer of this franchise must be given to the Village Council not later than 90 days before the proposed sale or transfer. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the Village Clerk within 30 days after any such transfer or assignment. The said consent of the Village Council may not be unreasonably refused; provided, however, the proposed assignee must show financial responsibility as determined by the Village Council and must agree to comply with all the provisions of the franchise and of this subchapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage or otherwise, in whole or in part, to secure an indebtedness, except that when such transfer shall exceed 50% of the market value of the property used by the franchisee in the conduct of the cable television system, prior consent of the Village Council shall be required for such a transfer. Such a consent shall not be withheld unreasonably.
(2) In the event that the grantee is a corporation, prior approval of the Village Council, expressed by resolution, shall be required where there is an actual change in control or where ownership of more than 30% of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom already own 30% or more of the voting stock, singly or collectively.
(D) Term of franchise. No franchise granted or renewed by the Village Council under this subchapter shall be for a term shorter than five years, unless terminated prior to its expiration as herein provided, nor shall any such franchise be granted or renewed for a term longer than 15 years. Any franchise renewal shall be subject to the prior approval of the Village Council utilizing the same procedures as prescribed herein for the granting of a new franchise.
(E) Review of franchise. Every five years after the effective date of the franchise the Council and the grantee shall jointly review the performance of the grantee’s operation and specifically the Village Council will inquire whether the grantee is supplying a level and variety of services equivalent to those being generally offered at the time in the industry, in comparable market situations. In the event that the grantee desires to change or modify its obligations under its franchise, it may negotiate with the Village Council to do so at that time. Within 60 days of the conclusion of the review the Village Council and the grantee shall report in public proceeding the result of their review and their conclusions. The Village Council may then order unilateral changes in the franchise rights and obligations of the grantee where said changes cause no economic impact. Any changes that cause substantial adverse economic impact shall be the subject of negotiations with the grantee. Any disputes hereunder shall be resolved by arbitrators, one selected by each party and the third selected by the other two, whose decision shall be final. The arbitrators are to base their decision on what is fair and equitable to all concerned.
(F) Recourse against village. The grantee shall have no recourse or remedy whatsoever against the village for any loss, cost, expense or damage arising out of or with respect to any franchise hereunder, or this subchapter, or the enforcement thereof.
(G) Village rules and regulations. The grantee shall be subject to all ordinances, rules, regulations and specifications of the village heretofore or hereafter established including but not limited to, those pertaining to works and activities, in, on, over, under and about streets.
(H) Prohibited activities of the grantee. The grantee shall be prohibited from directly or indirectly doing any of the following:
(1) Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets or radios;
(2) Soliciting, referring or causing or permitting the solicitation or referral of any subscriber to persons engaged in any business herein prohibited to be engaged in by the grantee;
(3) Providing information concerning the viewing patterns of identifiable individual subscribers to any person, group or organization for any purpose, without the consent of the subscriber;
(4) Entering or encroaching upon or interfering with or obstructing any private property without the express consent of the owner; and
(5) Providing any repair service to its subscribers for a fee, which repair extends beyond the connection of its service or the determination by the grantee of the quality of its signals to the recipients thereof.
(Ord. 77, passed 8-6-1981)
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