Chapter 79

Basic service means any subscriber tier provided by the grantee which includes the delivery of local broadcast stations, and public, educational and governmental access channels. The basic service does not include optional program and satellite service tiers, a la carte services, per channel, per program, or auxiliary services for which a separate charge is made. However, grantee may include other satellite signals on the basic tier.

Cable system or system or cable television system means a system of antennas, cables, wires, lines, towers, wave guides, or other conductors, converters, equipment or facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing, audio, video, and other forms of electronic, electrical or optical signals, which includes cable television service and which is located in the village. The definition shall not include any such facility that serves or will serve only subscribers in one or more multiple-unit dwellings under common ownership, control or management, and which does not use village rights-of-way.

Class IV channel means a signaling path provided by a cable communications system to transmit signals of any type from a subscriber terminal to another point in the cable communications system.

Control and/or controlling interest shall mean actual working control or ownership of a system in whatever manner exercised. A 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 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.

Converter means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and by an appropriate channel selector also permits a subscriber to view more than 12 channels delivered by the system at designated converter dial locations.

FCC means the Federal Communications Commission and any legally appointed, designated or elected agent or successor.

Grantee means a person or entity to whom or which a franchise under this article is granted by the village, along with the lawful successors or assigns of such person or entity.

Gross revenues means all revenue collected directly or indirectly by the grantee, from the provision of cable service within the village 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 nonmonetary remuneration received by grantee in consideration of the performance of advertising or any other service of the system; provided, however, that this shall not include any taxes on services furnished by the grantee herein imposed directly upon any subscriber or user by the state, local or other governmental unit and collected by the grantee on behalf of the governmental unit. Subject to applicable federal law, the term "gross revenues" includes revenues attributed to franchise fees and revenues collected directly or indirectly from other ancillary telecommunications services (such as but not limited to, point-to-point telecommunications, point-to-point multipoint telecommunications, data transmissions, etc.) but only to the extent that all other providers of such telecommunications services in the village are subject to the same compensation requirements of the village.

Initial service area means all areas in the village having at least 20 dwelling units per street mile.

Installation means the connection of the system from feeder cable to subscribers' terminals.

May is permissive.

Monitoring means observing a communications signal, or the absence of a signal, where the observer is neither the subscriber nor the programmer, whether the signal is observed by visual or electronic means, for any purpose whatsoever; provided monitoring shall not include system wide, nonindividually addressed sweeps of the system for purposes of verifying system integrity, controlling return paths transmissions, or billing for pay services.

Normal business hours, as applied to the grantee, shall mean those hours during which similar businesses in the village are open to serve customers. In all cases, normal business hours shall include some evening hours at least one night per week, and/or some weekend hours.

Normal operating conditions shall mean those service conditions which are within the control of the grantee. Those conditions which are not within the control of the grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

Shall is mandatory.

Service interruption and/or outages shall mean the loss of either picture or sound or both for a single or multiple subscriber(s).

Street means the surface of and all rights-of-way and the space above and below any public street, road, highway, freeway, lane, path, public way or place, sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter held by the Village 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 village which shall, within their proper use and meaning entitle the grantee to the use thereof for the purposes of installing poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to a telecommunications system.

Subscriber shall mean any person, firm, grantee, corporation, or association lawfully receiving basic and/or any additional service from grantee.

User means a party utilizing a cable television system channel for purposes of production or transmission of material to subscribers, as contrasted with receipt thereof in a subscriber capacity.

Village means the Village of Mukwonago, Wisconsin.

(Ord. No. 682, § 2, 12-4-01)

Sec. 79-23. Rights and privileges of grantee.

Any franchise granted by the village pursuant to W.S.A., § 66.082, 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.

(Ord. No. 682, § 3, 12-4-01)

Sec. 79-24. Agreement and incorporation of application by reference.

(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 village; and by its acceptance of the franchise, the grantee specifically grants and agrees that its application is thereby incorporated by reference and made a part of the franchise. In the event of a conflict between such proposals and the provisions of this article, that provision which provides the greatest benefit to the village, in the opinion of the village, shall prevail.

(Ord. No. 682, § 4, 12-4-01)

Sec. 79-25. Franchise territory.

Any franchise is for the present territorial limits of the village and for any area henceforth added thereto during the term of the franchise.

(Ord. No. 682, § 5, 12-4-01)

Sec. 79-26. Duration and acceptance of franchise.

The franchise and the rights, privileges and authority granted shall take effect and be in force as set forth in the franchise agreement and shall continue in force and effect for a term of no longer than 17 years, provided that within 15 days after the date of final passage of the franchise the grantee shall file with the village 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 nonexclusive and revocable.

(Ord. No. 682, § 6, 12-4-01)

Sec. 79-27. Franchise renewal.

(a) Current federal statutory process:

(1) The village may, on its own initiative, during the six-month period which begins with the 36 month before the franchise expiration, commence a proceeding which affords the public in the village appropriate notice and participation for the purpose of (1) identifying the future cable-related community needs and interests and (2) reviewing the performance of the grantee under the franchise. If the grantee submits, during such six-month period, a written renewal notice requesting the commencement of such proceeding, the village shall commence such proceeding not later than six months after the date such notice is submitted.

(2) Upon completion of the proceeding under paragraph (1) above, the grantee may, on its own initiative or at the request of the village, submit a proposal for renewal. The village may establish a date by which such proposal shall be submitted.

(3) Upon submittal by the grantee of a proposal to the village for the renewal of the franchise, the village 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 village shall consider in any administrative proceeding whether the:

a. Grantee has substantially complied with material terms of the existing franchise and with applicable law;

b. 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. 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. 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 administrative proceeding described in subsection (4), the grantee shall be afforded adequate notice and the grantee and the village, 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 (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 (4), the village shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the grantee. Such decision shall state the reasons therefor.

(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 at a. through d. of subsection (4) pursuant to the record of the proceeding under said paragraph. The village 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 (4)b., unless the village has provided the grantee with notice and the opportunity to cure or in any case in which it is documented that the village has waived its right to object.

(8) The grantee may appeal any final decision or failure of the village to act in accordance with the procedural requirements of this section. The court shall grant appropriate relief if the court finds that (1) any action of the village is not in compliance with the procedural requirements of this section; or (2) in the event of a final decision of the village denying the renewal proposal, the grantee has demonstrated that the adverse finding of the village with respect to each of the factors described in subsection (4)a. through d., on which the denial is based is not supported by a preponderance of the evidence, based on the record of the administrative proceeding.

(b) Franchise renewal in the event of change in federal law: A franchise may be renewed by the village upon application of the grantee pursuant to the procedure established in this section, and in accordance with the then applicable law.

(1) At least 24 months prior to the expiration of the franchise, the grantee shall inform the village in writing of its intent to seek renewal of the franchise.

(2) The grantee shall submit a proposal for renewal which demonstrates that:

a. It has been and continues to be in substantial compliance with the terms, conditions, and limitations of this article and its franchise;

b. Its system has been installed, constructed, maintained and operated in accordance with the accepted standards of the industry, and this article and its franchise;

c. 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. 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 village.

(3) After giving public notice, the village shall proceed to determine whether the grantee has satisfactorily performed its obligations under the franchise. To determine satisfactory performance, the village shall consider technical developments and performance of the system, programming other services offered, cost of services, and any other particular requirements set in this article; also, the village shall consider the grantee's reports made to the village and the Federal Communication Commission; may require the grantee to make available specified records, documents, and information for this purpose, and may inquire specifically whether the grantee will supply services sufficient to meet community needs and interests; industry performance on a national basis shall also be considered. Provision shall be made for public comment.

(4) The village shall then prepare any amendments to this article that it believes necessary.

(5) If the village finds the grantee's performance satisfactory, and finds the grantee's technical, legal, and financial abilities acceptable, and finds the grantee's renewal proposal meets the future cable-related needs of the village, a new franchise shall be granted pursuant to this ordinance as amended for a period to be determined.

(6) If the grantee is determined by the village to have performed unsatisfactorily, new applicants may be sought and evaluated and a franchise award shall be made by the village according to franchising procedures adopted by the village.

(Ord. No. 682, § 7, 12-4-01)

Sec. 79-28. Police powers.

(a) In accepting this franchise, the grantee shall acknowledge that its rights hereunder are subject to the police power of the village 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 village pursuant to such power.

(b) Any conflict between the provisions of this article and any other present or future lawful exercise of the village's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction, or applies exclusively to the grantee or cable television systems which contains provisions inconsistent with this franchise, shall prevail only if upon such exercise the village finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.

(Ord. No. 682, § 8, 12-4-01)

Sec. 79-29. Cable television franchise required.

No cable television system shall be allowed to occupy or use the streets, i.e. rights-of-way, for system installation and maintenance purposes, of the village or be allowed to operate without a franchise.

(Ord. No. 682, § 9, 12-4-01)

Sec. 79-30. Use of grantee facilities.

The village 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 village shall indemnify and hold harmless the grantee from any claim that might arise due to or as a result of the village's use.

(Ord. No. 682, § 10, 12-4-01)

Sec. 79-31. Initial franchise costs.

Costs to be borne by the grantee shall include any requirements or charges incidental to the awarding or enforcing of the initial franchise, but shall not be limited to, all costs of publications of notices prior to any public meeting provided for pursuant to this franchise, and any costs not covered by application fees, incurred by the village in its study, preparation of proposal documents, evaluation of all applications, and examinations of the applicants' qualifications.

(Ord. No. 682, § 11, 12-4-01)

Sec. 79-32. Notices.

All notices from the grantee to the village pursuant to this article shall be to the village clerk's office. The grantee shall maintain with the village, 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.

(Ord. No. 682, § 12, 12-4-01)

Sec. 79-33. Letter of credit/security deposit.

(a) Within 15 days after the award of the initial franchise, the grantee shall deposit with the village either an irrevocable letter of credit from a financial institution or a security deposit in the amount of $50,000.00 with the form to be established by the village. The form and content of such letter of credit or security deposit shall be approved by the village attorney. These instruments 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 village having jurisdiction over its acts or defaults under this franchise, and the payment by the grantee of any claims, liens, and taxes due the village which arise by reason of the construction, operation or maintenance of the system.

(b) The letter of credit or security deposit shall be maintained at the amount established by the village for the entire term of this franchise, even if amounts have to be withdrawn pursuant to this section.

(c) If the grantee fails to pay to the village any compensation within the time fixed herein; or fails after 15 days notice to pay to the village any taxes due and unpaid; or fails to repay the village within 15 days, any damages, costs or expenses which the village is compelled to pay by reason of any act or default of the grantee in connection with this franchise, or fails, after three days notice of such failure by the village to comply with any provision of this franchise which the village reasonably determines can be remedied by demand on the letter of credit or security deposit, the village may immediately request payment of the amount thereof, with interest and any penalties, from the letter of credit or security deposit. Upon such request for payment, the village shall notify the grantee of the amount and date thereof.

(d) The rights reserved to the village with respect to the letter of credit are in addition to all other rights of the village, whether reserved by this franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such letter of credit shall affect any other right the village may have.

(e) The letter of credit shall contain the following endorsement:

" It is hereby understood and agreed that this letter of credit or security deposit may not be canceled by the surety nor the intention not to renew be stated by the surety until 30 (thirty) days after receipt by the Village, by registered mail, of a written notice of such intention to cancel or not to renew."

(f) Upon receipt of the above-referenced notice, this shall be construed as a default granting the village the right to call on the bank for either the security deposit or letter of credit.

(g) The village, at any time during the term of this article, may waive grantee's requirement to maintain a letter of credit or security deposit. The invitation to waive the requirement can be initiated by the village or grantee.

(Ord. No. 682, § 13, 12-4-01)

Sec. 79-34. Performance bond.

(a) Within 30 days after the award of this franchise, the initial grantee shall file with the village a performance bond in the amount of not less than 50 percent of costs to install the system contained in the new application in favor of the village. This bond shall be maintained throughout the construction period and until such time as determined by the village, 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 village 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 village's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in section 79-33.

(c) The village may, upon completion of construction of the service area, waive or reduce the requirement of the grantee to maintain the bond. However, the village may require a performance bond to be posted by the grantee for any construction subsequent to the completion of the initial service areas, in a reasonable amount and upon such terms as determined by the village.

(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 Village, by registered mail, a written notice of such intent to cancel and not to renew."

Upon receipt of a 30-day notice, this shall be construed as default granting the village the right to call in the bond.

(e) The village, at any time during the term of this article, may waive grantee's requirement to maintain a performance bond. The invitation to waive the requirement can be initiated by the village or grantee.

(Ord. No. 682, § 14, 12-4-01)

Sec. 79-35. Liability and insurance.

(a) The grantee shall maintain and by its acceptance of the franchise specifically agrees that it will maintain throughout the term of the franchise, liability insurance insuring the village and the grantee in the minimum amount of:

(1) One million dollars for property damage to any one person;

(2) One million dollars for property damage to any one accident;

(3) One million dollars for personal injury to any one person; and

(4) One million dollars for personal injury in any one accident.

(b) The certificate of insurance obtained by the grantee in compliance with this section is subject to the approval of the village attorney and such certificate of insurance, along with written evidence of payment of required premiums, shall be filed and maintained with the village 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 village 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 village 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 Village, by registered mail, a written notice of such intention to cancel or not to renew."

(Ord. No. 682, § 15, 12-4-01)

Sec. 79-36. Indemnification.

(a) Disclaimer of liability. The village shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of the construction, maintenance, repair, use, operation, condition or dismantling of the grantee's telecommunication system and due to the act or omission of any person or entity other than the village or those persons or entities for which the village is legally liable as a matter of law.

(b) Indemnification. The grantee shall, at its sole cost and expense, indemnify and hold harmless the village, the commission, all associated, affiliated, allied and subsidiary entitles of the village, 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, tradename, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance or condition of the telecommunications system caused by grantee, its subcontractors or agents or the grantee's failure to comply with any federal, state or local statute, ordinance or regulation.

(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 telecommunications 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 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 village to the grantee in writing and included in the offering materials with the express written approval of the village 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 public rights-of-way, and the grantee hereby agrees to indemnify and hold harmless the indemnities against and from any claim asserted or liability imposed upon the indemnities for personal injury or property damage to any person arising out of the installation, operation, maintenance or condition of the telecommunications system or the grantee's failure to comply with any federal, state or local statute, ordinance or regulation.

(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 village attorney of the Village of Mukwonago 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 village attorney of the Village of Mukwonago or village attorney's designee.

(e) Notice cooperation and expenses. The village 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 village from cooperating with grantee and participating in the defense of any litigation by the village's own counsel. The grantee shall pay all reasonable expenses incurred by the village in defending itself with regard to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees and shall also include the reasonable value of any services rendered by or on behalf of the village attorney if such service is determined necessary and appropriate by the village attorney and the actual expenses of the village's agents, employees or expert witnesses, and disbursements and liabilities assumed by the village in connection with such suits, actions or proceedings. No recovery by the village of any sum under the letter of credit shall be any limitation upon the liability of the grantee to the village under the terms of this section, except that any sum so received by the village shall be deducted from any recovery which the village might have against the grantee under the terms of this section.

(f) Nonwaiver of statutory limits. Nothing in this agreement is intended to express or imply a waiver of the statutory provisions, of any kind or nature, as set forth in W.S.A. § 893.80 et seq., including the limits of liability of the village as exists presently or may be increased from time to time by the legislature.

(Ord. No. 682, § 16, 12-4-01)

Sec. 79-37. Rights of individuals.

(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 article by reference.

(b) The grantee shall strictly adhere to the equal employment opportunity requirements of the Federal Communications Commission, state and local regulations, and as amended from time to time.

(d) The grantee is required to make all services available to all residential dwellings throughout the service area.

(Ord. No. 682, § 17, 12-4-01)

Sec. 79-38. Public notice.

Minimum public notice of any public meeting relating to this franchise shall be by publication at least once in a local newspaper of general circulation at least ten days prior to the meeting, and by posting at the village hall and by announcement on at least one channel of the grantee's system between the hours of 7:00 p.m. and 9:00 p.m., for five consecutive days prior to the meeting.

(Ord. No. 682, § 18, 12-4-01)

Sec. 79-39. Service availability and record request.

The grantee shall provide cable communications service throughout the entire franchise area pursuant to the provisions of this franchise and shall keep a record for at least three years of all requests for service received by the grantee. This record shall be available for public inspection at the local office of the grantee during regular office hours.

(Ord. No. 682, § 19, 12-4-01)

Sec. 79-40. System construction.

(a) New construction timetable.

(1) Within two 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 20 percent of the dwelling units within the initial service area within six months from the date of the award of the franchise.

b. The grantee must make cable television service available to at least 50 percent of the dwelling units within the initial service area within one 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 village, will be considered a violation of this article for which the provisions of either section 79-57 or 79-66 shall apply, as determined by the village.

(4) In special circumstances the village can waive 100 percent completion within the two-year time frame provided substantial completion is accomplished within allotted time frame, substantial completion construed to be not less than 95 percent and justification for less than 100 percent must be submitted subject to the satisfaction of the village.

(b) Line extensions.

(1) [Areas of the franchise territory not included in the initial service areas.] 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. Grantee is hereby authorized to extend the cable system as necessary within the village. To expedite the process of extending the cable system into a new subdivision, the village 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 village that the first home in the project has been approved for building permit, the grantee shall have a maximum of three 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 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 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 upon request of the potential subscriber. The grantee may require advance payment or assurance of payment satisfactory to the grantee. The amount paid by subscribers for early extensions shall be nonrefundable, and in the event the area subsequently reaches the density required for mandatory extension, such payments shall be treated as consideration for early extension.

(3) New development under grounding. 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 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-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 village 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. 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 of those gross revenues are paid to the village as franchise fees under section 79-47.

(1) The grantee, in its application, may propose a line extension policy which will result in serving more residents of the village 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.

(2) The violation of this section shall be considered a breach of the terms of this article for which the provisions of either section 79-57 or 79-66 shall apply, as determined by the village.

(Ord. No. 682, § 20, 12-4-01)

Sec. 79-41. Construction and technical standards.

(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 village, 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.

(b) 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.

(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 hours.

(8) In all areas of the village 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 cable operator must concurrently do so.

(Ord. No. 682, § 21, 12-4-01)

Sec. 79-42. Use of streets.

(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 village 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, the grantee shall, at its own cost and expense and in a manner approved by the village, 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 village.

(1) No poles or other wire-holding structures shall be erected by the grantee without prior approval of the village with regard to location, height, types, and any other pertinent aspect. However, no location of any pole or wire-holding structure of the grantee shall be a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the village determines that the public convenience would be enhanced thereby.

(2) Where poles or other wire-holding structures already existing for use in serving the village are available for use by the grantee, but it does not make arrangements for such use, the village 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 village or a public utility serving the village 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 village may require the grantee to permit such use for such consideration and upon such terms as the village shall determine to be just and reasonable, if the village determines that the use would enhance the public convenience and would not unduly interfere with the grantee's operations.

(d) Relocation of the facilities. If at any time during the period of this franchise the village shall lawfully elect to alter, or change the grade of any street, alley or other public ways, the grantee, upon reasonable notice by the village, 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 village, 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 48 hours advance notice to arrange for such temporary wire changes.

(f) Tree trimming. The grantee shall not remove any tree or trim any portion (either above, at or below ground level) of any tree within any public place without the prior consent of the village. The village 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 village 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.

(Ord. No. 682, § 22, 12-4-01)

Sec. 79-43. Operational standards.

(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 franchise territory, the grantee shall, within 30 days, furnish the requested service to such person within terms of the line extension policy. A request for service shall be unreasonable for the purpose of this subsection if no trunk line installation capable of servicing that person's block has as yet been installed.

(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 village 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 24 hours per day and seven days per week.

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