Chapter 1 Water Utility Rates and Regulations
Chapter 2 Sewer User Charges and Regulations
Chapter 3 Cable Television
Chapter 4 Wireless Communication Systems; Use of
Right-of-Way
9.1.1 Rates and
Regulations Adopted by Reference
9.1.2 Tampering
with Water Utility Facilities and Theft of Water
9.1.3 Authority
to Enter Buildings in Order to Inspect, Examine, Remove or Install Meters,
Pipes, Fittings and Wires
The
current Public Service Commission-authorized rates and regulations governing
the water utility are adopted and incorporated by reference into this Code of
Ordinances.
(a)
It shall be unlawful
for any person, corporation, or other organization to connect to, disconnect,
or adjust any meter, pipe, hydrant, or other facility of the Glendale Water
Utility in any way whatsoever without having first obtained a permit to do so from
the Water Utility.
(b)
It shall be unlawful
for any person, corporation, or other organization to take or use any water
from a facility of the Glendale Water Utility by any means that do not permit
that use or taking to be measured and billed by the Water Utility.
(c)
The presentation of
evidence that the acts prohibited by this Section took place on privately owned
property shall create a rebuttable presumption that those acts were done by the
owners of record of that property.
(d)
The Director of
Public Works, or his designee, shall have the authority to issue a citation for
any violations of this Section.
Pursuant
to the legislative authority granted the City under Secs. 196.58 and 196.171,
Wis. Stats., as may be amended from time to time, said statutory sections are
hereby adopted in their entirety by reference.
9.2.1 Purpose of
Chapter
9.2.2 Incorporation
of Article XVII of District Rules and Regulations
9.2.3 User Charges
9.2.4 Local Capital
Recovery Charges
9.2.5 Industrial Cost
Recovery Charges
9.2.6 Billing
9.2.7 Additional City
Sewerage Charges
9.2.8 Appeal of
Charges
9.2.9 Necessity of
User Charge System
9.2.10 Definitions
9.2.11 Revenues
9.2.12 Basis of User
Charges
9.2.13 Reviewing and
Notification Provisions
9.2.14 Sanitary Sewer
Mains
9.2.15 Storm water
Drainage Facilities
9.2.16 Water Mains and
Laterals
The
wastewater of the City is collected and treated in whole or in part by the
wastewater system operated by the Sewerage Commission of the City of Milwaukee
(the "Commission") on behalf of itself, the Metropolitan Sewerage
Commission of the County of Milwaukee (the "Metropolitan Commission")
and the Metropolitan Sewerage District of the County of Milwaukee (the
"District"). The purpose of
this Chapter is to enable the City to establish and collect from users within
the City those charges which represent the proportionate contribution by such
users, both (a) to the cost of operating and maintaining the system and (b)
that part of the cost of past and future capital improvements in the system not
defrayed by an ad valorem tax on real property. Such charges are required to
enable the District to become and remain eligible for federal grants for
wastewater facility capital improvements.
(a) The following sections and related appendices of District
Rules and Regulations, Article XVII promulgated by the Commission, the
Metropolitan Commission and the District, as now in effect and as the same may
be amended from time to time hereafter, are hereby incorporated by reference
and shall be in full force and effect as though set forth in their entirety
herein:
Section 1701.020 Definitions
Section 1701.040 Municipal
Transfer of Data
Section 1701.041 Estimated
Volume of Discharge
Section 1701.050 User
Transfer of Data
Section 1701.051 Discharge
Factor Certification
Section 1701.052 Wastestrength
Certification
Section 1701.053 Certification
Procedures
Section 1701.054 Verification
Section 1701.055 Audit
Control of User Connections
Section 1701.056 Appeal
Provision
Section 1702.010 Purpose
of the User Charge System
Section 1702.020 User
Charge Billing Basis
Section 1702.030 Wholesale
User Charge Billing Basis
Section 1702.040 Unit
Costs of Treatment
Section 1703.010 Purpose of Local Capital Cost Recovery
(LCR) System
Section 1703.020 LCR Billing Basis
Section 1703.030 Wholesale LCR Billing Basis
Section 1703.040 Unit Costs of LCR
Section 1704.010 Purpose of Industrial Cost Recovery (ICR)
System
Section 1704.020 ICR Billing Basis
Section 1704.030 Wholesale ICR Billing Basis
Section 1704.040 Unit Costs of ICR
(b) Residential Structure.
For purposes hereof, "Residential Structure" as defined in District
Rules and Regulations, Article XVII, shall mean any building accommodating
exclusively one (1) or two (2) residential units.
There
is hereby imposed a charge on each user in the City who discharges waste water,
directly or indirectly, into the wastewater system operated by the Commission.
Such charge shall be in the amount specified below for the various classes of
users.
(a)
Residential Users.
Applicable to this Subsection and Section 9-2-7, the volume of water
consumption shall be based on the subject customer's metered consumption of
water in the first quarter of the utility's billing area No. 1 and in the
second quarter, of the utility's billing areas No. 2 and No. 3, where such data
are available. If such data are not available, then the average individual
residential customer's consumption in the area in which such residence is
located shall be used.
(b)
Non-certified Commercial Users. The retail non-certified commercial user charge shall be
based on a volumetric charge (i.e., the charge by the Commission to the City,
excluding connection charges, by the total volume of non-certified commercial
water consumption. Individual non-certified commercial user charges shall be
calculated by multiplying the user's volume of water consumption times this
volumetric charge plus the user's number of service connections times the
connection charge.
(c)
Discharge Certified Commercial Users. Each retail discharge certified commercial user charge
shall be equal to each wholesale discharge certified commercial user charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
(d)
Wastestrength Certified Commercial Users. Each retail wastestrength certified commercial user charge
shall be equal to each wholesale wastestrength certified commercial user charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
(e)
Non-certified Industrial Users, Each retail non-certified industrial user charge shall be
equal to each wholesale non-certified industrial user charge submitted to the
City pursuant to District Rules and Regulations, Article XVII.
(f)
Discharge Certified Industrial Users. Each retail discharge certified industrial user charge
shall be equal to each wholesale discharge certified industrial user charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
(g)
Wastestrength Certified Industrial Users. Each retail wastestrength certified industrial user charge
shall be equal to each wholesale wastestrength certified industrial user charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
There
is hereby imposed on each industrial user in the City whose function is
described by the Standard Industrial Classification (SIC), Division D (LCR
user) a local capital recover (LCR) charge. The LCR charge shall be in the
amount specified below for the various classes of LCR users:
(a)
Non-certified Industrial Users. Each retail non-certified industrial LCR charge shall be
equal to each wholesale non-certified industrial LCR charge submitted to the
City pursuant to District Rules and Regulations, Article XVII.
(b)
Discharge Certified Industrial Users. Each retail discharge certified industrial LCR charge
shall be equal to each wholesale discharge certified LCR charge submitted to
the City pursuant to District Rules and Regulations, Article XVII.
(c)
Wastestrength Certified Industrial Users. Each retail wastestrength certified industrial charge
shall be equal to each wholesale wastestrength certified industrial LCR charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
There
is hereby imposed an industrial cost recovery (ICR) charge on each ICR user (as
defined in District Rules and Regulations, Article XVII) in the City. The ICR
charge shall be in the amount specified below for the various classes of ICR
users.
(a)
Non-certified Industrial Users.
Each retail non-certified industrial ICR charge shall be equal to each
wholesale non-certified industrial ICR charge submitted to the City pursuant to
District Rules and Regulations, Article XVII.
(b)
Discharge Certified Industrial Users. Each retail discharge certified industrial ICR charge
shall be equal to each wholesale discharge certified industrial ICR charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
(c)
Wastestrength Certified Industrial Users. Each retail wastestrength certified industrial ICR charge
shall be equal to each wholesale wastestrength certified industrial ICR charge
submitted to the City pursuant to District Rules and Regulations, Article XVII.
(a)
User, LCR and ICR
charges shall be billed on a quarterly basis. Payment of such bills shall be
made within twenty (20) days after mailing by the City. In the event that such bill is not paid when
due, a penalty of three percent (3%) or minimum of thirty cents (30 cents)
shall be added thereto.
(b)
All bills shall be
payable at the City Treasurer s office at City Hall, 5900 North Milwaukee River
Parkway, Glendale, WI 53209.
(c)
In the event a user
fails to certify data or in the event a user's certification is materially
inaccurate or in the event there has been a substantial change in data since
the date of the user's last certification, the Commission shall notify the user
that the verification data determined by the Commission pursuant to Section
1701.054 of District Rules and Regulations, Article XVII shall be used to
determine the charge due for the current billing period and all future billing
periods until the user submits a new certified statement.
(d)
Should inspection or
verification by the Commission reveal that any statement certified by a user is
material inaccurate, the Commission shall re-determine the proper charge due
and forward the new computation to the City in order that a bill for the
deficiency may be sent. This deficiency
billing shall be retroactive to the date or dates when the bills based upon the
inaccurate certification were originally due and interest charges shall be
applied to each deficiency as provided in Subsection (a) above.
(e)
Unpaid User, LCR and
ICR charges shall be a lien upon the property served and shall be enforced as
provided in See. 66.076(7), Wis. Stats.
(f)
Any person who
violates, disobeys, omits, neglects or refuses to comply with any action
required pursuant to District Regulations, Article XVII shall pay a forfeiture
of not less than Ten Dollars ($10.00), nor more than Two Hundred Dollars
($200.00) for each offense, together with the cost of prosecution and, in
default of payment thereof, shall be imprisoned in the County Jail or House of
Correction of Milwaukee County until such forfeiture and costs are paid, but
not to exceed ninety (90) days. Each
day that a violation continues to exist shall constitute a separate
offense. Such fines are in addition to
the User, LCR and ICR charges due the City.
In
addition to the charges imposed pursuant to Sections 9.2.3 through 9.2.6 above
with respect to the usage of the wastewater system of the Commission, local
user charges are imposed in Sections 9.2.9 through 9.2.13 of this Chapter.
Any
person aggrieved by any act or failure to act or determination of the Glendale
Water Utility concerning sanitary sewer user charges may appeal to the Water
Utility Board by filing a notice of appeal, together with a verified petition,
with the City Clerk. Such petition
shall state the action, failure to act or determination appealed from and the
grounds upon which relief is sought and shall be filed within twenty (20) days
from the date of the action or determination appealed from. If such determination is based upon a bill
for sanitary sewer services, such documents shall be filed within twenty (20)
days from the mailing of such bill.
Petitioner shall be given at least ten (10) days written notice by mail
of the date of hearing before the Water Utility Board. Provided, however, that appeals wherein the
action, failure to act or determination arose prior to the effective date of
this Chapter shall be made within twenty (20) days of such effective date.
It
is determined and declared to be necessary and conducive to the protection of
the public health, safety, welfare and convenience of the City to collect
charges from all users who contribute wastewater to the City's collection
system. The proceeds of such charges so derived will be used for the purpose of
operating and maintaining the public wastewater collection system.
Unless
the context specifically indicates otherwise, the meaning of terms used in this
Chapter shall be as follows:
(a)
Billable Flow
shall mean a user's recorded quarterly water usage as metered by the
appropriate water utility, plus metered water from wells and other courses, and
less any sewer-exempt metered data, times the approved percentage factor for
wastewater entering the sewer system out of the metered water.
(b)
Collection Sewer System
shall mean the system of sewers whose primary purpose is to collect wastewaters
from individual point source discharges.
(c)
Operation and Maintenance
shall mean all expenditures during the useful life of the sewer collection
system for materials, labor, utilities and other items which are necessary for
monitoring and maintaining the collection system to achieve the capacity and
performance for which such system was designed and constructed.
(d)
Replacement
shall mean expenditures for obtaining and installing equipment, accessories or
appurtenances which are necessary during the useful life of the collection
system to maintain the capacity and performance for which such works were
designed and constructed. The term
"operation and maintenance" includes replacement.
(e)
Shall is mandatory;
“may” is permissive.
(f)
Useful Life
shall mean the estimated period during which a collection system will be
operated.
(g)
User Charge
shall mean that portion of the total wastewater service charge which is levied
in a proportional and adequate manner for the cost of operation, maintenance
and replacement of the collection system.
(a)
The local user charge
system shall generate adequate annual revenues to pay costs of annual operation
and maintenance, including replacement associated with financing the collection
system which the City may, by ordinance, designate to be paid by the local user
charge system. That portion of the
total local user charge which is designated for operation and maintenance,
including replacement of the collection system, shall be established by this
Chapter.
(b)
That portion of the
local user charge collected which is designated for operation and maintenance,
including replacement purposes, shall be deposited in a separate non-lapsing
fund known as the Local Operation, Maintenance and Replacement Fund and will be
kept in two (2) primary accounts as follows:
(1)
An account designated
for the specific purpose of defraying operation and maintenance costs,
excluding replacement, of the collection system. (Operation and Maintenance
Account.)
(2)
An account designated
for the specific purpose of ensuring replacement needs over the useful life of
the collection system. (Replacement Account.)
(c) Fiscal year-end balances in the operation and maintenance
account and the replacement account shall be carried over to the same accounts
in the subsequent fiscal year and shall be used for no other purposes than
those designated for these accounts.
Moneys which have been transferred from other sources to meet temporary
shortages and in the operation, maintenance and replacement fund shall be
returned to their respective accounts and appropriate adjustment of the local
user charge rates for operation, maintenance and replacement. The local user
charge rate(s) shall be adjusted so that the transferred moneys will be
returned to their respective accounts within the fiscal year following the
fiscal year in which the moneys were borrowed.
The
annual user charge to recover total collection system operation, maintenance
and replacement costs shall consist of a connection and volumetric charge to
each user. The annual connection charge
shall be calculated by dividing the total expected billing and meter reading
cost by the total number of connections in the system. The volumetric rate shall be computed by
dividing the total expected collected system operation, maintenance and
replacement costs (less billing and meter reading costs) by the total expected
billable flow in the system. This rate
multiplied by the billable flow for each user shall represent the volumetric
user charge.
(a) The City will review the local user charge system at least
every two (2) years and revise local user charge rates as necessary to ensure
that the system generates adequate revenues to pay the costs and operation and
maintenance, including replacement, and that the system continues to provide
for the proportional distribution of operation and maintenance, including
replacement costs, among users and user classes.
(b) The City will notify each user at least annually, in
conjunction with a regular bill, of the rate being charged for operation,
maintenance, including replacement, of the collection system. This notification will display separately
Milwaukee Metropolitan Sewerage District treatment charges and local operation,
maintenance and replacement rates.
(a)
Where the subdivision
is within reasonable access of the Metropolitan Sewerage System, the subdivider
shall install or cause to be installed adequate sanitary sewer facilities,
including lateral house connections, for each lot and extended to the lot line
within the street in accordance with specifications of the Sewerage Commission
of the City of Milwaukee and the City of Glendale Plumbing Code. The subdivider shall apply to the Common
Council for the preparation of the plans for such sewerage facilities by the
City Engineer, and the cost of such preparation shall be paid by the subdivider
to the City of Glendale.
(b)
If such sanitary
sewerage facilities have not been completed at the date the final plat is
submitted for approval, the subdivider shall, when required, file with the plat
a performance bond meeting the approval of the City Attorney or a certified
check in an amount equal to the cost of such facilities as estimated by the
City Engineer as a guarantee that such facilities will be completed within the
time required by the Common Council.
The
subdivider shall provide adequate storm water drainage facilities, pursuant to
Title 6, Chapter 5 of this Code Ordinance.
The
developer shall apply to the City for the installation of water mains and
appurtenances to serve the subdivision.
At the option of the developer, such water mains and appurtenances may
be installed by him under the supervision and direction of the City Engineer
and in accordance with plans and specifications to be furnished by the City
Engineer and paid for by the developer or by the City through a publicly let
contract. If such installation is by
publicly let contract, payment shall be guaranteed as provided in this Chapter.
9.3.1 Short Title
9.3.2 Definitions
9.3.3 Rights and
Privileges of Grantee
9.3.4 Agreement
and Incorporation of Application By Reference
9.3.5 Franchise
Territory
9.3.6 Duration and
Acceptance of Franchise
9.3.7 Franchise
Renewal
9.3.8 Police Powers
9.3.9 Cable Television
Franchise Required
9.3.10 Use of Grantee
Facilities
9.3.11 Initial Franchise
Costs
9.3.12 Notices
9.3.13 Letter of
Credit/Security Deposit
9.3.14 Construction Bond
9.3.15 Liability and
Insurance
9.3.16 Indemnification
9.3.17 Rights of
Individuals
9.3.18 Public Notice
9.3.19 Service
Availability and Records Request
9.3.20 System
Construction
9.3.21 Construction and
Technical Standards
9.3.22 Use of Streets
9.3.23 Operational
Standards
9.3.24 Continuity of
Service Mandatory
9.3.25 Complaint
Procedure
9.3.26 Grantee Rules and
Regulations
9.3.27 Franchise Fee
9.3.28 Transfer of
Control or Controlling Interest
9.3.29 Availability of
Books and Records
9.3.30 Other Petitions
and Applications
9.3.31 Fiscal Reports
9.3.32 Removal of Cable
Television System
9.3.33 Required Services
and Facilities
9.3.34 Rules and
Regulations
9.3.35 Performance
Evaluation Sessions
9.3.36 Rate Change
Procedures
9.3.37 Forfeiture and
Termination
9.3.38 Foreclosure
9.3.39 Right of
Acquisition by the City
9.3.40 Receivership
9.3.41 Compliance With
State and Federal Laws
9.3.42 Landlord/Tenant
9.3.43 Applicants' Bids
for Initial Franchise
9.3.44 Financial,
Contractual, Shareholder and System Disclosure for Initial Franchises
9.3.45 Theft of Services
and Tampering
9.3.46 Penalties
9.3.47 Procedures
This
Chapter shall be known and may be cited as the "Glendale Cable Television
Ordinance," hereinafter "Ordinance" or "Chapter."
For
purposes of this Chapter, the following terms, phrases, words and their
derivations shall have the meaning given herein:
(a)
Basic Service. Any subscriber tier provided by the Grantee,
which includes the delivery of local broadcast stations, and public,
educational and governmental access channels.
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, the Grantee may include other satellite signals on the Basic
tier.
(b)
Cable System or System or Cable Television System. 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 more than one (1) or
more multiple unit dwellings under common ownership, control or management, and
which does not use City rights-of-way.
(c)
City. The City of Glendale, Wisconsin.
(d)
Class IV Channel. 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.
(e)
Control and/or Controlling Interest. Actual working
control or ownership of a System in whatever manner exercised. A rebuttable presumption of the existence of
control or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any Person or Entity (except underwriters during the
period in which they are offering securities to the public) of ten percent
(10%) or more of a Cable System or the Franchise under which the System is
operated. A change in the control or
controlling interest of an Entity which has control or a controlling interest
in a Grantee shall constitute a change in the control or controlling interest
of the System under the same criteria.
Control or controlling interest as used herein may be held
simultaneously by more than one Person or Entity.
(f)
Converter. 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.
(g)
FCC. The Federal Communications Commission and
any legally appointed, designated or elected agent or successor.
(h)
Franchise or Franchise Agreement. Any agreement
granting a Grantee a franchise under Section 9-3-3 hereof.
(i)
Grantee. 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.
(j)
Gross Revenues. 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 multi-point
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.
(k)
Initial Service Area. All areas in the City having at least twenty
(20) dwelling units per street mile.
(l)
Installation. The connection of the system from feeder
cable to subscribers' terminals.
(m)
May. Is permissive.
(n)
Monitoring. 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.
(o)
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.
(p)
Normal Operating Conditions. 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.
(q)
Shall. Is mandatory.
(r)
Service Interruption and/or Outages. The loss of either
picture or sound or both for a single or multiple subscriber(s).
(s)
Street. 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, terrace, drive
or easement now or hereinafter 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.
(t)
Subscriber. Any person, firm, corporation, or
association lawfully receiving Basic and/or any additional service from
Grantee.
(u)
User. 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.
Any
franchise granted by the City pursuant to Section 66.082, Wis. Stats., shall
grant to 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.
(a)
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.
(b)
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 provisions
of this Chapter, that provision which provides the greatest benefit to the
City, in the opinion of the City, shall prevail.
Any
franchise is for the present territorial limits of the City and for any area
henceforth added thereto during the term of the franchise.
The
franchise and the rights, privileges and authority granted shall take effect
and be in force as set forth in the Franchise Agreement and shall continue in
force and effect for a term of no longer than fifteen (15) years, provided that
within fifteen (15) days after the date of final passage of the franchise the
Grantee shall file with the City its unconditional acceptance of the franchise
and promise to comply with and abide by all its provisions, terms, and
conditions. Such acceptance and promise
shall be in writing duly executed and sworn to, by, or on behalf of the Grantee
before a notary public or other officer authorized by law to administer
oaths. Such franchise shall be
non-exclusive and revocable.
(a)
Current Federal Statutory Process.
(1) The City may, on its own initiative, during the six (6) 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 (6) 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.
(2) Upon completion of the proceeding under Subsection (a)(1)i
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.
(3)
Upon submittal by the
Grantee of a proposal to the City for the renewal of the Franchise, the City
shall provide prompt public notice of such proposal and renew the Franchise or
issue a preliminary assessment that the Franchise should not be renewed, and at
the request of the Grantee or on its own initiative, commence an administrative
proceeding, after providing prompt public notice of such proceeding.
(4)
The City shall
consider in any administrative proceeding whether:
a.
The Grantee has
substantially complied with material terms of the existing Franchise and with
applicable law;
b.
The quality of the
Grantee's service, including signal quality, response to consumer complaints
and billing practices, but without regard to the mix or quality of cable
services or other services provided over the System, has been reasonable in the
light of community needs;
c.
The Grantee has the
financial, legal and technical ability to provide the services, facilities and
equipment as set forth in the Grantee's proposal; and
d.
The Grantee's
proposal is reasonable to meet the future cable-related community needs and
interests, taking into account the costs of meeting such needs and interests.
(5) In any proceeding under Subsection (a)(4) 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 Subsection (a)(4) above, to require the production of
evidence and to question witnesses. A
transcript shall be made of any such proceeding.
(6) At the completion of a proceeding under Subsection (a)(4)
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.
(7)
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 in Subsection (a)(4) 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
Subsection (a)(4)(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.
(8)
The Grantee may
appeal any final decision or failure of the City to act in accordance with the
procedural requirements of this Section.
The court shall grant appropriate relief if the court finds that:
a.
Any action of the
City is not in compliance with the procedural requirements of this Section; or
b.
In the event of a
final decision of the City denying the renewal proposal, the Grantee has demonstrated
that the adverse finding of the City with respect to each of the factors
described in Subsection (a)(4) on which the denial is based is not supported by
a preponderance of the evidence, based on the record of the administrative
proceeding.
(b)
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:
(1)
At least twenty-four
(24) months prior to the expiration of the franchise, the Grantee shall inform
the City in writing of is intent to seek renewal of the franchise.
(2)
The Grantee shall
submit a proposal for renewal which demonstrates:
a.
That it has been and
continues to be in substantial compliance with the terms, conditions, and
limitations of this Chapter and its franchise;
b.
That its system has
been installed, constructed, maintained and operated in accordance with the
accepted standards of the industry, and this Chapter and its franchise;
c.
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
d.
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.
(3)
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 Communications
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.
(4)
The City shall then
prepare any amendments to this Chapter that it believes necessary.
(5)
If the City finds the
Grantee's performance satisfactory, and finds the Grantee's technical, legal,
and financial abilities acceptable, and finds that the Grantee's renewal
proposal meets the future cable-related needs of the City, a new franchise
shall be granted pursuant to this Chapter as amended for a period to be
determined.
(6)
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.
(a)
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.
(b)
Any conflict between
the provisions of this Chapter 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 contain
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.
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.
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.
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 publication 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.
All
notices from the Grantee to the City pursuant to this Chapter shall be to the
City Administrator'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.
(a) 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.
(b) 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.
(c)
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 (15) days, any damages, costs or
expenses which the City is compelled to pay by reason of any act or default of
the Grantee in connection with this franchise, or fails, after 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.
(d)
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 Subsection with respect to
the Security shall affect any other right the City may have.
(e)
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 renew.
(f)
Receipt of the thirty
(30) day notice shall be construed as a default granting the City the right to
call on the Security.
(g)
The City, at any time
during the term of this Chapter, may waive the Grantee's requirement to
maintain the Security. The invitation
to waive the requirement can be initiated by the City or Grantee.
(a)
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 percent (50%) 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.
(b)
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
Subsection shall be an additional remedy for any and all violations outlined in
Section 9.3.13.
(c)
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.
(d)
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 (30) day notice,
this shall be construed as default granting the City the fight to call in the
bond.
(e)
The City, at any time
during the term of this Chapter, may waive Grantee's requirement to maintain a
construction bond. The invitation to
waive the requirement can be initiated by the City or Grantee.
(a)
The Grantee shall
maintain and by it 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:
(1)
One million dollars
($1,000,000.00) for property damage to any one person;
(2)
One million dollars
($1,000,000.00) for property damage in any one accident;
(3)
One million dollars
($1,000,000.00) for personal injury to any one person; and
(4)
One million dollars
($1,000,000.00) for personal injury in any one accident.
(b)
The certificate of
insurance obtained by the Grantee in compliance with this Section must be
approved by the City Attorney and such certificate of insurance, along with
written evidence of payment of required premiums, shall be filed and maintained
with the City during the term of the franchise, and may be changed from time to
time to reflect changing liability limits.
The Grantee shall immediately advise the City Attorney of any litigation
that may develop that would affect this insurance.
(c) 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.
(d) 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.”
(a) 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.
(b) 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:
(1)
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, trade name, 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.
(2)
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.
(3)
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.
(c)
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 the 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.
(d)
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 or its designee.
(e)
Notice Cooperation and Expenses. The City shall
give the Grantee prompt notice of the making of any claim or the commencement
of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent
the City from cooperating with Grantee and participating in the defense of any
litigation by the City's own counsel.
The Grantee shall pay all reasonable expenses incurred by the City in
defending itself with regard to any such actions, suits or proceedings. These
expenses shall include all out-of-pocket expenses such as attorney fees and
shall also include reasonable value of any services rendered by or on behalf of
the City Attorney if such service is determined necessary and appropriate by
the City Attorney and the actual expenses of the City's agents, employees or
expert witnesses, and disbursements and liabilities assumed by the City in
connection with such suits, actions or proceedings. No recovery by the City of any sum under the 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 recovery which the City might have against the Grantee under the terms
of this Section.
(f)
Non-waiver of Statutory Limits. Nothing in this
agreement is intended to express or imply a waiver of the statutory provisions,
of any kind or nature, as set forth in Section 893.80 et. seq., Wis. Stats.,
including the limits of liability of the City as exists presently or may be
increased from time to time by the legislature.
(a)
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.
(b)
The Grantee shall
strictly adhere to the equal employment opportunity requirements of the Federal
Communications Commission, state and local regulations, as amended from time to
time.
(c)
The Grantee shall, at
all times, comply with the privacy requirements of State and federal law.
(d)
Grantee is required
to make all services available to all residential dwellings throughout the
initial service area.
Minimum
public notice of any public meeting relating to this Chapter 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 7:00
p.m. and 9:00 p.m., for five (5) consecutive days prior to the meeting.
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 inspection at the local office of the Grantee during
regular office hours.
(a)
New Construction Timetable.
(1)
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:
a.
The Grantee must make
cable television service available to at least twenty percent (20%) of the
dwelling units within the initial service area within six (6) months from the
date of the award of the franchise.
b.
The Grantee must make
cable television service available to at least fifty percent (50%) of the
dwelling units within the initial service area within one (1) year from the
date of the award of the franchise.
(2)
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.
(3)
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 Sections
9.3.37 or 9.3.46 shall apply, as determined by the City.
(4)
In special
circumstances, the City can waive one hundred percent (100%) completion within
the two (2) year timeframe provided substantial completion is accomplished
within the allotted timeframe, substantial completion construed to be not less
than ninety-five percent (95%) and justification for less than one hundred
percent (100%) must be submitted subject to the satisfaction of the City.
(b)
Line Extensions.
(1)
Extensions. 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:
a.
No customer shall be
refused service arbitrarily. The
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 subdivision, 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 construction
activation process within the project phase.
b.
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.
c.
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.
(2)
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 to the 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.
(3)
New
Developments. In cases of new construction or property
development where utilities are to be placed underground, the developer or
property owner shall give the Grantee reasonable notice of such construction or
development, and of the particular date on which open trenching will be
available for the Grantee's installation of conduit, pedestals and/or vaults,
and laterals to be provided at the Grantee's expense. The Grantee shall also provide specifications as needed for
trenching. Costs of trenching and
easements required to bring service to the development shall be borne by the
developer or property owner; except that if the Grantee fails to install its
conduit, pedestals and/or vaults, and laterals within five (5) working days of
the date the trenches are available, as designated in the notice given by the
developer or property owner, then should the trenches be closed after the five
(5) day period, the cost of new trenching is to be borne by the Grantee. Except for the notice of the particular date
on which trenching will be available to the Grantee, any notice provided to the
Grantee by the City of a preliminary plat request shall satisfy the requirement
of reasonable notice if sent to the local general manager or system engineer of
the Grantee prior to approval of the preliminary plat request.
(c)
Special Agreements.
(1)
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 percent (5%) of those gross revenues are paid to the City as
franchise fees under Section 9.3.27.
(2)
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.
(3)
The violation of this
Section shall be considered a breach of the terms of this Chapter for which the
provisions of either Sections 9.3.37 and 9.3.46 shall apply, as determined by
the City.
(a) 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.
(c)
Additional Specifications.
(1)
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.
(2)
The Grantee shall at
all times comply with:
a.
National Electrical
Safety Code (National Bureau of Standards);
b.
National Electrical
Code (National Bureau of Fire Underwriters);
c.
Bell System Code of
Pole Line Construction; and
d.
Applicable FCC or
other federal, state and local regulations.
(3) 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.
(4) 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.
(5) 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
(OSHA).
(6) 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.
(7)
The Grantee shall
maintain equipment capable of providing standby power for headend and transport
system for a minimum of two (2) hours.
(8)
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.
(a)
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.
(b)
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.
(c)
Erection, Removal and Common Uses of Poles.
(1) 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 and 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.
(2) 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.
(3)
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' tile Grantee's operations.
(d)
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.
(e)
Cooperation With Building Movers. The Grantee shall,
on the request of any person holding a building-moving permit issued by the
City, temporarily raise or lower its wires to permit the moving of
buildings. The expense of such
temporary removal, raising or lowering of wires shall be paid by the person
requesting the same, and the Grantee shall have the authority to require such
payment in advance. The Grantee shall
be given not less than forty-eight (48) hours advance notice to arrange for
such temporary wire changes.
(f)
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 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 the 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)
The Grantee shall
put, keep and maintain all parts of the System in good condition throughout the
entire franchise period.
(b)
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 the terms of the 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.
(c)
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.
(d)
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.
(e)
The Grantee shall
have knowledgeable, qualified Grantee representatives available to respond to
customer telephone inquiries twenty-four (24) hours per day and seven days per
week.
(f)
Under normal
operating conditions, telephone answer time, including wait time and the time
required to transfer the call, shall not exceed thirty (30) seconds. This
standard shall be met no less than ninety (90%) of the time as measured on an
annual basis.
(g)
Under normal
operating conditions, the customer will receive a busy signal less than three
percent (3%) of the total time that the office is open for business.
(h)
Standard
installations will be performed within seven (7) business days after an order
has been placed. A standard
installation is one that is within one hundred seventy-five (175) feet of the
existing system.
(i)
Excluding those situations
which are beyond its control, the Grantee will respond to any Service
Interruption promptly and in no event later than twenty-four (24) hours from
the time of initial notification. All
other regular service requests will be responded to within thirty-six (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 (4) 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.
(j)
Customer service
centers and bill payment locations will be open for walk-in customer
transactions a minimum of eight (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.
(k)
Upon Service
Interruption and/or Outages of subscriber's cable service, the following shall
apply:
(1)
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 (1/30) of one month's fees for affected services for each
twenty-four (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.
(2)
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 month's
credit for affected services for all affected Subscribers.
(l)
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:
(1)
Product and services
offered.
(2)
Prices and service
options.
(3)
Installation and
service policies.
(4)
How to use the cable
services.
(m)
Bills will be clear,
concise and understandable, with all cable services itemized.
(n)
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.
(o)
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.
(p)
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 Communications
Commission, the United States Congress, or the State of Wisconsin.
(q)
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 Sec. 9.3.46 are applicable.
(r)
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 twenty-four (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.
(a)
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.
(b)
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.
(c)
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 and damages in excess of revenues from the System received by
the City that are the result of the Grantee's failure to perform.
(a)
The City
Administrator is designated as having primary responsibility for the continuing
administration of the franchise and implementation of complaint procedures.
(b)
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.
(c)
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.
(d)
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:
(1)
The nature of the
complaint or problem which precipitated the special tests;
(2)
What System component
was tested;
(3)
The equipment used
and procedures employed in testing;
(4)
The method, if any,
in which such complaint or problem was resolved;
(5)
Any other information
pertinent to the tests and analysis which may be required.
(e)
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.
(f)
The City's right
under this Section shall be limited to requiting 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.
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 fights 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.
(a)
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 percent
(5%) 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 percent (5%) limitation on the franchise fees is
raised or the federal statute deletes the franchise fee limitation entirely,
then the franchise fee may be subject to re-negotiation.
(b)
This payment shall be
in addition to any other tax or payment owed to the City by the Grantee.
(c)
The franchise fee and
any other costs or penalties assessed shall be payable quarterly on a calendar
year basis to the City within forty-five (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.
(d)
The City shall have
the right to inspect the Grantee's books and records and the right to audit and
to re-compute any amounts determined to be payable under this Chapter for any
calendar year; provided, however, that any such audit shall take place within
twenty-four (24) months following the close of a particular calendar year. 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.
(e)
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)
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 one hundred and twenty (120) days to act upon any request for
approval of such 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.
(b)
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 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.
(c)
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.
(d)
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.
(e)
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)
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.
(b)
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:
(1)
A quarterly review
and resolution or progress report submitted by the Grantee to the City;
(2)
Periodic preventive
maintenance reports;
(3)
Any copies of FCC
Form 395-A (or successor form) or any supplemental forms related to equal
opportunity or fair contracting policies;
(4)
Subscriber
inquiry/complaint resolution data and the right to review documentation
concerning these inquiries and/or complaints periodically;
(5)
Periodic construction
update reports, including where appropriate the submission of as-built maps.
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.
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.
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.
(a)
Channel Capacity. 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.
(b)
Two-Way Capability. Such system shall maintain a plant having
the technical capacity for "two-way" communications.
(c)
Public Access Channels. The Grantee shall maintain the following:
(1)
At least one (1)
specially-designated, noncommercial public access channel available on a
first-come, nondiscriminatory basis;
(2)
At least one (1)
specially-designated channel for use by local educational authorities;
(3)
At least one (1)
specially-designated channel for local governmental uses;
(4)
At least one (1)
specially-designated channel for leased access uses;
(5)
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
(6)
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.
(d)
Emergency Use. 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.
(e)
Interconnection.
(1) System Interconnects.
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.
(2) 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.
(3) 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 the system to
be interconnected, or the cost of the interconnection would cause an
unreasonable or unacceptable increase in subscriber rates.
(4) 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.
(5) Initial Technical Requirements to Assure Future Interconnection Capability.
(a)
All Systems receiving
franchises to operate within the City shall use the standard frequency
allocations for television signals.
(b)
All Systems are
required to use signal processors at the headend for each television signal.
(c)
The City also urges
Grantees to provide local origination equipment that is compatible throughout
the area so that video cassettes or videotapes can be shared by various
systems.
(d)
A Grantee shall
provide such additional services and facilities as are contained in its
application, if any.
(a)
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 Chapter; 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.
(b)
The City may also
adopt such regulations at the request of the Grantee upon application.
(a)
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.
(b)
Special evaluation
sessions may be held at any time during the term of the franchise at the
request of the City or the Grantee.
(c)
All evaluation
sessions shall be open to the public and announced in a newspaper of general
circulation in accordance with their legal notice. The Grantee shall notify its Subscribers of all evaluation
sessions by announcements on at least one (1) channel of its system between the
hours of 7:00 p.m. and 9:00 p.m., for five (5) consecutive days preceding each
session.
(d)
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 Chapter; judicial and FCC rulings; line extension policies;
and Grantee or City rules.
(e)
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.
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 and State law permit further rate
regulation beyond the Basic Service, the City shall assume such rate regulation
and adopt appropriate procedures for such regulation.
(a)
In addition to all
other rights and powers retained by the City under this Chapter 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 not be limited to, the
following:
(1)
Violation of any
material provision of this Chapter or the franchise or any material rule,
order, regulation or determination of the City made pursuant to the franchise;
(2)
Attempt to evade any
material provision of this Chapter or the franchise or practice any fraud or
deceit upon the City or its Subscribers;
(3)
Failure to begin or
complete System construction or System extension as provided under Sec. 9.3.20;
(4)
Failure to provide
the services promised in the Grantee's application, if any, as incorporated
herein by Sec. 9.3.4;
(5)
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
(6)
Material
misrepresentation of fact in the application for or negotiation of the
franchise.
(b) 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.
(c) 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
Council is to consider.
(d) 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.
(e) If the Common Council shall determine the violation by the
Grantee was the fault of the Grantee and within its control, the Council may,
by resolution, declare that the franchise of the Grantee shall be forfeited and
terminated unless there is compliance within such period as the Council may
fix, such period shall not be less than sixty (60) days, provided no
opportunity for compliance need be granted for fraud or misrepresentation.
(f) The issue of forfeiture and termination shall automatically
be placed upon the Council agenda at the expiration of the time set by it for
compliance. The Council then may
terminate the franchise forthwith upon finding that the Grantee has failed to
achieve compliance or may further extend the period, in its discretion.
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 Chapter governing the
consent of the City to such change in control of the Grantee shall apply.
(a)
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 Subsection (b) below shall apply.
(b)
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 Sec. 9.3.7, 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.
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 his/her election or appointment, such receiver or
trustee shall have fully complied with all the provisions of this Chapter and
remedied all defaults thereunder; and
(b)
Such receiver or
trustee, within one hundred twenty (120) days, shall have executed an
agreement, duly approved by the court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this Chapter and the franchise granted to the Grantee.
(a)
Notwithstanding any
other provisions of this Chapter 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.
(b)
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.
(a)
Interference With Cable Service Prohibited. Neither the owner
of any multiple unit residential dwelling nor his/her 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.
(b)
Gratuities and Payments to Permit Service Prohibited. Neither the owner
of any multiple unit residential dwelling nor his/her 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.
(c)
Penalties and Charges to Tenants for Service Prohibited. Neither the owner
or any multiple unit residential dwelling nor his/her agent or representative
shall penalize, charge or surcharge a tenant or resident or forfeit or threaten
to forfeit any right of such tenant or resident, or discriminate in any way
against such tenant or resident who requests or receives cable communication
service from a Grantee operating under a valid and existing franchise issued by
the City.
(d)
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.
(e)
Protection of Property Prohibited. Nothing in this
Chapter shall prohibit a person from requiring that cable communication system
facilities conform to laws and regulations and reasonable conditions necessary
to protect safety, functioning, appearance and value of premises or the
convenience and safety of persons or property.
(f)
Risks Assumed By Grantee.
Nothing in this Chapter shall prohibit a person from requiring a Grantee from
agreeing to indemnify the owner, or his/her agents or representatives for
damages or from liability for damages caused by the installation, operation,
maintenance or removal of cable communications facilities.
(a)
All bids received by
the City from the applicants for an initial franchise will become the sole
property of the City.
(b)
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.
(c)
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.
(d)
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
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.
(e)
Before submitting a
bid, each applicant must:
(1)
Examine this Chapter
and the application documents thoroughly;
(2)
Familiarize
himself/herself with local conditions that may in any manner affect performance
under the franchise;
(3)
Familiarize
himself/herself with federal, state and local laws, ordinances, rules and
regulations affecting performance under the franchise; and
(4)
Carefully correlate
the bid with the requirements of this Chapter and the application documents.
(f)
The City may make
such investigations as it deems necessary to determine the ability of the
applicant to perform under the franchise, and the applicant shall furnish to
the City all such information and data for this purpose as the City may
request. The City reserves the right to
reject any bid if the evidence submitted by, or investigation of, such
applicant fails to satisfy the City that such applicant is properly qualified
to carry out the obligations of the franchise and to complete the work
contemplated therein. Conditional bids will not be accepted.
(g)
All bids received
shall be placed in a secure depository approved by the City and not opened nor
inspected prior to the public opening.
(a)
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.
(b)
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.
(c)
Applicants, including
all shareholders and parties with any interest in the applicant, shall submit
all requested information as provided by the terms of this Chapter or the
application documents, which are incorporated herein by reference. The
requested information must be complete and verified as true by the applicant.
(d)
Applicants, including
all shareholders and parties with any interest in the applicant, shall disclose
the numbers of shares of stock, and shall include the amount of consideration
for each share of stock and the nature of the consideration.
(e)
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:
(1)
Locations of all
other franchises and the dates of award for each location;
(2)
Estimated
construction costs and estimated completion dates for each system;
(3)
Estimated number of
miles of construction and number of miles completed in each system as of the
date of this application; and
(4)
Date for completion
of construction as promised in the application for each system.
(f)
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:
(1)
Location of other
franchise applications and date of application for each system;
(2)
Estimated dates of
franchise awards;
(3)
Estimated number of
miles of construction; and
(4)
Estimated
construction costs.
(a)
Prohibited Acts.
No person may intentionally do any of the following:
(1)
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 purpose.
(2)
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,
de-scrambler or receiving device was for a legitimate use.
(3)
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.
(4)
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.
(5)
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 inferred 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.
(6)
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 (a)(1) to (5) 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.
(7)
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.
(b)
Civil Liability for Theft of Telecommunications Service
(Including Cable Television Service).
(1)
Any person who incurs
injury as a result of a violation of Section 9.3.45 may bring a civil action
against the person who committed the violation. Except as provided in Subsection (b)(2), if the person who incurs
the loss prevails, the court shall grant the prevailing party actual damages,
costs and disbursement.
(2)
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 9.3.45, the court shall grant
the prevailing party all the following:
a.
Except as provided in
Subsections (b)(2)e or f, not more than Ten Thousand Dollars ($10,000.00);
b.
Actual damages;
c.
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 Subsection (b)(2)b;
d.
Notwithstanding the
limitations under Sections 799.25 or 814.04, Wis. Stats., costs, disbursement
and reasonable attorney fees;
e.
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 Subsection (b)(2)a
not to exceed Fifty Thousand Dollars ($50,000.00); and
f.
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 Subsection (b)(2)a.
(3)
If damages under
Subsection (b)(2)c 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.
(4)
In addition to other
remedies available under this Section, the court may grant the injured party a
temporary or permanent injunction.
No
person, corporation, company, business, utility, or any other legally
cognizable entity shall transmit or cause to be transmitted any video signal,
the transmission of which shall violate, impede, conflict with, or subject the
City of Glendale to liability for violation of, a franchise agreement in effect
at the time of such transmission.
Violation of this provision shall be subject to the penalties as set
forth in Section 9-3-47 and/or Section 1-1-7 of the Glendale Code of
Ordinances.
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 a separate violation:
(a)
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;
(b)
Failure to obtain
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;
(c)
Failure to provide
access to data, documents, records, or reports to the City as required by
Sections 9.3.19, 9.3.29, 9.3.30, 9.3.31 and 9.3.37: Two Hundred Dollars ($200.00) per day, per violation, for each
day such failure occurs or continues;
(d)
Failure to comply
with applicable construction, operation, or maintenance standards: Three Hundred Dollars ($300.00) per day, per
violation;
(e)
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. The City may impose any or all of the above
enumerated measures against the 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.
(f)
Any violations for
non-compliance with the customer service standards of Sections 9.3.23 through
9.3.25: Two Hundred Dollars ($200.00)
per day for each day, or part thereof, that such noncompliance continues.
(g)
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 Five Hundred Dollars
($500.00) per day, per violation.
(a) Whenever the City believes that the Grantee has violated one
(1) or more terms, conditions, or provisions of this Chapter 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 nature so
as to require more than 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.
(b) 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
upon, to such determination to correct the alleged violation before penalties
may be imposed.
(c)
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 other
action, proceeding or exercise of a right with respect to penalties shall
affect any other right the City may have.
(d)
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.
9.4.1 Definitions
9.4.2 License Required
9.4.3 Length of Permit
9.4.4 Permit Locations
9.4.5 Use of Streets
and Pole Attachments
9.4.6 Violations;
Penalties
9.4.7 Restrictions
on Assignment, Transfer, Sale and Subleasing
9.4.8 Approval of
Location of Micro and Pico Cell Sites
9.4.9 Reports
9.4.10 Call Site Removal
(a)
For the purpose of
this Chapter and any permit issued in accordance herewith, the following terms,
phrases, words and their derivations shall have the meaning given herein unless
otherwise specifically provided in this Chapter or unless the context clearly
indicates otherwise or unless such meaning would be inconsistent with the
manifest intent of the Common Council.
(1)
Engineering
Department means the City
Engineer of the City of Glendale.
(2)
Wireless
Communications System means any
system which uses a form of cellular telephony which allows business and
residential subscribers to access and/or make telephone calls to each other
through the wireless telecommunications system or over the Public Switched
Telephone Network (PSTN) using small cordless telephone devices which communicate
with limited range cells (transmitter/receiver sites) connected to a back-haul
network.
(3)
Backhaul
Network means the physical
network that connects micro cells and pico cells to a central switching point
or the Public Switch Telephone Network (PSTN).
(4)
Micro Cell means a transmitter/receiver system used to communicate to
the subscriber's hand set, typically with a range of six hundred to one
thousand (600-1,000) meters.
(5)
Pico Cell means a transmitter/receiver system used to communicate to
the subscriber's hand set, typically with a range of two hundred to six hundred
(200-600) meters.
(6)
FCC means the Federal Communications Commission or its legally
appointed successor.
(7)
Cell Site means the location of a transmitter/receiver and backhaul
network interface which provides telephonic or telecommunication-type service
to subscribers, including Micro Cell sites and Pico Cell sites. The location
includes single pole mounted receiver/transmitter units, receiver/transmitter
units located on new or existing antenna structures receiver/transmitter units
located in buildings and on roof tops.
(8)
Local Access
Transport Area (LATA) means that
geographic area and communications system in which the City of Glendale is
located and in which Ameritech or any other telephone company is authorized by
the Public Service Commission of Wisconsin to provide local exchange access
communications services.
(9)
Local
Telephone Service means:
a.
The access to a local
franchised telephone system, and the privilege of telephonic-quality
communication with substantially all persons having telephone or radio
telephone stations constituting a part of such local telephone system; or,
b.
Any facility or
service provided in connection with a service described in Subsection (a)(9)a
above.
(The term "local telephone service" does not
include any service which is a toll telephone service; personal communication
service; private communication service; cellular mobile telephone or
telecommunication service; regularized mobile telephone or telecommunication service;
regularized mobile radio or pagers and paging service, including but not
limited to "beepers" and any other form of mobile and portable
one-way or two-way communication; or telephone typewriter or computer exchange
service.)
(10)
Wireless
Communication Permit means the
privilege granted by the City by which it authorizes a person, firm or
corporation to erect, construct, reconstruct, operate, dismantle, test, use,
maintain, repair, rebuild or replace a wireless communication system that
occupies any portion of the streets, public ways or public places within the
City. Any permit issued in accordance herewith shall be a non-exclusive permit.
(11)
Permittee means the person, organization, firm, non-profit or
not-for-profit corporation, or its legal successor in interest who is issued a
wireless communication permit or permits in accordance with the provisions of
this Chapter for the erection, construction, reconstruction, operation,
dismantling, testing, use, maintenance, repair, rebuilding or replacing of the
wireless communication system in the City.
(12)
Private
Communication System means any
system of communication lines, cables, equipment or facilities which are used
to provide a telephone, video, data, telemetry, intercom or telecommunication
service that in any manner occupies easements, streets, public ways or public
places within the corporate limits of the City, as now or in the future may
exist. Private communication system
does not include any part of a state or municipally franchised local exchange
telephone company or part of a cable television system or telephone system
franchised by the City or any part of a federal, state, county or local
government owned telecommunications system.
(13)
Street means any area established for vehicular or public access
use of the entire width between the property lines of every way publicly
maintained when any part thereof is open for public purposes.
"Street" includes, but is not limited to, highway, avenue, road,
alley, right-of-way, lane, boulevard, concourse, bridge, tunnel, parks,
parkways and waterways.
(14)
Easement means any strip of land created by a subdivider for public
or private utilities, sanitation or other specified uses having limitations,
the title to which shall remain in the name of the property owner, subject to
the right-of-way use designated in the reservation of the servitude. No private
facility may be constructed within the easement without written permit from the
City.
(15)
Toll Telephone
Service means:
a. A telephonic-quality communication for which there is a toll
charge which varies in amount with the distance and elapsed transmission time
of each individual communication; or,
c.
A service which
entitles the subscriber or user, upon the payment of a periodic charge which is
determined as a flat amount or upon the basis of total elapsed transmission
time, to the privilege of an unlimited number of telephonic communications to
or from all or a substantial portion of the persons having telephone or radio
telephone stations in a specified area which is outside the Local Telephone
System Area (LTSA) in which the station provided with this service is located.
(16) Total Gross Revenue means all cash, credits, or property
of any kind or nature reported as revenue items to the permittee's audited
income statements arising from or attributable to the sale, lease, rental or
exchange of wireless communication services or equipment by the permittee
within the City or in any way derived from the operation of its wireless
communication system, including but not limited to, any interconnection between
its system in the City and any system whatsoever. This sum shall be the basis for computing the fee imposed
pursuant to Section 1.1.7, General Penalty.
Such sum shall not include any bad debts, deposits, promotional or
vendor discounts or credits nor sales, service, occupation or other excise tax
to the extent that such taxes are charged separately from normal service
charges and are remitted by the permittee directly to the taxing authority.
(a)
No person or firm
whether public, private, non-profit or not-for-profit shall construct, operate
or continue to operate a wireless communications system within the City without
having been issued a wireless telecommunication permit by the City Clerk,
approved by the City Engineer, and subject to the permit fees as set forth
below.
(b)
No person or firm
whether public, private, non-profit or not-for-profit shall construct, operate
or continue to operate a wireless communications system which occupies any part
of the streets, public ways or public places within the City without having
been issued a wireless telecommunication permit by the City Clerk, approved by
the City Engineer. Except as
hereinafter provided, it shall be a term and condition of any wireless
telecommunication permit issued in accordance herewith that as a part of the
consideration supporting the issuance of such wireless communication permit and
the City's permission thereby to occupy and use the streets and rights-of-way
of the City, that the permittee shall pay to the City a minimum of five percent
(5%), or the maximum percentage allowed by law, of all gross revenues derived
from the operation of the wireless telecommunication system, including but not
limited to equipment rental, voice service, data service, vehicle location
services, security monitoring, paging and all other services and related
subsidiary companies which use the wireless system to generate any portion of
their revenue, and permit fees as set forth below.
(c)
Permit Fees.
(1)
All applicants shall
pay a permit request fee of Fifty Dollars ($50.00) per cell site.
(2)
The wireless provider
shall pay to the City an annual permit fee of One Hundred Dollars ($100.00) per
cell site.
(3)
Privately owned lines
or cables placed by the wireless communications system operator to support the
backhaul portion of the network are subject to the provisions of Title 9,
Chapter 5, unless the operator is a franchised telephone company or Cable
Television franchisee.
(4)
The City may adjust
permit fees each year to the extent allowed by law. The minimum adjustment shall be set by the cumulative increase in
the Consumer Price Index published by the United States Department of Labor for
Urban Wage Earners (1967 = 100%), since the initial establishment of this
permit fee, or since the most recent increase in the permit fee for any and all
subsequent increases after the first increase, and only after a public hearing
and at least twenty (20) days' notice to all permittees, except as hereinafter
provided.
(d)
The annual
compensation and permit fee provided for above shall be payable annually on or
before October 1 of each calendar year for the portion of the wireless
communications system within the City right-of-way on January 1 of that year,
and a prorated license fee, based upon the calendar quarter in which the
application is filed, shall be paid at the time of the application for the
wireless telecommunication permit for all new portions of the system. The
quarterly revenue fees are due January 1, April 1, July 1 and September 1.
(e)
Fees not paid within
ten (10) days after the due date shall bear interest at the rate of one and
one-half percent (1.5%) per month from the date due until paid.
(f)
(1)