ORD20011044COMMON COUNCIL -CITY OF MUSKEGO
ORDINANCE #IO44
AN ORDINANCE REPEAL AND RECREATE 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SECTION 1 Chapter 31 is hereby repealed and recreated and made a part of the
Municipal Code of the City of Muskego as adopted by Ordinance #1044.
SECTION 2: A copy of said Ordinance has been on file in the Office of the City Clerk-
Treasurer and open to public inspection for not less than two weeks prior to the date of
this Ordinance and said Ordinance is hereby incorporated into the Municipal Code of
the City.
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 conflict with the
provisions of this ordinance are hereby repealed as to those terms that conflict.
SECTION 4: This ordinance is in full force and effect from and after its passage and
publication.
PASSED AND APPROVED THIS DAY OF ,2001
CITY OF MUSKEGO
David L. De Angelis, Mayor
Deferred: 10/24/00, 11/14/00, 11/28/00,
Tabled: 2/27/01
Published on the day of
1/9/01, 1/23/01, 2/13/01
,2001
ATEST,
Clerk Treasurer
Suggested amendment to Ordinance #I044
31.18 PUBLIC NOTICE
Minimum public notice of any public meeting relating to this Ordinance shall be
.. 9 . .I in accordance with the Wisconsin Open Meetinqs Law. -
ORD1044amendment
COMMON COUNCIL - CITY OF MUSKEGO
ORDINANCE #IO44
AN ORDINANCE TO REPEAL AND RECREATE
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 31 of the Municipal Code of the City of Muskego, Wisconsin is
hereby repealed and recreated to read as follows:
CITY OF MUSKEG0 CABLE TELEVISION ORDINANCE
31.01 SHORT TITLE.
This chapter shall be known and may be cited as the "City of Muskego Cable Television
Ordinance, hereinafter "Ordinance."
31.02 DEFINITIONS.
For the purpose of this chapter the following terms, phrases, words and their derivations shall
have the meaning given herein:
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.
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 (I) or more multiple unit dwellings under common ownership, control or
management, and which does not use City rights-of-way.
City means the City of Muskego, Wisconsin.
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.
Control and/or Controlling Interest shall mean actual working control or ownership of a
System in whatever manner exercised. A rebutable 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
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) Franchise or franchise agreement means any agreement granting a Grantee a franchise
under 3 1.03 hereof.
(9) 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.
(IO) 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,
franchise 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.
(1 I) Initial service area means all areas in the City having at least 20 dwelling units per street
mile.
(12) Installation means the connection of the system from feeder cable to subscribers'
terminals.
(13) May is permissive.
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.
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 Business
Hours shall include some evening hours at least one night per week, and/or some
weekend hours.
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.
Shall is mandatory.
Service Interruption and/or Outages shall mean the loss of either picture or sound or both
for a single or multiple subscriber(s).
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.
Subscriber shall mean any person, firm, corporation, or association lawfully receiving
Basic and/or any additional service from Grantee.
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.
e 31.03 RIGHTS AND PRIVILEGES OF GRANTEE.
Any franchise granted by the City pursuant to Wisconsin Statutes Section 66.082 shall grant to 0 the Grantee the right and privilege to erect, construct, operate and maintain in, upon, and along,
across, above, over 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.
31.04 AGREEMENT AND INCORPORATION OF APPLICATION BY REFERENCE.
(I) 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.
(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 (1 5) years, provided that within fifteen (1 5) 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 (i) identifying the future cable-related community
needs and interests and (ii) 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 sub-paragraph 31.07(l)(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.
(d) The City shall consider in any administrative proceeding whether (i) the Grantee
has substantially complied with material terms of the existing Franchise and with
applicable law; (ii) 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; (iii) 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 (iv) 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 sub-paragraph 31.07(l)(d) above, 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 sub-
paragraph 31.07(l)(a) above), to require the production of evidence and to
question witnesses. A transcript shall be made of any such proceeding.
(0 At the completion of a proceeding under sub-paragraph 3 1.07( l)(d) above, 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 therefore.
(8) 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 (i) through (iv) of sub-paragraph
3 1.07( l)(d) above 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
3 1.07(l)(d) (ii) above 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 (i) any action of the City is not in
compliance with the procedural requirements of this Section; or (ii) 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 3 I .07( l)(d) (i) through (iv) 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. 0 (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:
I. 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;
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.
(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 REOUIRED.
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 the 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 sixty (60) days after the award of the initial franchise, the Grantee shall deposit
with the City one of: (i) an irrevocable letter of credit from a financial institution; (ii) a
security deposit; or (iii) a performance bond, in the amount of fifty thousand dollars
($50,000.00) (collectively, the “Security”). The form and content of the Security shall be
approved by the City Attorney. The Security shall be used to insure the 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.
The Security 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 subsections (a) or (c)
of this section.
If the Grantee fails to pay to the City any compensation within the time fixed herein; or
fails after sixty (60) days notice to pay to the City any taxes due and unpaid; or fails to
repay the City within fifteen (1 5)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 sixty (60) 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 Security, the City may immediately request payment of the amount
thereof, with interest and any penalties, from the Security. Upon such request for
payment, the City shall notify the Grantee of the amount and date thereof.
The rights reserved to the City with respect to the Security are in addition to all other
rights of the City, whether reserved by the franchise or authorized by law, and no action,
proceeding or exercise of a right under this sub-paragraph with respect to the Security
shall affect any other right the City may have.
The Security shall contain the following endorsement: "It is hereby understood and
agreed that this letter of credit, performance bond or security deposit 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, of a written notice of such intention to cancel
or not to renew."
Receipt of the thirty-day notice shall be construed as a default granting the City the right
to call on the Security.
The City at any time during the term of this Ordinance, may waive Grantee's requirement
to maintain the Security. The invitation to waive the requirement can be initiated by the
City or Grantee.
31.14 CONSTRUCTION BOND.
(1) Within thirty (30) days after the award of this franchise, the Grantee shall file with the
City a construction 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 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 3 1 ,.13.
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
construction bond to be posted by the Grantee for any construction subsequent to the
completion of the initial service area, in a reasonable amount and upon such terms as
determined by the City.
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.
The City at any time during the term of this Ordinance may, waive Grantee's requirement
to maintain a construction 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 ($1,000,000.00) for property damage to any one person;
(b) One million dollars ($l,OOO,OOO.OO) for property damage to any one accident;
(c) One million dollars ($l,OOO,OOO.OO) for personal injury to any one person; and
(d) One million dollars ($l,OOO,OOO.OO) for personal injury in any one accident.
(2) The certificate of insurance obtained by the Grantee incompliance 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 CityAttorney of any
litigation that may develop that would affect this insurance.
0 (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.
(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
(I) 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 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 entities 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 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 System caused by Grantee, its subcontractors or
agents and, upon the written request of the Commission shall cause such claim or
lien to be discharged or bonded within fifteen (15) days following such request.
(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 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 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 City Attorney or its 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, suites 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 Citys 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 Security 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 recovey which the City might have
against the Grantee under the terms of this Section.
(6) Nonwaiver 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 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.
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.
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.
The Grantee shall, at all times, comply with the privacy requirements of State and federal
law.
Grantee is required to make all services available to all residential dwellings throughout
the initial service area.
31.18 PUBLIC NOTICE.
Minimum public notice of any public meeting relating to this Ordinance shall be by publication
at least once in a local newspaper of general circulation at least ten (10) days prior to the meeting,
by posting at City Hall and by announcement on at least one (1) channel of the Grantee's System
between the hours of TOO p.m. and 9:OO 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 two (2) years of all
written requests for service received by the Grantee. This record shall be available for public
0 inspection at the local office of the Grantee during regular office hours.
0 31.20 SYSTEM CONSTRUCTION.
(I) New construction timetable.
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.
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
(I) year from the date of the award of the franchise.
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.
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.
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 ofthe City.
(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 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 constructiodactivation
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. 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 andor 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.
0 (3) 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 provided that five (5) percent of those gross revenues are paid to the
City as franchise fees under section 27
(a) The Grantee, in its application, may propose a line extension policy which will
result in serving more residents of the City than as required above, in which case
the Grantee's policy will be incorporated into the franchise agreement, and will be
binding on the Grantee.
(b) The violation of this section shall be considered a breach of the terms of this
chapter for which the provisions of either 31.37 or 31.46 shall apply, as
determined by the City.
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. a
(2) Additional specifications:
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, where possible, parallel with electric and telephone lines. Multiple cable
configurations shall be arranged in parallel and bundled with due respect for
engineering considerations.
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.
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.
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.
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.
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.
The Grantee shall maintain equipment capable of providing standby power for
headend and transport system for a minimum of two (2) hours.
In all areas of the City where the cables, wires, and other like facilities of public
utilities are placed underground, the Grantee shall place its cables, wires, or other
like facilities underground. When public utilities relocate their facilities from pole
to underground, the Grantee must 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 by the Grantee, 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.
(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-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.
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.
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 temporay 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 temporay wire
changes.
Tree trimming. Except in the case of an emergency, 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.
a 31.23 OPERATIONAL STANDARDS.
The Grantee shall put, keep and maintain all parts of the System in good condition
throughout the entire franchise period.
Upon the reasonable request for service by any person located within the initial service
area, the Grantee shall, within thirty (30) days, furnish the requested service to such
person within terms of the line extension policy. 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.
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.
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
serving the residents within the confines of the City nor shall other utilities interfere with
the Grantee's System.
The Grantee shall have knowledgeable, qualified Grantee representatives available to
respond to customer telephone inquiries 24 hours per day and seven days per week.
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.
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.
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.
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.
(1 1) 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 written request, a credit of
one-thirtieth (1130) of one months 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 written request, a full months credit
for affected services for all affected Subscribers.
(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 a Subscriber:
(a) Product and services offered
(b) Prices and service options
(c) Installation and service policies
(d) How to use the cable 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 Subscriber'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) Subscribers 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.
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.
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.
The Grantee shall keep a monthly service log which will indicate the nature of each
service complaint for which a work order is generated or which is received in writing,
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.
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.
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.
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.
(I) The City's Mayor is designated as having primary responsibility for the continuing 0 administration of the franchise and implementation of complaint procedures.
0 (2) During the terms of the 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
Subscribers 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; e
(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 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. 0
0 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.
Since 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 since 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 five (5) percent of the Grantee's Gross Revenues 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.
This payment shall be in addition to any other tax or payment owed to the City by the
Grantee.
The franchise fee and any other costs or penalties assessed shall be payable quarterly on a
calendar year basis to the City within 45 days after the end of each calendar quarter. The
Grantee shall file a complete and accurate verified statement of Gross Revenues in such
form as established between the City and the Grantee.
The City shall have the right to inspect the Grantee's books and records and the right to
audit and to recompute any amounts determined to be payable under this Ordinance for
any calendar year; provided, however, that any such audit shall take place within 24
months following the close of a particular calendar 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.
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).
a 31.28 TRANSFER OF CONTROL OR CONTROLLING INTEREST.
Except as may be provided in a franchise agreement, a 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. 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.
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 or Controlling Interest 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
percent (10%) 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.
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.
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.
In no event shall a transfer of ownership or control or an assignment of the Franchise be
approved without the successor in interest or the assignee becoming a signatory to the
Franchise Agreement.
a 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 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,
but no more frequently than once on an annual basis unless mutually agreed upon by the
Grantee and the City
(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 the System 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.
0 31.32 REMOVAL OF CABLE TELEVISION SYSTEM.
At the expiration of the terms for which a 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 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.
The cable television system shall have a minimum channel capacity of seventy-seven (77)
channels and at least 750 MHz of bandwidth available for future use.
Such system shall maintain a plant having the technical capacity for "two-way"
communications.
The Grantee shall maintain the following:
At least one (I) specially-designated, noncommercial public access channel
available on a first-come, nondiscriminatory basis;
At least one (1) specially-designated channel for use by local educational
authorities;
At least one (1) specially-designated channel for local governmental uses;
At least one (1) specially-designated channel for leased access uses;
Provided, however, these uses may be combined on one or more channels until
such time as additional channels become necessary in the opinion of the City.
Financial and technical support, replacement and maintenance of equipment of
this facility shall be separately incorporated into a Franchise Agreement; and
An Institutional Network (I-Net) of cable, optical, electrical or electronic
equipment, used for the purpose of transmitting two-way telecommunications
signals interconnecting designated entities as set forth in the Franchise Agreement
and mutually agreed to by the Grantee and the Grantor. Such Institutional
Network may be provided as needed by utilizing capacity on the System.
The Grantee shall incorporate into the System the capacity which will permit the City, in
times of local emergency, to override by remote control, the audio of all channels
simultaneously which the Grantee may lawfully override or to place a crawl on all such
channels. 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.
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.
Interconnection procedure: Upon receiving the directive of the City to
interconnect, the Grantee 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.
Relief: The Grantee may be granted reasonable extensions of time to interconnect
or the City may rescind its order to interconnect upon petition by the Grantee to
the City. The City shall grant the request if it finds that the Grantee has negotiated
in good faith and has failed to obtain an approval from the operator or franchising
authority of system to he interconnected, or the cost of the interconnection would
cause an unreasonable or unacceptable increase in subscriber rates.
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
Initial technical requirements to assure future interconnection capability:
1 All Systems receiving franchises to operate within the City shall use the
standard frequency allocations for television signals.
2. All Systems are required to use signal processors at the headend for each
television signal.
3. The City also urges Grantees to provide local origination equipment that is
compatible throughout the area so that video cassettes or videotapes can he
shared by various systems.
4. A Grantee shall provide such additinal services and facilities as are
contained in its application, if any.
31.34 RULES AND REGULATIONS.
a (1) In addition to the inherent powers of the City to regulate and control a 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 Ordinance; 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.
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.
Special evaluation sessions may be held at any time during the term of the franchise at the
request of the City or the Grantee.
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 at least one (I) channel of its
system between the hours of 7:OO p.m. and 9:OO p.m., for five (5) consecutive days
preceding each session.
Topics which may be discussed at any scheduled or special evaluation session may
include, but not be limited to, service rate structures; franchise fees, 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.
Members of the general public may add topics either by working through the City or
Grantee or by presenting a petition. If such a petition bears the valid 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 is
currently certified to regulate the Basic Service rates charged by Grantee. Under these rules,
Grantee is required to obtain approval from the City for a rate increase for any change to the rates
for Basic Service. Should Federal or State law permit further rate regulation beyond the Basic 0
regulation.
Service, the City shall assume such rate regulation and adopt appropriate procedures for such
31.37 FORFEITURE AND TERMINATION.
(1) In addition to all other rights and powers retained by the City under this Ordinance or
otherwise, the City reserves the right to forfeit and terminate the franchise and all rights
and privileges of the Grantee thereunder in the event of a substantial breach of its terms
and conditions. A substantial breach by the Grantee shall include, but shall not he limited
to the following:
Violation of any material provision of this Ordinance or the franchise or any
material rule, order, regulation or determination of the City made pursuant to the
franchise;
Attempt to evade any material provision of this Ordinance or the franchise or
practice any fraud or deceit upon the City or its Subscribers;
Failure to begin or complete System construction or System extension as provided
under section 3 1.20;
Failure to provide the services promised in the Grantee's application if any as
incorporated herein by section 31.04;
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
Material misrepresentation of fact in the application for or negotiation of the
franchise.
(2) The foregoing shall not constitute a substantial 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 the 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 Common 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
such termination and the time and place of the meeting. Public notice shall be given of
the meeting and the issue(s) which the Board is to consider.
The Common 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.
If the Commom Council shall determine the violation by the Grantee was the fault of the
Grantee and within its control, the Board may, by resolution declare that the franchise of
the Grantee shall be forfeited and terminated unless there is compliance within such
period as the Board may fix, such period shall not be less than sixty (60) days, provided
no opportunity for compliance need be granted for fraud or misrepresentation.
The issue of forfeiture and termination shall automatically be placed upon the Board
agenda at the expiration of the time set by it for compliance. The Board 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 in
control of the Grantee has taken place, and the provisions of this Ordinance governing the
consent of the City to such change in control of the Grantee shall apply.
31.39 RIGHT OF ACQUISITION BY THE CITY.
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 31.39(2) below shall apply.
Upon the expiration of the term of the franchise and denial of any 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 Common Council If the City has denied
the Grantee's petition for renewal of its franchise as provided by Section 31.07, the City
must exercise its option to purchase the System within sixty (60) days 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
a 31.40 RECEIVERSHIP.
(1) The City shall have the right to cancel the 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
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 hisiher election or appointment, such
receiver or trustee shall have fully complied with all the provisions of this
Ordinance and remedied all defaults there under: and
(b) Such receiver or trustee, within the one hundred twenty(l20) 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 Ordinance and the franchise granted to the
Grantee.
0
31.41 COMPLIANCE WITH STATE AND FEDERAL LAWS.
(I) Notwithstanding any other provisions of this Ordinance 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 LANDLORDmENANT.
(I) 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 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
receives cable communication service from a Grantee operating under a valid and
existing 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 Grantee under a franchise issued by the City.
(5) Protection of property permitted. Nothing in this Ordinance 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 Ordinance 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 APPLICANTS’ 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.
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.
Before submitting a bid, each applicant must:
(a) Examine this chapter and the application documents thoroughly;
(b) Familiarize himselfherself with local conditions that may in any manner affect
performance under the franchise;
(c) Familiarize himselfherself with federal, state and local laws, ordinances, rules
and regulations affecting performance under the franchise; and
(d) Carefully correlate the bid with the requirements of this Ordinance and the
application documents.
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 cany out the
obligations of the franchise and to complete the work contemplated therein. Conditional
bids will not be accepted.
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.
(I) 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 a franchise and the
proposed cable television system. The Grantee 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.
Applicants, including all shareholders and parties with any interest in the applicant, shall
submit all requested information as provided by the terms of this Ordinance or the
application documents, which are incorporated herein by reference. The requested
information must be complete and verified as true by the applicant.
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.
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;
(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.
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.
(I) No person may intentionally do any of the following:
(a) Obtain or attempt to obtain cable television service from a Grantee by trick,
artifice, deception, use of an illegal device or illegal decoder or other fraudulent
means with the intent to deprive that Grantee 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 Grantee, 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 Grantee 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
Grantee.
(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 the
Grantee 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 Grantee
and has been disconnected by the Grantee and that thereafter there exists in fact a
connection to the 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 Grantee for the purpose of intercepting or receiving any
program or other service carried by that Grantee which that person is not
authorized by that Grantee to receive. The intent required for a violation of this
paragraph may be interred from proof that, as a matter of standard procedure, the
Grantee places written warning labels on its converters explaining the tampering
with the device is a violation of law and the converter decoder is found to have
been tampered with, altered or modified so as to allow the reception or
interception of programming carried by the Grantee without authority to do SO.
The trier of fact may also infer that a converter decoder has been altered or
modified from proof that the Grantee, as a matter of standard procedure, seals the
converters or 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 Grantee cannot
demonstrate that the intact seal was shown to the customer.
(Q Possess without authority any device or printed circuit board designed to receive
from a System any cable television programming or services offered for sale over
that 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 paragraphs 3 1.45( I)(a) to (e) with the intent
that device or printed circuit be used to receive that Grantee’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) Manufacture, 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 System from 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 Grantee’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 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 Section 45 may bring a
civil action against the person who committed the violation. Except as provided
in sub-paragraph 3 1.45(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 Section 3 1.45, the
court shall grant the prevailing party all the following:
1 Except as provided in sub-paragraphs 31.45(2)(b)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 subparagraph 31.45(2)(b)2.,
4. Notwithstanding the limitations under Wisconsin Statutes 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-paragraph 3 1.45(2)(b)I, not to exceed $50,000; and
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 court may
reduce the amount granted under sub-paragraph 31.45(2)(b)l
(c) If damages under sub-paragraph 31.45(2)(b)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 Security 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 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, or 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
sections 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;
Failure to comply with applicable construction, operation, or maintenance standards:
Three hundred dollars ($300.00) per day, per violation.
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. City 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.
Any violations for non-compliance with the customer service standards of Sections 31.23
through 3 1.25: Two hundred dollars ($200) per day for each day, or part thereof, that such
noncompliance continues.
Any other violations of the franchise agreement to be determined by the City in a public
hearing but not specifically noted in this section shall not exceed $500.00 per day, per
violation.
31.47 PROCEDURES.
Whenever the City believes that the Grantee has violated one (I) or more terms,
conditions or provisions of this Ordinance or the 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
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
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 the City's decision as
required below. The City shall hear the Grantee's dispute. Grantee must be given at least
five (5) days written 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 acts of Nature or due to circumstances beyond the
reasonable control of the Grantee.
@' SECTION 2: 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 3: This ordinance shall be in full force and effect from and after its passage
and publication.
PASSED AND APPROVED THIS - DAY OF ,2000
CITY OF MUSKEG0
a ATTEST.
David L. De Angelis, Mayor
First Reading: 10/10/00, 10/24/00
Deferred: 12/12/00
Cover Ordinance Published on the
Clerk-Treasurer - day of ,2000
10/2000jmb