§ A200-3Word usage and definitions.
§ A200-4Grant of franchise; authority of grantee.
§ A200-5Design standards.
§ A200-6Service standards.
§ A200-7Construction standards.
§ A200-8Records; operation and maintenance.
§ A200-9Indemnification; insurance.
§ A200-11Foreclosure, receivership and abandonment.
§ A200-12Purchase of system.
§ A200-13Rights of individuals.
§ A200-14Compliance with laws.
§ A200-15Sale or transfer of franchise.
§ A200-19Continuity of service.
§ A200-20Removal of system.
§ A200-21Applicable laws and regulations; severability.
§ A200-22Franchise fees.
§ A200-23When effective; publication; acceptance by grantee.
The grantor intends, by the adoption of this ordinance, to bring about the development of a system and the continued operation of it. Such a development can contribute significantly to the communication needs and desires of many. Further, the grantor may achieve better utilization and improvement of public services with the development and operation of a system.
This ordinance shall be known and cited as the "St. Joseph Communications Ordinance." Within this document it shall also be referred to as "this franchise."
When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
For the purpose of this franchise, the following terms, phrases, words and their derivations shall have the meanings given herein:
- BASIC SERVICE
- All subscriber services provided by the grantee, including the delivery of broadcast signals, covered by the regular monthly charge paid by all subscribers, excluding optional services for which a separate charge is made.
- CABLE SERVICE TERRITORY
- All of the territory within the boundaries of the Town of St. Joseph.
- A six megahertz (MHz) frequency band which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals.
- The attachment of the drop to the first radio or television set of the subscriber.
- 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 all basic subscriber signals included in the basic service delivered at designated converter dial locations.
- The cable that connects the subscriber terminal to the nearest feeder cable of the cable.
- The Federal Communications Commission or a designated representative.
- Telo-Communications, its agents, employees, lawful successors, transferees or assignees.
- The Town of St. Joseph.
- The connection of the system from feeder cable to the point of connection.
- OFFERING OF GRANTEE OR OFFERING
- That certain document entitled "A Cable Communications System for the Town of St. Joseph" and signed by the grantee, which document is on file with the Town Clerk.
- Any corporation, partnership, proprietorship, individual or organization authorized to do business in the State of Wisconsin or any natural person.
- PUBLIC PROPERTY
- Any real property owned by any governmental unit, other than a street.
- Any person residing in the town.
- The surface of and the space above and below any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or any easement or right-of-way now or hereafter held by the town which shall, within its proper use and meaning in the sole opinion of the town, entitle the grantee to the use thereof for the purpose of installing or transmitting over poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a system.
- Any person or entity who or which subscribes to a service provided by the grantee by means of or in connection with the system, whether or not a fee is paid for such service.
- 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 or electrical signals, located in the town. Said definition shall not include any system wholly internal to one or more multiple-unit dwellings under common ownership, control or management and which does not use town streets or other public property.
- Observing a communications signal, where the observer is neither of the communicating parties, whether the exchange is observed by visual or electronic means, for any purpose whatsoever.
- The Town of St. Joseph, but in all cases shall mean the grantor herein.
Grant of franchise. This franchise is granted pursuant to the terms and conditions contained herein. Such terms and conditions shall be subordinate to all applicable provisions of state and federal laws, rules and regulations.
Criteria of selection. The grantee's technical ability, financial condition and legal qualifications were considered and approved by the grantor in a full public proceeding affording reasonable notice and a reasonable opportunity to be heard.
Authority for use of streets.
For the purpose of operating and maintaining a system in the cable service territory, the grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the streets, roadways and rights-of-way within the town such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the system, provided that all applicable permits are applied for and granted, all fees are paid and all other town codes and ordinances are otherwise complied with. Prior to construction or alteration, the grantee shall in each case file plans with all appropriate town agencies and utility companies and receive written approval of such plans; provided, however, that in the event that the equipment of the grantee is to be attached to the poles, hardware or property of another governmental agency or private party, it shall be the sole responsibility of the grantee to gain permission for such use and upon such terms and conditions as those parties may require and agree.
The grantee shall construct and maintain the system so as not to interfere with other uses of streets and roads. The grantee shall make use of existing poles and other facilities available to the grantee, with the permission of all relevant parties.
Notwithstanding the above grant to use streets, no street shall be used by the grantee if the town, in its sole opinion, determines that such use is inconsistent with the terms, conditions or provisions by which such street was created or dedicated or is presently used.
The parties agree to be bound by all the terms and conditions of the franchise.
The grantee also agrees to provide all services specifically set forth herein and to comply with all provisions of its application to provide a system within the cable service territory. Further, failure of the grantee to provide a system as described in its application, at the grantor's option, shall be a violation of the provisions of this franchise, and the terms of this ordinance shall prevail.
Franchise term. This franchise shall commence upon acceptance by the grantee and shall expire 20 years from such acceptance unless terminated sooner as hereinafter provided.
Area covered. This franchise is granted for the territorial boundary of the town as it exists from tine to time during the term of this franchise.
The grantee's rights are subject to the police power of the town to adopt and enforce ordinances necessary to the health, safety and welfare of the public.
Any conflict between the provisions of this franchise and any other present or future lawful exercise of police powers of the town shall be resolved in favor of the town, provided that such exercise of police powers is not done arbitrarily or capriciously and is exercised reasonably in accordance with the health, welfare and safety of the community.
Written notice. All notices, reports or demands required to be given in writing under this franchise shall be deemed to be given when delivered personally to any officer of the grantee or the Town Clerk of the grantor or when 48 hours have elapsed after it is deposited in the United States Mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to which notice is being given.
Franchise nonexclusive. The franchise granted herein is nonexclusive. The grantor specifically reserves the right to grant, at any time, additional franchises for a system.
The system shall be constructed in conformance with the minimum requirements for a system design outlined in the proposal, all applicable federal and state regulations and the design provisions as set forth in the application. The complete system design provisions will be included in the body of the franchise ordinance under this section.
System design. The cable distribution system shall be at least single trunk and single feeder. Activation will occur when demand dictates, economic feasibility has been determined and upon agreement between the franchising authority and the grantee. The frequency spectrum of the system shall be five to 450 MHz with a channel capacity of at least 60 channels. All coaxial cable passive devices shall be capable of passing a frequency spectrum of 450 MHz and shall have a channel capacity of not fewer than 60 channels.
Initial channel capacity. The system shall activate at least 24 downstream channels initially.
Installation in town-owned buildings. The system shall include basic service at no cost to town-owned buildings within the serviceable area during initial construction.
Service area. The initial service area shall be defined as an area consisting of single-family dwelling units, townhouses, multiple-family dwelling units and mobile homes, all as more fully set forth and incorporated herein by reference to the grantee's application. The system shall be designed and constructed in such a manner as to have the eventual capability to pass by every single-family dwelling unit, multiple-family dwelling unit, institution, agency and business establishment with a minimum density of 20 residential units per cable mile, as measured from the initial cable system.
Services to be provided. Services to be provided upon initial activation of the system shall be as specified in the grantee's franchise application and as accepted by the grantor. The grantor shall not hold the grantee in violation of the terms if the service is no longer available to the grantee through no fault of the grantee's and if the grantee is not able to replace the deleted service through no fault of the grantee's.
Minimum requirements. The grantee shall include a public access channel.
Erection of poles prohibited. The grantee shall not erect, for any reason, any pole on or along any street in an existing aerial utility system, except upon advance approval from the grantor. If additional poles in an existing aerial route are required, the grantee shall negotiate with the utility for the installation of the needed poles. If the utility agrees to or has no objection to additional poles, the grantee must still obtain the written approval of the grantor, said approval not to be unreasonably withheld. The grantee shall negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction under its best offices to assist in arriving at an equitable pole rental agreement.
Undergrounding of cable. Cable shall be installed underground at the grantee's cost where all existing utilities are already underground. Previously installed aerial cable shall be placed underground in concert, and on a cost-sharing basis, with other utilities when such other utilities may convert from aerial to underground construction. The town shall notify the grantee of all pending changes from aerial to underground utility installations. Developers shall be instructed by the town to notify the grantee of pending underground trenching.
Reservations of street rights. Nothing in this franchise shall be construed to prevent the town from constructing sewers; grading, paving, repairing and/or altering any street; laying down, repairing or removing water mains; or constructing or establishing any other public work.
All such work shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of the grantee.
If any such property of the grantee herein shall interfere with the construction or repair of any street or public improvement, whether it be construction, repair or removal of a sewer or water main, the improvement of a street or any other public improvement, all such poles, wires, conduits or other appliances and facilities shall be removed or replaced in such manner as shall be directed by the town so that the same shall not interfere with said public work of the town, and such removal or replacement shall be at the expense of the grantee herein; provided, however, that the town shall give written notice of any planned public improvements undertaken by the town which may impact the grantee's facilities prior to the commencement of construction, and the town shall use its best efforts, in view of public safety and necessity, to minimize costs to the grantee of any required relocation of the grantee's facilities.
Nothing in this subsection shall be construed as a limitation on the town to make necessary public improvements which may result in inconvenience and/or cost to the grantee.
Movement of facilities. In the event that it is necessary temporarily to move or remove any of the grantee's wires, cables, poles or other facilities placed pursuant to the franchise in order lawfully to move a large object, vehicle, building or other structure over the streets of the town, the grantee, upon reasonable notice, shall move, at the expense of the person requesting the temporary removal, such of its facilities as may be required to facilitate such movement.
Open books and records. The grantee shall maintain a policy of totally open books and records. The grantor, or its designated agents, shall have the right to inspect, upon notice, at any time during normal business hours, all books, records, maps, plans, income tax returns, financial statements, performance test results and other like materials of the grantee which relate to the operation of this franchise. Access to the aforementioned records shall not be denied by the grantee on the basis that said records contain proprietary information; provided, however, that those persons inspecting said information shall treat it confidentially and use it only for purposes relevant to this agreement and for no other purposes.
Communications with regulatory agencies. Copies of all petitions, applications, communications and reports submitted by the grantee to the Board, FCC, Securities and Exchange Commission or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting cable communications system operations authorized pursuant to the franchise shall also be submitted simultaneously to the grantor. Copies of responses from the regulatory agencies to the grantee shall likewise be furnished simultaneously to the grantor.
Maintenance and complaints.
The grantee shall have a publicly listed toll-free telephone, which shall be so operated as to receive subscriber complaints and requests for repairs or adjustments on a twenty-four-hours-a-day, seven-days-a-week basis.
The grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time reasonably possible. Such interruptions, insofar as reasonably possible, shall be preceded by notice and shall occur during a period of minimum use of the system.
There shall be no charge for disconnection of any installation or outlet. If any subscriber fails to pay a properly due monthly subscriber fee or any other properly due fee or charge, the grantee may disconnect the subscriber's service outlet; provided, however, that such disconnection shall not be effected until after the later of:
If a subscriber pays before expiration of the later of Subsection D(1)(a) or (b), the grantee shall not disconnect. After disconnection, upon payment in full of the delinquent fee or charge and the payment of a reconnection charge, the grantee shall promptly reinstate the subscriber's cable service.
Refunds to subscribers shall be made or determined in the following manner:
If the grantee fails, upon request by a subscriber, to provide any service then being offered, the grantee shall promptly refund all deposits or advance charges paid for the service in question by said subscriber. This provision does not alter the grantee's responsibility to subscribers under any separate contractual agreement or relieve the grantee of any other liability.
If any subscriber terminates any monthly service because of failure of the grantee to render the service in accordance with this franchise, the grantee shall refund to such subscriber the proportionate share of the charges paid by the subscriber for the services not received. This provision does not relieve the grantee of liability established in other provisions of this franchise.
Rates and other charges. Rates and charges charged by the grantee for monthly service and installation and other charges hereunder shall be uniform, fair and reasonable and designed to meet all necessary costs of service, including a fair rate of return on the value of the assets devoted to such service.
Rate changes. All rates and charges by the grantee for its services to users shall be fair, reasonable and consistent with applicable requirements of the FCC or other lawful authorities, and no rate increase shall be made except as herein provided.
No rate increase shall be made within the initial service territory until one year has expired from the date upon which construction in the initial service territory is completed and the system is operational. The initial monthly fee for the first year of service shall be $17.50, with no initial installation or hookup fee.
Rate increases upon notice. An increase in any rate may be made on time during any calendar year by giving the grantor written notice of such rate increase at least 30 days prior to the effective date of said increase.
Periodic reviews, evaluation and upgrading. The field of cable communications is a relatively new and rapidly changing one which may see many regulatory, technical, financial, marketing and legal changes during the term of this franchise. Therefore, in order to provide for a maximum degree of flexibility in this franchise and to help achieve a continued advanced and modern system, the following evaluation provisions will apply:
The grantor reserves the right to adopt rules and regulations controlling the procedures and subjects for periodic reviews and evaluation. In the absence of any grantor action taken to exercise these rights, the grantee shall be subject to at least the procedures and subjects described in this Subsection G.
The grantor may require, at its sole but reasonable discretion, system performance evaluation sessions upon 90 days' written notice to the grantee at any time during the term of this franchise or as required by federal or state law. At a minimum, such evaluation sessions shall be conducted by the grantor within 30 days of the third, fifth and 10th anniversary dates of the effective date of acceptance of this franchise by the grantee.
All evaluation sessions shall be open to the public and notice of sessions published in the same way as a legal notice. The grantee shall notify its subscribers of all evaluation sessions by announcement on at least one public access channel of the system between the hours of 7:00 p.m. and 9:00 p.m. for five consecutive days preceding each session.
Topics which may be discussed at any evaluation session may include, but not be limited to, free or discounted services, application of new technologies, system performance, services provided, programming offered, access channels, facilities and support, customer complaints, privacy, amendments to this franchise, Judicial Board and FCC rulings, line extension policies, insurance and grantee, grantor or town rules.
During a review and evaluation by the grantor, the grantee shall fully cooperate with the grantor and shall provide without cost such information and documents as the grantor may request to reasonably perform the service.
If at any time during its review, or at any other time, the grantor determines that reasonable evidence exists of inadequate system performance, it may require the grantee to perform tests and analyses directed toward such suspected inadequacies at the grantee's own expense. The grantee shall fully cooperate with the grantor in performing such testing and shall prepare results and a report, if requested, within 30 days after notice. The report prepared by the grantee shall include at least:
A description of the problem in system performance which precipitated the special tests.
What system component was tested.
The equipment used and procedures employed in testing.
The method, if any, by which such system performance problem was resolved.
Any other information pertinent to said tests and analyses which may be required by the grantor or determined when the test is performed.
As a result of a periodic review or evaluation session, the grantor may request the grantee to modify the system or to provide additional services. The grantee will comply with any such request of the grantor, unless technology renders such compliance impracticable or the grantee establishes to satisfaction of the grantor that the cost would render impracticable the implementation of the modification or the additional services.
Damages and defense. The grantee shall hold harmless the town for all damages and penalties as a result of the exercise of this franchise. These damages and penalties shall include, but shall not be limited to, damages arising out of copyright infringement, defamation and all other damages arising out of the construction, operation, maintenance or reconstruction of the system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise. The grantee shall pay all expenses incurred by the town in defending itself in respect to the above matter.
Liability insurance. The grantee shall maintain, throughout the term of this franchise, a comprehensive general liability insurance policy in an amount not less than $1,000,000, naming town as an additional insured.
The grantor's right to revoke. In addition to any rights set out elsewhere in this franchise, the grantor reserves the right to revoke this franchise, and all rights and privileges pertaining thereto, in the event that the grantee:
Substantially violates any provision of this franchise;
Attempts to evade any of the provisions of this franchise;
Practices any fraud or deceit upon the franchising authority; or
Becomes insolvent or unable or unwilling to pay its debts or is adjudged a bankrupt and rendered substantially unable to perform.
The grantor shall provide the grantee with a written notice of the cause for termination and the intent to terminate and shall allow the grantee 30 days subsequent to receipt of the notice in which to correct the violation.
The grantee shall be provided the right to a public hearing before the grantor.
Foreclosure. Upon the foreclosure or other judicial sale of all or a part of the system or upon the termination of any lease covering all or part of the system which renders the grantee incapable of performance, the grantee shall notify the grantor 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 franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred.
Receivership. The grantor shall have the right to cancel this franchise 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 said 120 days or unless:
Within 120 days after his election or appointment such receiver or trustee shall have fully complied with all the provisions of this franchise and remedied all defaults thereunder; and
Such receiver or trustee, within said 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the proceeding, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this franchise.
Abandonment. The grantee may not abandon any portion of the system without having given three months' prior written notice to the grantor and the Board.
Grantor's right to purchase system. The grantor shall be entitled to a right of first refusal of any bona fide offer to purchase the system made to the grantee. "Bona fide," as used in this subsection, means an offer received by the grantee that it intends to accept. In the event that the grantor decides to purchase pursuant to this subsection, the price shall be the bona fide offer.
Purchase by the grantor upon termination of franchise term or revocation of franchise. The grantor may, in a lawful manner and upon the payment of a fair valuation, lawfully ascertain, purchase, condemn, acquire, take over and hold the property and plant of the grantee in whole or in part.
If such purchase or taking over is upon revocation of the franchise, such valuation shall be at the appraised fair market value of the franchise, exclusive of the value attributed to the franchise itself.
If such purchase or taking over is at the expiration of the franchise, such valuation shall be at fair market value, exclusive of the value attributed to the franchise itself.
In the event that the grantor shall terminate the franchise pursuant to the provisions of § A200-16 of this franchise, it shall reimburse the grantee for the fair market value of the system, including both tangible and intangible assets.
Nothing in this Subsection B shall be construed as superseding the rights of any secured lending institution that has a valid security interest in the facilities of the grantee from performing on behalf of the grantee in strict compliance with the terms of this agreement in the event that the secured creditor takes possession of the assets of the grantee through enforcement of its security interests.
Discriminatory practices prohibited. The grantee shall not deny service, deny access or otherwise discriminate against subscribers, programmers or general citizens on the basis of race, color, religion, national origin, sex or age. The grantee shall strictly adhere to the equal opportunity employment requirements of the federal government, as expressed in 47 CFR 76.13(a)(8) and 76.311. The grantee shall comply at all times with all other applicable federal, state and town laws and all executive and administrative orders relating to nondiscrimination.
Cable tapping prohibited. Neither the grantee nor any other person, agency or entity shall tap, or arrange for the tapping of, any cable, line, signal input device or subscriber outlet or receiver for any purpose whatsoever.
Privacy and other human rights. The grantee and the grantor shall maintain constant vigilance with regard to possible abuses of the right of privacy or other human rights of any subscriber, programmer or general citizen resulting from any device or signal associated with the system. The grantee shall not utilize the two-way communications capability of the system for unauthorized subscriber surveillance of any kind. Written permission from the subscriber shall not be required for the systems conducting system-wide or individually addressed electronic sweeps for the purpose of verifying system integrity or monitoring for the purpose of billing.
Sale of subscriber lists prohibited. The grantee shall not sell, or otherwise make available, lists of the names and addresses of any of its subscribers or any list which identifies by name subscriber viewing habits to any person, agency or entity for any purpose whatsoever without the specific permission of the grantor and all affected subscribers.
Penalty for failure to comply with privacy restrictions. In addition to such penalties provided by all other applicable federal, state and town laws, repeated failure to comply with the provisions of this section may subject the grantee to revocation of this franchise.
The grantee shall comply with all state laws and rules regarding cable communications not later than one year after they become effective, unless otherwise stated. The grantee shall comply with all federal laws and regulations regarding cable communications as they become effective. The grantee shall also comply with all town ordinances, resolutions, rules and regulations heretofore or hereafter adopted or established during the entire term of the franchise.
This franchise shall not be sold, assigned or transferred, except for purposes of furnishing security to a lender, either in whole or part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, on any right, or interest or property therein, pass to or vest in any person without full compliance with the procedure set forth in this section. This section shall include sale or transfer of all or a majority of a corporation's assets, merger (including any parent and its subsidiary corporation), consolidation, creation of a subsidiary corporation or sale or transfer of stock in a corporation so as to create a new controlling interest in the system. The term "controlling interest," as used herein, is not limited to majority stock ownership but includes actual working control in whatever manner exercised.
The parties to the sale or transfer of this franchise shall make a written request to the grantor for its approval of a sale or transfer of this franchise.
The grantor shall reply, in writing, within 30 days of the request and shall indicate approval of the request or its determination that a public hearing is necessary due to potential adverse effect on the company's subscribers.
If a public hearing is deemed necessary pursuant to Subsection A(2) above, such hearing shall be conducted within 30 days of such determination, and notice of such public hearing shall be given pursuant to Board regulations.
Within 30 days after the public hearing, the town shall approve or deny, in writing, the sale or transfer request, with consent not to be unreasonably withheld.
The grantee shall notify the town of the transfer of any interest in the system of this franchise in accordance with the then-applicable rules, regulations or laws. The notification shall be accompanied by the written certification of the transferee that it meets all of the requirements with respect to technical ability and financial stability demanded of the original grantee.
The grantee, upon transfer, shall, within 60 days thereafter, file with the grantor a copy of the deed, agreement, mortgage, lease or other written instrument evidencing such sale, transfer of ownership or control or lease, certified and sworn to as correct by the grantee.
In reviewing a request for sale or transfer pursuant to Subsection A above, the grantor may inquire into the qualifications of the prospective controlling party, and the grantee shall assist the grantor in so inquiring. The grantor may condition said transfer upon such terms and conditions as it deems reasonable and proper. In the absence of extraordinary circumstances, the grantor shall not approve any transfer or assignment of the franchise prior to substantial completion of construction of the system, as determined solely by the grantor. In no event shall a transfer or assignment of ownership or control be approved without the transferee becoming a signator to this franchise.
The grantee shall make it a condition of each contract entered into by it that the grantor shall have the right to exercise these options.
After published notice, public hearing and deliberations of the grantor, this franchise may be amended upon a majority vote of the Board of the grantor and the written consent of the grantee.
The grantee may apply for renewal of this franchise by making application to do so not later than 12 months prior to the expiration of this franchise on forms provided by the grantor and as authorized by the grantor.
The grantee may be approved and this franchise or modification to it may be renewed by the grantor in accordance with the then-existing rules of the FCC or the town and all other applicable laws, ordinances, rules or regulations.
Nothing in this franchise shall be construed to require renewal of this franchise.
The grantor shall conduct an investigation and evaluation of the grantee and the system and the renewal proposal. This investigation and evaluation shall be completed by the grantor within six months after receipt of the application and determination by the grantor of its completeness.
Renewal of this franchise may not be for more than 15 years, unless otherwise permitted by federal or state law.
It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to the grantee are honored. In the event that the grantee elects to overbuild, rebuild, modify or sell the system or the grantor revokes or fails to renew the franchise, the grantee shall do everything reasonably within its power to ensure that all subscribers receive continuous uninterrupted service regardless of the circumstances during the lifetime of the franchise. In the event of purchase by the grantor or a change of grantee, the current grantee shall cooperate with the grantor to operate the system for a temporary period in maintaining continuity of service to all subscribers.
At the expiration of the term for which this franchise is granted or upon its revocation or termination, as provided for herein, the town shall have the right to require the grantee to remove, at the grantee's expense, all that portion of the system that is located above ground.
In so removing the system, the grantee shall do so at its own expense, and it shall leave all public property in as good a condition as that prevailing prior to the grantee's removal of the aboveground system and without affecting, altering or disturbing in any way electric, telephone or other utility cables, wires or attachments.
The town or its delegation shall have the right to inspect and approve the condition of the public property after removal. The security fund, bonds, insurance, indemnity and penalty provisions of this franchise shall remain in full force and effect during the entire term of removal.
There shall be no requirement that the grantee remove the underground components of its facilities upon revocation or termination of the franchise. If any underground facilities are not removed by the grantee or a secured party within one year of termination or revocation of the franchise, all underground facilities shall become the property of the grantor, subject to any security interests of a lending institution. If the grantee or a secured party elects to remove any underground facilities on termination or revocation or for any reason, it shall refill and compact at its own expense any excavation done and shall leave all streets and public and private property in as good a condition as that prevailing prior to the grantee's removal of the system.
If, in the sole discretion of town, the grantee has failed to commence removal of the system, or such part thereof as was designated by the town, within 30 days after written notice of the town's demand for removal is given, or if the grantee has failed to complete such removal within one year after written notice of the town's demand for removal is given, the town shall have the right to exercise one of the following options:
Declare all right, title and interest to the system to be in the town, with all rights of ownership, including but not limited to the right to operate the system or transfer the system to another for operation by it, subject to any security interest of a lending institution.
Declare the system abandoned and have any party who wishes to assert ownership do so, subject to any security interest of a lending institution.
This agreement shall be subject to and interpreted in accordance with the laws of the State of Wisconsin.
The grantee shall, at all times, comply with all applicable rules, regulations and ordinances of the federal government, State of Wisconsin and Town of St. Joseph.
In the event that any portion of this agreement is declared to be invalid or unconstitutional or inapplicable to the parties, then such provision shall be deemed to be severable, and the remainder of this agreement shall survive and remain in full force and effect.
The grantee will be required to pay the town an amount equal to the direct cost of granting the franchise, which sum shall be due and payable concurrently with the grantee's acceptance of the franchise.
The grantee shall pay to the town an annual fee of 3% of the gross revenues, to be utilized by the town to defray the costs of local regulation and administration, to support the development of local public channels and generally to encourage the development of community programming.
The grantee shall pay the franchise payment to the town within 30 days after the end of each quarter of the fiscal year of the grantee and for each quarter of the fiscal year of the grantee thereafter.
Any adjustment to the actual franchise fee based upon audited financial statements of the grantee for the prior fiscal year shall be reflected in the second quarter payment. This payment shall be in addition to any other payments owed to the town by the grantee and shall not be construed as payment in lieu of municipal property taxes or other state, county or local tax.
"Gross revenue" shall be defined as all receipts received by the grantee in connection with the operation of the system in the town and shall include receipts from all sources, including, without limitation, receipts from advertising, channel leasing, data transmission, per-program and per-channel charges, additional tier charges, converter and converter/decoder charges in addition to the subscriber's regular basic service or limited service monthly charges and all subscriber installation, connection and reconnect payments. The term does not include taxes on services furnished by the grantee and imposed directly upon any subscriber or user by the state, town, county or other governmental unit or public, educational and governmental access and local origination programming charges imposed and collected by the grantee on behalf of such governmental unit.
Any town-initiated audit shall be paid for by the town.
Publication; effective date. This franchise shall be signed by Town Chairperson of the grantor and attested by the Town Clerk of the grantor. The franchise shall take effect upon its passage and publication. This franchise may incorporate by reference, without publication in full, a statute of Wisconsin or a rule of the Board or the FCC and the offering of the grantee.
Publication of notices. All notices required to be published by the grantor, including this franchise, shall be published in the official newspaper of town. The town may, in lieu of publishing the entire franchise, publish a summary thereof as permitted by Wisconsin Statutes.
Time of acceptance; grantee; incorporation of offering; exhibits.
The grantee shall have 30 days from the effective date of this franchise to accept this franchise in form and substance acceptable to the grantor, unless the time for acceptance is extended by the grantor. Such acceptance by the grantee shall be deemed the grant of this franchise for all purposes.
Subject to unavoidable delays, the grantee shall have one year from the acceptance of the franchise to complete construction of the facilities such that cable television may be offered to subscribers in the service area.
Upon acceptance of this franchise, the grantee shall be bound by all of the terms and conditions contained herein. The grantee shall provide all services and offerings specifically set forth in the offering to provide cable communication service within the cable service territory, and, by its acceptance of this franchise, the grantee specifically agrees that the offering of the grantee, including all promises, offers, representations and inducements contained therein, is specifically incorporated by reference and made part of this franchise. The failure to refer to the offering in any specific provisions of this franchise shall not be a limitation on the obligation of the grantee to fully comply with the offering. The grantee further acknowledges that all promises, offers, representations and inducements contained in the offering of the grantee were freely and voluntarily made to the grantor by the grantee.
In the event of conflicts or discrepancies between any part of the offering and the provisions of this franchise or between any part of the summary made by the grantee and the offering, those provisions which provide the greatest benefit to the town, in the opinion of the grantor, shall prevail.
The grantee shall have continuing responsibility for this franchise, and if the grantee is a subsidiary or wholly owned corporate entity of a parent corporation, performance of this franchise shall be secured by guaranties of the parent corporation in form and substance acceptable to the grantor, which shall be delivered at time of, and as part of, acceptance of this franchise.
With its acceptance, the grantee also shall deliver to the grantor an opinion from its legal counsel, acceptable to the grantor, stating that this franchise has been duly accepted by the grantee, that the guaranties have been duly executed and delivered and that this franchise and the guaranties are enforceable against the grantee and the guarantors in accordance with their respective terms, and which opinion shall otherwise be in form and substance acceptable to the grantor.