CHAPTER 30  ALCOHOLIC BEVERAGES

30.01 LIQUOR RETAILER’S PERMIT

            The Council hereby authorizes the issuance of liquor retailers permits for premises in the Town pursuant to IC 7.1-3-9-4 and 905 IAC 1-1-1, et seq., as amended.

Ordinance #2-1971, adopted 3/15/71

CHAPTER 31  SOLICITORS, PEDDLERS AND TRANSIENT VENDORS

Section : 

            31.01  Definition

            31.02  License Required

            31.03  Obtaining License; Where to Apply

            31.04  License Fee

            31.05  Exemptions

            31.06  Fines

31.01  Definition

“Peddler” shall be any person who, by solicitation or outcry, takes anything from house to house in any manner and offers to sell the same for money, or barter the same for any other thing, or who in like manner, exhibits any sample of any thing to be sold, or bartered, and offers to take orders for the same, for future delivery.

“Hawker” shall be any person who by solicitation or outcry offer for sale or barter, anything from any wagon, box or other temporary stand, unconnected with any established place of business, upon any of the str4eets, side-walks, alleys or other public grounds of said Town.

“Medicaster” shall be any person who, by outcry or solicitation, seek to induce any person to purchase some substance, to do something, or to submit to some process or operation for the prevention, alleviation or cure, of any disease, disorder, or affliction of the human system or the system of any animal.

“Auctioneer” shall be any person being the owner or proprietor, or the agent of any owner or proprietor, of any goods, wares, merchandise, or personal property for sale or bargain directly or indirectly, at public auction.

31.02 License Required

It shall be unlawful for any person to pursue the business of a peddler in the Town of Fairmount Corporate limits without first obtaining approval from the Town Council.

31.03  Obtaining License; Where to Apply

Each itinerant or transient solicitor, peddler, hawker, salesman, Medicaster or vendor upon his or her arrival in the town shall apply at the office of the Clerk-Treasurer for a license.                                

31.04  License Fee

The applicant shall be required to pay the following fee:

            A.  One Day,  $5.00

            B.  One Week  $20.00

31.05  Exemptions 

A.  Farmers or gardeners marketing or selling any farm produce raised by them.

B.  Commercial traveler or drummer selling his goods at wholesale to merchants.

C.  Commercial traveler, or other person, selling by wholesale, to drugstores or other places where medicine are kept.

D.  Auctioneer offering for sale at public auction any such personal property as administrator, executor, assignee, receiver, commissioner, sheriff, constable or other public officers, in the discharge of their legal duties, nor any person offering for sale at public auction any live stock, farming implements, household furniture or other personal property, who are not engaged in the business of auctioneer.

31.06  Fines

Any person violating any of the provisions of this Ordinance, shall on conviction be fined in any sum not exceeding Ten (10.00) dollars each and every day that such person shall follow such business of peddling, hawking, or the business of a Medicaster or auctioneer, without the proper license so to do, shall be deemed and held a separate offense.

Ordinance #2, passed 7/18/1894

Amended Ordinance #268-1961, passed 1/23/61

Ordinance #8-2021; passed 5/24/2021

CHAPTER 32: AMUSEMENT DEVICES

Section:

            32.01   Title

            32.02   Amusement Devices Defined

            32.03   Approval from Council

            32.04   Fees

            32.05   Billing from Town

            32.06   Permit Issued

            32.07  Fines

            32.08   Change of Address for Location Permit

            32.09   Existing Licenses

            32.10   Unlawful Use of Amusement Devices

            32.11   Operation Hours

32.01  Title 

            Regulating and licensing the harboring, maintaining and operating for gain of amusement devices.

32.02  Amusement devices Defined

            It shall be unlawful for any person or entity to harbor, maintain, or operate for gain within the corporate limits of the Town of Fairmount, Indiana, any of the following articles or devices without first purchasing and obtaining a license as provided.

            ( a ) Billiard Tables

            ( b ) Pool Tables

            ( c ) Snooker Tables

            ( d ) Card Tables

            ( e ) Pinball Machines

            ( f ) Video Electronics Machine

            ( g ) Juke Boxes and

            ( h ) All other forms of Amusement Devices

32.03  Approval from Town Council

            Any person or entity desiring to harbor, maintain, or operate any one or more of the articles or devices herein before mentioned, for gain, in any public or private institution shall first make written application to the Clerk-Treasurer of Fairmount specifically describing each article or device which he/she proposes to harbor, maintain, or operate under the provisions hereof, subject to approval of the Council.

32.04  Fees

            The completed application for the licenses shall be filed with the town Clerk-Treasurer and contemporaneously a $10.00 license fee shall be paid to said Clerk-Treasurer, for each location to be licensed hereunder, plus and additional charge for each such device pursuant to the following schedule:

            ( a )      Billiard Tables                                    -  $24.00

            ( b )     Pool Tables                                         -  $24.00

            ( c )      Snooker Tables                                   -  $24.00

            ( d )     Card Tables                                         -  $24.00

            ( e )      Pinball Machine                                  -  $24.00

            ( f )      Video Electronics Machine                -  $24.00

            ( g )     Juke Boxes                                          -  $24.00

            ( h )     All other forms of

                        Amusement Devices                           -  $24.00

32.05  Billing

            Each license holder will be billed by the Clerk-Treasurer quarterly by a charge of Six Dollars ($6.00) per devices per quarter beginning January 1 of each year.  If fees are not received by the Clerk-Treasurer within Fifteen (15) days after the billing date, said license may be immediately revoked without notice.

32.06  Permit Issued

            Upon the payment of the license fee and fees the Clerk-Treasurer shall issue to the applicant a printed or written license, authorizing the person named to harbor, maintain, and operate for a period of one (1) year from the date of said license, but not exceed January 1 of the year following issuance of the license.

32.06  Permit Issued

            Upon the payment of the license fee and fees the Clerk-Treasurer shall issue to the applicant a printed or written license, authorizing the person named to harbor, maintain, and operate for a period of one (1) year from the date of said license, but not to exceed January 1 of the year following issuance of the license.

32.07  Fines for No Permit

            Any person who shall harbor, maintain, or operate for gain any article or device herein mentioned without first purchasing and obtaining a license as provided shall on conviction, be fined in any sum not to exceed $250.00 and device fee (s). 

32.08  Change of Address for Location Permit

            Licenses issued for all locations mentioned shall be valid if displayed in a prominent place within the quarters but shall be invalid at any street address other than that specified unless properly transferred by written authorization of the Clerk-Treasurer.  Such authorization may be obtained on written application for a fee of $10.00 to be paid to the Clerk-Treasurer and shall extend for the duration of the original license only. 

32.09  Existing Licenses 

            Existing licenses for the articles or devices mentioned issued under any prior ordinance shall be effective for the term specified, in lieu of any license herein provided for.

32.10  Unlawful Use of Devices

            The use of any article or device mentioned for any unlawful purpose, shall invalidate any license issued, and the conviction of any person, who shall harbor, maintain, or operate same, or permit their use for any unlawful purpose shall work an immediate relocation of any license or licenses issued.

32.11  Operating Hours

            Operating hours for establishments licensed shall be in conformity with the existing curfew laws under the laws of the Sate of Indiana, except that not such establishment licensed shall operate prior to 12:00 p.m. on Sunday.

Ordinance #3-1982; passed April 22, 1982

Chapter 33: Cable Television Franchises

Section

33.01     Definitions

33.02     Grant

33.03     Term

33.04     Restoration of Public Way

33.05     Relocation

33.06     Relocation at Request at Third Party

33.07     Trimming of Trees & Shrubbery

33.08     Safety Requirement

33.09     Aerial and Underground Construction

33.10     Required Extensions of Service

33.11     Subscriber Charges for Extensions of Service

33.12     Access Channels

33.13     Service to Public Buildings

33.14     Emergency Use

33.15     System Capacity

33.16     Customer Service & Consumer Protection

33.17     Shared Use of Poles and Conduits

33.18     Franchise Fees

33.19     Rates 7 Changes

33.20     Renewal Franchise

33.21     Conditions of Sales

33.22     Transfer of Franchise

33.23     Books & Records

33.24     Audits

33.25     Insurance and Indemnification

33.26     Commercial General Liability Insurance

33.27     Automobile Liability Insurance

33.28     Subcontractors

33.29     Indemnification

33.30     Enforcement and Termination of Franchise

33.31     Schedule of Penalties and Fines

33.32     Miscellaneous Provisions

33.01     Definition of Terms

1.1       Terms.             For the purpose of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below.  When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:

A.            “Basic Cable” is any tier of service that includes the retransmission of

local broadcast television signals.

B.             “Communications Act” means the Communications Act of 1934, as amended, 47 U.S.C. 151 et sea.

C.             “Cable Services” shall mean (A) the one-way transmission to Subscribers of (i) video programming, or (ii) other programming service, and (B) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

D.            “Cable System” shall mean a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves Subscribers without using any Public Way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of the Communications Act, except that such facility shall be considered a Cable System other than for purposes of Section 621 (c) to the extent such facility is used in transmission of video programming directly to Subscribers unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with Section 653 of title VI of the Communications Act; or (E) any facilities of any electric utility used solely for operating its electric utility system. 

E.             “FCC” means Federal Communications Commissions, or successor governmental entity thereto.

 F.             “Franchise” shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit license, resolution, contract, certificate, or otherwise, which authorizes construction and operations of the Cable System.

G.            “Franchising Authority” means the Town of Fairmount, Indiana or the lawful successor, transferee, or assignee thereof.

H.            “Grantee” means TCI of Indiana, Inc., of the lawful successor, transferee, or assignee thereof.

I.               “Gross Revenues” mean any revenue received by the Grantee from the operation of the Cable System to provide Cable Service in the Service Area.  The Franchising Authority and Grantee may agree to alter this definition at any time during this franchise term, as long as the definition remains consistent with federal law. 

J.              “Person” means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity.

K.            “Public Way” shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchising Authority in the Service Area which shall entitle the Franchising Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System.  Public Way shall also mean any easement now or hereafter held by the Franchising Authority within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchising Authority and the Grantee to the use thereof for the purposes of installing and operating the Grantee’s Cable System over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Cable System.

L.             “Service Area” means the present municipal boundaries of the Franchising Authority, and shall include any additions thereto by annexation or other legal means.

M.           “Subscriber” means a Person who lawfully receives services of the Cable System with the Grantee’s express permission.

33.02     Grant of Franchise

Grant.  The Franchising Authority hereby grants to the Grantee a nonexclusive Franchise which authorizes the Grantee to construct and operate a Cable System for the Provision of Cable Service in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service Area and for the purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way and all extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System.  Nothing in this Franchise shall be construed to prohibit the Grantee from offering any service over its Cable System that is not prohibited by federal or state law; provided, however, that separate franchises may be required for the offering of services other than Cable Service.

33.02.1Term.  The Franchise granted hereunder shall be for a term of 10 years commencing on January 1, 1998, unless otherwise lawfully terminated in accordance with the terms of this Franchise.

Standards of Service

33.03     Conditions of Street Occupancy.  All transmission and distribution structures, poles, other line, and equipment installed or erected by the Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Ways and with the rights and reasonable convenience of property owners who own property that adjoins any of such Public Ways.  The Grantee shall install and maintain its wire, cables, fixtures and other equipment in such manner that they will not interfere with any installations of the Franchising Authority or of a public utility serving the Franchising Authority.

33.04     Restoration of Public Ways.  If during the course of the Grantee’s construction, operation, or maintenance of the Cable System there occurs a disturbance of any Public Way by the Grantee, it shall, at its own cost and expense and in a manner approved by the Franchising Authority, replace and restore such Public Way to condition as good as the condition of the Public Way existing immediately prior to such disturbance.

33.05     Relocation at Request of the Franchising Authority.  Upon its receipt of reasonable advance notice, not to be less than five business days, the Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of the Grantee when lawfully required by the Franchising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; provided, the Grantee shall in all cases have the right of abandonment of its property, so long as abandonment does not interfere with the Franchising Authority shall assist grantee to make application for such funds. 

33.06     Relocation at Request of Third Party.  The Grantee shall, on the request of any Person holding a building moving permit issued by the Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided:  (a) the expense of such temporary raising or lowering of wires is paid by said Person, including, if required by the Grantee, making such payment in advance; and (b) the Grantee is given not less than 10 business days advance written notice to arrange for such temporary wire changes.

33.07     Trimming of Trees and Shrubbery.  The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the service area so as to prevent branches from coming in contact with the Grantee’s wires, cables, or other equipment.  The Grantee shall reasonably compensate the Franchising Authority for any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees and shrubs damaged as a result of any construction of the Cable System undertaken by the Grantee.  Such replacement shall satisfy any and all obligations the Grantee may have to the Franchising Authority pursuant to the terms of this Section.

33.08     Safety Requirements.  Construction, installation, and maintenance of the Cable System shall be performed in an orderly and workmanlike manner.   All such work shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations and the National Electric Safety Code.  The Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the Service Area.  Grantee agrees to properly install cable to each subscriber’s property and shall do so by proper aerial suspension or burial and shall not allow such cable to lie upon the ground beyond a reasonable time for construction of the proper aerial or underground facilities.

33.09     Aerial and Underground Construction.  In those parts of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communication and electric services are underground, the Grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities under ground; provided that such facilities are actually capable of receiving the Grantee’s cable and other equipment without technical degradation of the Cable System’s signal quality.  In those portions of the Service Area where the transmission or distribution facilities of the respective public utilities telephone communications, and electric services are both aerial and underground, the Grantee shall have the sole discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerials or underground.  Nothing contained in this Section shall require the Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as Subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment.  Notwithstanding anything to the contrary contained in this Section, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications, and electric services are placed underground after the effective date of this Franchise, the Grantee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities’ facilities at the time that such are placed underground.

A.            New Developments.  Beginning with the effective date of this Franchise, the Franchising Authority shall provide the Grantee with written notice of the issuance of building or development permits for planned commercial/residential developments within the Service Are.  The Franchising Authority agrees to require as a condition of issuing the permit that, if Developer elects to have Grantee’s cable service available in the commercial/residential development, Developer either (i) shall deploy cable facilities that meet or exceed Grantee’s technical specifications and transfer ownership of the cable facilities to the Grantee, who thereafter shall maintain the facilities, or (ii) shall contract with Grantee to deploy cable facilities on terms and conditions negotiated between the Developer and Grantee.  The Grantee shall complete its inspection of Developer’s deployment within 5 business days of receiving notice from Developer that the deployment is complete.  The Grantee shall not require the Developer to meet technical specifications that exceed the specifications that Grantee requires for its own cable facilities.

B.             Local Improvement District.  If an ordinance is passed creating a local improvement district which involves a placing underground certain utilities including that of the Grantee which are then located overhead, the Grantee shall participate in such underground project and shall remove poles, cables and wires from the surface of the streets within such district and shall place them underground in conformity with the requirements of the Franchising Authority.  The Grantee may include its costs of relocating facilities associated with the undergrounds project in said local improvement district if allowed under applicable law.

33.10     Required Extensions of Service.   This section shall apply only to areas developed prior to the effective date of this Franchise.  Whenever the Grantee shall receive a request for service from at least 15 residences within 1320 cable-bearing strand feet (one-quarter cable mile) of its aerial or underground trunk or distribution cable, it shall extend its Cable System to such Subscribers at no cost to the subscribers for Cable System extension, other than the usual connection fees for all Subscriber; provided that such extension is technically and economically feasible.  In the event additional adjacent territory is incorporated within the Franchising Authority’s limits, by annexation or otherwise, Grantee’s rights and duties under this ordinance shall be deemed to include such additional territory.

33.11     Subscriber Charges for Extensions of Service.  This section shall apply to all residences in areas developed prior to the effective date of this Franchise and to residences in areas developed after the effective date of this agreement, if the Developer failed to comply with section 3.7.A. or has elected not to deploy cable pursuant to section 3.7.A.  No subscriber shall be refused service arbitrarily.  However, for unusual circumstances, such as a Subscriber’s , or a density of less than 15 residences per 1320 cable-bearing strand feet of aerial or underground truck or distribution cable, service may be made available on the basis cost of material, labor, and easements.  For the purpose of determining the amount of capital contribution in aid of construction to be borne by the Grantee and subscribers in the area in which service may be expanded, the Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of residences per 1320 cable-bearing strand feet of its trunks or distribution cable, and whose denominator equals 15 residences.  Subscribers who request service hereunder will bear the remainder of the cost of material labor and easements on a pro rate basis.  The Grantee may require that the payment of the capital contribution in aid of construction borne by such potential Subscribers be paid in advance. 

33.12     Access Channels.  The Grantee shall provide one (1) channel for public, educational, and governmental (PEG) use.  The PEG access channel shall be activated immediately upon written request of the Franchising Authority after first giving appropriate notice.  The PEG access channel shall be placed on the basis tier of service, unless the parties agree otherwise.  The Franchising Authority grants the Grantee the right to use inactive access channel capacity in accordance with federal law until such time that the Franchising Authority exercises its right to use such access channel capacity in accordance with the terms of this section.. The Franchising Authority agrees and understands that the PEG channel may be shared by all Jurisdictions served from the same headend and who require at PEG channel as a franchise condition to the extent it is not technically possible for the Grantee to provide simultaneous but different programming over a single channel to subscribers in each jurisdiction.  It will be the responsibility of the Franchising Authority and the other jurisdictions using the channel to allocate the time available among themselves.

33.13     Service to Public Buildings.  The Grantee shall cooperate with the Franchising Authority to provide cable service to the Franchising Authority offices, fire station(s), police station(s), and public school building(s).  Nothing herein shall prohibit the Grantee from providing free cable service to the Franchising Authority offices, fire station(s), police station(s), and public school building(s) that are passed by its Cable System.

33.14     Emergency Use

A.            In accordance with the provisions of FCC Regulations, 47 C.F.R. part 11, and as such provisions may from time to time be amended, the Grantee shall install, if it has not already done so, and maintain an Emergency Alert System (EAS) for use in transmitting Emergency Act Notifications (EAN) and Emergency Act Terminations (EAT) in local and state-wide situations as may be designated to be emergency by the Local Primary (LP), the State Primary (SP) and/or the State Emergency Operations Center (SECT), as those authorities are identified and defined within FCC Reg. Section 11.18.

B.             The Franchising Authority shall permit only appropriately trained and authorized Person to operate the EAS equipment and shall indemnify and hold harmless the Grantee, its employees, officers and assigns from any claims arising from use of the Cable System or the EAS equipment by the Franchising Authority, its employees, authorized representatives, or designees, including, but not limited to, reasonable attorneys’ fees.  Additionally, the Franchising Authority shall indemnify, save and hold harmless the Grantee against damage, loss or in appropriate use of the equipment and shall agree to use due care and to take reasonable precautions against such damage, loss or in appropriate use of the EAS equipment or other Cable System equipment which may be used during a declared emergency.

33.15     System Capacity

Grantee shall improve the channel capacity of its cable system to be capable of transmitting a minimum of 60 channels, analog or digital, of video programming.  Grantee shall complete the engineering studies to make the necessary improvements to its cable system within two years of the effective date of this franchise and shall complete these improvements within three years of the effective date of this franchise.  For the purpose of this section, the term channels or channel capacity shall mean television signals from separate sources delivered downstream simultaneously available to every subscriber in the network.  Without prejudice to any other section of this Franchise, this section shall be material provision, pursuant to section 7.4(c).

33.16     Customer Service and Consumer Protection

A.            The Grantee shall abide by the customer service and consumer protection standards set forth in section 6323 of the Communications Act and the pertinent implementing regulations of the FCC.  Grantee acknowledges the discretion given the Franchising Authority, pursuant to the statute and FCC rules, to exceed the FCC’s customer service standards and to modify this franchise agreement accordingly.

B.             The Grantee shall maintain a business office which subscribers may telephone during regular business hours without incurring added message or toll charges.  The grantee also shall maintain a business location within the jurisdictional boundaries of the Franchising Authority at which subscribers may submit payments and return cable equipment.

33.17     Shared Use of Poles and Conduits.  The Franchising Authority shall, for a reasonable fee, have the right to make additional use, for any public or municipal purpose, of any poles and conduits controlled or maintained by or for the Grantee in any public way, provided such use does not interfere with the use by the Grantee.  The Franchising Authority shall indemnify and hold harmless the Grantee against and from any and all claims, demands, causes of action, suits, actions, proceedings, damages, costs or liabilities arising out of such use by the Franchising Authority of the Grantees poles or conduits.

Regulations By The Franchising Authority

33.18     Franchise Fee

A.            The Grantee shall pay to the Franchising Authority a franchise fee equal to five (5) percent of Gross Revenues (as defined in Section 1.1 of this Franchise) received by the Grantee from the operation of the Cable System to provide Cable Service on an annual basis.  For the purpose of this section, the 12-month period applicable under the Franchise for the computation of the franchise fee shall be a calendar year, unless otherwise agreed to in writing by the Franchising Authority and the Grantee.  The franchise fee payment shall be payable quarterly 30 days after the close of the preceding calendar quarter.  Each payment shall be accompanied by a brief report from a Certified Public Accountant or an Officer of Grantee showing the basis for the computation.

B.             Limitation on Franchise Fee Actions.  The period of limitation for recovery of any franchise fee payable hereunder shall be five years from the date on which payment by the Grantee is due.  Unless the Franchising Authority initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, within five years from and after such payment due date, such recovery shall be barred and the Franchising Authority shall be stopped from asserting any claims whatsoever against the Grantee relating to any such alleged deficiencies. 

33.19     Rates and Charges.  The Franchising Authority may regulate rates for the provision of Basic Cable service and equipment as permitted by applicable law.  Upon written request, the Grantee shall provide the Franchising Authority a schedule setting forth all rates and charges to be made to subscribers for Cable Service, including connection and service charges.  Notice of changes in rates and charges.  Notice of changes in rates and charges shall be as provided by federal law and FCC regulations.

33.20     Renewal of Franchise

A.            The Franchising Authority and the Grantee agree that any proceedings undertaken by the Franchising Authority that relate to the renewal of the Grantee’s Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by any subsequent provision of federal or state law.

B.             In addition to the procedures set forth in Section 626(a), the Franchising Authority agrees to notify the Grantee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as, the past performance of the Grantee under the then current Franchise term.  The Franchising Authority further agrees that such preliminary assessments shall be provided to the Grantee promptly so that the Grantee has adequate time to submit a proposal under Section 626(b) of the Communications Act and complete renewal of the Franchise prior to expiration of its term.  Notwithstanding anything to the contrary set forth in this Section, the Grantee and the Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment, the Franchising Authority and the Grantee may agree to undertake and conclude informal negotiations regarding renewal of the then current Franchise and the Franchising Authority may grant a renewal thereof.  The Grantee and the Franchising Authority consider the terms set forth in this Section to be consistent with the express provisions of Section 626 of the Communications Act.

33.21     Conditions of Sales.  If a renewal or extension of the Grantee’s Franchise id denied or the Franchise is lawfully terminated, and the Franchising Authority either lawfully acquires ownership of the Cable System or by its actions lawfully effects a transfer of ownership of the Cable System to another party, any such acquisition or transfer shall be a the price determined pursuant to the provisions set forth in Section 627 of the Communications Act.

The Grantee and the Franchising Authority agree that in the case of a final determination of a lawful revocation of the Franchise, the Grantee may request a reasonable opportunity to effectuate a transfer of its Cable System to a qualified third party.  The Franchising Authority further agrees that during the period of such reasonable opportunity, if granted, it shall authorize the Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period of time greater than six months from the effective date of such revocation.  If, at the end of that time, the Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the Franchising Authority, the Grantee and the Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that the Grantee’s continued operation of its Cable System during the six month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the Franchising Authority or the Grantee.

33.22     Transfer of Franchise.  The Grantee’s right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling, controlled by, or under common control with the Grantee, without the prior consent of the Franchising Authority, such consent not be unreasonably withheld.  No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or Cable System in order to secure indebtedness.  For purposes of this section, a transfer of the franchise will be deemed to have occurred upon the acquisition or accumulation by any person or group of persons of fifty percent or more of the shares of the grantee or transfer of actual control by other means.

Compliance and Monitoring

33.23     Books and Record.  The Grantee agrees that the Franchising Authority upon reasonable notice to the Grantee may review such of its books and records at the Grantee’s business office, during normal business hours and on a nondisruptive basis, as is reasonably necessary to ensure compliance with the terms hereof.  Such records shall include, but shall not be limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC.  Notwithstanding anything to the contrary set forth herein, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature, unless the Franchising Authority agrees to treat any information disclosed by the Grantee as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof.  The Grantee shall not be require to provide subscriber information in violation of Section 631 of the Communications Act.

33.24     Audits.  The Franchising Authority shall have the right to inspect the Grantee’s records of income received from the provision of cable service within the jurisdiction of the Franchising Authority and the right to audit and to recompute  any amounts determined to be payable under this Franchise.  Audits shall be at the expense of the Franchising Authority, provided that if such audit establishes that the Grantee shall reimburse the Franchising Authority for reasonable audit expenses.  Grantee shall have sixty (60) days after the initial determination and written notification by the Franchising Authority to present any evidence that the recalculation is incorrect after which, the Franchising Authority shall make a final determination.  Any additional amount determined to be owed to the Franchising Authority as result of the audit shall be paid within thirty (30) days following the final determination and written notice to the Grantee.

Insurance and Indemnification

33.25     Insurance Requirements.  The Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, including any extensions thereto, insurance in the amount set forth herein.  The Grantee shall provide a Certificate or Certificates of Insurance designating the Franchising Authority as an additional insure.  Such insurance shall be noncancellable except upon 30 days prior written notice to the Franchising Authority.

33.26     Commercial General Liability Insurance.  The Grantee shall purchase and maintain commercial general liability insurance in the following amounts:

a.              $500,00 for property damages per occurrence;

b.              $1,000,000 for property damage in the aggregate;

c.              $1,000,000 for personal bodily injury or death to any one person, and

d.              $5,000,000 for bodily injury or death in the aggregate per single accident or occurrence.

33.27     Automobile Liability Insurance.   The Grantee shall purchase and maintain automobile liability insurance for owned, non-owned, hired, or leased vehicles in the minimum amount of:

a.              $500,000 for bodily injury and consequent death per occurrence;

b.              $500,000 for bodily injury and consequent death to any one person; and

c.              $250,000 for property damage per occurrence.

33.28     Subcontractors.  If Grantee employs any subcontractor who does not obtain insurance in his name, Grantee will either cover subcontractor by obtaining endorsements to be attached to its policies or require the subcontractor to obtain the necessary insurance coverage prior to performing any work in the franchise area.

33.29     Indemnification.  The Grantee agrees to indemnify, save and hold harmless, and defend the Franchising Authority, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of the Grantee’s construction, operation, or maintenance of its Cable System, including, but not limited to, reasonable attorneys’ fees and costs.  The Franchising Authority shall give prompt written notice of any such claims, actions, and suits, without limitation, to the Grantee.  If the Franchising Authority determines that it is necessary for it to employ separate counsel, the cost for such separate counsel shall be the responsibility of the Franchising Authority.

33.30     Enforcement and Termination of Franchise

A.            Notice of Violation.  In the event that the Franchising Authority believes that the Grantee has not complied with the terms of the Franchise, it shall notify the Grantee in writing of the exact nature of the alleged noncompliance. 

B.             The Grantee’s Right to Cure or Respond.  The Grantee shall have 30 days from receipt of the notice described in Section 7.1:  (a) to respond to the Franchising Authority, contesting the assertion of noncompliance; (b) to cure such default; or (c) in the event that, by the nature of default, such default cannot be cured within the 30-day period, initiate reasonable steps to remedy such default and notify the Franchising Authority of the steps being taken and the projected date that they will be completed.

C.             Public Hearing.  In the event that the Grantee fails to respond to the notice described in Section 7.1 pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to 7.2 (c) above, the Franchising Authority shall schedule a public hearing to investigate the default.  Such public hearing shall be held no less than five business days after legally sufficient notice of same is given.  The Franchising Authority shall notify the grantee in writing of the time and place of such meeting and provide the Grantee with an opportunity to be heard.

D.            Enforcement.  Subject to applicable federal and state law, in the event the Franchising Authority, after such meeting, determines that the Grantee is in default of any provision of the Franchise, the Franchising Authority may:

a.     Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages.

b.     Impose the appropriate monetary penalty from the Schedule of Penalties in section 7.5; or

c.     In the case of a substantial default of material provision of the Franchise, declare the Franchise Agreement to be revoked, so long as Grantee has been afforded the protections of Sections 7.1-7.3 above.  The Franchising Authority may, at its sole discretion, take any lawful action which it deems appropriate to enforce the Franchising Authority’s rights under the Franchise in lieu of revocation of the Franchise.

33.31     Schedule of Penalties and Fines.  Pursuant to section 7.4 above, the following penalties and fines may be chargeable to the Grantee by the Franchising Authority:

a.              for failure to complete construction or upgrades to the cable system or to extend service in accordance with Franchise, unless Town Council approves the delay by resolution or other action taken, for reasons not beyond Grantee’s control:  $250/week for each week, or part thereof, the violation continues;

b.              for violation of consumer protection requirements and customer service standards required by the Franchise, the Ordinance, or by FCC regulation:  $50/day per standard violated;

c.              for failure to data, documents, reports, or information as required by the Franchise:  $25/day for each delinquent item of information;

d.              for failure to perform any restoration of public right-of-way that were damaged by reason of the erection, construction, maintenance, or repair of the cable system within ten (10) business days notice in writing:  $250/day for each day the work is not performed and, if the Franchising Authority ultimately performs the restoration, the Grantee also shall pay the actual costs incurred by the Franchising Authority;

e.              for violation of other material provisions of the Franchise or the Ordinance:  $50/day for each day the violation continues. 

Fines or penalties shall not be chargeable for violations which are minimal in nature, or which occurs as a result of Force Majeure under Section 8.2. 

33.32     Section 8 Miscellaneous Provisions

8.1           Actions of Parties.  In any actions by the Franchising Authority or the Grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner.  Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.

8.2           Force Majeure. 

A.            The Grantee shall not be held in default under, or in noncompliance with, the Provisions of the Franchise, no suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee’s ability to anticipate and control.  This provision also cover work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee’s cable and/or equipment is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary, unless the unavailability is caused by the neglect of Grantee.

8.3       Equal Protection.        In the event the Franchising Authority enters into a Franchise, permit, license, authorization, or other agreement of any kind with any other Person or entity other than the Grantee enter into the Franchising Authority’s Public Ways for the purpose of constructing or operating a Cable System or providing Cable Service to any part of the Service Area, the material provisions thereof shall be consistent with Indiana state law.

8.4       Notice.            Unless expressly otherwise agreed between the parties, every notice or response required by this Franchise to be served upon the Franchising Authority or the Grantee shall be in writing, and shall be deemed to have been duly given to the required party five business days after having been posted in a properly sealed and correctly addressed envelope when hand delivered or sent by certified or registered mail, postage prepaid.

            The notices or responses to the Franchising Authority shall be addressed as follows:  Clerk-Treasurer, 214 West Washington, Fairmount, IN  46928.

            The notices or responses to the Grantee shall be addressed as follows:  Grantee Name, Address.

            With a copy to:

            TCI Greater Lakes, ATTN:  Legal Department, 111 Pingsten Road, Suite 400, Deerfield, IL 60015.

            The Franchising Authority and the Grantee may designate such other address or addresses from time to time by giving notice to the other.

8.5       Descriptive Headings.  The captions to Sections contained herein are intended solely to facilitate the reading thereof.  Such captions shall not affect the meaning or interpretation of the text herein.

8.6           Severability.  If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof.

8.7           Effective Date.  The effective date of this Franchise is January 1, 1998 pursuant to the provisions of applicable law.  This Franchise shall expire on December 31, 2007, unless extended by the mutual agreement of the parties.

8.8           Compliance with applicable Laws and Ordinances.  This Franchise constitutes the entire agreement between the parties and supersedes any and all previous agreements of whatever nature between the parties with respect to the subject matter.  This Franchise Agreement shall not be changed, amended or supplemented except by an agreement in writing signed by both parties.  In the event of conflict between this Franchise Agreement and the Ordinance or any other enabling ordinance, law or regulation in effect at the time of this Agreement or thereafter, the terms and conditions of this Franchise Agreement shall be controlling.  Franchising Authority may, from time to time, amend the Ordinance pursuant to its lawful police powers and home rule; provided, however, such amendments shall be reasonable and shall not impair the rights nor increase the obligations of the Grantee pursuant to this Franchise.

Ord 10-1997 passed 12-22-97.

Chapter 34:  Temporary Vendor

Section:

34.01     Purpose

34.02     Required Permits

34.03     Definitions

34.04     Fees

34.05     Display of Permit

34.06     Violations

34.01 Purpose

The Fairmount Town Council in order to regulate the conduct of business within the town limits and to promote the safety and welfare of its residents and visitors and to collect a fee to defray the cost of such regulations.  The town shall license temporary vendors of retail sale of food, and other merchandise from trailers, carts, stands and other temporary facilities.

34.02   Required Permits

1.     It shall be unlawful to sell food or other miscellaneous merchandise from a trailer, cart, stand or other temporary location within the town without a permit.

2.     A separate permit shall be required for each trailer, cart, stand or other similar temporary locations.

3.     It is not necessary for residents of the town who may be conducting any business from and upon their residence to purchase a permit.

34.03   Definitions

1.     Council:  Council shall refer to the Town Council of the Town of Fairmount, Indiana.

2.     Food:  Food shall mean any raw, cooked or processed edible substance or beverage intended for use in whole or in part for human consumption. 

3.     Not-For-Profit Organization:  An organization, which has been recognized as a not-for-profit organization by the Internal Revenue Service.

4.     Special Event:  Special Event shall include the James Dean Festival and any other event, which be subsequently designed by the Council.

5.     Temporary Sales Location:  Temporary sales location shall include sales of food from any trailer, cart, stand or other similar temporary location, which is to exist only during all, or portion of the special event.

34.04  Permits and Fees

1.     All temporary vendors of retail sales of food and miscellaneous merchandise during a special event shall be required to obtain a special event permit from the Town Clerk’s office of the Town of Fairmount, which such special event permit shall be obtained at least sixty (60) days in advance of the event.

2.     Such license may be obtained upon payment of Ten ($10.00) dollars for each special event in a calendar year for the sale of miscellaneous merchandise.  A fee of twenty-five ($25.00) dollars for each special event in calendar year shall be paid by all temporary vendors of food items.

3.     Temporary vendors shall be entitled to a refund of all permit fees if the permit is returned at least forty-eight (48) hours prior to the beginning of a special event.

4.     The Town may designate the Museum Board of the Town of Fairmount to collect the license fees rather than the Town Clerk’s Office.

5.  All temporary vendors fees collected shall be deposited in the Park Non-Reverting Fund.

34.05 Display of Permits:  Violations

1.     Prior to the commencement of the special event, the Clerk shall issue special event permits to temporary vendors who have complied with Section 3 above.

2.     For the duration of the special event, each temporary vendor shall display the permit at the temporary sales location in public view as a means of identification.

3.     It will be unlawful for any temporary vendor to fail to display the special event permit.  Each day a violation of this section continues shall constitute a separate offense, and shall be punishable as provide by Section 5 of this ordinance. 

34.06  Penalty

1.     The Town Marshal or his legally appointed deputy is hereby authorized to enforce the provision of this Ordinance.

2.     Any temporary vendor who does not properly display their permit shall be subject to a fine of Two Hundred dollars ($200.00).

3.     Each Day a violation of this chapter continues shall constitute a separate offense.

Ord #7-1999; passed 8-23-99.

Ordinance 5-2003; passed  8-25-2003.

Ordinance 8-2004; passed 9-27-04