Ord1004cable
COMMON COUNCIL - CITY OF MUSKEGO
ORDINANCE #1004
AN ORDINANCE TO AMEND CHAPTER 12 TO REPEAL SECTION 12.19
AND CREATE CHAPTER 31
OF THE MUNICIPAL CODE OF THE CITY OF MUSKEGO
(MUSKEGO CABLE TELEVISION FRANCHISE ORDINANCE)
THE COMMON COUNCIL OF THE CITY OF MUSKEGO, WAUKESHA COUNTY,
WISCONSIN DO ORDAIN AS FOLLOWS:
SECTION 1: Chapter 12 of the Municipal Code of the City of Muskego, Wisconsin is
hereby amended to repeal Section 12.19 in its entirety.
SECTION 2: Chapter 31 of the Municipal Code of the City of Muskego, Wisconsin is
hereby created to read as follows:
1
MUSKEGO CABLE TELEVISION FRANCHISE ORDINANCE
31.01 SHORT TITLE
This chapter shall be known and may be cited as the "Muskego Cable Television Franchise
Ordinance”, hereinafter "Franchise” or "Ordinance."
31.02 DEFINITIONS
For the purpose of this chapter the following terms, phrases, words and their derivations shall
have the meaning given herein:
(1) “Basic service” means any subscriber tier provided by the Grantee which includes the
delivery of local broadcast stations, and public, educational and governmental access
channels. The Basic service does not include optional program and satellite service
tiers, a la carte services, per channel, per program, or auxiliary services for which a
separate charge is made. However, Grantee may include other satellite signals on the
Basic tier.
(2) “Cable System or System or cable television system” means a system of antennas,
cables, wires, lines, towers, wave guides, or other conductors, converters, equipment or
facilities, designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing, audio, video, and other forms of electronic,
electrical or optical signals, which includes cable television service and which is located
in the City. The definition shall not include any such facility that serves or will serve
only subscribers in one (1) or more multiple unit dwellings under common ownership,
control or management, and which does not use City rights-of-way.
(3) “City” means the City of Muskego, Wisconsin.
(4) “Class IV channel” means a signaling path provided by a cable communications system
to transmit signals of any type from a subscriber terminal to another point in the cable
communications system.
(5) “Control and/or Controlling Interest” shall mean actual working control or ownership of a
System in whatever manner exercised. A rebuttable presumption of the existence of
control or a controlling interest shall arise from the beneficial ownership, directly or
indirectly, by any Person or Entity (except underwriters during the period in which they
are offering securities to the public) of ten percent (10%) or more of a Cable System or
the Franchise under which the System is operated. A change in the control or
controlling interest of an Entity which has control or a controlling interest in a Grantee
shall constitute a change in the control or controlling interest of the System under the
same criteria. Control or controlling interest. as used herein may be held
simultaneously by more than one Person or Entity.
(6) “Converter” means an electronic device which converts signals to a frequency not
susceptible to interference within the television receiver of a subscriber, and by an
1
appropriate channel selector also permits a subscriber to view more than twelve (12)
channels delivered by the system at designated converter dial locations.
(7) “FCC” means the Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
(8) “Grantee” means a person or entity to whom or which a Franchise under this chapter is
granted by the City, along with the lawful successors or assigns of such person or
entity.
(9) “Gross Revenues” means all revenue collected directly or indirectly by the Grantee,
from the provision of cable service within the City including but not limited to, basic
subscriber service monthly fees, pay cable fees, installation and reconnection fees,
leased channel fees, converter rentals, program guides, studio rental, production
equipment, personnel fees, late fees, downgrade fees, revenue from the sale,
exchange, use or cable cast of any programming developed on the system for
community or institutional use, advertising, and any value (at retail price levels) of any
non-monetary remuneration received by Grantee in consideration of the performance of
advertising or any other service of the system; provided, however, that this shall not
include any taxes on services furnished by the Grantee herein imposed directly upon
any subscriber or user by the state, local or other governmental unit and collected by
the Grantee on behalf of the governmental unit. Subject to applicable federal law, the
term Gross Revenues includes revenues attributed to franchise fees and revenues
collected directly or indirectly from other ancillary telecommunications services (such as
but not limited to, point-to-point telecommunications, point-to-point multipoint
telecommunications, data transmissions, etc.) but only to the extent that all other
providers of such telecommunications services in the City are subject to the same
compensation requirements of the City.
(10) “Initial service area” means all areas in the City.
(11) “Installation” means the connection of the system from feeder cable to subscribers'
terminals.
(12) “May” is permissive.
(13) “Monitoring” means observing a communications signal, or the absence of a signal,
where the observer is neither the subscriber nor the programmer, whether the signal is
observed by visual or electronic means, for any purpose whatsoever; provided
monitoring shall not include system wide, non individually addressed sweeps of the
system for purposes of verifying system integrity, controlling return paths transmissions,
or billing for pay services.
(14) “New Construction service area” means developing areas having at least twenty (20)
dwelling units planned per street mile or 175 feet from the cable system, as measured
from the existing system, and shall extend its system simultaneously with the
installation of utility lines.
(15) “Normal Business Hours” as applied to the Grantee shall mean those hours during
which similar businesses in the City are open to serve customers. In all cases, Normal
2
Business Hours shall include some evening hours at least one night per week, and/or
some weekend hours.
(16) “Normal Operating Conditions” shall mean those service conditions which are within the
control of the Grantee. Those conditions which are not within the control of the
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions.
Those conditions which are ordinarily within the control of the Grantee include, but are
not limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the Cable System.
(17) “Shall” is mandatory.
(18) “Service Interruption and/or Outages” shall mean the loss of either picture or sound or
both for a single or multiple subscriber(s).
(19) “Street” means the surface of and all rights-of-way and the space above and below any
public street, road, highway, freeway, lane, path, public way or place, sidewalk, alley,
court, boulevard, parkway, drive or easement now or hereafter held by the City for the
purpose of public travel and shall include other easements or rights-of-way as shall be
now held or hereafter held by the City which shall, within their proper use and meaning
entitle the Grantee to the use thereof for the purposes of installing poles, wires, cable,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a telecommunications
system.
(20) “Subscriber” shall mean any person, firm, Grantee, corporation, or association lawfully
receiving Basic and/or any additional service from Grantee.
(21) “User” means a party utilizing a cable television system channel for purposes of
production or transmission of material to subscribers, as contrasted with receipt thereof
in a subscriber capacity.
31.03 RIGHTS AND PRIVILEGES OF GRANTEE
Any franchise granted by the City pursuant to Wisconsin Statutes Section 66.082 shall grant to
the Grantee the right and privilege to erect, construct, operate and maintain in, upon, and
along, across, and under the streets, now in existence and as may be created or established
during its terms; any poles, wires, cable, underground conduits, manholes, and other television
conductors and fixtures necessary for the maintenance and operation of a Cable System. All
new installations will follow utilities within the City. Time Warner Cable will abide by all
ordinances that govern the construction of plant.
31.04 AGREEMENT AND INCORPORATION OF APPLICATION BY REFERENCE
(1) Upon adoption of any franchise agreement and execution thereof by the Grantee, the
Grantee agrees to be bound by all the terms and conditions contained herein.
3
(2) Any Grantee also agrees to provide all services specifically set forth in its application if
any and to provide cable television service within the confines of the City; and by its
acceptance of the franchise, the Grantee specifically grants and agrees that its
application is thereby incorporated by reference and made a part of the franchise. In
the event of a conflict. between such proposals and the provisions of this chapter, that
provision which provides the greatest benefit to the City, in the opinion of the City, shall
prevail.
31.05 FRANCHISE TERRITORY
Any franchise is for the present territorial limits of the City and for any area henceforth added
thereto during the term of the franchise.
31.06 DURATION AND ACCEPTANCE OF FRANCHISE
The franchise and the rights, privileges and authority granted shall take effect and be in force
as set forth in the Franchise Agreement and shall continue in force and effect for a term of no
longer than fifteen (15) years, provided that within fifteen (15) days after the date of final
passage of the franchise the Grantee shall file with the City its unconditional acceptance of the
franchise and promise to comply with and abide by all its provisions, terms and conditions.
Such acceptance and promise shall be in writing duly executed and sworn to, by, or on behalf
of the Grantee before a notary public or other officer authorized by law to administer oaths.
Such franchise shall be non-exclusive and revocable.
31.07 FRANCHISE RENEWAL
(1) Current federal statutory process:
(a) The City may, on its own initiative, during the six-month period which begins
with the thirty-six (36) month before the Franchise expiration, commence a
proceeding which affords the public in the City appropriate notice and
participation for the purpose of (A) identifying the future cable-related
community needs and interests and (B) reviewing the performance of the
Grantee under the Franchise. If the Grantee submits, during such six-month
period, a written renewal notice requesting the commencement of such
proceeding, the City shall commence such proceeding not later than six (6)
months after the date such notice is submitted.
(b) Upon completion of the proceeding under paragraph (a) above, the Grantee
may, on its own initiative or at the request of the City, submit a proposal for
renewal. The City may establish a date by which such proposal shall be
submitted.
(c) Upon submittal by the Grantee of a proposal to the City for the renewal of the
Franchise, the City shall provide prompt, public notice of such proposal and
renew the Franchise or issue a preliminary assessment that the Franchise
should not be renewed, and at the request of the Grantee or on its own
initiative, commence an administrative proceeding, after providing prompt, public
notice of such proceeding.
4
(d) The City shall consider in any administrative proceeding whether (A) the
Grantee has substantially complied with material terms of the existing Franchise
and with applicable law; (B) the quality of the Grantee's service, including signal
quality, response to consumer complaints and billing practices, but without
regard to the mix or quality of cable services or other services provided over the
System, has been reasonable in the light of community needs; (C) the Grantee
has the financial, legal and technical ability to provide the services, facilities and
equipment as set forth in the Grantee's proposal; and (D) the Grantee's
proposal is reasonable to meet the future cable-related community needs and
interests, taking into account the costs of meeting such needs and interests.
(e) In any proceeding under paragraph (d), the Grantee shall be afforded adequate
notice and the Grantee and the City, or its designee, shall be afforded fair
opportunity for full participation, including the right to introduce evidence
(including evidence related to issues raised in the proceedings under paragraph
(a) above, to require the production of evidence and to question witnesses. A
transcript shall be made of any such proceeding.
(f) At the completion of a proceeding under paragraph (d), the City shall issue a
written decision granting or denying the proposal for renewal based upon the
record of such proceeding and transmit a copy of such decision to the Grantee.
Such decision shall state the reasons therefor.
(g) Any denial of a proposal for renewal that has been submitted in compliance with
the procedures set forth above, shall be based on one or more adverse findings
made with respect to the factors described at (A) through (D) of paragraph (d)
pursuant to the record of the proceeding under said paragraph. The City may
not base a denial of renewal on a failure to substantially comply with the
material terms of the Franchise or on events considered under paragraph (d)(B)
unless the City has provided the Grantee with notice and the opportunity to cure
or in any case in which it is documented that the City has waived its right to
object.
(h) The Grantee may appeal any final decision or failure of the City to act in
accordance with the procedural requirements of this Section. The court shall
grant appropriate relief if the court finds that (A) any action of the City is not in
compliance with the procedural requirements of this Section; or (B) in the event
of a final decision of the City denying the renewal proposal, the Grantee has
demonstrated that the adverse finding of the City with respect to each of the
factors described in paragraph (d)(A) through (D) on which the denial is based is
not supported by a preponderance of the evidence, based on the record of the
administrative proceeding.
(2) Franchise renewal in the event of change in federal law:
A franchise may be renewed by the City upon application of the Grantee pursuant to
the procedure established in this section, and in accordance with the then applicable
law.
5
(a) At least twenty-four (24) months prior to the expiration of the franchise, the
Grantee shall inform the City in writing of its intent to seek renewal of the
franchise.
(b) The Grantee shall submit a proposal for renewal which demonstrates:
1. That it has been and continues to be in substantial compliance with the
terms, conditions, and limitations of this Ordinance and its franchise;
2. That its system has been installed, constructed, maintained and
operated in accordance with the accepted standards of the industry, and
this Ordinance and its franchise;
3. That it has the legal, technical, financial, and other qualifications to
continue to maintain and operate its system, and to extend the same as
the state of the art progresses so as to assure its Subscribers high
quality service; and
4. That it has made a good faith effort to provide services and facilities
which accommodate the demonstrated needs of the community as may
be reasonably ascertained by the City.
(c) After giving public notice, the City shall proceed to determine whether the
Grantee has satisfactorily performed its obligations under the franchise. To
determine satisfactory performance, the City shall consider technical
developments and performance of the system, programming other services
offered, cost of services, and any other particular requirements set in this
chapter; also, the City shall consider the Grantee's reports made to the City and
the Federal Communication Commission; may require the Grantee to make
available specified records, documents, and information for this purpose, and
may inquire specifically whether the Grantee will supply services sufficient to
meet community needs and interests; industry performance on a national basis
shall also be considered. Provision shall be made for public comment.
(d) The City shall then prepare any amendments to this Ordinance that it believes
necessary.
(e) If the City finds the Grantee's performance satisfactory, and finds the Grantee's
technical, legal, and financial abilities acceptable, and finds the Grantee's
renewal proposal meets the future cable-related needs of the City, a new
franchise shall be granted pursuant to this Ordinance as amended for a period
to be determined.
(f) If the Grantee is determined by the City to have performed unsatisfactorily, new
applicants may be sought and evaluated and a franchise award shall be made
by the City according to franchising procedures adopted by the City.
31.08 POLICE POWERS
6
(1) In accepting this franchise, the Grantee shall acknowledge that its rights hereunder are
subject to the police power of the City to adopt and enforce general ordinances
necessary to the safety and welfare of the public; and shall agree to comply with all
applicable general laws and ordinances enacted by the City pursuant to such power.
(2) Any conflict between the provisions of this ordinance and any other present or future
lawful exercise of the City's police powers shall be resolved in favor of the latter, except
that any such exercise that is not of general application in the jurisdiction, or applies
exclusively to the Grantee or cable television systems which contains provisions
inconsistent with this franchise, shall prevail only if upon such exercise the City finds an
emergency exists constituting a danger to health, safety, property or general welfare or
such exercise is mandated by law.
31.09 CABLE TELEVISION FRANCHISE REQUIRED
No cable television system shall be allowed to occupy or use the streets, i.e. rights-of-way, for
system installation and maintenance purposes, of the City or be allowed to operate without a
franchise.
31.10 USE OF GRANTEE FACILITIES
The City shall have the right, during the life of this franchise, to install and maintain free of
charge upon the poles of the Grantee any wire or pole fixtures that do not unreasonably
interfere with the cable television system operations of the Grantee. The City shall indemnify
and hold harmless the Grantee from any claim that might arise due to or as a result of the
City's use.
31.11 INITIAL FRANCHISE COSTS
Costs to be borne by the Grantee shall include any requirements or charges incidental to the
awarding or enforcing of the initial franchise, but shall not be limited to, all costs of publications
of notices prior to any public meeting provided for pursuant to this franchise, and any costs not
covered by application fees, incurred by the City in its study, preparation of proposal
documents, evaluation of all applications, and examinations of the applicants' qualifications.
31.12 NOTICES
All notices from the Grantee to the City pursuant to this ordinance shall be to the City Mayor's
Office. The Grantee shall maintain with the City, throughout the term of this franchise, an
address for service of notices by mail. The Grantee shall maintain a central office to address
any issues relating to operating under this cable television ordinance.
31.13 LETTER OF CREDIT/SECURITY DEPOSIT
(1) Within fifteen (15) days after the award of the initial franchise, the Grantee shall deposit
with the City either an irrevocable letter of credit from a financial institution or a security
deposit in the amount of seventy-five thousand dollars ($75,000.00) with the form to be
established by the City. The form and content of such letter of credit or security deposit
shall be approved by the City Attorney. These instruments shall be used to insure the
7
faithful performance of the Grantee of all provisions of this Franchise; and compliance
with all orders, permits and directions of any agency, commission, board, department,
division, or office of the City having jurisdiction over its acts or defaults under this
franchise, and the payment by the Grantee of any claims, liens, and taxes due the City
which arise by reason of the construction, operation or maintenance of the system.
(2) The letter of credit or security deposit shall be maintained at the amount established by
the City for the entire term of this franchise, even if amounts have to be withdrawn
pursuant to a subsections (1) or (2) of this section.
(3) If the Grantee fails to pay to the City any compensation within the time fixed herein; or
fails after fifteen (15) days notice to pay to the City any taxes due and unpaid; or fails to
repay the City within fifteen (15) days, any damages, costs or expenses which the City
is compelled to pay by reason of any act or default of the Grantee in connection with
this franchise, or fails, after three (3) days notice of such failure by the City to comply
with any provision of this franchise which the City reasonably determines can be
remedied by demand on the letter of credit or security deposit, the City may
immediately request payment of the amount thereof, with interest and any penalties,
from the letter of credit or security deposit. Upon such request for payment, the City
shall notify the Grantee of the amount and date thereof.
(4) The rights reserved to the City with respect to the letter of credit are in addition to all
other rights of the City, whether reserved by this franchise or authorized by law, and no
action, proceeding or exercise of a right with respect to such letter of credit shall affect
any other right the City may have.
(5) The letter of credit shall contain the following endorsement: "It is hereby understood
and agreed that this letter of credit or security deposit may not be canceled by the
surety nor the intention not to renew be stated by the surety until thirty (90) days after
receipt by the City, by registered mail, of a written notice of such intention to cancel or
not to renew."
(6) Upon receipt of the ninety-day notice, this shall be construed as a default granting the
City the right to call on the bank for either the security deposit or letter of credit.
(7) The City at any time during the term of this Ordinance, may waive Grantee's
requirement to maintain a letter of credit or security deposit. The invitation to waive the
requirement can be initiated by the City or Grantee.
31.14 PERFORMANCE BOND
(1) Within thirty (30) days after the award of this franchise, the initial Grantee shall file with
the City a performance bond in the amount of not less than fifty (50) percent of costs to
install the system contained in the new application in favor of the City. This bond shall
be maintained throughout the construction period and until such time as determined by
the City, unless otherwise specified in a Franchise Agreement.
(2) If the Grantee fails to comply with any law, ordinance or resolution governing the
franchise, or fails to well and truly observe, fulfill and perform each term and condition
8
of the franchise, as it relates to the conditions relative to the construction of the system,
including the Franchise Agreement which is incorporated herein by reference, there
shall be recoverable jointly and severally, from the principal and surety of the bond, any
damages or loss suffered by the City as a result, including the full amount of any
compensation, indemnification, or cost of removal or abandonment of any property of
the Grantee, plus a reasonable allowance for attorney's fees, including the City's legal
staff, and costs, up to the full amount of the bond. This section shall be an additional
remedy for any and all violations outlined in 31.13.
(3) The City may, upon completion of construction of the service area, waive or reduce the
requirement of the Grantee to maintain the bond. However, the City may require a
performance bond to be posted by the Grantee for any construction subsequent to the
completion of the initial service areas, in a reasonable amount and upon such terms as
determined by the City.
(4) The bond shall contain the following endorsement: "It is hereby understood and agreed
that this bond may not be canceled by the surety nor the intention not to renew be
stated by the surety until thirty (30) days after receipt by the City, by registered mail, a
written notice of such intent to cancel and not to renew." Upon receipt of a thirty-day
notice, this shall be construed as default granting the City the right to call in the bond.
(5) The City at any time during the term of this Ordinance may, waive Grantee's
requirement to maintain a performance bond. The invitation to waive the requirement
can be initiated by the City or Grantee.
31.15 LIABILITY AND INSURANCE
(1) The Grantee shall maintain and by its acceptance of the franchise specifically agrees
that it will maintain throughout the term of the franchise, liability insurance insuring the
City and the Grantee in the minimum amount of:
(a) One million dollars ($1,000,000.00) for property damage to any one person;
(b) One million dollars ($1,000,000.00) for property damage to any one accident;
(c) One million dollars ($1,000,000.00) for personal injury to any one person; and
(d) One million dollars ($1,000,000.00) for personal injury in any one accident.
(2) The certificate of insurance obtained by the Grantee in compliance with this section
must be approved by the City Attorney and such certificate of insurance, along with
written evidence of payment of required premiums, shall be filed and maintained with
the City during the term of the franchise, and may be changed from time to time to
reflect changing liability limits. The Grantee shall immediately advise the City Attorney
of any litigation that may develop that would affect this insurance.
(3) Neither the provisions of this section nor any damages recovered by the City
thereunder, shall be construed to or limit the liability of the Grantee under any franchise
issued hereunder or for damages.
9
(4) All insurance policies maintained pursuant to this franchise shall contain the following
endorsement: “It is hereby understood and agreed that this insurance policy may not
be canceled by the surety nor the intention not to renew be stated by the surety until
thirty (30) days after receipt by the City, by registered mail, a written notice of such
intention to cancel or not to renew.”
31.16 INDEMNIFICATION
(1) Disclaimer of Liability. The City shall not at any time be liable for injury or damage
occurring to any Person or property from any cause whatsoever arising out of the
construction, maintenance, repair, use, operation, condition or dismantling of the
Grantee's Telecommunication System and due to the act or omission of any Person or
entity other than the City or those Persons or entities for which the City is legally liable
as a matter of law.
(2) Indemnification. The Grantee shall, at its sole cost and expense, indemnify and hold
harmless the City, all associated, affiliated, allied and subsidiary entitles of the City,
now existing or hereinafter created, and their respective officers, boards, commissions,
employees, agents, attorneys, and contractors (hereinafter referred to as
"Indemnities"), from and against:
(a) Any and all liability, obligation, damages, penalties, claims, liens, costs, charges,
losses and expenses (including, without limitation, reasonable fees and
expenses of attorneys, expert witnesses and consultants), which may be
imposed upon, incurred by or be asserted against the Indemnities by reason of
any act or omission of the Grantee, its personnel, employees, agents,
contractors or subcontractors, resulting in personal injury, bodily injury, sickness,
disease or death to any Person or damage to, loss of or destruction of tangible
or intangible property, libel, slander, invasion of privacy and unauthorized use of
any trademark, tradename, copyright, patent, service mark or any other right of
any Person, firm or corporation, which may arise out of or be in any way
connected with the construction, installation, operation, maintenance or
condition of the Telecommunications System caused by Grantee, its
subcontractors or agents or the Grantee's failure to comply with any Federal,
State or local statute, ordinance or regulation.
(b) Any and all liabilities, obligations, damages, penalties, claims, liens, costs,
charges, losses and expenses (including, without limitation, reasonable fees
and expenses of attorneys, expert witnesses and other consultants), which is
imposed upon, incurred by or asserted against the indemnities by reason of any
claim or lien arising out of work, labor, materials or supplies provided or supplied
to the Grantee, its contractors or subcontractors, for the installation,
construction, operation or maintenance of the Telecommunications System
caused by Grantee, its subcontractors or agents and, upon the written request
of the City shall cause such claim or lien to be discharged or bonded within
fifteen (15) days following such request.
10
(c) Any and all liability, obligation, damages, penalties, claims, liens, costs, charges,
losses and expenses (including, without limitation, reasonable fees and
expenses of attorneys, expert witnesses and consultants), which may be
imposed upon, incurred by or be asserted against the Indemnities by reason of
any financing or securities offering by Grantee or its Affiliates for violations of
the common law or any laws, statutes, or regulations of the State of Wisconsin
or United States, including those of the Federal Securities and Exchange
Commission, whether by the Grantee or otherwise; excluding therefrom,
however, claims which are solely based upon and shall arise solely out of
information supplied by the City to the Grantee in writing and included in the
offering materials with the express written approval of the City prior to the
offering.
(3) Assumption of Risk. The Grantee undertakes and assumes for its officers, agents,
contractors and subcontractors and employees, all risk of dangerous conditions, if any,
on or about any city owned or controlled property, including Public Rights-of-Way, and
the Grantee hereby agrees to indemnify and hold harmless the Indemnities against and
from any claim asserted or liability imposed upon the Indemnities for personal injury or
property damage to any Person arising out of the installation, operation, maintenance
or condition of the Telecommunications System or the Grantee's failure to comply with
any federal, state or local statute, ordinance or regulation.
(4) Defense of Indemnities. In the event any action or proceeding shall be brought against
the Indemnities by reason of any matter for which the indemnities are indemnified
hereunder, the Grantee shall, upon notice from any of the Indemnities, at the Grantee's
sole cost and expense, resist and defend the same with legal counsel mutually
acceptable to the City Attorney of the City of Muskego and Grantee provided further,
however, that the Grantee shall not admit liability in any such matter on behalf of the
Indemnities without the written consent of the Corporation counsel of the City of
Muskego or City Attorney's designee.
(5) Notice Cooperation and Expenses. The city shall give the Grantee 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. Nothing herein shall be deemed to prevent
the City from cooperating with Grantee and participating in the defense of any litigation
by the City's own counsel. The Grantee shall pay all reasonable expenses incurred by
the City in defending itself with regard to any such actions, suits or proceedings. These
expenses shall include all out-of-pocket expenses such as attorney fees and shall also
include the reasonable value of any services rendered by or on behalf of the City
Attorney if such service is determined necessary and appropriate by the City Attorney
and the actual expenses of the City's agents, employees or expert witnesses, and
disbursements and liabilities assumed by the City in connection with such suits, actions
or proceedings. No recovery by the City of any sum under the Letter of Credit shall be
any limitation upon the liability of the Grantee to the City under the terms of this
Section, except that any sum so received by the City shall be deducted from any
recovery which the City might have against the Grantee under the terms of this Section.
(6) Non-waiver of Statutory Limits. Nothing in this agreement is intended to express or
imply a waiver of the statutory provisions, of any kind or nature, as set forth in
11
Wisconsin Statues Section 893.80 et. seq., including the limits of liability of the City as
exists presently or may be increased from time to time by the legislature.
31.17 RIGHTS OF INDIVIDUALS
(1) The Grantee shall not deny service, deny access, or otherwise discriminate against
subscribers, channel users, or general citizens on the basis of race, color, religion,
national origin, income or sex. The Grantee shall comply at all times with all other
applicable federal, state and local laws and regulations and all executive and
administrative orders relating to nondiscrimination which are hereby incorporated and
made part of this chapter by reference.
(2) The Grantee shall strictly adhere to the equal employment opportunity requirements of
the Federal Communications Commission, state and local regulations, and as amended
from time to time.
(3) The Grantee shall, at all times, comply with the privacy requirements of State and
federal law.
(4) Grantee is required to make all services available to all residential dwellings throughout
the service area.
31.18 PUBLIC NOTICE
Minimum public notice of any public meeting relating to this franchise shall be by publication at
least once in a local newspaper of general circulation at least ten (10) days prior to the
meeting, posting at City Hall and by announcement on at least one (1) channel of the
Grantee's System, as agreed upon by grantee and grantor, between the hours of 7:00 p.m.
and 9:00 p.m., for five (5) consecutive days prior to the meeting.
31.19 SERVICE AVAILABILITY AND RECORD REQUEST
The Grantee shall provide cable communications service throughout the entire franchise area
pursuant to the provisions of this franchise and shall keep a record for at least three (3) years
of all requests for service received by the Grantee. This record shall be available for public
inspection at the local office of the Grantee during regular office hours.
31.20 SYSTEM CONSTRUCTION
(1) New construction timetable.
(a) Within two (2) years from the date of the award of the initial franchise, the
Grantee must make cable television service available to every dwelling unit
within the initial service area.
1. The Grantee must make cable television service available to at least
twenty (20) percent of the dwelling units within the initial service area
within six (6) months from the date of the award of the franchise.
12
2. The Grantee must make cable television service available to at least fifty
(50) percent of the dwelling units within the initial service area within one
(1) year from the date of the award of the franchise.
(b) The Grantee, in its application if any, may propose a timetable of construction
which will make cable television service available in the initial service area
sooner than the above minimum requirements, in which case the said schedule
will be made part of the franchise agreement, and will be binding upon the
Grantee.
(c) Any delay beyond the terms of this timetable, unless specifically approved by
the City, will be considered a violation of this chapter for which the provisions of
either 31.37 or 31.46 shall apply, as determined by the City.
(d) In special circumstances the City can waive one hundred (100) percent
completion within the two (2) year time frame provided substantial completion is
accomplished within allotted time frame, substantial completion construed to be
not less than ninety-five (95) percent and justification for less than one hundred
(100) percent must be submitted subject to the satisfaction of the City.
(e) New development underground. In cases of new construction or property
development where utilities are to be placed underground, the developer or
property owner shall give the Grantee reasonable notice of such construction or
development, and of the particular date on which open trenching will be
available for the Grantee's installation of conduit, pedestals and/or vaults, and
laterals to be provided at the Grantee's expense. The Grantee shall also
provide specifications as needed for trenching. Costs of trenching and
easements required to bring service to the development shall be borne by the
developer or property owner; except that if the Grantee fails to install its conduit,
pedestals and/or vaults, and laterals within five (5) working days of the date the
trenches are available, as designated in the notice given by the developer or
property owner, then should the trenches be closed after the five (5) day period,
the cost of new trenching is to be borne by the Grantee. Except for the notice
of the particular date on which trenching will be available to the Grantee, any
notice provided to the Grantee by the City of a preliminary plat request shall
satisfy the requirement of reasonable notice if sent to the local general manager
or system engineer of the Grantee prior to approval of the preliminary plat
request.
(2) Line extensions:
(a) In areas of the franchise territory not included in the initial service areas, the
Grantee shall be required to extend its system pursuant to the following
requirements:
1. No customer shall be refused service arbitrarily. Grantee is hereby
authorized to extend the Cable System as necessary within the City. To
expedite the process of extending the Cable System into a new sub-
division, the City will forward to the Grantee an approved engineering
plan of each project. Subject to the density requirements, the Grantee
13
shall commence the design and construction process upon receipt of the
final engineering plan. Upon notification from the City that the first home
in the project has been approved for building permit, the Grantee shall
have a maximum of three (3) months to complete the
construction/activation process within the project phase.
2. The Grantee must extend and make cable television service available to
every dwelling unit in all unserved, developing areas having at least
twenty (20) dwelling units planned per street mile, as measured from the
existing system, and shall extend its system simultaneously with the
installation of utility lines.
3. The Grantee must extend and make cable television service available to
any isolated resident outside the initial service area requesting
connection at the standard connection charge, if the connection to the
isolated resident would require no more than a standard one hundred
seventy-five (175) foot drop line.
(b) Early extension. In areas not meeting the requirements for mandatory
extension of service, the Grantee shall provide, upon the request of a
potential subscriber desiring service, an estimate of the costs required to
extend service to the subscriber. The Grantee shall then extend service upon
request of the potential subscriber. The Grantee may require advance
payment or assurance of payment satisfactory to the Grantee. The amount
paid by subscribers for early extensions shall be nonrefundable, and in the
event the area subsequently reaches the density required for mandatory
extension, such payments shall be treated as consideration for early
extension.
(c) New development underground. In cases of new construction or property
development where utilities are to be placed underground, the developer or
property owner shall give the Grantee reasonable notice of such construction
or development, and of the particular date on which open trenching will be
available for the Grantee's installation of conduit, pedestals and/or vaults, and
laterals to be provided at the Grantee's expense. The Grantee shall also
provide specifications as needed for trenching. Costs of trenching and
easements required to bring service to the development shall be borne by the
developer or property owner; except that if the Grantee fails to install its
conduit, pedestals and/or vaults, and laterals within five (5) working days of
the date the trenches are available, as designated in the notice given by the
developer or property owner, then should the trenches be closed after the five
(5) day period, the cost of new trenching is to be borne by the Grantee.
Except for the notice of the particular date on which trenching will be available
to the Grantee, any notice provided to the Grantee by the City of a preliminary
plat request shall satisfy the requirement of reasonable notice if sent to the
local general manager or system engineer of the Grantee prior to approval of
the preliminary plat request.
14
(d) Special agreements. Nothing herein shall be construed to prevent the Grantee
from serving areas not covered under this section upon agreement with
developers, property owners, or residents.
(e) Line Extension Policy. All residents who request cable television service in the
City not currently serviceable to the existing cable plant, will be forwarded to
Grantee’s engineering department. The Grantee will prepare a cost estimate
based on the remaining actual construction footage and the current year's
actual cost of materials and labor using the formula provided in Appendix A of
this ordinance.
31.21 CONSTRUCTION AND TECHNICAL STANDARDS
(1) Compliance with construction and technical standards. The Grantee shall construct,
install, operate and maintain its system in a manner consistent with all laws,
ordinances, construction standards, governmental requirements, and FCC technical
standards. In addition, the Grantee shall provide the City, upon request, with a written
report of the results of the Grantee's annual proof of performance tests conducted
pursuant to Federal Communications Commission standards and requirements.
(2) Additional specifications:
(a) Construction, installation and maintenance of the cable television system shall
be performed in an orderly and workmanlike manner. All cables and wires shall
be installed underground. Multiple cable configurations shall be arranged in
parallel and bundled with due respect for engineering considerations.
(b) The Grantee shall at all times comply with:
1. National Electrical Safety Code (National Bureau of Standards);
2. National Electrical Code (National Bureau of Fire Underwriters);
3. Bell System Code of Pole Line Construction; and
4. Applicable FCC or other federal, state and local regulations.
(c) In any event, the System shall not endanger or interfere with the safety of
persons or property in the franchise area or other areas where the Grantee may
have equipment located.
(d) Any antenna structure used in the system shall comply with construction,
marking, and lighting of antenna structure, required by the United States
Department of Transportation.
(e) All working facilities and conditions used during construction, installation and
maintenance of the cable television system shall comply with the standards of
the Occupational Safety and Health Administration.
15
(f) RF leakage shall be checked at reception locations for emergency radio
services to prove no interference signal combinations are possible. Stray
radiation shall be measured adjacent to any proposed aeronautical navigation
radio sites to prove no interference to airborne navigational reception in the
normal flight patterns. FCC rules and regulations shall govern.
(g) The Grantee shall maintain equipment capable of providing standby power for
headend and transport system.
(h) When public utilities relocate their facilities from pole to underground, the cable
operator shall concurrently do so.
31.22 USE OF STREETS
(1) Interference with persons and improvements. The Grantee's system, poles, wires and
appurtenances shall be located, erected and maintained so that none of its facilities
shall endanger or interfere with the lives of persons or interfere with the rights or
reasonable convenience of property owners who adjoin any of the streets and public
ways, or interfere with any improvements the City may deem proper to make, or
unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, easements
or public property.
(2) Restoration to prior condition. In case of any disturbance of pavement, sidewalk,
landscaping, driveway or other surfacing, the Grantee shall, at its own cost and
expense and in a manner approved by the City, replace and restore all paving,
sidewalk, driveway, landscaping, or surface of any street or alley disturbed, in as good
condition as before the work was commenced and in accordance with standards for
such work set by the City. Within thirty (30) days after notification from the City,
mutually agreeable restoration arrangements shall be made between the Grantee and
the customer.
(3) Erection, removal and common uses of poles:
(a) No poles or other wire-holding structures shall be erected by the Grantee
without prior approval of the City with regard to location, height, types, and any
other pertinent aspect. However, no location of any pole or wire-holding
structure of the Grantee shall be a vested interest and such poles or structures
shall be removed or modified by the Grantee at its own expense whenever the
City determines that the public convenience would be enhanced thereby.
(b) Where poles or other wire-holding structures already existing for use in serving
the City are available for use by the Grantee, but it does not make
arrangements for such use, the City may require the Grantee to use such poles
and structures if it determines that the public convenience would be enhanced
thereby and the terms of the use available to the Grantee are just and
reasonable.
(c) In the absence of any governing federal or state statute, where the City or a
public utility serving the City desires to make use of the poles or other wire-
16
holding structures of the Grantee, but agreement thereof with the Grantee
cannot be reached, the City may require the Grantee to permit such use for
such consideration and upon such terms as the City shall determine to be just
and reasonable, if the City determines that the use would enhance the public
convenience and would not unduly interfere with the Grantee's operations.
(4) Relocation of the facilities. If at any time during the period of this franchise the City
shall lawfully elect to alter, or change the grade of any street, alley or other public ways,
the Grantee, upon reasonable notice by the City, shall remove or relocate as necessary
its poles, wires, cables, underground conduits, manholes and other fixtures at its own
expense unless the utilities are compensated, in which case the Grantee shall be
similarly compensated.
(5) Cooperation with building movers. The Grantee shall, on the request of any person
holding a building moving permit issued by the City, temporarily raise or lower its wires
to permit the moving of buildings. The expense of such temporary removal, raising or
lowering of wires shall be paid by the person requesting the same, and the Grantee
shall have the authority to require such payment in advance. The Grantee shall be
given not less than forty-eight (48) hours advance notice to arrange for such temporary
wire changes.
(6) Tree trimming. The Grantee shall not remove any tree or trim any portion, either above,
at or below ground level, of any tree within any public place without the prior consent of
the City. The City shall have the right to do the trimming requested by the Grantee at
the cost of the Grantee. Regardless of who performs the work requested by the
Grantee, the Grantee shall be responsible, shall defend and hold City harmless for any
and all damages to any tree as a result of trimming, or to the land surrounding any tree,
whether such tree is trimmed or removed.
31.23 OPERATIONAL STANDARDS
(1) The Grantee shall put, keep and maintain all parts of the system in good condition
throughout the entire franchise period.
(2) Upon the reasonable request for service by any person located within the franchise
territory, the Grantee shall, within thirty (30) days, furnish the requested service to such
person. A request for service shall be unreasonable for the purpose of this subsection
if no trunk line installation capable of servicing that person's block has as yet been
installed.
(3) The Grantee shall render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Such interruptions, insofar as
possible, shall be preceded by notice and shall occur during periods of minimum
system use.
(4) The Grantee shall not allow its cable or other operations to interfere with television
reception of subscribers or persons not served by the Grantee, nor shall the system
interfere with, obstruct or hinder in any manner the operation of the various utilities
17
serving the residents within the confines of the City nor shall other utilities interfere with
the Grantee's system.
(5) The Grantee shall have knowledgeable, qualified Grantee representatives available to
respond to customer telephone inquiries 24 hours per day and seven days per week.
(6) Under normal operating conditions, telephone answer time, including wait time and the
time required to transfer the call, shall not exceed 30 seconds. This standard shall be
met no less than 90% of the time as measured on an annual basis.
(7) Under normal operating conditions, the customer will receive a busy signal less than 3
% of the total time that the office is open for business.
(8) Standard installations will be performed within seven business days after an order has
been placed. A standard installation is one that is within 175 feet of the existing
system.
(9) Excluding those situations which are beyond its control, the Grantee will respond to any
Service Interruption promptly and in no event later than 24 hours from the time of initial
notification. All other regular service requests will be responded to within 36 hours
during the normal work week for that system. The appointment window alternatives for
installations, service calls and other installation activities will be : “morning;" or
"afternoon;" not to exceed a four-hour "window" during normal business hours for the
system, or at a time that is mutually acceptable. The Grantee will schedule
supplemental hours during which appointments can be scheduled based on the needs
of the community. If at any time an installer or technician is running late, an attempt to
contact the customer will be made and the appointment rescheduled as necessary at a
time that is convenient to the customer.
(10) Customer service centers and bill payment locations will be open for walk-in customer
transactions a minimum of 8 hours a day Monday through Friday, unless there is a
need to modify those hours because of the location or customers served. The Grantee
and City by mutual consent will establish supplemental hours on weekdays and
weekends if it would fit the needs of the community.
(11) Subscriber Credit for Outages - Upon Service Interruption and/or Outages of
subscriber's cable service, the following shall apply:
(a) For Service Interruptions and/or Outages of over four (4) hours and up to seven
(7) days, the Grantee shall provide, at the Subscriber's request, a credit of one-
thirtieth (1/30) of one month's fees for affected Services for each 24-hour period
service is interrupted for four (4) or more hours for any single subscriber, with
the exception of subscribers disconnected because of non-payment or
excessive signal leakage.
(b) For Service Interruptions and/or Outages of seven (7) days or more in one
month, the Grantee shall provide, at the subscriber's request, a full month's
credit for affected services for all affected subscribers.
18
(12) The Grantee will provide written information in each of the following areas at the time of
installation and at any future time upon the request of the customer:
(a) Product and services offered
(b) Prices and service options
(c) Installation and service policies
(d) How to use the telecommunications services
(13) Bills will be clear, concise and understandable, with all cable services itemized.
(14) Credits will be issued promptly, but no later than the customer's next billing cycle
following the resolution of the request and the return of the equipment by the Grantee if
service has been terminated.
(15) Customers will be notified a minimum of thirty (30) days in advance of any rate or
channel change, provided that the change is within the control of the Grantee.
(16) The Grantee shall maintain and operate its network in accordance with the rules and
regulations as are incorporated herein or may be promulgated by the Federal
Communication Commissions, the United States Congress, or the State of Wisconsin.
(17) The Grantee shall continue, through the term of the franchise, to maintain the technical
standards and quality of service set forth in this chapter. Should the City find, by
resolution, that the Grantee has failed to maintain these technical standards and quality
of service, Grantee shall be required to implement a plan for resolution. Failure to
make such improvements within three (3) months of such resolution will constitute a
breach of a condition for which penalties contained in 31.46 are applicable.
(18) The Grantee shall keep a monthly service log which will indicate the nature of each
service complaint received in the last 24 months, the date and time it was received, the
disposition of said complaint, and the time and date thereof. This log shall be made
available for periodic inspection by the City.
31.24 CONTINUITY OF SERVICE MANDATORY
(1) It shall be the right of all subscribers to continue receiving service insofar as their
financial and other obligations to the Grantee are honored. If the Grantee elects to
over build, rebuild, modify or sell the system, or the City gives notice of intent to
terminate or fails to renew this franchise, the Grantee shall act so as to ensure that all
subscribers receive continuous, uninterrupted service regardless of the circumstances.
(2) If there is a change of franchise, or if a new operator acquires the system, the Grantee
shall cooperate with the City, new franchisee or operator in maintaining continuity of
service to all subscribers. During such period, the Grantee shall be entitled to the
revenues for any period during which it operates the system, and shall be entitled to
reasonable costs for its services until it no longer operates the system.
19
(3) If the Grantee fails to operate the system for seven (7) consecutive days without prior
approval of the City or without just cause, the City may, at its option, operate the
system or designate an operator until such time as the Grantee restores service under
conditions acceptable to the City or a permanent operator is selected. If the City is
required to fulfill this obligation for the Grantee, the Grantee shall reimburse the City for
all reasonable costs or damages in excess of revenues from the system received by
the City that are the result of the Grantee's failure to perform.
31.25 COMPLAINT PROCEDURE
(1) The Mayor is designated as having primary responsibility for the continuing
administration of the franchise and implementation of complaint procedures.
(2) During the terms of this franchise, and any renewal thereof, the Grantee shall maintain
a central office for the purpose of receiving and resolving all complaints regarding the
quality of service, equipment malfunctions, and similar matters. The office must be
reachable by a local, toll-free telephone call to receive complaints regarding quality of
service, equipmental functions and similar matters. The Grantee will use its good faith
efforts to arrange for one or more payment locations in a central location where
customers can pay bills or conduct other business activities.
(3) As subscribers are connected or reconnected to the system, the Grantee shall, by
appropriate means, such as a card or brochure, furnish information concerning the
procedures for making inquiries or complaints, including the name, address and local
telephone number of the employee or employees or agent to whom such inquiries or
complaints are to be addressed.
(4) When there have been similar complaints made, or where there exists other evidence,
which, in the judgment of the City, casts doubt on the reliability or quality of cable
service, the City shall have the right and authority to require the Grantee to test,
analyze and report on the performance of the system. The Grantee shall fully
cooperate with the City in performing such testing and shall prepare results and a
report, if requested, within thirty (30) days after notice. Such report shall include the
following information:
(a) The nature of the complaint or problem which precipitated the special tests;
(b) What system component was tested;
(c) The equipment used and procedures employed in testing;
(d) The method, if any, in which such complaint or problem was resolved;
(e) Any other information pertinent to the tests and analysis which may be required.
The City may require that tests be supervised, by an independent professional
engineer or equivalent of the City's choice. The engineer should sign all records of
special tests and forward to the City such records with a report interpreting the results
20
of the tests and recommending actions to be taken. Should such a test prove that the
Grantee failed to meet the technical standard, the Grantee shall bear the cost of the
test. If the test should prove that the Grantee met the technical standards, the City
shall bear the cost of the test.
The City's right under this section shall be limited to requiring tests, analysis and reports
covering specific subjects and characteristics based on complaints or other evidence
when and under such circumstances as the City has reasonable grounds to believe that
the complaints or other evidence require that tests be performed to protect the public
against substandard cable service.
31.26 GRANTEE RULES AND REGULATIONS
The Grantee shall have the authority to promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably necessary to enable
the Grantee to exercise its rights and perform its obligations under this franchise, and to
assure an uninterrupted service to each and all of its customers; provided, however, that such
rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or
applicable state and federal laws, rules and regulations.
31.27 FRANCHISE FEE
(1) For the reason that the streets of the City to be used by the Grantee in the operation of
its system within the boundaries of the City are valuable public properties acquired and
maintained by the City at great expense to its taxpayers, and that the grant to the
Grantee to the streets is a valuable property right without which the Grantee would be
required to invest substantial capital in right-of-way costs and acquisitions, the Grantee
shall pay to the City an amount equal to three (3) percent of the Grantee's Gross
Annual revenue from the operations of the Grantee within the confines of the City or
contract area. If the statutory five (5) percent limitation on franchise fees is raised or
the federal statute deletes the franchise fee limitation entirely, then the franchise fee
may be subject to renegotiation.
(2) This payment shall be in addition to any other tax or payment owed to the City by the
Grantee.
(3) The franchise fee and any other costs or penalties assessed shall be payable quarterly
on a calendar year basis to the City and the Grantee shall file a complete and accurate
verified statement of all gross receipts as previously defined within 45 days after the
quarter as established between the City and the Grantee.
(4) The City shall have the right to inspect the Grantee's income records and the right to
audit and to recompute any amounts determined to be payable under this chapter;
provided, however, that such audit shall take place within 24 months following the close
of each of the Grantee's fiscal years. Any additional amount due to the City as a result
of the audit shall be paid within thirty (30) days following written notice to the Grantee
by the City which notice shall include a copy of the audit report.
21
(5) If any franchise payment or recomputed amount, cost or penalty, is not made on or
before the applicable dates heretofore specified, interest shall be charged daily from
such date at the legal maximum rate charged by the U.S. Internal Revenue service for
late tax payments and the Grantee shall reimburse the City for any additional expenses
and costs incurred by the City by reason of the delinquent payment(s).
31.28 TRANSFER OF OWNERSHIP OR CONTROL
(1) Except as may be provided in a franchise agreement, this franchise shall not be
assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any
manner, nor shall title thereto, either legal or equitable or any right, interest or property
therein, pass to or vest in any person without the prior written consent of the City. The
Grantee may, however, transfer or assign the franchise to a wholly owned subsidiary of
the Grantee and such subsidiary may transfer or assign the franchise back to the
Grantee without such consent, providing that such assignment is without any release of
liability of the Grantee. The proposed assignee must show financial responsibility as
determined by the City and must agree to comply with all provisions of the franchise.
The City shall have 120 days to act upon any request for approval of such a sale or
transfer submitted in writing that contains or is accompanied by such information as is
required in accordance with FCC regulations and by the City of Muskego. The City
shall be deemed to have consented to a proposed transfer or assignment if its refusal
to consent is not communicated in writing to the Grantee within one-hundred and
twenty (120) days following receipt of written notice and the, necessary information as
to the effect of the proposed transfer or assignment upon the public unless the
requesting party and the City agree to an extension of time. The City shall not
unreasonably withhold such consent to the proposed transfer.
(2) Except as may be provided in a franchise agreement, the Grantee shall promptly notify
the City of any actual or proposed change in, or transfer of, or acquisition by any other
party of, control of the Grantee. The word “control" as used herein is not limited to
major stockholders but includes actual working control in whatever manner exercised.
A rebuttable presumption that a transfer of control has occurred shall arise upon the
acquisition or accumulation by any person or group of persons of ten (10) percent of
the voting shares of the Grantee. Every change, transfer or acquisition of control of the
Grantee shall make the franchise subject to cancellation unless and until the City shall
have consented thereto, which consent will not be unreasonably withheld. For the
purpose of determining whether it shall consent to such change, transfer or acquisition
of control, the City may inquire into the qualification of the prospective controlling party,
and the Grantee shall assist the City in such inquiry.
(3) The consent or approval of the City to any transfer of the Grantee shall not constitute a
waiver or release of the rights of the City in and to the streets, and any transfer shall by
its terms, be expressly subordinate to the terms and conditions of this franchise.
(4) In the absence of extraordinary circumstances, the City will not approve any transfer or
assignment of an initial franchise prior to substantial completion of construction of the
proposed system.
22
(5) In no event shall a transfer of ownership or control be approved without successor in
interest becoming a signatory to this franchise agreement.
31.29 AVAILABILITY OF BOOKS AND RECORDS
(1) The Grantee shall fully cooperate in making available at reasonable times, and the City
shall have the right to inspect, where reasonably necessary to the enforcement of the
franchise, books, records, maps, plans and other like materials of the Grantee
applicable to the cable television system, at any time during normal business hours;
provided where volume and convenience necessitate, the Grantee may require
inspection to take place on the Grantee premises.
(2) The following records and/or reports are to be made available to the City upon request:
(a) a quarterly review and resolution or progress report submitted by the Grantee to
the City;
(b) periodic preventive maintenance reports;
(c) any copies of FCC Form 395-A (or successor form) or any supplemental forms
related to equal opportunity or fair contracting policies;
(d) subscriber inquiry/complaint resolution data and the right to review
documentation concerning these inquiries and/or complaints periodically;
(e) periodic construction update reports, including where appropriate the
submission of as-built maps.
31.30 OTHER PETITIONS AND APPLICATIONS
Copies of all petitions, applications, communications and reports either submitted by the
Grantee 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 television operations authorized pursuant to the franchise or
received from such agencies shall be provided to the City upon request.
31.31 FISCAL REPORTS
The Grantee shall file annually with the City no later than one hundred twenty (120) days after
the end of the Grantee's fiscal year, a copy of a gross revenues statement certified by an
officer of the Grantee.
31.32 REMOVAL OF CABLE TELEVISION SYSTEM
At the expiration of the terms for which this franchise is granted and any renewal denied, or
upon its termination as provided herein, the Grantee shall forthwith, upon notice by the City,
remove at its own expense all designated portions of the cable television system from all
streets and public property within the City. If the Grantee fails to do so, the City may perform
23
the work at the Grantee's expense. Upon such notice of removal, a bond shall be furnished by
the Grantee in an amount sufficient to cover this expense.
31.33 REQUIRED SERVICES AND FACILITIES
(1) The cable television system shall have a minimum channel capacity of seventy-seven
(77) channels and at least 750 MHz or digital equivalent of bandwidth available for
future use.
(2) Such system shall maintain a plant having the technical capacity for "two-way"
communications.
(3) The Grantee shall maintain the following:
(a) That at all times no less than the three (3) channels, shall be reserved and be
made available, for use as designated by the City, within sixty (60) days
notification from the City.
(4) The Grantee shall provide emergency broadcast capacity pursuant to FCC rules. The
Grantee shall cooperate with the City in the use and operation of the emergency alert
override system.
(5) The Grantee may be required to interconnect its system with other adjacent cable
television systems for the purpose of sharing public, educational, and governmental
access programming. Such interconnection shall be made within a reasonable time
limit to be established by the City.
(a) Interconnection procedure: Upon receiving the directive of the City to
interconnect, the franchise shall immediately initiate negotiations with the other
affected system or systems in order that all costs may be shared equally among
cable companies for both construction and operation of the interconnection link.
(b) Relief: The franchise may be granted reasonable extensions of time to
interconnect or the City may rescind its order to interconnect upon petition by
the franchisee to the City. The City shall grant the request if it finds that the
franchisee has negotiated in good faith and has failed to obtain an approval
from the operator or franchising authority of system to be interconnected, or the
cost of the interconnection would cause an unreasonable or unacceptable
increase in subscriber rates.
(c) Cooperation required: The Grantee shall cooperate with any interconnection
corporation, regional interconnection authority or City, county, state and federal
regulatory agency which may be hereafter established for the purpose of
regulating, financing, or otherwise providing for the interconnection of cable
systems beyond the boundaries of the City.
(d) Initial technical requirements to assure future interconnection capability:
24
1. All cable systems receiving franchises to operate within the City shall use
the standard frequency allocations for television signals.
2. All cable systems are required to use signal processors at the headend
for each television signal.
3. The City also urges franchisees to provide local origination equipment
that is compatible throughout the area so that video cassettes or
videotapes can be shared by various systems.
4. Grantee shall provide such additional services and facilities as are
contained in its application, if any.
31.34 RULES AND REGULATIONS
(1) In addition to the inherent powers of the City to regulate and control this cable
television franchise, and those powers expressly reserved by the City, or agreed to and
provided for herein, the right and power is hereby reserved by the City to promulgate
such additional regulations as it shall find necessary in the exercise of its lawful powers
and furtherance of the terms and conditions of this franchise; provided, however, that
such rules, regulations, terms and conditions shall not be in conflict with the provisions
hereof or applicable state and federal laws, rules and regulations.
(2) The City may also adopt such regulations at the request of Grantee upon application.
31.35 PERFORMANCE EVALUATION SESSIONS
(1) The City and the Grantee may hold scheduled performance evaluation sessions within
thirty (30) days of the third, sixth, and twelfth anniversary dates of the Grantee's award
or renewal of the franchise and as may be required by federal and state law. All such
evaluation sessions shall be open to the public.
(2) Special evaluation sessions may be held at any time during the term of the franchise at
the request of the City or the Grantee.
(3) All evaluation sessions shall be open to the public and announced in a newspaper of
general circulation in accordance with legal notice. The Grantee shall notify its
subscribers of all evaluation sessions by announcements on one channel of its system
between the hours of 7:00 p.m. and 9:00 p.m., for five (5) consecutive days preceding
each session.
(4) Topics which may be discussed at any scheduled or special evaluation session may
include, but not be limited to, service rate structures; franchise fee, penalties, free or
discounted services; application of new technologies; system performance; services
provided; programming offered; customer complaints, privacy; amendments to this
ordinance; judicial and FCC rulings; line extension policies; and Grantee or City rules.
(5) Members of the general public may add topics either by working through the
negotiating parties or by presenting a petition. If such a petition bears the valid
25
signatures of fifty (50) or more residents of the City, the proposed topic or topics shall
be added to the list of topics to be discussed at the evaluation session.
31.36 RATE CHANGE PROCEDURES
Pursuant to the Cable Television Consumer Protection and Competition Act of 1992, the City
of Muskego is currently not certified to regulate the Basic Service rates charged by Grantee.
Should Federal or State law permit further rate regulation beyond the Basic Service the City of
Muskego shall assume such rate regulation and adopt appropriate procedures for such
regulation.
31.37 FORFEITURE AND TERMINATION
(1) In addition to all other rights and powers retained by the City under this franchise or
otherwise, the City reserves the right to forfeit and terminate the franchise and all rights
and privileges of the Grantee hereunder in the event of a substantial breach of its terms
and conditions. A substantial breach by the Grantee shall include, but shall not be
limited to the following:
(a) Violation of any material provision of the franchise or any material rule, order,
regulation or determination of the City made pursuant to the franchise;
(b) Attempt to evade any material provision of the franchise or practice any fraud or
deceit upon the City or its subscribers or customers;
(c) Failure to begin or complete system construction or system extension as
provided under 31.20;
(d) Failure to provide the services promised in the Grantee's application if any as
incorporated herein by 31.04;
(e) Failure to restore service after ninety-six (96) consecutive hours of interrupted
service, except when approval of such interruption is obtained from the City; or
(f) Material misrepresentation of fact in the application for or negotiation of the
franchise.
(2) The foregoing shall not constitute a major breach if the violation occurs but is without
fault of the Grantee or occurs as a result of circumstances beyond its control. The
Grantee shall not be excused by mere economic hardship nor by misfeasance or
malfeasance of its directors, officers or employees.
(3) The City may make a written demand that the Grantee comply with any such provision,
rule, order or determination under or pursuant to this franchise. If the violation by the
Grantee continues for a period of thirty (30) days following such written demand without
written proof that the corrective action has been taken or is being actively and
expeditiously pursued, the City may place the issue of termination of the franchise
before the City Council. The City shall cause to be served upon the Grantee, at least
twenty (20) days prior to the date of such meeting, a written notice of intent to request
26
such termination and the time and place of the meeting. Public notice shall be given of
the meeting and the issue(s) which the Council is to consider.
(4) The City Council shall hear and consider the issue(s) and shall hear any person
interested therein and shall determine in its discretion whether or not any violation by
the Grantee has occurred.
(5) If the City Council shall determine the violation by the Grantee was the fault of the
Grantee and within its control, the Council may, by resolution declare that the franchise
of the Grantee shall be forfeited and terminated unless there is compliance within such
period as the Council may fix, such period shall not be less than sixty (60) days,
provided no opportunity for compliance need be granted for fraud or misrepresentation.
(6) The issue of forfeiture and termination shall automatically be placed upon the Council
agenda at the expiration of the time set by it for compliance. The Council then may
terminate the franchise forthwith upon finding that the Grantee has failed to achieve
compliance or may further extend the period, in its discretion.
31.38 FORECLOSURE
Upon the foreclosure or other judicial sale of all or a substantial part of the system, or upon the
termination of any lease covering all or a substantial part of the system, the Grantee shall
notify the City of such fact, and such notification shall be treated as a notification that a change
control of the Grantee has taken place, and the provisions of this franchise governing the
consent of the City to such change in control of the Grantee shall apply.
31.39 RIGHT OF ACQUISITION BY THE CITY
(1) Federal regulations as per U.S.C. 537 shall apply to the right of acquisition by the City.
In the event that the relevant federal regulations are repealed, the guidelines specified
in section (2) below shall apply.
(2) Upon the expiration of the term of the franchise and denial of a renewal or upon any
other termination thereof as provided herein the City at its election and upon the
payment to the Grantee of a price equal to the fair market value shall have the right to
purchase and take over the System upon resolution by the City Council. If the City has
denied the Grantee's petition for renewal of its franchise as provided by 31.07, the City
must exercise its option to purchase the system within sixty (60) day of the denial of
renewal and at least six (6) months prior to the end of the franchise. Nothing shall
prohibit the Grantee in the event of the election of the City to purchase the system from
requesting the court to set a reasonable bond of the City to secure the purchase price.
The Grantee shall execute such warranty deeds and other instruments as may be
necessary.
31.40 RECEIVERSHIP
(1) The City shall have the right to cancel this franchise one hundred twenty (120) days
after the appointment of a receiver, or trustee, to take over and conduct the business of
the Grantee, whether in receivership, reorganization, bankruptcy or other action or
27
proceeding, unless such receivership or trusteeship shall have been vacated prior to
the expiration of one hundred twenty (120) days, or unless:
(a) Within one hundred twenty (120) days after his/her election or appointment,
such receiver or trustee shall have fully complied with all the provisions of this
chapter and remedied all defaults thereunder; and
(b) Such receiver or trustee, within the one hundred twenty (120) days, shall have
executed an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be bound
by each and every provision of this chapter and the franchise granted to the
Grantee.
31.41 COMPLIANCE WITH STATE AND FEDERAL LAWS
(1) Notwithstanding any other provisions of this franchise to the contrary, the Grantee shall
at all times comply with all laws and regulations of the state and federal government or
any administrative agencies thereof; provided, however, if any such state or federal law
or regulation shall require the Grantee to perform any service, or shall permit the
Grantee to perform any service, or shall prohibit the Grantee from performing any
service, in conflict with the terms of this franchise or of any law or regulation of the City,
then as soon as possible following knowledge thereof, the Grantee shall notify the City
of the point of conflict believed to exist between such regulation or law and the laws or
regulations of the City or this franchise.
(2) If the City determines that a material provision of this chapter is affected by any
subsequent action of the state or federal government, the City and the Grantee shall
negotiate to modify any of the provisions herein to such reasonable extent as may be
necessary to carry out the full intent and purpose of this agreement.
31.42 LANDLORD/TENANT
(1) Interference with cable service prohibited. Neither the owner of any multiple unit
residential dwelling nor his agent or representative shall interfere with the right of any
tenant or lawful resident thereof to receive cable communication service, cable
installation or maintenance from a cable communication Grantee regulated by and
lawfully operating under a valid and existing franchise issued by the City.
(2) Gratuities and payments to permit service prohibited. Neither the owner of any multiple
unit residential dwelling nor his agent or representative shall ask, demand or receive
any payment, service or gratuity in any form as a condition for permitting or cooperating
with the installation of a cable communication service to the dwelling unit occupied by a
tenant or resident requesting service.
(3) Penalties and charges to tenants for service prohibited. Neither the owner or any
multiple unit residential dwelling nor his 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
28
receives cable communication service from a Grantee operating under a valid and
existing cable communication franchise issued by the City.
(4) Reselling service prohibited. No person shall resell, without the expressed, written
consent of both the Grantee and the City, any cable service, program or signal
transmitted by a cable communication Grantee under a franchise issued by the City.
(5) Protection of property permitted. Nothing in this chapter shall prohibit a person from
requiring that cable communication system facilities conform to laws and regulations
and reasonable conditions necessary to protect safety' functioning, appearance and
value of premises or the convenience and safety of persons or property.
(6) Risks assumed by Grantee. Nothing in this chapter shall prohibit a person from
requiring a Grantee from agreeing to indemnify the owner, or his agents or
representatives for damages or from liability for damages caused by the installation,
operation, maintenance or removal of cable communication facilities.
31.43 APPLICANT'S BIDS FOR INITIAL FRANCHISE
(1) All bids received by the City from the applicants for an initial franchise will become the
sole property of the City.
(2) The City reserves the right to reject any and all bids and waive informalities and/or
technicalities where the best interest of the City may be served.
(3) All questions regarding the meaning or intent of this chapter or application documents
shall be submitted to the City in writing. Replies, will be issued by addenda mailed or
delivered to all parties recorded by the City as having received the application
documents. The City reserves the right to make extensions of time for receiving bids
as it deems necessary. Questions received less than fourteen (14) days prior to the
date for the opening of bids will not be answered. Only replies to questions by written
addenda will be binding. All bids must contain an acknowledgment of receipt of all
addenda.
(4) Bids must be sealed, and submitted at the time and place indicated in the application
documents for the public opening. Bids may be modified at any time prior to the
opening of the bids, provided that any modifications must be duly executed in the
manner that the applicant's bid must be executed. No bid shall be opened or inspected
before the public opening.
(5) Before submitting a bid, each applicant must:
(a) Examine this chapter and the application documents thoroughly;
(b) Familiarize himself/herself with local conditions that may in any manner affect
performance under the franchise;
(c) Familiarize himself/herself with federal, state and local laws, ordinances, rules
and regulations affecting performance under the franchise; and
29
(d) Carefully correlate the bid with the requirements of this chapter and the
application documents.
(6) The City may make such investigations as it deems necessary to determine the ability
of the applicant to perform under the franchise, and the applicant shall furnish to the
City all such information and data for this purpose as the City may request. The City
reserves the right to reject any bid if the evidence submitted by, or investigation of,
such applicant fails to satisfy the City that such applicant is properly qualified to carry
out the obligations of the franchise and to complete the work contemplated therein.
Conditional bids will not be accepted.
(7) All bids received shall be placed in a secure depository approved by the City and not
opened nor inspected prior to the public opening.
31.44 FINANCIAL, CONTRACTUAL, SHAREHOLDER AND SYSTEM DISCLOSURE
FOR INITIAL FRANCHISES
(1) No initial franchise will be granted to any applicant unless all requirements and
demands of the City regarding financial, contractual, shareholder and system
disclosure have been met.
(2) Applicants, including all shareholders and parties with any interest in the applicant,
shall fully disclose all agreements and undertakings, whether written or oral, or implied
with any person, firm, group, association or corporation with respect to this franchise
and the proposed cable television system. The Grantee of this franchise shall disclose
all other contracts to the City as the contracts are made. This section shall include, but
not be limited to, any agreements between local applicants and national companies.
(3) Applicants, including all shareholders and parties with any interest in the applicant,
shall submit all requested information as provided by the terms of this chapter or the
application documents, which are incorporated herein by reference. The requested
information must be complete and verified as true by the applicant.
(4) Applicants, including all shareholders and parties with any interest in the applicant,
shall disclose the numbers of shares of stock, and the holders thereof, and shall
include the amount of consideration for each share of stock and the nature of the
consideration.
(5) Applicants, including all shareholders and parties with any interest in the applicant,
shall disclose any information required by the application documents regarding other
cable systems in which they hold an interest of any nature, including, but not limited to,
the following:
(a) Locations of all other franchises and the dates of award for each location;
(b) Estimated construction costs and estimated completion dates for each system;
30
(c) Estimated number of miles of construction and number of miles completed in
each system as of the date of this application, and
(d) Date for completion of construction as promised in the application for each
system.
(6) Applicants, including all shareholders and parties with any interest in the applicant,
shall disclose any information required by the application documents regarding pending
applications for other cable systems, including but not limited to, the following:
(a) Location of other franchise applications and date of application for each system;
(b) Estimated dates of franchise awards;
(c) Estimated number of miles of construction; and
(d) Estimated construction costs.
31.45 THEFT OF SERVICES AND TAMPERING
(1) No person may intentionally do any of the following:
(a) Obtain or attempt to obtain cable television service from a company by trick,
artifice, deception, use of an illegal device or illegal decoder or other fraudulent
means with the intent to deprive that company of any or all lawful compensation
for rendering each type of service obtained. The intent required for a violation
of this paragraph may be inferred from the presence on the property and in the
actual possession of the defendant of a device not authorized by the cable
television company, the major purpose of which is to permit reception of cable
television services without payment. This inference is rebutted if the defendant
demonstrates that he or she purchased that device for a legitimate use.
(b) Give technical assistance or instruction to any person in obtaining or attempting
to obtain any cable television service without payment of all lawful
compensation to the company providing that service. This paragraph does not
apply if the defendant demonstrates that the technical assistance or instruction
was given or the installation of the connection, descrambler or receiving device
was for a legitimate use.
(c) Make or maintain a connection, whether physical, electrical, mechanical,
acoustical or by other means, with any cables, wires, components or other
devices used for the distribution of cable television services for the purpose of
distributing cable television service to any other dwelling unit without authority
from a cable television company.
(d) Make or maintain a connection, whether physical, electrical, mechanical,
acoustical or by other means, with any cables, wires, components or other
devices used for the distribution of cable television services for the purpose of
obtaining cable television service without payment of all lawful compensation to
31
the company providing the service. The intent required for a violation of this
paragraph may be inferred from proof that the cable service to the defendant's
residence or business was connected under a service agreement with the
defendant and has been disconnected by the cable television company and that
thereafter there exists in fact a connection to the cable system at the
defendant's residence or business.
(e) Make or maintain any modification or alteration to any device installed with the
authorization of a cable television company for the purpose of intercepting or
receiving any program or other service carried by that company which that
person is not authorized by that company to receive. The intent required for a
violation of this paragraph may be interred from proof that, as a matter of
standard procedure, the cable television company places written warning labels
on its converters or decodes explaining the tampering with the device is a
violation of law and the converter or decoder is found to have been tampered
with, altered or modified so as to allow the reception or interception of
programming carried by the cable television company without authority to do so.
The trier of fact may also infer that a converter or decoder has been altered or
modified from proof that the cable television company, as a matter of standard
procedure, seals the converters or decoders with a label or mechanical device,
that the seal was shown to the customer upon delivery of the decoder and that
the seal has been removed or broken. The inferences under this paragraph are
rebutted if the cable television company cannot demonstrate that the intact seal
was shown to the customer.
(f) Possess without authority any device or printed circuit board designed to
receive from a cable television system any cable television programming or
services offered for sale over that cable television system, whether or not the
programming or services are encoded, filtered, scrambled or otherwise made
unintelligible, or perform or facilitate the performance of any of the acts under
pars. (a) to (e) with the intent that device or printed circuit be used to receive
that cable television company's services without payment. Intent to violate this
paragraph for direct or indirect commercial advantage or private financial gain
may be inferred from proof of the existence on the property and in the actual
possession of the defendant of a device if the totality of circumstances,
including quantities or volumes, indicates possession for resale.
(g) Manufactures, import into this state, distribute, publish, advertise, sell, lease or
offer for sale or lease any device, printed circuit board or any plan or kit for a
device or for a printed circuit designed to receive the cable television
programming or services offered for sale over a cable television system from a
cable television system, whether or not the programming or services are
encoded, filtered, scrambled or otherwise made unintelligible, with the intent that
the device, printed circuit, plan or kit be used for the reception of that company's
services without payment. The intent required for a violation of this paragraph
may be inferred from proof that the defendant has sold, leased or offered for
sale or lease any device, printed circuit board, plan or kit for a device or for a
printed circuit board in violation of this paragraph and during the course of the
transaction for sale or lease the defendant expressly states or implies to the
32
buyer that the product will enable the buyer to obtain cable television service
without charge.
(2) Civil liability for theft of telecommunications service (including cable television service.)
(a) Any person who incurs injury as a result of a violation of 31.45 may bring a civil
action against the person who committed the violation.
1. Except as provided in sub. (2)(b), if the person who incurs the loss
prevails, the court shall grant the prevailing party actual damages, costs
and disbursement.
(b) If the person who incurs the loss prevails against a person who committed the
violation willfully and for the purpose of commercial advantage or prevails
against a person who has committed more than one violation of 31.45, the court
shall grant the prevailing party all the following:
1. Except as provided in subs 5. and 6., not more than $10,000.
2. Actual damages.
3. Any profits of the violators that are attributable to the violation and that
are not taken into account in determining the amount of actual damages
under par. 2.
4. Notwithstanding the limitations under s. 799.25 or 814.04, costs,
disbursement and reasonable attorney fees.
5. If the court finds that the violation was committed willfully and for the
purpose of commercial advantage, the court may increase the amount
granted under sub. 1. not to exceed $50,000.
6. If the court finds that the violator had no reason to believe that the
violator's action constituted a violation of this section, the courts may
reduce the amount granted under sub. 1.
(c) If damages under sub. 3. are requested, the party who incurred the injury shall
have the burden of proving the violator's gross revenue and the violator's
deductible expenses and the elements of profit attributable to factors other than
the violation.
(d) In addition to other remedies available under this section, the courts may grant
the injured party a temporary or permanent injunction.
31.46 PENALTIES.
For the violation of any of the following provisions of this franchise, penalties shall be
chargeable to the letter of credit or performance bond as applicable as follows and the City
may determine the amount of the fine for other violations which are not specified in a sum not
33
to exceed five hundred dollars ($500.00) for each violation, with each day constituting as
separate violation.
(1) Failure to furnish, maintain, or offer all cable services to any potential Subscriber within
the City upon order of the City: Two Hundred dollars ($200.00) per day, per violation,
for each day that such failure occurs or continues;
(2) Failure to obtain or file evidence of required insurance, construction bond, performance
bond, or other required financial security: Two hundred dollars ($200.00) per day, per
violation, for each day such failure occurs or continues;
(3) Failure to provide access to data, documents, records, or reports to the City as required
by 31.19, 31.29, 31.30, 31.31 and 31.37: Two hundred dollars ($200.00) per day, per
violation, for each day such failure occurs or continues;
(4) Failure to comply with applicable construction, operation, or maintenance standards:
Three hundred dollars ($300.00) per day, per violation.
(5) Failure to comply with a rate decision or refund order: Five hundred dollars ($500.00)
per day, per violation, for each day such a violation occurs or continues. Grantor may
impose any or all of the above enumerated measures against Grantee, which shall be
in addition to any and all other legal or equitable remedies it has under the Franchise or
under any applicable law.
(6) Any violations for non-compliance with the customer service standards of 31.23 through
31.25 the Grantee shall pay two hundred dollars ($200) per day for each day, or part
thereof, that such noncompliance continues.
(7) Any other violations of this franchise agreement to be determined by the Grantor in a
public hearing but not specifically noted in this section shall not exceed $500.00 per
day, per violation.
31.47 PROCEDURES
(1) Whenever the City believes that the Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise, and wishes to impose penalties, a written
notice shall be given to the Grantee informing it of such alleged violation or liability.
The written notice shall describe in reasonable detail the specific violation so as to
afford the Grantee an opportunity to remedy the violation. The Grantee shall have
thirty (30) days subsequent to receipt of the notice in which to correct the violation
before the City may impose penalties unless the violation is of such a nature so as to
require more than thirty (30) days and the Grantee proceeds diligently within the thirty
(30) days to correct the violation, or as promptly as possible thereafter to correct the
violation. In any case where the violation is not cured within sixty (60) days of notice
from the City, or such other time as the Grantee and the City may mutually agree to,
the City may proceed to impose liquidated damages.
(2) The Grantee may, within ten (10) days of receipt of notice, notify the City that there is a
dispute as to whether a violation or failure has, in fact, occurred. Such notice by the
34
Grantee to the City shall specify with particularity the matters disputed by the Grantee
and shall stay the running of the thirty (30) day cure period pending Council decision as
required below. The Council shall hear the Grantee's dispute. Grantee must be given
at least five (5) days notice of the hearing. At the hearing, the Grantee shall be entitled
to the right to present evidence and the right to be represented by counsel. After the
hearing, the City shall provide Grantee a copy of its action, along with supporting
documents. In the event the City upholds the finding of a violation, the Grantee shall
have thirty (30) days subsequent, or such other time period as the Grantee and the City
mutually agree, to such determination to correct the alleged violation before penalties
may be imposed.
(3) The rights reserved to the City under this section are in addition to all other rights of the
City whether reserved by this franchise or authorized by law or equity, and no action,
proceeding or exercise of a right with respect to penalties shall affect any other right the
City may have.
(4) The City shall stay or waive the imposition of any penalty set forth above upon a finding
that any failure or delay is a result of an acts of Nature or due to circumstances beyond
the reasonable control of the Grantee.
35
SECTION 3: The several sections of this ordinance are declared to be severable. If
any section or portion thereof shall be declared by a decision of a court of competent
jurisdiction to be invalid, unlawful, or unenforceable, such decision shall apply only to
the specific section or portion thereof directly specified in the decision, and not affect
the validity of all other provisions, sections, or portion thereof of the ordinance which
shall remain in full force and effect. Any other ordinance whose terms are in conflict
with the provisions of this ordinance are hereby repealed as to those terms that conflict.
SECTION 4: This ordinance shall be in full force and effect from and after its passage
and publication.
PASSED AND APPROVED THIS 9th DAY OF NOVEMBER, 1999.
CITY OF MUSKEGO
David L. De Angelis, Mayor
ATTEST:
Clerk-Treasurer
36