O-97-22ORDINANCE NO. 0 -97- 2 2
AN ORDINANCE APPROVING A RENEWED
CABLE COMMUNICATIONS SYSTEM FRANCHISE AGREEMENT
BETWEEN THE VILLAGE OF DEERFIELD, ILLINOIS AND
OMNICOM CABLEVISION OF ILLINOIS, INC. d/b /a POST NEWSWEEK CABLE
Published in pamphlet form this
2 8 thday of May , 1997
by the President and Board of
Trustees of Deerfield.
As 143774 .1 (DATEIMay22,1997)
ORDINANCE NO. 0 -97- 2 2
AN ORDINANCE APPROVING A RENEWED
CABLE COMMUNICATIONS SYSTEM FRANCHISE AGREEMENT
BETWEEN THE VILLAGE OF DEERFIELD, ILLINOIS AND
OMNICOM CABLEVISION OF ILLINOIS, INC. d/b /a POST NEWSWEEK CABLE
WHEREAS, Omnicom Cablevision of Illinois, Inc., d/b /a Post Newsweek Cable,
currently holds a franchise to provide cable television service in the Village of Deerfield; and
WHEREAS, Omnicom Cablevision of Illinois, Inc., d/b /a Post Newsweek Cable, has,
pursuant to the renewal section of the Federal Cable Act (47 ILCS §546), requested renewal of
its non - exclusive cable television franchise; and
WHEREAS, the Village has held public hearings and performed an assessment related to
the past performance of Omnicom Cablevision of Illinois, Inc., the Village's future cable - related
needs and interests, and the financial, legal and technical ability of Omnicom Cablevision of
Illinois, Inc. to provide the services, facilities and equipment in the Renewed Cable
Communications System Franchise Agreement; and
WHEREAS, the corporate authorities of the Village of Deerfield find that it is in the
public interest to grant Omnicom Cablevision of Illinois, Inc. a renewed cable television
franchise agreement consistent with the terms and conditions that have been negotiated.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS
AS FOLLOWS:
SECTION That the Renewed Cable Communications System Franchise Agreement
ONE: between the Village of Deerfield and Omnicom Cablevision of Illinois,
Inc., d/b /a Post Newsweek Cable, attached hereto and made a part hereof
is hereby approved.
SECTION The Village President and Village Clerk are hereby authorized to execute
TWO: said agreement.
SECTION That this Ordinance shall be in full force and effect from and after its
THREE: passage, approval and publication as provided by law.
JKS 143774 .l (DATEIMay22,1997)
ORDINANCE NO. 0 -97- 2 2
AN ORDINANCE APPROVING A RENEWED
CABLE COMMUNICATIONS SYSTEM FRANCHISE AGREEMENT
BETWEEN THE VILLAGE OF DEERFIELD, ILLINOIS AND
OMNICOM CABLEVISION OF ILLINOIS, INC. d/b /a POST NEWSWEEK CABLE
AYES: Ehlers, Heuberger, Rosenthal, Swanson, Swartz (5)
NAYS: Seidman (1)
ABSENT: None (0 )
PASSED: This 2 7 th day of May A.D., 1997.
APPROVED: This 27th day of May A.D., 1997.
ILLAGE PRESIDENT
As 143774 . 1 {DATEIMay 22,1997}
d
RENEWED CABLE COMMUNICATIONS SYSTEM
FRANCHISE AGREEMENT BETWEEN
THE VILLAGE OF DEERFIELD, ILLINOIS
OMNICOM CABLEVISION OF ILLINOIS, INC.
D /B /A/ POST- NE,WSWEEK CABLE
I: \LAWYERS \PPD \PERSONAL \CABLE \DEERCB27.97
TABLE OF CONTENTS
SECTION: PAGE NO.
1. Short Title
1
2. Definitions
1
3. Grant
7
4. Franchise Territory
7
5. Duration and Acceptance of Franchise
7
(A) Term
7
(B) Transfer of this Agreement
7
(C) Renewal of Franchise
9
(D) Application Fees
9
(E) Renewal Requirements Met
9
6. Continuity of Service Mandatory
9
(A) Uninterrupted Service
9
(B) Failure to Operate System
9
7. Rights and Privileges of Grantee
10
8. Compliance With Federal, State, and Local Laws
10
(A) Federal and State Laws
10
(B) Village Police Powers
11
(C) Obscene Programming
11
(D) EEO Requirements
11
9. Notices
11
10. Books and Records
12
(A) Maintenance of Financial Records
12
.(B) Location and Production of Records
12
(C) Audited Statements
12
(D) Right of Village to Review Books and Records
12
(E) Right of Village to Require an Audit
13
(F) Continued Reporting Upon Termination
13
11. Franchise Fee Payment
13
(A) Franchise Fee Amount
13
(B) Voluntary Payment /Grantee Waiver
13
(C) Payment Schedule
13
(D) Franchise Fee Statement Requirements
14
(E) Penalty For Late Payments
14
12. Construction Requirements and Standards
14
(A) Depth and Height of Cables
14
(B) Requirement of J.U.L.I.E. Locates
15
(C) Restoration of Public and Private Property
15
(D) Permit and License Requirement
15
(E) Construction Schedule
15
(F) Line Extension
15
(G) Temporary Service Drops
15
(H) Contractors Qualifications
16
(I) Reconstruction
16
I:\ LAWYERS \PPD \PERSONAL \CABLE \DEERCB27.97
- i -
TABLE OF CONTENTS cont.
SECTION: PAGE NO.
(J)
Approval By Village
16
(K)
Pedestal Location
16
(L)
Use of Easements
16
(M)
Service Extensions
16
13. System
Design
17
(A)
System Upgrades
17
(B)
System Component Description
17
(C)
Standby Power
18
(D)
Emergency Alert System
18
(E)
Interconnection of Access Facilities
18
(F)
Interconnection with Other Systems
18
(G)
Parental Lock -Out Device
18
(H)
Closed Captioning
18
(I)
Material Breach
18
14, System Maintenance
18
(A)
Number of Technicians Required
19
(B)
Testing and Routine Maintenance
19
(C)
Definition of Outage
19
(D)
Service Availability
19
(E)
Reporting to Village
20
15. Cable Television Guide
20
16. Solicitation of Subscribers
20
(A)
Notification for New Extensions
20
(B)
Provision of Solicitation Materials
21
(C)
Identification of Sales Personnel
21
(D)
Promotional Discounts
21
17. Customer Service
21
(A)
Bill Payment Center
21
(B)
Standards and Compliance
21
(C)
Billing Notification
21
18. Programming Services
21
(A)
Program diversity
21
(B)
Interactivity
22
(C)
Internet Connection Demonstration Stations
22
19. Public, Educational, and Governmental Access
22
(A)
Channels
22
(B)
Local Origination Restrictions
23
(C)
Access Management Corporation Organization
23
(D)
Financial Contributions
24
(E)
Equipment Transfer
24
(F)
Facilities
24
(G)
Interim Operation
25
(H)
Usage Rules
26
(I)
Access Availability
26
(J)
System Connections
27
(K)
Right to Purchase
27
(L)
Successors and Assigns
27
(M)
Late Payments
27
- ii -
TABLE OF CONTENTS cont.
SECTION:
PAGE NO.
(N)
Violations
27
20. Institutional Network
27
(A)
Network Description
27
(B)
Services Contract
28
(C)
Access Guarantee
28
(D)
Seminars
28
(E)
Demonstration Sites
29
(F)
I -Net Connections
29
(G)
Distance Learning
30
(H)
Police Department Requirements
31
(I)
Public Service /Educational Institutions
30
(J)
I -Net Standards
31
(K)
Violations
31
21. Performance
Evaluation Sessions
31
{A)
Annual Review
31
(B)
Matters Considered
31
(C)
Grantee Reporting
31
(D)
Standards of Comparison
32
(E)
System Rating
32
22. Most Favored Community
32
(A)
Ordinances Required
32
(B)
Equivalency Of Material Terms
32
(C)
Equivalency With Highland Park
33
(D)
Transferees Included
33
23. Grantee Reporting
33
(A)
Response to Complaints
33
(B)
Attendance at Meetings
34
(C)
Organizational Chart
34
(D)
Organizational Updates
34
24. Procedures for Remedying Material Franchise
34
Violations
34
25. Liquidated Damages
37
(A)
Not Exclusive
37
(B)
Schedule of Damages
37
(C)
Other Costs
38
(D)
Extenuating Circumstances
38
(E.)
Basis for Assessment
38
(F)
Consumer Price Index
39
26. Termination
and Revocation
39
(A)
Non Exclusive Remedy
39
(B)
Transfer Upon Termination
40
27. Performance
Bond /letter of Credit.
40
(A)
Bond Amount
40
(B)
Letter of Credit Amount
40
28. Liability, Indemnification and Insurance
40
(A)
Grantee Responsibility
40
(B)
Village Rights
41
(C)
Indemnification
41
TABLE OF CONTENTS cont.
SECTION:
PAGE NO.
(D) Indemnification Pursuant to Ordinance
41
(E) Exclusions
42
(F) Insurance Requirements
42
(G) Insurance Amounts
42
(H)' Underwriting Requirements
42
(I) Insurance Notice Requirements
42
(J) Proof of Insurance
42
(K) Interruption of Insurance
42
(L) Increase of Insurance Coverage
43
29. Failure of Village to Enforce
43
30. Time Is Of the Essence
43
31. Severability
43
32. Village Rights Reserved
43
33. Force Majeure
44
34.• Village Right. to Delegate
+.44
35. Limitation of Franchising Authority Liability
:45
(A) Limitation of Relief
;45
(B) Limitation Not Applicable
45
(C) Discrimination Cases
45
(D) Inapplicability
45
Index of Exhibits
EXHIBIT: PAGE NO.
1. Institutional Network Service Sites 46
2. Public, Educational, and Governmental Access Equip. 48
3. Form of Acceptance 52
4. Earned Franchise Fee Revenue Reporting Format 53
5. Form of Corporate Bond 54
6. Letter of Credit Form 55
7. Guarantee of Omnicom Parent Corporation 56
8. , Cable TV Public Access Operating Rules 57
— iv —
RENEWED CABLE FRANCHISE AGREEMENT BETWEEN
THE VILLAGE OF DEERFIELD AND
OMNICOM CABLEVISION OF ILLINOIS, INC., d /b /a/ POST - NEWSWEEK CABLE
This Franchise Agreement is entered into on this day of
1997, by and between the Village of Deerfield, an
Illinois Municipal Corporation (hereinafter referred to as
"Village ") and Omnicom Cablevision of Illinois, Inc., d /b /a/ Post -
Newsweek Cable (hereinafter referred to as "Grantee ").
In consideration of the faithful performance and strict
observance by the Grantee of all the terms, provisions,
conditions, obligation, and reservations hereinafter set forth or
provided for herein, and also as provided for in Village Ordinance
No. 0- 96 -04, pursuant to which this Franchise Agreement is
executed, and in consideration of the Village's renewal of a
nonexclusive Cable Communications System franchise to Grantee, it
is hereby agreed between the parties hereto as follows:
Section One: SHORT TITLE
This Franchise Agreement shall be known and may be cited as the
"Post- Newsweek Cable Franchise Agreement."
Section Two: DEFINITIONS
For the purposes of this Franchise Agreement, the following
terms, phrases, words, and their derivations shall have the
meaning given herein. When not inconsistent with the context,
words used in the present tense include the future, words in the
plural number include the singular number, words in the singular
number include the plural number, and the use of any gender shall
be applicable to all genders whenever the sense requires. The
words "shall" and "will" are mandatory and the word "may" is
permissive. Words not defined shall be given their common and
ordinary meaning..
(a) "Act" means the Cable Communications Policy Act of 1984 (47
USC 521 et seq.) and amendments including the Cable Competition
and Consumer Protection Act of 1992 (Pub. L. No. 103 -385, 106
Stat. 1477 (1992)) and The Telecommunications Act of 1996 or any
other relevant federal statutes as may be amended from time to
time.
(b) "Activated Channels" means those channels engineered at the
headend of a Cable System (as hereinafter defined) for the
provision of services generally available to Subscribers of the
Cable System, regardless of whether such services actually are
provided, including any channel designated for public,
educational, or governmental use.
(c) "Basic Cable Service" means a service tier providing
programming service including but not limited to public,
educational, or governmental access channels and the
retransmission of local television broadcast signals.
(d) "Board" means the Board of Trustees of the Village of
Deerfield.
(e) "Broadband. Communications System" means a communications
Network capable of carrying voice, video, FM and data
transmissions in addition to cable television programs.
(f) "Cable Communications System ", "Cable System ", or "System,"
means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
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 1) a facility that serves only to
retransmit the television signals of one or more television
broadcast stations; 2) a facility that serves subscribers without
using any public right -of -way; 3) a facility of a common carrier
which is subject, in whole or in part, to the provisions of the
Cable Act, as may be amended, except that such facility shall be
considered a cable system to the extent such facility is used in
the transmission of video programming directly to subscribers; or
4) any facilities of any electric utility used solely for
operating its electric utility systems.
(g) "Cable Channel" or "Channel" means a portion of the
electromagnetic frequency spectrum which is used in a cable system
and which is capable of delivering a television channel (as
television channel is defined by the Federal Communications
Commission by regulation, or as otherwise may be defined by
federal law).
(h) "Cable Service" means 1) the one -way transmission to
subscribers of i) video programming, or ii) other programming
service and 2) subscriber interaction, if any, which is required
for the selection or use of such video programming or other
programming service.
(i) "Commission" means the Cable and Telecommunications
Commission of the Village, created by previous action and
designated by the Board to act in matters related to cable
communications as herein provided.
(j) "Complaint" means any written correspondence or oral
representation or statement (whether in person or by telephone)
from any individual or institution to the Grantee or Village
2
concerning an alleged problem with the service of or other
function of the cable franchise.
(k) "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 all signals delivered
to appropriate tuner or dial locations, and which may provide
interactive or other service.
(1) "Developed parcel" means any area of the Village where
there are at least 25 occupied dwelling units per mile to be
served by aerial cable plant or at least 30 occupied dwelling
units per mile to be served by cable underground plant, as
measured from the closest cable television distribution
facilities.
(m) "Dwelling Unit" means any individual, multiple residential,
or business place of occupancy.-.:.,
(n) "Federal Communications. Commission" or "FCC" means the
present federal agency of that name as constituted by the Communi-
cations Act of 1934, as amended or replaced, or any successor
agency created by the United States Congress.
(o) "Franchise" means the non - exclusive right granted through
this Franchise Agreement, by which the Village authorizes Grantee
to erect, construct, reconstruct, operate, dismantle, test, use
and maintain a System in the Village, and is not intended to
include any other license or permit required for the privilege of
transacting and carrying on a business within the Village as may
be required by other ordinances and laws of the Village.
(p) "Franchise Agreement" or "Agreement" means the contractual
agreement hereunder entered into between the Village and the
Grantee, which sets forth the rights and obligations between the
Village and said Grantee in connection with the Franchise.
(q) "Franchise Fee" means any assessment, tax or fee imposed
hereunder, or by the Cable Ordinance, or by the Village or other
governmental entity on a Grantee solely because of its status as a
cable operator. The term "Franchise Fee" does not include:
(1) Any tax, fee, or assessment of general applicability
(including any such tax, fee, or assessment imposed on both
utilities and cable operators or their services);
(2) Capital costs which are
incurred by Grantee for Public
Governmental Access facilities;
K?
required by the Franchise to be
Access, Educational Access, or
I
(3) Requirements or charges incidental to enforcement of
the Franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnifications, penalties or
liquidated damages; or
(4) Any fee imposed under Title 17, United States Code.
(r) "Grantee" means any person granted a Franchise hereunder,
its agents, employees, or subsidiaries. "Grantor" shall mean the
Village.
(s) "Gross Revenues" means all cash, credits, property'of any
kind or nature received directly or indirectly by a Grantee, its
subsidiaries, or any other person in which the Grantee has a
financial interest or which has a financial interest in the
Grantee, arising from or attributable to operation of the .System
for the provision of Cable Services, including but not limited to:
(1) revenue from all charges for services provided to
Subscribers of entertainment and non - entertainment services;
(,2) revenue received for the insertion of commercial
advertisements (including but not limited to production charges)
upon the System, based upon an allocation in proportion to the
total number of System subscribers served by the Grantee,
divided by the total number of subscribers served by the Grantee
in the Village.;
(3) revenue from all charges for leased access or use of
studios;
(4) revenue from all charges for the installation,
connection and reinstatement of equipment necessary for
utilization of the System and provision of Subscriber and other
services;
(5) revenue from the sale, exchange or use or cablecast of
any programming developed on the System for community or
institutional use;
(6) revenue from the sale or use of the System's Subscriber
list, which revenues shall be computed for the payment of
Franchise Fees in accordance with Section Eleven of this
agreement and applicable state and federal law.
"Gross Revenues" shall include, in value at retail price levels,
the value of any goods, services, or other remuneration in non -
monetary form, received by the Grantee or others described above
in consideration of the performance of any advertising or other
service on the System. Further, they shall include Franchise Fees
unless prohibited by law, rule, regulation or order, or unless the
4
FCC validly interprets such inclusion to be improper under its
rules or the Communications Act.
"Gross Revenues" shall not include, marketing credits from
program suppliers, as marketing credits are acknowledged to be a
reduction in the cost of program services.
(t) "Headend" means the location
of any equipment of a Cable System used to process signals. for
redistribution to Subscribers.
"Principal Headend" means:
(1) The headend, in the case of a Cable System with a
single headend, or
(2) In the case of a Cable System with more than one
headend, the headend des.ignated by the Grantee as the principal;,.
headend, except that such designation shall not undermine or
evade the requirements'. of Section 614 of the Cable Act with!.
respect to carriage of 'local commercial television signals.
(u) "Institutional Network" means a separate cable and /or an
allocation of capacity on the System with upstream and downstream
capability, designed and constructed to connect facilities
including Public Service Institutions as herein defined,
independent of the regular Subscriber network.
(v) "Leased Access" means the use of .the System for the
provision of Cable Services by any business enterprise or other
person or entity pursuant to Section 612 of the Act.
(w) "Normal Business Hours" means those hours during which most
similar businesses in the community are open to serve customers.
In all cases, "normal business hours" must include some evening
hours at least one night per week and some weekend hours.
(x) "Normal Operating Conditions" means those service condi-
tions 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.
(y) "Ordinance" or "Cable Ordinance" means the Village Cable
Communications Ordinance of 1996, as may be amended from time to
time.
5
(z) "Person" means any individual, firm, corporation,
partnership, association, joint venture, or organization, of any
kind and the lawful trustee, successor, assignee, transferee, or
personal representative thereof.
(aa) "Public Access" or "Community Access" or "Educational
Access" or "Governmental Access" or "Access" or "PEG Access" means
any service provided on the Cable System devoted to public,
educational, or governmental access as defined in the Act.
"Access Channels" are those channels available on the System for
use by any resident of the Village, or local educational
institutions or local government, depending upon the specific
allocation of the respective channels to Public Access,
Educational Access or Governmental Access use.
(bb) "Public Service Institutions" means local government,
municipal and educational institutions with offices or operations
located in the Village limits (however shall not include the area
west of Pfingsten; south of Lake Cook Road; or east of the
Tollway), including but not necessarily. limited to the Village,
Deerfield Park District, Deerfield Village Library, Deerfield -
Bannockburn Fire District, Deerfield School District No. 109,
Deerfield High School District No. 113, Holy Cross School, West
Deerfield Township, and other such institutions as may be
specified in this Agreement or during the life of the Agreement by
the Commission.
(cc) "Public way" or "street" means the surface, the air space
above the surface, and the area below the surface of any public
street, highway, lane, path, alley, sidewalk, boulevard, drive,
bridge, tunnel, park, parkways, waterways or other public right -
of -way including public utility easements or rights -of -way, and
any temporary or permanent fixtures or improvements located
thereon now or hereafter held by the Village.
(dd) "School" means any public or private elementary school,
secondary school, junior college, college or university which
conducts classes or provides instructional services and which has
been granted a certificate of recognition by the State of
Illinois.
(ee) "Subscriber" means any person who legally receives any one
or more of the services provided by the System.
(ff) "Village" means the Village of Deerfield, State of
Illinois, and all the territory within its present and future
boundaries and including any other area over which the Village
exercises jurisdiction. The Board is the governing authority of
the Village.
6
Section Three: GRANT
The Village hereby awards to Grantee a renewal of a nonexclusive
Cable Communications System Franchise subject to all the terms and
conditions of the Cable Ordinance, as herein provided, and as
included in all exhibits attached or referenced herein. Where a
conflict exists between any document including-the Ordinance and
the terms and conditions of this Franchise Agreement, the terms
and conditions of the Franchise Agreement shall prevail. Such
Franchise shall become effective upon the passage and approval of
the Village's ordinance authorizing the approval and execution of
this Agreement (hereinafter "the enabling Ordinance ") and
acceptance by Grantee in compliance with Section Five herein.
Section Four: FRANCHISE TERRITORY
The Franchise granted herein shall be for all areas located
within the corporate limits of the Village, including all
territory hereafter annexed to the Village or under statutory
control of the Vill'age.
Section Five: DURATION, ACCEPTANCE, RENEWAL AND TRANSFER OF
FRANCHISE
(A) The Franchise as well as all rights, privileges,
obligations and authority granted herein shall take effect and be
in force from and after final passage, approval and publication of
an ordinance granting said Franchise as provided by law, and shall
remain in effect for a term of fifteen (15) years from said final
passage date, provided that within fourteen (14) days immediately
following the date of final passage and approval of said
ordinance, the Grantee files with the Village its unconditional
acceptance of said Franchise in the form set forth in Exhibit 3
to this Agreement. In said acceptance Grantee shall promise to
comply with and abide by all the provisions, terms, and conditions
of this Agreement as well as the Village Cable Ordinance, as the
same may be amended from time to time.
(B) Transfer of this Agreement
(1) This Franchise shall not be sold, assigned or
transferred, either in whole or in part, used as collateral for
any loan or loans, or leased or sublet in any manner, nor shall
title thereto, either legal or equitable, or any right, interest
or property therein, pass to or vest in any Person without full
compliance with the procedure set forth in this Section.
(2) The provisions of this Section shall apply to the sale
or transfer (excluding to any parent, subsidiary or affiliate
company) of all or a majority of Grantee's assets or shares of
t
7
stock, merger, consolidation, or sale or transfer of stock in
Grantee so as to create a new controlling interest. The term
"controlling interest" as used herein is not limited to majority
stock ownership, but includes actual working control in whatever
manner exercised, including the creation or transfer of
decision — making authority to a new or different board of
directors. Any transaction that would require FCC consent for
an assignment or transfer of control will create a rebuttable
presumption that a new controlling interest has been created,
requiring the approval of the Village.
i. The parties to the sale or transfer shall make a
written request to the Village for its approval of a sale
or transfer, including all applicable information required
by FCC regulations. Upon receipt of a complete written
request with all application information including any
additional information the Village may request, the Village
shall have 120 days to grant or deny such approval.
ii. The Village shall. reply in writing within thirty
(30) days of the request's and shall indicate that the
application is complete or*that additional information is
necessary. A determination as to whether a public hearing
is necessary shall be made by the Village, and the Grantee
shall be notified, within thirty (30) days of receipt of
the complete application including any additional
information requested.
iii. If a public hearing is deemed necessary pursuant
to (2) above, such hearing shall be commenced within thirty
(30) days of such determination and notice of any such
hearing shall be given fourteen (14) days prior to the
hearing by publishing notice thereof. The notice shall
contain the date, time and place of. the hearing and shall
briefly state the substance of the action to be considered
by the Village. Said public hearing does not toll the 120 —
day time period set forth above.
iv. Within sixty (60) days of any transfer, Grantee
shall file with the Village a copy of the deed, agreement,
mortgage, lease or other written instrument evidencing such
sale, transfer of ownership or control or lease, certified
and sworn to as correct by the Grantee.
(3) In reviewing a request for sale or transfer, the
Village may inquire into the legal, technical and financial
qualifications of the prospective controlling party, and Grantee
shall assist the Village in so inquiring. The Village may
condition said transfer upon such terms and conditions as it
deems reasonably appropriate to satisfy said qualifications;
provided, however, the Village shall not unreasonably withhold
its approval. As a condition of approval of a transfer or
assignment of ownership or control, the Village may require that
the transferee becoming a signatory to this Franchise.
(4) All relevant provisions of the Cable Act shall apply
to the transfer process.
(5) Upon grant of the transfer application, the Village
shall provide the Franchisee with an itemized statement of its
direct costs and expenses incurred in processing and reviewing
the transfer application. The Franchisee agrees to pay a
reasonable application fee, not to exceed $5,000.00 to defray
the Village's out -of- pocket costs of processing and reviewing
any transfer request.
(C) Any Renewal of this Franchise shall be in accordance with
the renewal provisions of Section 626 of the Act. To the extent
that Section 626 is no longer applicable to franchise renewals,
and has not been supplanted or replaced by any other law, statute,
or -regulation, the Village and the Grantee shall conduct the
franchise renewal process pursuant to the terms and provisions of
Section 626 of The Act as it existed on the date,. of this
Agreement..
(D) Application fees for Franchise renewal consideration shall
be those fees stipulated in the Ordinance including any incidental
costs associated with the Village's awarding of the Franchise as
allowed under applicable law.
(E) By acceptance of this agreement the parties agree that all
renewal requirements of the Ordinance pertinent to this Franchise
have been met.
Section Six: CONTINUITY OF SERVICE MANDATORY
(A) It shall be the right of all Subscribers to continue
receiving service insofar as their financial and other obligations
to Grantee are honored. In the event that Grantee elects to
overbuild, rebuild, modify or sell the System, or the Village
gives notice of intent to terminate or fails to renew this
Franchise, Grantee shall act so as to ensure that all Subscribers
receive continuous, uninterrupted service. If Grantee fails to
provide such service, the Village retains the right to provide the
service in accordance with applicable law.
In the event of a change of franchisee, or in the event a new
operator acquires the System in accordance with Section 5, Grantee
shall cooperate with the Village and the transferee in maintaining
continuity of service to all Subscribers.
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(B) In the event Grantee fails, for reasons other than as set
forth in Section 29, to operate the System for two (2) consecutive
days without prior approval of the Village, the Village may, at
its option, operate the System, or designate an operator until
such time as a permanent operator is selected, in accordance with
applicable law. If the Village is required to fulfill this
obligation for Grantee, the Village shall be entitled to revenue
derived from the System's operation during the period that the
Village operates said system. Further, Grantee shall reimburse
the Village for all reasonable costs or damages in excess of those
revenues derived by the Village during its period of operation.
Section Seven: RIGHTS AND PRIVILEGES OF GRANTEE
The Franchise granted by the Village pursuant to this Agreement
shall allow only the Grantee and any transferee approved in
accordance with this Agreement the non - exclusive right and
privilege to erect, install., construct, repair, replace,
reconstruct, and retain in, and operate in, on, over, under, upon,
across, and along the highways, sidewalks, public utility
easements, public way, dedications, and other public property now
in existence and as may be created or established during the term
of this Agreement, any lines, cables, ducts, underground conduits,
vaults, manholes, and other television conductors and fixtures
necessary for the maintenance and operation of a Cable System for
the interception, sale, transmission and distribution of Cable
Services and the right to transmit same to the inhabitants of the
Village subject to and on the terms and conditions hereinafter set
forth.
Section.Eight: COMPLIANCE WITH STATE AND FEDERAL LAWS
(A) The Village shall at all times comply with all laws and
regulations of the Federal and State government or any
administrative agencies thereof, and as they are amended, related
to cable franchises; provided however, that should such laws or
regulations be eliminated, the Village shall have the right to
assume all powers previously held under such laws and regulations,
in accordance with applicable law. Grantee shall also similarly
comply with all laws and regulations of the Federal and State
government or any administrative agencies thereof, and as the are
amended, provided; however, if any such Federal or State law or
regulation shall require the Grantee to perform any service, or
shall permit the Grantee to perform or shall prohibit the Grantee
from performing any service, in conflict with the terms of this
Franchise Agreement or of any ordinance or regulation of the
Village, then as soon as possible following knowledge thereof, the
Grantee shall notify the Village of the point of conflict believed
to exist between such law or regulation and the ordinances or
regulations of the Village or this Franchise Agreement. No
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penalty shall accrue to the Grantee if the Grantee makes a
reasonable effort to comply with this notification provision.
(B) In accepting this Franchise, Grantee acknowledges that its
rights hereunder are subject to the police power of the Village to
adopt and enforce general ordinances necessary for the safety and
welfare of the public, and it agrees to comply with all applicable
general laws and ordinances enacted by the Village pursuant to
such power. Any conflict between. the provisions of this Franchise
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 to all
similar franchises in the jurisdiction or provisions inconsistent
with this Franchise shall prevail only if the Village finds such
exercise necessary to protect the public health, safety, property,
or general welfare, or such exercise is mandated by law.
(C) Subject to the Act, in no event shall Grantee carry any
programming which is legally obscene.
(D) The Equal Opportunity requirements shallbe those referred
to in Section 634 of the Federal Cable Act, as may be amended, and,
as applicable under State law.
Section Nine: NOTICES
All notices herein provided for shall be in writing and shall be
deemed given when deposited in the prepaid, registered or
certified US mail, or sent by overnight courier service or
telecopier. Notices shall be addressed to the parties as follows:
To the Village:
Cable and Telecommunications Commission
Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
Telecopier: (847) 945 -5080
Copy To:
Pedersen & Houpt
Attn: Sheila Quinn
Suite 3100
161 N. Clark Street
Chicago, IL 60601
Telecopier: (312) 641 -6895
To the Company:
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Post - Newsweek Cable
4742 N. 24th Street, Suite 270
Phoenix, AZ 85016
Telecopier: (602) 468 -0116
Either party shall have the right, in writing, to change the
address to which notice to such party may be sent.
Section Ten: BOOKS AND RECORDS
(A) All financial records relating to Subscribers and
Subscriber revenues, of Grantee shall be maintained pursuant to
the requirements of the Ordinance, including Sections 41 and 42
thereof and shall be made available upon request by the Grantee,
on an allocated basis as though the Deerfield System as defined in
this document were a separate enterprise within Grantee's
operation.
(B) The Village acknowledges that many of the Grantees books
and records are maintained at a location other than the Grantee's
local office and Grantee shall be given a reasonable period,, of
time in which to produce such documents at the local office, ' or
such other location and terms as may be agreed to by the Village.
(C) Within one hundred twenty days (120) of the end. of
Grantee's fiscal year, Grantee at its own expense shall prepare
and file with the Village an annual report prepared by Grantee,
certified and audited by an independent certified public
accountant. The report shall be compiled on a System basis and
shall provide data on an allocated basis relating to the Franchise
serving the Village. The accounting firm shall be the firm
currently used by the Grantee for its corporate filings and shall
be one of the ten largest accounting firms in the United States.
The certified statement shall show the total of the Gross Revenues
received by Grantee from the operation of the System for the
fiscal year then ended.
(D) To the extent consistent with the privacy provisions of the
Act and applicable State statutes the Village shall,have the right
to inspect and request copies of specific documents and records
necessary to the implementation and /or enforcement of this
Agreement. Grantee shall assist the Village in identifying the
existence of such documents and their location. Grantee shall
make such documents available to the Village in a timely manner
and assist in their interpretation, as may be required by the
Village, except that the Grantee will not be required to provide
the Village with copies of documents it deems proprietary unless
the Village agrees that it will not reveal the contents of such
documents.
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(E) The Village Finance Director or the Director's designee
shall have the right, to review the books, records, and accounts
of Grantee at the expense of the Village in accordance with Ordi-
nance Section 42. If such review determines that the total of the
Gross Revenues received by Grantee from the operation of the
System is in error by a margin of five percent (5%) or more from
that previously reported to the Village, the cost of such review
shall be borne by Grantee. Upon completion of said review the
Grantee shall immediately pay to the Village any Franchise fees,
or other sums found to be due, along with interest thereon in
accordance with the prime rate (adjusted on a monthly basis from
the time said sums were to be due) plus 5 %.
(F) Upon termination of this Agreement at the expiration of the
term provided in Section 5, or otherwise, Grantee shall continue
to make the certification and annual reports as provided in this
section until such time as all payments due the Village under this
Agreement have been paid and accounted for to the reasonable
satisfaction of the Village.
Section Eleven: FRANCHISE FEE PAYMENT
(A) During the term of this Agreement, Grantee shall pay to the
Village a Franchise Fee amount equal to five percent (5 %) of the
Grantee's annual Gross Revenues for the right to use the public
ways and the right to do business in the Village for the provision
of Cable Services, as set forth herein. This Agreement does not
authorize the Grantee to use the public ways for any other
purpose, or provide any other service (telecommunication or
otherwise) other than Cable service. Other franchises, licenses,
permits and /or fees may be required for other uses of the Public
way or the provision of any service other than Cable Service, and
consistent with other laws, rules, regulations and orders.
(B) THE GRANTEE ACKNOWLEDGES THAT THE PAYMENT OF THE FRANCHISE
FEE HEREIN IS VOLUNTARILY MADE, NEGOTIATED AND IS FIXED FOR THE
TERM OF THIS AGREEMENT. IN CONSIDERATION OF THE VILLAGE'S
AGREEMENT HEREIN, GRANTEE HEREBY WAIVES ANY AND ALL OBJECTIONS TO
PAYMENT OF SUCH FRANCHISE FEES AND HEREBY AGREES THAT IT WILL NOT
CHALLENGE OR SEEK ANY REFUND OF SUCH FRANCHISE FEES PREVIOUSLY
PAID AS A RESULT OF ANY JUDICIAL DECISION, STATUTE, LAW, OR
REGULATION THAT MAY NOW EXIST OR MAY BE ENACTED OR DECIDED
HEREAFTER.
(C) Payment of Franchise Fees required pursuant to this
Agreement shall be made on a calendar year, quarterly basis, with
payment and all required documents to be submitted to the Village
no later than 45 days after the close of the respective quarter.
The Franchise Fee shall be sent by certified mail or other method
as shall be agreeable between the Village and Grantee.
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(D) A statement of revenues for the relevant quarter shall
accompany the Franchise Fee check. This statement shall include
at the minimum:
(1) a numerical accounting of all basic Subscribers, pay
Subscribers and a la carte Subscribers;
(2) all Gross Revenues derived from the Cable System as
defined in the Ordinance, Sections 3 and Section 38;
(3) identification by type of all revenue categorized as
"other "; and
(4) a statement clearly showing the Subscriber base, by
category, at the beginning and end of each month in the
reporting period.
The statement of Franchise Fee revenues shall generally follow
the.form shown in Exhibit 4 to this Agreement.
(E) Franchise Fee payments received later than forty -five (45)
days after the close of the quarter shall be deemed late.and shall
be subject to interest charges on the balance due along with
interest thereon in accordance with the prime rate (adjusted on a
monthly basis from the time said sums were found to be due) plus
5 %. The Grantee is hereby notified that any late payment may be
considered by the Village as a material breach of this Agreement
Section Twelve: CONSTRUCTION REOUIREMENTS AND STANDARDS
(A) (1) Aerial cable shall be located in accordance with NEC
and NESC codes.
(2) Construction and placement of an aerial drop, where
allowed, connected to a dwelling unit shall be at the direction
of the Subscriber. Grantee shall be responsible for securing
prior written authorization for the method employed and shall
keep said authorization on file for two years after service is
terminated.
(3) A Subscriber and the Village shall have the option to
connect a drop to the dwelling unit by either:
i. connection of the aerial drop cable to the dwelling
unit at a minimum of 12 feet above the ground level or;
ii. attachment of the drop to the side of the utility pole
and buried from the base of the utility pole to the
dwelling unit.
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iii. grantee may charge a different installation fee for
aerial or underground cable installation.
(4) All underground plant shall be buried at least 18
inches below the ground.
(5) All underground house drops shall be buried at least
6 inches deep.
(6) The distribution System shall be either bonded or
grounded at each power supply and in the case of Aerial plant,
shall be grounded in a like manner at the first, tenth, and last
pole in a run.
(B) Grantee shall be responsible for contacting J.U.L.I.E. or
any successor agency for all of its construction and for
responding in a timely manner to requests from J.U.L.I.E. or
successor agency and the Village to locate its cables. No person
shall be liable for damage to Grantee's unmarked or mismarked
plant, or which are not in conformance with J.U.L.I.E. or
successor agency standards.
(C) All restoration shall be performed in a timely manner and
in accordance with Ordinance Section 9. It shall be the
responsibility of the Grantee to settle all claims and seek
recourse against sub - contractors.
(D) Permit and license requirements shall be as those
applicable under Ordinance Sections 8 and 15(c), as well as all
other applicable ordinances.
(E) The Grantee shall provide a monthly construction schedule
to the Village during periods of construction or reconstruction.
(F) The System shall be constructed to any dwelling unit or
commercial establishment within the Franchise territory in
accordance with Ordinance Section 46, or within such time as may
otherwise be agreed by the Village and Grantee.
(G) (1) Temporary service drops may be installed.
(2) Weather and ground conditions permitting, Grantee shall
bury all temporary drops as expeditiously as possible within
fourteen (14) days after placement. In no case will a temporary
drop which has been placed prior to March 1 of that year, be
left unburied beyond June 1 of the same year; provided, however,
that written or telephone notice be given to all Subscribers
whose drops are to be buried between March 1 and June 1.
(3) Grantee shall report to the Village on March 1 of each
year, the number of temporary installed drops as of that date;
15
their location, and the projected date of the completion of the
installations.
(H) (1) All contractors employed by the Grantee shall carry
insurance with companies, in amounts and types as are reasonably
required by the Village. Grantee and its subcontractors shall
submit a duplicate of insurance certificates with their applica-
tions for a Village permit.
(2) All contractors employed by Grantee for installation,
maintenance, construction or repair of the System must be
properly licensed under the laws of the State of Illinois, and
all relevant local ordinances. All contractors shall display a
sign on their vehicles which identifies the contractor as
working for the Grantee. All contractor employees or agents
will carry a photo identification badge on their person,
displayed wherever practicable, which identifies the employees
or agent as working for Grantee.
(I) All conditions of construction apply to reconstruction and
maintenance, in part or in whole, of the Cable System,:
(J) No construction shall be commenced until the construction
plans have been reviewed and approved by the appropriate Village
departments. No approval shall be required if the Grantee is
performing an electronic upgrade.
(K) Pedestals shall be placed next to existing utility
pedestals and poles unless an exemption is specifically granted by
the Village.
(L) Grantee shall have use of the public utility easements to
construct and maintain the Cable System.
(M) No Subscriber shall be refused service arbitrarily.
However, in unusual circumstances, such as existence of more than
125 feet of distance from System distribution cable to connection
of service to Subscribers, or a density of less than 30 ground /25
aerial residences per cable route mile of trunk or distribution
cable, service may be made available on the basis of a capital
contribution in aid of construction, including cost of material,
labor and easements but in no event shall such basis exceed the
actual installation costs incurred by Grantee. 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 5,280 cable- bearing strand feet of its trunks or
distribution cable, and whose denominator equals 25 or 30
residences depending on ground or aerial construction.
Subscribers requesting service hereunder will bear the remainder
16
of the construction and other costs on a pro rata 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. Such capital contribution shall be refunded to the
subscriber paying same, as the prorata construction costs are
collected by the Grantee from new subscribers.
Section Thirteen: SYSTEM DESIGN
(A) (1) At the onset of this Agreement the Grantee shall
operate a System in the Village that is no less than 450 MHz
high frequency in design and that offers no fewer than 62
channels fully activated to carry signals. in the downstream
direction. The Grantee shall, after the effective date of this
Agreement, begin to upgrade the System and /or the existing plant
as necessary to provide a System with, at a minimum, 10
additional channels (hereinafter the "First Upgrade "). These
channels shall be fully activated ,and programmed within 18
months after the Franchise Agreement has been executed by the
Village.
(2) Thereafter, the Grantee shall provide a System with a
minimum distribution capacity of 140 active downstream channels
(hereinafter the "Second Upgrade "). Said additional channels
shall be provided as soon as practicable, but not later than 45
months after the Franchise Agreement has been executed by the
Village.
(3) If the Grantee determines that the Second Upgrade is
not warranted by market, financial, or other factors, or that an
alternative approach will best serve all the parties, then the
Grantee may no later than 18 months prior to the required
upgrade date, petition the Village for amendment of these
requirements, or extension of the time for completion. The
Grantee shall demonstrate to the Village the reasons for the
amendment or extension proposed in the Petition. The Grantee
shall pay as they are incurred, all costs of the Village in the
negotiation of any amendment or extension, or the costs of
consideration of the Petition. These costs may include, but be
not limited to, engineering, consultants, or legal fees. The
Village and the Grantee shall negotiate in good faith any new
terms and conditions of the Second Upgrade.
(4) Throughout the term of this Agreement the System shall
meet or exceed all applicable technical standards and
specifications.
(B) At the completion of the First and Second Upgrade, the
Grantee shall provide to the Village a general written description
of the System components (specifying manufacturers) and the
revised System design.
17
(C) The Grantee shall provide a standby generator for backup
electric power of sufficient capacity to switch the entire load of
the headend for a minimum period of four (4) hours. Grantee shall
test the standby generator in a manner consistent with the
operating instructions provided by the manufacturer and in a
manner that insofar as possible does not interrupt regular service
to customers. Tests shall occur not less than once per year.
Grantee shall maintain a written test log file.
(D) The Grantee shall provide and maintain an emergency alert
audio override system capable of interrupting the audio portion
of all channels on the Grantee's system. Control over such
override shall be assigned to the Village and enabled via a
personal computer or other Village approved physical interface
with the system, all to be provided to the Village and maintained
by the Grantee at no charge.
(E) Grantee, shall at the request of the Village, provide for
the interconnection of access channels between the system serving
the Village and any system it may operate contiguous,to the system
serving the Village.
(F) Furthermore, upon request by the Village, the'Grantee shall
negotiate for the interconnection of access channels, and /or local
origination channels with adjacent cable systems not owned or
operated by the Grantee, including any systems which may serve the
Village. Any such- negotiations shall give due consideration to
the costs associated with said interconnection, the impact upon
Subscriber rates, and the availability of other methods to
reasonably share community programming. Within 90 days of the
request and each 30 days thereafter, the Grantee shall report to
the Village as to its negotiation status. Upon the successful
completion of the negotiation, if any, the Grantee shall complete
interconnection within six (6) months of the start of the
Grantee's next fiscal year.
(G) A parental lock -out device will be provided to Subscribers
upon request at appropriate rates.
(H) Grantee shall not interfere with close captioned signal
transmission.
(I) Grantee's failure to fulfill any or all of the requirements
of this section shall be deemed a material breach of the
Agreement, subject to the remedies outlined in Section 31 of the
Cable Ordinance.
Section Fourteen: SYSTEM MAINTENANCE
18
(A) The Grantee shall maintain technical staff sufficient to
maintain the System to the highest specifications consistent
with the Franchise Agreement and Ordinance.
(B) (1) At minimum, the Grantee shall sweep and balance the
trunk and feeder System annually.
(2) System monitor test points shall be established at the
last amplifier in the longest feeder line and longest trunk line
extremities in accordance with FCC requirements.
(3) (a) Routine maintenance shall not be performed
between 7:00 pm and 7:00 am. For all maintenance
operations, technical staff will carry proper
identification.
(b) Grantee shall maintain the System in accordance
with FCC rules, technical standards and specifications. To
that end, Grantee shall perform, at a minimum, the tests
and procedures required by then current Federal
Communications Commission technical standards.
Notwithstanding the above, nothing shall prohibit the
Village from petitioning the FCC to permit standards more
strict than those maintained by the FCC.
(c) Emergency maintenance may be conducted at any
time, however the Grantee shall provide prior notice to the
Village Police Department when performed between 7:00 pm
and 7 :00 am.
(d) work scheduled between 9:00 pm and 7:00 am that
will require access to easements or private residential
property shall be announced to the property owner by the
Grantee at least 48 hours in advance, by use of a door tag
or other written means acceptable to the Village. Further
the Grantee shall provide notice of same to the Village.
(C) An outage shall be defined as the reporting by three or
more customers of the complete loss of video, or audio, or both
for more than thirty (30) minutes. Grantee shall respond to
outages by dispatching a service technician Sunday - Saturday (7
days), within 3 hours of the report by Subscribers. The Grantee
must begin action to correct any outage or other service problem
within time limits as required by the customer service
provisions of the Cable Ordinance.
(D) (1) Technicians shall be available for service calls to
Subscribers Monday through Friday 8:00 am to 7:00 pm; Saturday
8:00 am to 3:00 pm; and on Sunday all day for response to
outages only. Other calls for Sunday service shall be placed in
the Monday service schedule.
19
(2) Subscribers may request an AM or PM service call in a
four -hour time block. If the Subscriber misses the appointment,
the Subscriber shall be scheduled in the next available slot but
not later than forty -eight (48) hours after the original service
call appointment time. If the technician misses the service
call, the Subscriber shall be serviced at his or her
convenience, within regular service hours.
(3) Grantee may employ an answering service to receive
Subscriber phone calls after business hours in order to meet the
24 -hour customer service provision of the Cable Ordinance. The
answering service shall be held to the same customer service
phone standards as the Grantee. The Grantee shall not use a
recording device to replace an answering service.
(4) Grantee shall provide a toll -free or local number for
all service calls. Grantee office locations and customer
service phone numbers shall be provided on the customer - retained
portion of bills.
(E) Upon request of the Village, Grantee I shall provide to the
Village maintenance logs or other documentation.
Section Fifteen: CABLE TELEVISION GUIDE
The Grantee shall make available a printed or electronic cable
television guide to all Subscribers.
Section Sixteen: SOLICITATION OF SUBSCRIBERS
(A) In the case of new service extensions, for example, to
annexed territory and subdivisions, nothing shall prohibit Grantee
from soliciting. subscriptions prior to the commencement of
operation provided that each such potential Subscriber is advised
in writing:
(1) That cable service is not immediately available;
(2) Of a reasonable estimate of time when the Cable System
will commence operation;
(3) That such Subscriber may cancel the subscription at
any time prior to the commencement of service and thereby
accrue no charge or penalty, and that deposits shall be
refunded within thirty (30) days.
(4) Phone number and name of the Village representative
responsible for cable franchise oversight.
21
20
t
(5) Notification of any required Capital contribution by
the Subscriber.
(B) Grantee shall submit to the Village, whenever practicable,
five (5) days in advance of the proposed distribution date, and in
any event no later than as part of the first mailing, all
solicitation materials proposed for use by Grantee in the
solicitation of potential Subscribers.
(C) All marketing and salespersons representing the Grantee
shall identify themselves over the phone or in person by name and,
in person, with a visible name /picture ID worn on outer clothing.
(D) Grantee may offer promotional discounts in order to attract
or maintain subscribers. provided that such discounts are offered
on a nondiscriminatory basis to similar classes or types of
Subscribers throughout..the Village.
Section Seventeen: CUSTOMER SERVICE
Grantee shall provide the following:
(A) Grantee shall locate a Bill Payment Center /Customer Service
Center within the corporate limits of the Village or within the
City of Highland Park or in another location with the approval of
the Village. The Center shall be a customer - service facility
capable, at ' minimum, of scheduling service /installation
appointments, exchanging equipment, handling walk -in Subscriber
inquiries or complaints and accepting payment of Subscriber bills.
Hours of the facility shall, at minimum, be Monday through Friday
8 a.m. to 7 p.m. and Saturday 9 a.m. to 3 p.m.
(B) Full compliance with the Customer Service Standards, as
adopted or amended pursuant to the Cable Ordinance including
Section 36 of the Ordinance.
(C) Invoices for cable services shall be mailed to Subscribers
no later than 21 days before the due date for required payment, to
insure adequate notification.
Section Eighteen: PROGRAMMING SERVICES
(A) Grantee shall provide, at a minimum, cable programming that
provide services in the following broad categories: local news,
pubic affairs, government, ethnic /minority programming, arts and
cultural programming, entertainment, educational, sports, and
children's programming, as part of its broadcast, cablecast, and
System services.
21
(B) Grantee shall exercise its best efforts to offer an
interactive link between its Subscriber network and the Internet
computer network, as soon as such a service becomes, in the sole
opinion of the Grantee, technically and commercially feasible.
Until such time as such interactive Subscriber link is made
available to Subscribers, the Grantee shall formally report to the
Village on an annual basis regarding the progress of its planning
to implement such service. When such a Subscriber link becomes
available upon the System, Grantee will offer to sell or rent to
interested Subscribers appropriate modulating equipment
(informally referred to "cable modems ") if necessary to enable a
Subscriber's computer or terminal interface, if such equipment is
not commercially available to Subscribers. Internet connection if
available will be offered to all of the .Grantee's residential,
educational, government and institutional Subscribers.
(C) Grantee shall install and maintain Internet connection
demonstration stations (consisting of a desk -top personal computer
or network terminal and cable modem) in each Deerfield School, the
Library, Park District Headquarters, Village Hall (connection
only,.) and the Senior Center. The connections may be offered via
the institutional network described in Section 20, or upon the
subscriber network at the Grantee's discretion.
Section Nineteen: PUBLIC. EDUCATIONAL, AND GOVERNMENTAL ACCESS
(A) (1) The Grantee shall at the onset of this Agreement pro-
vide at no charge a minimum of three Activated Channels for pub-
lic, educational and governmental (PEG) access use by residents
and public and education institutions within the Village. One
of these channels will be allocated to continue the Village's
"InfoChannel" text service, or such other use as desired by the
Village (hereinafter "The InfoChannel "). The other two channels
will be used to deliver PEG Access programming locally and /or
for shared regional use by communities served by the Grantee's
integrated System.
(2) Grantee will make available an additional fourth
Activated Channel for local PEG Access for the uses specified
herein, by the date the Grantee is required to complete the
First Upgrade referenced in Section 13(A)(1) of this Agreement.
(3) Two additional Active Channels (the fifth and sixth
such channels) will be reserved for PEG Access by the date the
Grantee is required to complete the Second Upgrade referenced in
Section 13(A)(2) of this Agreement.
At such time as the system is expanded beyond the Channels
required in the second Upgrade one additional PEG Channel shall
be automatically allocated to PEG Access for each 50 (or portion
22
thereof) active programmed Channels above the Channels required
in the Second Upgrade.
(4) All channels referenced in paragraphs 1 and 2 above,
(other than the InfoChannel) shall be allocated for use by the
Public Access Management Corporation (hereinafter "the PAMC "),
as defined below in (C)(1), for community programming and /or for
shared regional use by communities served by the Grantee's
integrated System. As to the additional channels referenced in
Paragraph 3 above, and any future additional channels, these
channels shall be dedicated for PEG Access use when there is
sufficient demand. For the purposes of this Agreement,
"sufficient demand" shall be deemed to exist when the following
condition is met:
The total amount of original video programming for each
active PEG Access channel referenced above (not including the
channel reserved for the InfoChannel or any other purely text -
based programming) exceeds 6 hours per day per channel on
average for a 90 -day period.
(B) No PEG Access channel shall be used by Grantee for the
cablecasting of commercial, leased access, or local origination
programming without the express written permission of the Com-
mission or its authorized agent, as described in Paragraph (C)(1)
of this Section. "Local Origination Programming" refers to pro-
gramming, whether commercially sponsored, which is produced by the
Grantee's 'staff or under contract to the Grantee, or which is
otherwise not definable as PEG Access programming under the Act.
(C) (1) The joint intent of Grantee and Village is that a not -
for- profit Public Access Management Corporation (PAMC),
chartered under the laws of the State of Illinois, be created by
the Village and /or the municipalities hereafter enumerated, to
control, operate and manage all PEG operations including
scheduling, programming, trafficking and playback for the PEG
channels, other than the InfoChannel, which shall be solely
programmed by the Village. When the PAMC has been incorporated,
Grantee shall enter into a separate written agreement with the
PAMC specifying the transfer of resources and support described
in this Section, and covering any operational, technical, and
liaison requirements. Said Agreement shall contain, at a
minimum, assurances that the Grantee will provide for, and abide
by all of the requirements stipulated herein.
(2) The Grantee and Village further jointly intend that
the following communities served by the Original System (defined
as the current Post - Newsweek cable system at the time of the
execution of this agreement) shall be eligible to join the PAMC:
Deerfield, Highland Park, Highwood, Ft. Sheridan, Glencoe,
Winnetka, Kenilworth, Lincolnshire, Bannockburn and Riverwoods
(or such other municipalities as expressed an interest in
23
initially joining the PAMC, and are currently served by the
Grantee or its successor). As portions of unincorporated Lake
and Cook Counties are also served by the Original System, these
cable customers and their county government representatives also
may join the PAMC. Additionally, any other Chicago -area
communities which in whole or in part may now or during the life
of this Agreement be served by the Grantee or its successors may
petition the PAMC to join as members under the bylaws of the
PAMC. The PAMC shall be accountable to its member communities
via an appointed and /or elected board of directors, the
constituency and selection of which shall be stated in the
PAMC's articles of incorporation or by -laws.
(3) Establishment of the PAMC shall not limit the
Grantee's rights under 47 U.S.C. §531(d).
(D) Grantee shall pay to the PAMC, or its successor,
$250,000.00 upon the incorporation of the PAMC (hereinafter the
"Anniversary Date "), and the same amount on the next four
Anniversary Dates (total payment of $1,250,000.00), in support of
programming, capital and operational costs of PEG Access.
However, further provided, if the PAMC is not incorporated after
12 months from the effective date of this Agreement, then upon
incorporation the $250,000.00 for the first year shall be lowered
by $20,833.00 for each full month into the new year that the PAMC
remained unincorporated. In addition, Grantee shall on each
Anniversary Date after the first five years, and continuing for
the remaining term of this Agreement pay annual support for PEG.
Access for programming, capital and operational costs in an amount
equal to Eleven Dollars and No /1001s ($11.00) per paying sub-
scriber for all subscribers of the communities in the Original
System. In no event shall the Grantee contribution be assessed to
subscribers in the Village or in the other communities who have
joined the PAMC in an amount greater than Eleven and No /1001s
($11.00) per subscriber.
(E) Grantee's existing access and local- origination equipment
for production, editing and playback, located at .835 Central
Avenue, Highland Park, shall be donated to the PAMC upon its
incorporation. A list of the equipment is included as Exhibit 2
of this Agreement.
As to the above equipment, until same is transferred to the
PAMC, the Grantee shall maintain and upgrade said equipment so
that it remains in full compliance with the manufacturer's
operating specifications and that new equipment will be provided
from time to time, to keep pace with technological advancements.
(F) (1) Grantee shall make its existing studio facilities,
located at 835 Central Avenue, Highland Park, available to the
PAMC and shall take all steps necessary to effectively assign
its property lease to the PAMC upon its incorporation and upon
24
request of the PAMC. The PAMC shall not be responsible for any
obligations of the Grantee under said lease accruing prior to
the date of said assignment, and the Grantee shall fully
indemnify and hold harmless the PAMC for any and all claims
(including attorney fees) of the Landlord which arose during its
occupancy, regardless of when they are asserted. The PAMC will
use its best efforts to renew the lease before its expiration,
upon terms and conditions solely acceptable to the PAMC. Should
that effort be unsuccessful, Grantee shall pay a sum not to
exceed $100,000.00, in order to cover the expense of moving
studio equipment to other site(s) and constructing/ equipping
same. The amount shall be paid promptly by Grantee to the PAMC
within 30 days after the PAMC submits bills to the Grantee
documenting the amounts due.
Grantee also shall provide, at its sole expense, to any
such site a two -way video link including modulators, monitors,
playback decks; associated wiring, character generator keyboards
for each channel, shelf units, tables, racks (.including
modulators for'each active Channel programmed at the facility)
and a transmission pathway enabling the site to, deliver
programming signals to the Grantee's local or other established
headend for insertion onto the subscriber network.
(2) Grantee shall exercise its best efforts to maintain
the current access facility described above. In the event the
Grantee is unable to maintain said facility, despite its best
efforts, then pending the incorporation of the PAMC, the Grantee
at its option may a) provide PEG access studio facilities in the
Village, or b) shall- arrange to make available its existing
facilities in the Village of Winnetka, or c) shall arrange to
make provision for a similarly equipped facility in another
contiguous suburb but only upon the written authorization of the
Commission. Eligible Village residents and institutions will be
assured use of such facilities on a first -come, first - served
basis. In the event facilities serve more than one community or
franchise authority, Grantee and Commission will develop rules
ensuring fair access based on proportional demand.
(G) (1) Until the incorporation of the PAMC, the availability
of its staff, and the commencement of active operations of the
PAMC, notwithstanding Paragraph F of this Section, Grantee
shall continue to maintain staffing, equipment, and support for
existing PEG Access channels and facilities at levels at least
comparable to its practices as of the effective date of this
Agreement. It is the goal of Grantee and Village that this
obligation shall expire on or about June 1, 1998. The Village
and Commission shall make reasonable efforts to assist the
Grantee in furthering, and where possible, expediting the PAMC
transition process. However, in the event of circumstances
beyond the control of the Village that delay incorporation of
the PAMC beyond June 1, 1998, Grantee shall continue to directly
25
provide PEG Access services in order to assure continuous
service to subscribers.
(2) Grantee shall pay the reasonable legal and accounting
costs up to $5,000.00 associated with the creation of the PAMC,
including but not limited to filing fees, drafting of articles
of incorporation, drafting of by -laws.
(H) (1) PEG Access operations will at the onset of this Agree-
ment be conducted according to rules in Exhibit 8. The
Commission shall approve, revise, and monitor PEG usage rules
developed in cooperation with the Grantee as may from time to
time be necessary during the term of this Agreement, until such
time as the PAMC is able to assume that function. Such rules
may describe operating procedures and program allocation
requirements, consistent with the Act. Such rules shall include
a formal complaint handling procedure. The procedure shall at
minimum include a review mechanism involving the Commission.
The procedure also shall- provide--for a written form that
complainants may file with PEG Access management staff and /or
the Commission. PEG users shall be advised as part of their
training of their right to file formal complaints relating to
any violation of PEG usage rules and regulations.
(2) The Grantee shall have responsibility for
administering access rules and regulations promulgated by the
Commission until and when such time as access operations may be
transferred to control of the PAMC. After such transfer,
Grantee will provide to the PAMC any necessary technical
assistance necessary to maintain the two -way video access link
between the access studio and the headend to insure the delivery
of quality PEG signals over the subscriber or institutional
networks.
(I) (1) Access production facilities, support and resources
will be made freely available to residents of Deerfield and
residents of all other municipalities that have become members
of the PAMC. The PAMC may qualify residency by such factors.as
appropriate training, age of majority, proof of residence and
other requirements that the PAMC may deem appropriate.
(2) The Grantee, and later the PAMC, optionally may
require all producers to acknowledge in writing that Grantee and
PAMC have the right to recover the estimated production costs
for any program to the extent the program was produced using PEG
facilities described herein, and where the producer subsequently
sells or otherwise collects revenue for the program as a result
of exhibition in other venues. The Grantee's rights to require
the recovery of said sums, or the written acknowledgment shall
terminate once the PAMC has commenced active operations. With
the exception of the foregoing provision, the Grantee and the
Village acknowledge the intent of Congress in creating the Act
26
that PEG Access programming remains the intellectual and
creative property of access producers. Because PEG programming
is intended to benefit the community, the Grantee, so long as it
is the sole funding source for PEG Access production, shall have
the right to mandate that any programming produced with
facilities as described herein first be aired on the Grantee's
system.
(J) The Grantee shall continue to provide at no charge for the
entire term of the Agreement one System connection to the follow-
ing locations within the Village: Village Hall, Police Department,
Main Fire Station, Deerfield Township Office, Deerfield Public
Library, Park District, each accredited elementary and secondary
school, and any other Public Service Institution, now or hereafter
constructed.
(K) The grantee hereby extends to the PAMC, or its successor,
the first right to purchase the existing Headend facilities
located at:1600 Old Skokie Road, Highland Park, Illinois, if same
are offered for sale except if they are offered for, sale as part
of the entire system.
(L) Any reference in this Agreement to the PAMC shall include
not only the original entity that the parties intend to initially
incorporate, but any assignee or successor entity.
(M) Payments which are not received when due shall be deemed
late and shall be subject to interest charges on the balance due
along with interest thereon in accordance with the prime rate
(adjusted on a monthly basis from the time said sums were due)
plus 5 %. The Grantee is hereby notified that any late payment may
be considered by the Village as a material breach of this
Agreement
(N) The Grantee is hereby notified that any violation of this
Section may be considered by the Village, of. and by a single
occurrence, a material breach of the Franchise Agreement.
Section Twenty: INSTITUTIONAL NETWORK
(A) The Grantee shall provide an upgraded Institutional Network
(I -Net) upon the completion of the First Upgrade of the System as
referenced in Section 13 of this Agreement.
(1) The Grantee shall design, activate and operate an I-
Net of at least mid -split design. At such time as I -Net use
reaches 75% of upstream capacity the Grantee shall design,
activate and operate an I -Net of high -split design, which shall
be operational within 18 months of the time the system reaches
the capacity described above. There is no requirement that the
physical I -Net be of a design that is completely distinct or
27
separate from the facilities comprising the cable television
Subscriber network.
(2) The I -Net shall be made available to Educational and
Public Service Institutions. The I -Net shall be technically
capable of interfacing with public institutional sites in
Highland Park and other municipalities neighboring the Village,
and shall specifically be capable of interconnecting Deerfield
High School District 113 with sites outside the Village.
(3) District 113 schools (Deerfield and Highland Park High
Schools) shall be interconnected if Grantee has a franchise to
serve both jurisdictions; otherwise, the Grantee shall make its
best effort to arrange such a connection. The I -Net shall also
be technically capable of interconnecting.with any regional I-
Net or commercial broadband communications network which the
Grantee in its discretion chooses to operate.
CB) Institutions will:, be offered a written contract for
service. Grantee's customer service contract for I -Net services,`
shall include, but not be limited to, a description of the service
being offered, the rate for said service, and a local customer
service phone number. The Grantee's rate schedule and service `
shall be consistent with any applicable state and federal law.
(1) The Grantee shall not be responsible for the cost or
maintenance of I -Net application and end -use equipment employed
by Public Service Institutions, unless otherwise stated herein,
but shall be responsible for basic gateway or outlet equipment
such as necessary cable modems, routers, translators or
converters that it may provide on a free or leased basis,
subject to the special circumstances stated herein.
(2) The Grantee shall be entitled to operate the I -Net on
a cost -plus basis including reasonable service charges covering
installation, maintenance and overhead. Grantee shall offer
Public Service Institutions the lowest feasible rates consistent
with competitive market conditions and cost recovery needs. Any
use of the I -Net as a headend delivery route for public,
educational, or governmental access programming shall be
provided free of charge.
(C) Grantee shall guarantee the Village access to the I -Net
during the entire term of this Agreement. The terms and
conditions of access shall be delineated in a customer service
contract. Other conditions of the provision of a service on said
network shall be detailed in the Grantee's customer service
contract. Grantee shall offer the Village the lowest available
rate it generally charges for such service.
(D) Grantee shall, from time to time, and at least once upon
the completion of the I -Net upgrade of the system, provide to the
28
community a seminar on the capabilities and services available
over the I -Net.
(E) Grantee shall cooperate with the Village in developing,
designing and activating two demonstration projects involving the
use of the I -Net (and /or the subscriber network) to provide
connections to the Internet at public sites and "distance
learning" capability for a portion of School District 109.
(F) The "Internet Demonstration" will require establishing
public sites in the Village to promote high speed Internet
connections to cable subscribers that may eventually be available
from the Grantee in their households. These sites will include
Village Hall, the Deerfield Library, Deerfield Park District,
Deerfield Senior Center, and all accredited Village elementary and
secondary schools.
(1) It is hereby agreed that for this demonstration the
Grantee shall provide, and pay for, all Internet- connection
costs.; associated with the Internet Demonstration project and all
of th'e equipment necessary to deliver the agreed upon services,
including, but not limited to, personal computers, modulators,
switches, telephone switchers, drops, scrambling devices and
decoders. The Grantee shall not be required to expend funds for
equipment and Internet access costs in excess of forty thousand
dollars ($40,000.00) for the life of this special project.
(2) Grantee shall consult with the Commission and /or its
designee concerning the technical specifications,' price and
usage of such equipment prior to any party's purchase or lease
of same. The limitation on Grantee's equipment expenditures for
this demonstration shall not preclude end users, including the
Village and other Public Institutions, from contributing
additional monies for peripheral equipment.
(3) Planning for the project will begin upon the onset of
this Agreement, and the mutually approved project shall be
activated immediately upon technical feasibility.
,(4) Grantee's responsibility to maintain the Internet
Demonstration will be for three years or end on the date when
Internet connection service is made generally available on the
System to subscribers, whichever is later. At that time, the
equipment will become the property of each target site, but the
costs for Internet connections and maintenance of the service
and equipment will become the responsibility of the target site.
(5) At the end of the demonstration project the Grantee
and the Village shall review and evaluate the project. The
sites selected for the demonstration optionally will be allowed
to continue the application on a permanent basis at a cost
29
detailed in a customer service contract as outlined in Section
(B) above.
(G) The "Distance Learning" demonstration will require the
Grantee to install and maintain for the life of this Agreement
interactive audio -video interconnections for and between the two
Village junior high schools (Shepard and Caruso) and the School
District 109 Administrative Office.
(1) Grantee will equip, install, and pay for, all
associated video and audio hardware and related peripheral
equipment at these three sites to enable live interactive
teaching and training to be broadcast, without transmission
costs, from one site to the other two with full Interactivity
among all three sites. Equipment will include, but not be
limited to, TV cameras, TV monitors, audio Systems, video
switching, lighting and other related equipment.
(2) To enhance the distance - learning resource, Grantee
also shall make available live and /or videotaped satellite feeds
of any requested instructional programming resources to these
schools and to Village Hall. All such requests must be made
with 48 hours notice to Grantee by a school or Village official.
(3) The Grantee shall not be required to expend funds in
excess of one - hundred thousand dollars ($100,000.00) to
implement this special project, but will be required to maintain
the associated equipment and network for the life of this
Agreement. Planning for the project will begin upon the onset
of this Agreement, and the mutually approved project shall be
activated immediately upon technical feasibility.
(H) Grantee shall install at its cost a video surveillance
system connecting the Village's two METRA train stations (on
Chestnut Street and on Lake Cook Road) with the Village Police
Department. The System will include all cameras, TV monitors and
related peripheral equipment. Grantee and the Village (or its
designee, i.e. the Deerfield Police Department) will work to
resolve technical and related matters so that the system can be
installed as soon as practicable following execution of this
Agreement.
(1) The Village and Grantee shall in separate written a-
greements and /or service contracts as defined by Section (B)
above for non -cable telecommunications services identify the
scope of related I -Net projects and proposals for applications
involving data, telemetry, other surveillance or two -way video,
computer networking, high -speed Internet service and /or other
uses.
(I) Grantee shall within 90 days of the effective date of this
Agreement present to the Village a written development plan for
30
the installation and /or extension at no charge of one I -Net
connection per site to all Public Service and Educational
Institutions listed in the attached Exhibit 1. This plan will
include an analysis of potential I -Net penetration and usage,
after consulting with the Village and conducting other research as
may be necessary.
(J) In order that the I -Net may be usable for public safety
purposes, the Grantee's overall I -Net design shall incorporate
provisions for remote status monitoring and backup power supplies,
and the design shall address other reliability issues such as
redundant pathways. In the interest of compatibility and System
integrity, Grantee may establish reasonable technical standards
(subject to reasonable approval of the Village) for all I -Net
equipment that Public Service Institutions may use to interface
with the System.
(K) The Grantee is hereby notified that any violation of this
Section may be considered by the Village, of and by a single
occurrence, a material breach of the Franchise Agreement.
Section Twentv -one: PERFORMANCE EVALUATION SESSIONS
(A) The Village and Grantee may hold a performance evaluation
meetings within sixty (60) days following the second anniversary
of Grantee's acceptance of this Agreement and annually thereafter.
All such evaluation meetings shall be open to the public. Such
meetings shall be called and noticed pursuant to Section 9 of this
Agreement. Special evaluation meetings may be held at any time
during the term of this Agreement at the request of either the
Village or Grantee.
(B) Performance evaluation sessions shall be and conducted
in accordance with this section and with state and federal law and
applicable Village ordinances. The sessions shall consider the
past performance of the Grantee, consistent with terms of the
Agreement and Ordinance and other applicable laws. The sessions
may review present and future community needs relating to the
System, including but not limited to Access operations, System
design and customer service.
(C) At each performance evaluation session, the Grantee shall
be required to appear and provide, at its own expense, a report of
any new and affordable technologies that might provide needed new
Subscriber services or enhancement to the quality of the Grantee's
signal, as well as a review of technological improvements and
service enhancements that have been made to other of its
franchised Cable Systems, with specific reports on improvements in
systems serving Cook, DuPage and Lake counties.
31
(D) Grantee shall furnish the Village with copies of all
Franchise Ordinances, amendments or agreements relating to
Franchises which have been granted, or which may be subsequently
granted, to Grantee during the term of this Agreement by any
municipality or other Franchise authority located within a twenty
five (25) mile radius of the Village. The copies shall be
furnished to the Village within thirty (30) days that same become
effective, or are executed by the Grantee, whichever is sooner.
(E) If the Village determines that the Grantee is not providing
services on the. System, at a minimum, comparable to the top
fifteen (15) percent of metropolitan Chicago cable systems (being
any municipality or other Franchise authority located in Grantee's
metropolitan Chicago service territory, to include, at minimum,
any other Franchise operated by the Grantee within a 25 -mile
radius of the Village) based on channel capacity, system design
characteristics, institutional network capacity, community access
support or other objective criteria as may, from time to time, be
specified by: the Village (hereinafter "System Rating "), the
Village shall"notify the Grantee of said determination. In making
a determination regarding the desirability of additional services
the Village - shall consider the economic feasibility of the
services, and the impacts on the subscribers,. the Village and the
Grantee. Upon making such a determination regarding the System
Rating and following notice to the Grantee, the Village and the
Grantee shall enter into good faith negotiations regarding the
system rating, and the provision of said services.
Section Twenty -two: MOST FAVORED COMMUNITY
(A) Grantee shall furnish the Village with copies of all
Franchise Ordinances, amendments or agreements relating to
Franchises which have been granted, or which may be subsequently
granted, to Grantee for the following municipalities: Bannockburn,
Cook County (portions currently serviced by Grantee), Fort
Sheridan, Glencoe, Highland Park, Highwood, Kenilworth, Lake
County, Lincolnshire, Riverwoods, Winnetka, .if Grantee is
servicing same. The copies shall be furnished to the Village
within thirty (30) days that same become effective, or are
executed by the Grantee, whichever is sooner.
(B) Grantee shall operate its Franchise in the Village on a
most favored nation basis, as follows: Specifically, in the event
that Grantee is awarded or otherwise obtains a cable franchise
servicing any of the following municipalities: Bannockburn, Fort
Sheridan, Glencoe, Highland Park, Highwood, Kenilworth, Lake
County, Lincolnshire, or any other ordinance, amendment, or
agreement, during the Franchise term hereof, containing material
terms deemed by the Village to be more beneficial to said
municipality(s) or Franchise authority than the terms contained
herein, the Village may elect, by written notice to Grantee, to
32
receive the benefits of such portions of such cable Franchise,
Ordinances, amendments, or agreements, such that the Village
Franchise shall remain, overall, favorably comparable to same.
For purposes of this section, material terms shall include but be
not limited to: technology /design issues; channel capacity;
provision of advanced services (i.e. digital, internet, etc.);
PEG; public access; customer service advancements. In making such
a determination, the Village shall consider all of the relevant
provisions of the other cable franchise,. ordinance, amendment, or
agreement to determine whether the Grantee did incur any
additional burden, in obtaining the term or condition determined
by the Village to be more favorable.
(C) Notwithstanding the above, due to the imminent renewal of
the Highland Park Cable Franchise, Grantee shall operate its
Franchise in the Village on a most favored nation basis, as
follows: Specifically, in the event that the City of Highland Park
obtains a cable franchise servicing the City of Highland Park by
Grantee, any transferee of Grant;ee or any affiliate, subsidiary, ;
partner, or parent of TCI, or the Grantee, or any transferee of
Grantee or any other ordinance, 'amendment, or agreement regarding
the same, during the Franchise term hereof, containing terms
deemed by the Village to be more beneficial to said municipality
or Franchise authority than the terms contained herein, the
Village may elect, by written notice to Grantee, to receive the
benefits of such portions of such cable Franchise, Ordinances,
amendments, or agreements, such that the Village Franchise shall
remain, overall, favorably comparable to same. In making such a
determination, the Village shall consider all of the relevant
provisions of the other cable franchise, ordinance, amendment, or
agreement to determine whether the Grantee did incur any
additional burden, in'obtaining the term or condition determined
by the Village to be more favorable.
(D) For purposes of this section, Grantee shall also include any
transferee of Grantee; any affiliate, subsidiary, partner, or
parent of TCI; or any affiliate, subsidiary, partner, or parent of
the Grantee.
Section Twenty- three: GRANTEE REPORTING
(A) Grantee shall be required to respond within 7 days, in
writing, to any written communication or complaint, formal or
informal, from the Village or the Commission or any Subscriber or
PEG user. Said response shall fairly and substantially address
the issues set forth in the correspondence or complaint. The time
limit specified herein for a written response shall not apply to
any report or other written communication required to be provided
by the Grantee under any more specific provisions of the Ordinance
or the Agreement.
33
(B) The Grantee recognizes that the Commission holds regular
meetings. The Grantee shall cause a representative to attend each
regular meeting of the Commission, as well as other special
meetings as the Commission may hold.
(C) Grantee shall provide an organizational chart stating the
name and job title (beginning with the local system manager and
"going up" through the regional and corporate levels" of all
persons who will have direct or indirect responsibility for the
management of the technical, billing, customer service or
government relation aspects of the system serving the Village.
(D) Said organizational chart shall be continuously updated but
not less than annually in any event. Failure to seasonably update
the organizational chart shall be deemed a material breach.
Section Twenty -four: PROCEDURES FOR REMEDYING MATERIAL FRANCHISE
VIOLATIONS
Notwithstanding the provisions of Section 31;,of the Ordinance,
the following procedures shall apply.
(A) In the event that the Village, Commission or the Board
believes that Grantee has violated any material provision of the
Franchise under Section 26(b)(4) of the Ordinance, the Village
shall send to Grantee a written demand on the Grantee that it
remedy such violation under Section 26(b) of the Ordinance. The
notice shall state with specificity the nature of the alleged
violation and provide a reasonable time period for the Grantee to
effect a cure or, if such cure cannot be completed within that
time period, to have expeditiously and in good faith commenced a
cure and diligently pursue the same until completion. If the
alleged violation is not remedied or is in the process of being
remedied, but not to the satisfaction of the Village, within the
time allotted, the Village shall determine whether or not a
violation has in fact occurred and also if so, whether such
alleged violation by Grantee was excusable or inexcusable as
follows:
(1) The Commission or its designee shall conduct an
administrative hearing to review the alleged violation, and
Grantee shall be provided with an opportunity to be heard (which
shall include the right to present testimony and to question
witnesses) upon thirty (30) days written notice to Grantee of
the time and the place of the hearing (said notice of a hearing
may be given with the written demand to remedy a violation as
set forth above); the allegations of Franchise violations; and
the remedy sought by the Village. The notice shall state
specifically whether revocation of the Franchise is to be
considered as a remedy at that time. A written or recorded
34
transcript of the proceedings shall be maintained, for the
purposes of Appeal and consideration hereunder.
(2) If the above hearing is conducted by a designee as
permitted above, the designee shall, upon conclusion of the
hearing, prepare a recommended decision that includes findings
of fact and conclusions. The recommended decision shall be
filed with the Village Clerk and mailed to the Commission and
the Grantee not later than thirty (30) calendar days after the
conclusion of the hearing. Upon receipt of such a recommended
decision, the Commission may, without holding a further hearing,
either:
(a) Adopt the recommended decision, including findings
of fact and conclusions submitted by the designee; or,
(b) Adopt the findings of fact and conclusions
contained in the recommended decision, modify the decision,
and adopt the recommended decision as so revised; or,
(c) Based upon the record of the hearing, modify the;'
findings of fact, conclusions or decisions, .and adopt the:
recommended decision as so revised.
(3). If, after notice is given and a hearing is held, the
Commission determines in its decision pursuant to Section
24(a)(5) below, that a violation, by Grantee has in fact
occurred but, was excusable under Section 26(d) of the
Ordinance, the Village or Commission shall direct_ Grantee to
correct or remedy the same within such additional time, in such
manner and upon such terms and conditions as the Village or
Commission may reasonably direct. If the Commission determines
that any such violation found to exist was inexcusable under a
like analysis, then the Village Board, may upon notice to
Grantee, impose a remedy in accordance with any or all of the
provisions of Section 26(b)(1), 26(b)(2),.26(b)(3), or 31(a)(6)
of the Ordinance, or Section 24(a)(7) of this section.
(4) A hearing reviewing the administrative findings shall
be conducted by the Board or a hearing officer appointed by the
Village President with the consent of the Village Board, in the
event of an Appeal from a Commission decision to revoke the
franchise. Such hearing officer shall be an attorney licensed
to practice under the laws of the State of Illinois. Should
Grantee desire to appeal a revocation decision, Grantee shall
send a written notice of appeal by certified mail to the
Commission within fifteen (15) days of the date on which the
Village sent Grantee the notice to impose a remedy pursuant to
this Section 24(a)(2). Such notice of appeal shall contain a
brief statement of Grantee's basis for appeal. The hearing on
the appeal shall be within forty (40) days of the date on which
M1
the Village sent Grantee the notice to impose a remedy, unless
otherwise agreed by the Village and the Grantee.
A written or recorded transcript of the proceedings shall
be maintained, for the purposes of Appeal and consideration
hereunder.
(5) The cost of either hearing (including the cost of the
transcript or recording of the proceedings) shall be borne by
the ultimate non - prevailing party.. The costs incurred by the
parties for attorney's fees, expert witness fees and other
expenses at either hearing shall be borne solely by the party
incurring the costs.
(6) In any hearing conducted by a hearing officer pursuant
to this section, the officer shall, upon conclusion of the
hearing, prepare a recommended decision that includes findings
of fact and conclusions. The recommended decision shall be
..filed with the Village Clerk and mailed to.the parties not later
'than thirty (30) calendar days after•'the conclusion of the
=hearing. Upon receipt of such a recommended decision, the
'Village may, without holding a further hearing, either:
(a) Adopt the recommended decision, including findings
of fact and conclusions submitted by the hearing officer;
or,
(b) Adopt the findings of fact and conclusions
contained in the recommended decision, modify the decision,
and adopt the recommended decision as so revised; or;
(c) Based upon the record of the hearing, modify the
findings of fact, conclusions or decisions, and adopt the
recommended decision as so revised.
(7) After receipt of the recommendation of the Commission
and conclusion of the procedures set forth in this section, the
Village Board may adopt a resolution that there are grounds for
termination of the Franchise and that the Franchise shall be
terminated. The effective date of termination shall be such
date as is prescribed by the Village Board, within its sole
discretion, in the resolution. However, no such termination
shall become effective prior to exhaustion of all judicial
review.
(8) Further provided, however, that in all matters to be
considered by the Village Board there shall be transmitted to
the Village Board, in addition to the materials in the preceding
paragraph, the transcript or recording required hereunder.
Further, said materials may be reasonably supplemented by such
further written memorandum and written evidence as may be
desired by the Grantee, the Commission or the hearing officer.
36
In its discretion the Village board may require such additional
evidence or presentation before it, by the Grantee, the
Commission, its designee, or the hearing officer.
Section Twentv -five: LIOUIDATED DAMAGES
(A) In addition to any other remedy provided in this Agreement
or within the Ordinance, liquidated damages as set forth in
subsection (B) below may be assessed by the Village against the
Grantee.
(B) The following actions by the Grantee shall result in the
listed damage for each occurrence or each day, as may be
designated below, that the action is deemed to have existed:
1. Failure to perform annual sweep and balance, and proof of performance /per day........
$100.00
2. Failure to construct interconnect pursuant to Section 13(e)/per day ..........................
$ 50.00
3. Failure to provide emergency override facilities /per day ............... ........:......................
$100.00*
4. Failure to provide programming services pursuant to the Agreement /per day .................
$100.00*
5. Failure to provide facilities and equipment for standby power /per day ......................
$ 50.00*
6. Failure to provide cash and equipment contributions for PEG access /per day ............. :..
$ 100.00*
7. Failure to maintain and provide financial records /per day ............ ...............................
$100.00*
8. Failure of Grantee to maintain minimum Customer Service standards as set forth
in the Franchise Agreement or Ordinance /per day ....................... ...............................
$ 25.00*
9. Failure to bury temporary drops -per drop /per day .................... ...............................
$ 50.00
10. Failure to complete restoration /per day ................................ ............................... $ 50.00*
11. Failure to procure owner or Village authorizations, permits, review or Village
approval as required by the Franchise Agreement or the Ordinance -per occurrence......... $ 50.00*
12. Failure to provide timely non - standard installation -per occurrence ........................... $ 20.00
13. Failure to provide timely credit or refunds -per occurrence ...... ............................... $ 20.00
14. Failure to construct all or a portion of the System /per day .......... ............................... $100.00*
15. Failure to provide required enhancements for the System /per day .............................. $100.00*
16. Failure to provide adequate notification to Subscribers- (including timely mailing
of invoices) total per occurrence ................................................. ............................... $100.00
37
17. Failure to provide response , reports, data, tests, as requested by the Village /per day.$ 50.00•
18. Failure to construct requested I -Net connections /per day ........... ............................... $100.00•
19. Failure to comply with any of the provisions of Section 23 /per day .......................... $100.00#
*The Grantee is hereby notified that violations noted with an
asterisk may be considered by the Village, of and by a single
occurrence, material breaches of the Franchise Agreement.
If the Grantee fails to provide any item, service, or payment
required to be provided pursuant to the terms of this Agreement,
then after notification to the Grantee, if the Grantee fails to
provide same, the cost of the provision of same shall be levied in
addition to any liquidated damages hereunder.
Any other violation of the Ordinance or the Franchise Agreement
not set forth above is subject to liquidated damages of up to
$500.00 per occurrence,.
The foregoing shall be in addition to, and not a limitation
upon, the other provisions of the Village, the Ordinance and /or
Franchise Agreement, including revocation.
(C) In addition to any sum levied under this Agreement or the
provisions of the Ordinance, the Grantee shall pay any and all
costs, including reasonable attorney's fees incurred by the
Village in enforcing this Agreement or the Ordinance, if the
Grantee is found to be in violation of the Agreement or the
Ordinance. In the event the Village deems it necessary to bring
any court action to enforce this Agreement or the ordinance, and
the Village prevails, there shall be assessed against the Grantee
all reasonable costs, expenses and attorney's fees incurred by the
Village in bringing said action, in addition to the amounts pro-
vided herein. Further, in the event the Village deems it neces-
sary to defend any action instituted by Grantee (or its successors
or assigns) and the Village prevails, there shall be assessed
against the Grantee all reasonable costs, expenses and attorney's
fees incurred by the Village, in addition to the amounts provided
herein.
(D) The Village retains the right, at its sole option, to
reduce or waive any of the above — listed amounts where extenuating
circumstances or conditions beyond the control of Grantee are
deemed to exist.
(E) Liquidated damages which are to be assessed by the terms of
this Section on a "per day" basis, shall accrue only after
notification to the Grantee of the final date for the Grantee to
achieve compliance. Such date of compliance shall be set in the
Village's sole discretion.
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38
(F) On June 1st of each year during the term of this Agreement,
the Village or Commission may promulgate a new schedule of
liquidated damages, amending the amounts set forth above to
increase same in direct proportion to the change in the Consumer
Price Index as published by the United States Department of Labor
(herein referred to as the CPI).. In the event publication of the
CPI is discontinued, then for purposes of increasing the
liquidated damages amount the Village or Commission shall follow
any official consumer price index, whether so named or designated,
issued by any authorized agency of the United States which is
designed to supplant the CPI.
Section Twenty -six: TERMINATION and REVOCATION
(A) In addition to all other rights, powers, and remedies
reserved by the Village or granted pursuant to law, ordinance,
statute or regulation, the Village shall have the additional,
separate, and distinct right to revoke the Franchise, if:
(1 ) the Grantee is unable to pay its debts, or shall be
adjudicated as bankrupt or insolvent or takes the benefit of any
federal reorganization or composition proceedings or makes a
general assignment or takes the benefit of any insolvency law,
or if Grantee's Franchise shall be levied upon or sold upon any
execution or process of law, or if a trustee in bankruptcy or
receiver be appointed or elected or had for Grantee (whether
under Federal or State laws);
(2) the Grantee commits any fraud or deceit in its conduct
in obtaining the Franchise or operating under it;
(3) the Grantee attempts to evade any material provision
of the Ordinance or applicable law relating to the construction,
operation, or repair of its cable system and refuses to remedy
it;
(4) the Grantee substantially and materially violates any
material provision of the Franchise or state or federal law
applicable to Grantee's operations within the Village and
refuses to remedy it in a manner agreed to by the Village;
(5) the Grantee abandons its Franchise (the Grantee shall
be deemed to have abandoned its Franchise if Grantee fails to
provide Cable Service in accordance with the terms of this
Franchise Agreement, when there is no event beyond the Grantee's
control that prevents the operation of the cable system, and
where operation would not endanger the health or safety of the
public or property).
39
(B) Upon revocation or termination of the Franchise, the
Grantee may sell or transfer the ownership of the Cable System,
subject to Section 5, after the rights of the Village to purchase
the system under Ordinance Section 27(g), so long as such transfer
of ownership is completed within one hundred eighty (180) days of
the date of termination or revocation.
Section Twenty- seven: PERFORMANCE BOND /LETTER OF CREDIT.
(A) Grantee shall maintain with the Village a bond to guarantee
the Grantee's faithful performance under the Ordinance and
Franchise Agreement in the amount of two hundred fifty thousand
dollars ($250,000.00) or as specified in the Ordinance, whichever
is greater. The above bond shall be maintained at all times and
retained throughout the term of the Franchise Agreement. The
guarantee shall take the form provided in Exhibit 5 attached to
this Agreement or such other form approved by the Village
Attorney.
(B) Grantee shall maintain on deposit with the Village and at
no expense to the Village an approved security fund or Letter of
Credit in the amount of twenty -five thousand dollars ($25,000.00),
during the term of the Franchise, subject to draw -down by the
Village for infractions listed in subsection C. below. The letter
of credit shall take the form provided for in Exhibit 6 attached
to this Agreement. The form and content of such escrow or letter
of credit shall be from an Illinois financial institution within a
25 -mile radius of the Village unless the Village agrees in writing
to accept a letter of credit from another institution beyond that•
radius, in which case any such letter must recite that in case of
any dispute or litigation concerning the letter of credit, venue
for such litigation shall be the Circuit Court of Lake County,
Illinois. The issuer shall further acknowledge, in writing, that
litigation concerning the letter of credit may be initiated or
transferred to the Circuit Court serving the jurisdiction of the
Village and issuer will not object to or attempt to contest the
jurisdiction of said court. Upon drawing on such escrow or letter
of credit for any reason, the Village will notify the Grantee in
writing. The Grantee shall, within three (3) business days of the
receipt of such notification, take all action required to restore
the escrow or letter of credit to its original full amount.
Failure to restore the Escrow within said three (3) business days
shall be deemed a material breach of this Agreement.
Section Twenty- eight: LIABILITY, INDEMNIFICATION AND INSURANCE.
(A) The Grantee shall be responsible for any damage or loss to
any real or personal property of the Village or of any Person, and
for any injury to or death of any individual Person, or any
officer, employee or agent of the Village, caused by the Grantee's
t
40
acts or omissions and arising out of or in connection with the
Grantee's construction, operation, maintenance, repair and /or
removal of the System, or in the distribution of any Service over
the System. The Grantee shall, at its own cost and expense,
replace, repair or restore all such property to its prior
condition (the decision whether to replace, repair or restore any
property of the Village which is damaged shall be in the Village's
sole judgment and discretion as to such Village property, only),
and shall pay all legal damages (including, but not limited to,
all reasonable attorneys' fees of the Village) in the event of any
injury to or death of any individual or any injury to property.
(B) The Village may, at any time, in case of fire, disaster or
other emergency, as determined by the Village, cut or move any of
the wires, cables, amplifiers, poles, appurtenances or other parts
of the System, in which event the Village shall not be liable
therefor to the Grantee or any affiliate of the Grantee. When
practical, as determined by the Village, the Grantee shall be con-
sulted prior to any such cutting or movement of its wires and be
given the opportunity-to perform such work itself.
The Village shall not be liable to the Grantee for any damage to
or loss of all or any part of the System, or otherwise, as a
result of or in connection with the protection, breaking though,
movement, removal, alteration or relocation of any part of the
System by or on behalf.of the Grantee or the Village in connection
with any emergency, public work, public improvement, alteration or
any municipal structure, any change in the grade or line of any
Public Way, or the elimination, discontinuation and closing of any
Public Way as provided herein.
(C) The Grantee shall, and does hereby agree to, save,
indemnify and hold the Village, its corporate authorities, elected
and appointed officials, officers, boards, commissions, legal
counsel, employees and agents harmless from any injury claim,
demand, suit, judgment, execution, liability, debt, damages or
penalty (hereinafter referred to as "Claims ") arising out of,
resulting from, or alleged to arise out of or result from, the
Grantee's construction, operation, maintenance repair or removal
of the System, or the distribution of any Service over the System
whether such acts or omissions are those of the Grantee or -its
officers, employees, agents or contractors and whether or not any
such act or omission is authorized, allowed or prohibited by this
Agreement.
(D) The Grantee shall, and does hereby agree to, save,
indemnify and hold the Village, its corporate authorities, elected
and appointed officials, officers, boards, commissions, legal
counsel, employees and agents harmless as set forth in the
Ordinance Section 29.
41
(E) Notwithstanding anything contained in the Franchise
Agreement or the Ordinance to the contrary, the foregoing
indemnity shall not apply if such injury, death, damage or claim
is. caused by the negligence or other fault of the Village, its
agents, servants, employees or any other person identified
hereunder.
(F) The Grantee shall maintain in full force and effect, at its
sole expense, a policy or policies of liability insurance,
including comprehensive general liability insurance,
products /completed operations liability, personal injury
liability, owners' and contractors' protective liability, broad
form property damage, contractual liability, automobile liability
(owned, non - owned, and hired automobiles), Workers' Compensation
and employer liability.
(G) The policy or policies shall name as an additional insured
the Village, its corporate authorities, elected and appointed
officials, agents, officers, boards, commissions, legal counsel,
.employees. Policies of insurance shall'lbe In the minimum single
.limit amount of five million dollars ($5,000,000) per occurrence.
(H) The insurer or insurers shall be authorized to write the
required Insurance, and approved therefor by the State of
Illinois.
(I) The policy or policies of insurance shall be maintained by
the Grantee in full force and effect during the entire term of the
Franchise. Each policy of insurance shall contain a statement on
its face that the insurer will not cancel the policy or fall to
renew the policy, whether for nonpayment of premium, or otherwise,
and whether at the request of the Grantee or for other reasons,
except after thirty (30) days advance written notice mailed by the
insurer to the Village Clerk postage prepaid.
(J) Prior to the Effective Date of the Franchise, the Grantee
shall furnish proof satisfactory to the Village that the foregoing
insurance policies have been obtained in the form of a certificate
of insurance specifying that coverage exists in the minimum
amounts required herein, including the effective dates of each
such coverage. Except by written modification to this Agreement,
properly approved, the insurance requirements cannot be waived by
the Village. No action or inaction of'the Village, its officers,
employees or agents, can constitute a waiver of these provisions.
(K) If there is any interruption of any of the required
insurance coverage under this Agreement for any period of time, no
matter how short, the Village may, at its sole option, obtain one
or more policies of insurance to provide such coverage, and the
complete cost of the same shall be promptly reimbursed to the
Village by the Grantee, and no later than the next regular payment
by Grantee to the Village.
42
(L) Due to the fact that the Franchise granted hereunder is for
an extended period of fifteen (15) years, the amount of insurance
coverage required hereunder may be increased by a reasonable
amount from time to time, upon reasonable prior written notice by
the Village to Grantee. A reasonable amount shall be determined
by factors including, but not limited to, changing conditions,
rates of inflation, claim experience, and usage and custom in the
insurance field.
Section Twenty -nine: FAILURE OF VILLAGE TO ENFORCE THIS
AGREEMENT; NO WAIVER OF THE TERMS THEREOF; JUDICIAL RELIEF.
Neither Party shall be excused from complying with any of the
terms and conditions of this Agreement by any failure of the other
Party upon any one or more occasions, to insist upon or to seek
compliance with any such terms or conditions.
In addition to all remedies herein provided, the Village and
Grantee shall have the right to apply to a court :of competent
jurisdiction -to secure such judicial relief as each deems proper.
However, further provided, that unless waived or otherwise
instituted by the Village, the Grantee agrees that the sole and
exclusive venue for all actions involving this Agreement and the
enforcement, interpretation or construction of this Agreement
shall be either the Circuit Court of Lake County, Illinois or the
Federal District Court for the Northern District of Illinois.
Section Thirty: TIME IS OF THE ESSENCE TO THIS AGREEMENT
Whenever this Agreement shall set forth any time for an act to
be performed by, or on behalf of a party, such time shall be
deemed of the essence and any failure within the control of the
Party to perform within the time allotted shall be sufficient
grounds for the other Party to seek an appropriate remedy..
Section Thirty -one: SEVERABILITY
If any section, subsection, sentence, clause, phrase, or portion
of this Franchise Agreement is for any reason held invalid or
unconstitutional by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent
provision and such holding shall not affect the validity of the
remaining portions thereof.
Section Thirty -two: VILLAGE RIGHTS RESERVED._
The Village expressly reserves the following rights which shall
not be deemed to be waived or abrogated by the Village's enactment
of the Cable Ordinance or this Agreement.
43
(1) To exercise its governmental powers, now or hereafter,
to the full extent that such powers may be vested in or granted
to the Village;
(2) To adopt, in addition to the provisions contained in
the Cable Ordinance, or in any existing applicable ordinances,
such additional regulations as it shall find necessary in the
exercise of its police power.
(3) To modify the Cable Ordinance so long as such
modification does not have the effect of materially altering the
terms of this Agreement, unless otherwise required by law.
Section Thirty- three: FORCE MAJEURE.
Whenever a period of time is provided for in this Agreement
for either the Village or the Grantee to do or perform any act or
obligation, neither party shall be liable for any delays due to
causes beyond the control of such party, such as unavoidable
delays in the issuance of required governmental and utility
company permits, licenses, authorizations and approvals (provided
that the Grantee made a timely application for such permits,
licenses, authorizations or approvals); delays caused by utility
company work required to be completed prior to activation of the
System or any segment of the System; war;, riot; insurrection;
rebellion; strike; lockout (other than the lockout by the Grantee
of its employees); unavoidable casualty or damage to personnel,
materials or equipment; fire; flood; storm, earthquake; tornado;
orders of the court of competent jurisdiction, or any Act of God,
and upon the occurrence of any such event, said time period shall
be extended for the amount of time said party is so delayed.
Section Thirty -four: VILLAGE RIGHT TO DELEGATE AUTHORITY_ AND
FUNCTIONS.
The Village shall have the right to delegate any or all of
its authority or rights under this Agreement to any Person, de-
partment, board, commission or agency within or outside the
Village, or to designate any person, department, board, commission
or agency within or outside the Village to act on its behalf under
this Agreement; provided, however, that no such delegation or
designation shall be effective to bind the Village, or for any
other purpose, unless evidenced by an ordinance or resolution duly
adopted by the Mayor and Village Board of the Village and
provided, further, that no such delegation or designation shall be
effective to authorize any authority or action beyond those
expressed in such ordinance or resolution. When and to the extent
so delegated or designated, such person shall be deemed to be an
"authorized agent" of the Village or its Board as that term is used
in this Agreement.
44
Section Thirty —five: LIMITATION OF FRANCHISING AUTHORITY
LIABILITY.
(A) In any court proceeding involving any claim against the
Village or any official, member, employee, or agent of the
Village, arising from the regulation of Cable Service or from a
decision of approval or disapproval with respect to a grant,
renewal, transfer, or amendment of the Franchise, any relief, to
the extent such relief is required by any other provision of
Federal, State, or local law, shall be limited to injunctive
relief and declaratory relief.
(B) The limitation contained in subsection (A) shall not apply
to actions that, prior to such violation, have been determined by
a final order of a Court of binding jurisdiction, no longer
subject to appeal, to be in violation of a cable operator's
rights.
(C) Nothing in this section shall be construed as limiting the
relief authorized with respect to any claim against the Village or
any official, member, employee, or agent of the Village, to the
extent such claim involves discrimination on the basis of race,
color, sex, creed, national origin or handicap.
(D) Nothing in this section shall be construed as creating or
authorizing liability of any kind, under any law, for any action
or failure to act relating to Cable Service or the granting of a
franchise by the Village, or any official, member, employee, or
agent of the Village.
In Witness Whereof, the paries have executed this Franchise
Agreement on the day and year first above written.
Village of Deerfield
By:
Its: P St Z
A EST
OMNICOM CABLEVISION F ILLINOIS, INC.
By
Its: ati o o anty, U ice President
ATTEST Aian H. Silverman, Secretary
I: \LAWYERS \PPD \PERSONAL \CABLE \DEERCB27.97
45
POST- NEWSWEEK
CABLE
1600 Old Skokie Road
Highland Park, Illinois 60035
(708) 831 -5900
Mayor and Board of Trustees
Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
May 27, 1997
Re: Clarification of Renewed Cable Franchise Agreement
Dear Mayor and Trustees,
The purpose of this letter is to clarify the $ 100,000 referenced in Section 20,
paragraph G, of the Renewed Cable Communications System Franchise Agreement
between the Village of Deerfield, Illinois and Omnicom Cablevision of Illinois., d /b /a
Post - Newsweek Cable.
The $100,000 for the "distance learning" demonstration may be applied not only to the
Junior High Schools referenced in said Section, but may also be applied to the High
Schools in District 112 (Deerfield High School and Highland Park High School) or the
other educational institutions listed in Exhibit 1.
This letter may be attached to, and become part of, the above referenced Franchise
Agreement.
Very truly yours,
Mitchell Bland
General Manager
EXHIBIT 1: Institutional Network Service Sites
DEERFIELD GOVERNMENT
Deerfield Village Hall
850 Waukegan Road
Deerfield — Bannockburn Fire District*
Fire Department /Paramedics
Main Fire Station
Waukegan Road
Police Station
850 Waukegan Road
Public Works.Building*
465 Elm Street
Waste Water Reclamation Facility*
SCHOOLS
Kipling*
700 Kipling Place
Walden*
630 Essex Court
Wilmot*
795 Wilmot Road
Caruso Junior High
1801 Montgomery Road
Holy Cross Catholic School
720 Elder Lane
Shepard Junior�High
440 Grove Place
South Park School*
1421 Hackberry Road
Deerfield High School Dist. 113
1959 Waukegan Road
Highland Park High School Dist. 113 **
433 Vine Avenue, Highland Park
46
TRANSPORTATION
Metra Deerfield Station *:
located two blocks west of Deerfield
and Waukegan at Chester and Deerfield Road
Metra Lake Cook Station *:
located two blocks west of Lake Cook
and Waukegan at Deer Lake and Lake Cook Road.
OTHER PUBLIC FACILITIES
Deerfield Public Library
920 Waukegan Road
Jewett Park Community Center
836 Peterson Lane
Park District Senior Center*
West Deerfield Township Office
853 Waukegan Road
*Denotes I -Net connection to be constructed upon the request of
the Village or the Commission and completed by the Grantee within
six months of the request.
* *Only if the City of Highland Park is serviced by the Grantee.
If not, Grantee shall exercise its best efforts and diligently
pursue interconnection of same with the I -Net.
47
EXHIBIT 2: PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS EQUIPMENT
ACCESS STUDIO
03 Sony DXC -300A color
(studio configuration)
01 O'Conner 55C tripod
01 O'Conner 53A dollie
02 Peter- Lisand tripods
02 Peter - Lisand dollies
video cameras
@33' cables
03 Beyerdynamic DT -109 headsets
01 Panasonic CT -110A color monitor
01 Bretford monitor cart
01 audio snake w /08 mic inputs, 01 audio output
VidEssence lighting system w /07 instruments
ACCESS CONTROL
03 Sony CCU's
03 Sony CMA -8 power supplies
01 Sony 9850PACTC editor
01 SEG 2000 video /effects switcher
01 Sony PVM 8044Q 8" color monitor (Preview)
01 Sony PNM 1344Q 13" color monitor (Master)
04 Hitachi VM -90OU 9" b/w monitors (c.g., cams)
02 Sony 8200T 8" color monitor (vcr's)
01 Quanta Microgen character generator
01 I -DEN IVT -9 Plus time base corrector
01 RCA modulator
01 Videotek RM -12RA color monitor /TV
01 Videotek VSM 61 waveform monitor
01 Videotek TSM 5A vectorscope
01 Ramsa WR 133 08 x 02 audio mixer
01 Vector Research VCX 220 audio cassette player /recorder
01 Sony CDP -361 CD player
01 Beyerdynamic DT -109 headset
PORTABLE
Comments
01 Sony DXC 3000A video camera
02 O'Conner 55C tripods
02 O'Conner 53A dollies
02 remote arm sets
03 JVC TM -22 color monitors
04 JVC batteries
01 JVC battery charger
03 Sony VO -8800 portable vcr's
02 Sony VO -6800 portable vcr's
numerous batteries
05 battery chargers
numerous BNC /RF /video /audio cables
48
PORTABLE (Continued) Comments
01 Sony VO -5600 vcr
02 Sony VO -5800 vcr
01 Sony VO -9600 vcr
05 short vcr cables
02 long vcr cables
03 Sony AC -500 a/c power supplies w /cables
01 Sony CMA -8 a/c power supply w /cable
numerous a/c extension cords
numerous a/c power strips
04 Strand - Century lite kits
01 sun gun w /belt
15 table top mic stands
04 floor mic stands
03 Shure 267A audio mixers
01 Shure 67 audio mixer
01 Ramsa WR -130 audio mixer
01 Shure SM -63 hand -held mic
01 EV RE 11 hand -held mic
10 EV 635 hand -held miss
01 AKG C451EB shotgun mic
03 Shure SM11 lav mics
05 Sony ECM 55B lav mics
STARCASE
The case contains:
03 b/w monitors (cams)
01 audio mixer
01 video /effects switcher
01 waveform monitor
01 cable connector panel
07 paired cables
You then connect portable equipment into the case to complete the
studio package.
ACCESS EDITING
01 NewTek 4.0 Video Toaster edit control system'w /:
Amiga computer, computer monitor, 18 meg RAM,
software, Toaster Paint, AmiLink, waveform /vectorscope card
02 Sony VO -9800 vcr's
01 Sony VO -9850 vcr
03 Sony PVM 8044Q color monitors
01 Nova M2T2 2- channel TBC
49
TRUCK
Truck
03 Sony M7 color video cameras (studio configuration)
@w /3001cables
03 O'Conner 35A tripods
03 O'Conner 53A dollies
03 Sony CCU -M7 camera control units
03 shore power cords
01 a/c breaker box
01 Panasonic WJ -5500B video /effects switcher
08 Panasonic WV 6352 9" b/w monitors (cam, vcr, cg, etc.)
02 Sony 8200T 8" color monitors (preview, program)
01 Sony PVM 1220 12" color monitor (master)
01 Hotronic AP -41 time base corrector
03 Sony VO -9600 vcr's
01 RCA video modulator
01 Quanta microgen character generator
01 Panasonic WJ 225 R test switcher
01 Leader LBO 5860A waveform monitor
01 Leader LVS 5850 vectorscope
01 Ramsa WR 130 audio mixer
01 Trimm audio patch panel
01 Trimm video patch panel
01 Crown D -75 audio amp
01 Sigma System 500 (vda, bbrst, etc.)
02 EV Sentry 100A audio monitors
01 Realistic audio monitor
03 21 -14 camera cables
01 cable extension
07 Beyerdynamic headsets
01 AKG headset
01 announcers talkback system
01 CD Player
numerous BNC /RF /audio cables
numerous extension cords
PLAYBACK EQUIPMENT
Playback Decks
Modulators
Keyboard Character Generators
Monitors
Racks and Tables
Wiring
OFFICE EQUIPMENT
All related office equipment
Desks
Chairs
Cannon Copier
Northern Telecom Telephone System
50
As to the above, the Grantee shall maintain and upgrade said
equipment so that it remains in full compliance with the
manufacturer's operating specifications and that new equipment
will be provided from time to time, to keep pace with
technological advancements.
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EXHIBIT 3: FORM OF ACCEPTANCE
Pursuant to Sections 26, 28 and 31 of the Village Cable
Communications Ordinance of 1996, the Grantee hereby irrevocably
offers the renewed Cable Communications System Franchise Agreement
between the Village of Deerfield and Omnicom Cablevision of
Illinois, Inc.. Grantee hereby irrevocably accepts the Franchise
granted pursuant to the Agreement.
The undersigned hereby certifies:
That he /she has been duly authorized pursuant to
Ry - 1,0W.5 (e.g., Grantee's articles -of incorporation,
partnership agreement, by -laws or action of its Board of
Directors) to make this acceptance of the Franchise.
OMNICOM CyAABLEVISIjO�N OF ILLINOIS, INC.
By: U'
Patrick A. Dol,ohanty, Vicl uresident
ATTEST Alan H. Silverman, Secretary
Date:
Sworn to and subscribed before me
this _A4 day of M4Z , 1997
C
Notary
Dat? aomffission Expires
52
EXHIBIT 4: EARNED FRANCHISE FEE REVENUE REPORTING FORMAT
[TO BE PROVIDED BY GRANTEE AND APPROVED AND ACCEPTED IN THE SOLE
DISCRETION OF THE VILLAGE]
53
EXHIBIT 5: FORM OF CORPORATE BOND
[TO BE PROVIDED BY GRANTEE AND APPROVED AND ACCEPTED IN THE SOLE
DISCRETION OF THE VILLAGE]
54
EXHIBIT 6: LETTER OF CREDIT FORM
[TO BE PROVIDED BY GRANTEE AND APPROVED AND ACCEPTED IN THE SOLE
DISCRETION OF THE VILLAGE]
55
EXHIBIT 7: GUARANTY OF OMNICOM PARENT CORPORATION
[TO BE PROVIDED BY GRANTEE AND APPROVED AND ACCEPTED IN THE SOLE
DISCRETION OF THE VILLAGE]
56
EXHIBIT 8
CABLE TV PUBLIC ACCESS OPERATING RULES
Section 1: PURPOSE
The following rules and regulations have been developed to
govern availability and use of access channels, access equipment
and studio facilities on cable television systems franchised by
the Village, Illinois.
Section 2: DEFINITIONS
For the purposes of these rules, the following terms, phrases,
words, and their derivations shall have the following meaning
(words not defined shall be given their common and ordinary
meaning):
(a) "CABLECASTING" means Programming (exclusive of broadcast
signals) carried on the cable television',system.
(b) "ACCESS CABLECASTING" means Programming provided by access
channel users on any access channel provided herein.
(c) "ACCESS CHANNEL PRODUCER OR USER" means any person, group
or organization, or other entity which makes proper application
for access cablecasting over the public access channels of the
cable systems.
(d) "CABLE COMMISSION" means the Cable and Telecommunications
Commission of the Village of Deerfield, created by previous action
and designated by the Board of Trustees to act in matters related
to cable communications as herein provided and to oversee the
operation of the cable system, or any other local, lawfully
empowered cable regulatory authority.
(e) "LEGALLY QUALIFIED CANDIDATE" means any person who has
publicly announced the intention to run for nomination or office
in a special primary or general election.for local, county, state
or national office and who meets the qualifications prescribed by
the applicable laws to hold that particular office so that the
candidate may be voted for by the electorate directly or by means
of delegates or electors and who:
(1) has qualified for a place on the ballot, or
(2) has publicly committed to seeking election by write -in
method and is eligible under applicable law to be voted for
by sticker, by writing the candidate's name on the ballot,
or other method, and (i) has been duly nominated by a
57
political party which is commonly known and regarded as
such, or (ii) makes a substantial showing so that the
person is a bona fide candidate for nomination for office.
(f) "ORIGINATING CABLECASTING" means programming originated by
Grantee, carried on a properly franchised cable television system
over one or more channels and subject to the Grantee's exclusive
control.
(g) "PUBLIC ACCESS CHANNEL" means one or more cable channels
which are specifically designated as a public access channel as
defined under the federal Cable Communications Policy Act as may
be amended from time to time.
(h) "ADVERTISING MATERIAL" means any cablecasting material
designated to promote the sale of commercial products or services
(including advertising by or on behalf of candidates for public
office )
(i) "LOTTERY" ;'"means any device, scheme, plan, promotion,
contest and /or other program or presentation which involves
directly or indirectly the elements of prize, chance, and
consideration or any such device, scheme, plan, promotion, contest
and or other program or presentation which is, has been or would
be declared a lottery under applicable Local, State or Federal
law.
(j) "LOTTERY INFORMATION" means any advertising or information
concerning any lottery, gift enterprise, or similar scheme,
offering prizes dependent in whole or in part upon lot or chance,
or any list drawn or awarded by means of any such lottery, gift
enterprise, or scheme, whether said list contains any part or all
of such prizes.
(k) "OBSCENE OR INDECENT MATERIAL" means any material in a
program and /or presentation which is defined as, or deemed to be
obscene or indecent material under applicable local, state or
federal law.
(1) "PUBLIC ACCESS COORDINATOR" means the person or agency
designated by the cable company and /or the Cable Commission for
the maintenance, operation and supervision of access channels,
equipment and facilities.
Section 3: OPERATING RULES GOVERNING PUBLIC AND DEDICATED ACCESS
CHANNELS
(A) The Public Access channel(s) shall be available for access
cablecasting to any resident or representative of a group,
organization or other entity located in the cable Franchise
territory. The Public Access channel shall be made available
without charge for access cablecasting to any qualified access
58
user on a first -come, non - discriminatory basis upon the filing of
appropriate request forms, and consistent with the availability of
access channel space and access production equipment.
(B) An access user may specify dates and times in the initial
request to use facilities. However, all scheduling will be done
by the Public Access Coordinator. Access facilities obtained on
behalf of one user may be assigned or transferred to another
party, if no other user is inconvenienced and if prior written
permission of the Public Access Coordinator is obtained.
Whenever requests for channel or equipment use exceed
availability the following rules shall apply:
(1) First time users shall have priority over regular
users.
(2 ) A previous user who has not been scheduled in prime
time shall have priority for prime time scheduling.
(3) Disputes arising over-the allocation of public access
time shall be.resolved by a Public Access Coordinator in a
manner intended to maximize the diversity of expression on
the access channel on a non - discriminatory basis. Eligible
users and producers may appeal in writing to the Cable
Commission regarding the Coordinator's rejection of any
properly prepared application.
(C) To the extent permissible under local, state or federal law,
the Public Access Coordinator shall refuse to permit production or
presentation on public access channels of any program which
involves any obscene or indecent material.
(D) Advertising material designed to promote the sale of
commercial products or services (including advertising by or on
behalf of candidates for public office) is prohibited in
connection with any access cablecasting. Nothing in this
paragraph shall prohibit the announcement of a grant received to
underwrite the program.
(E) No program, production or presentation shall be transmitted
or permitted to be transmitted on any public access channels which
involves directly or indirectly any lottery
(F) To the extent permitted by local, state, and federal law,
all pre- recorded programs and applications for live cablecasts
that describe program content shall be submitted to the Public
Access Coordinator at least two business days before scheduled
cablecast so that there will be an opportunity for review of
legal content and technical quality. In this regard, all negative
decisions by the.Public Access Coordinator shall be forwarded to
59
access producers in writing. Access producers may appeal any such
decision in writing to the Cable Commission.
(G) Should the Public Access Coordinator determine or believe
that the statements in an access producer's application for use are
false, misleading or incomplete concerning the presentation of
advertising material, lottery information, obscene or indecent
material, the Coordinator shall refuse to allow cablecast of the
material presented by the producer. The producer may appeal in
writing such decision to the Cable Commission which will review
the application. All parties will be bound by the decision of the
Commission.
(H) Failure to comply with these rules may subject access
producers to temporary or permanent forfeiture of the right to use
access channels. In all cases of forfeiture, producers shall have
the right to appeal in writing to the Commission.
(I) The Public Access Coordinator shall ensure that PEG
programming and schedules are promoted both over the cable system
and, if available, through other available means, such as printed
listings in program guides, local publications or newsletters. The
Public Access Coordinator shall ensure that programs begin on
time, meeting a standard for all programming of no more than a.30-
second deviation from scheduled start.. The Public Access
Coordinator shall maintain a written log listing the cause for the
delay or pre - emption. Delays or pre - emptions within the power of
the access operator to avoid shall be subject to possible per -
event liquidated damages at the discretion of the Commission,
based on the liquidated damages clause of the cable Franchise
Agreement. In the event of technical difficulty or other problem
(including but not limited to the delayed start of a live event
being covered on PEG) which is beyond the access operator's
control, liquidated damages will not be assessed if the Commission
concurs with and accepts the explanation. Pre - emptions,
cancellations and rescheduling shall be announced on the PEG
channel at the time the program was originally scheduled to be
seen.
(J) The Public Access Coordinator shall make available to all
producers a formal written complaint form which may be used to
lodge complaints regarding any aspect of PEG service, including
but not limited to those delineated in these rules. The Public
Access Coordinator shall respond in writing to all such complaints
within 14 days as per Section 23 of the Franchise Agreement.
Producers dissatisfied with the response may forward both the
complaint and response to the Commission for review.
(K) To the fullest extent allowable, the Public Access
Coordinator shall ensure that PEG programming meets certain
minimum technical standards promulgated by the Public Access
Coordinator and approved by the Commission, and all such
.�
programming must prominently include the name and address of all
person(s) submitting the program for playback within the title or
credit sequences.
Section 4: APPLICATIONS FOR PUBLIC ACCESS USE
(A) Application for the use of public access channels and /or
studio production facilities and equipment by eligible individuals
or groups shall be submitted in writing and shall identify the
proposed access user by name and address, and specify the
following information:
(1) The access channel desired;
(2) The day or days desired for access cablecasting along
with desired time segment (eg., 9:00 -10:00 a.m., etc.) and
the duration of the cablecast, blocks of which may not
exceed three hours;
(3) A statement of ,the topic or subject of the cablecast.
(4) Whether* the applicant desires use of available',
cablecasting and production equipment, and the time and
duration for which use of the equipment is requested.
(5) A statement that the access channel user is familiar
with the operating rules of the access facilities.
(6) A statement that no lottery is involved and that no
lottery information is to be cablecast.
(7) A statement that no obscene or indecent material is to
be cablecast.
(8) A statement that all appropriate arrangements and
clearances have been obtained from broadcast stations,
networks, sponsors, music licensing organizations,
performers, representatives and without limitation by the
above, any other and all other persons as may be necessary
for authorization to transmit program material via the
access facilities.
(D) All requests for public access use shall be submitted to the
Public Access Coordinator at least seven business days in
advance of the desired date and time of the proposed access
cablecast.
(E) All requests shall be processed on a first -come, non-
discriminatory basis pursuant to Section 3 hereof. An access
user may specify alternative dates and times in the user's
initial request. Time obtained on behalf of a user may be
61
assigned or transferred to another party, if no other user is
inconvenienced and the permission of the Public Access
Coordinator is obtained.
(F) Requests for use of public access time on behalf of minors
(as defined by applicable state law) should be made in the name
of a responsible adult. Any such minors using studio facilities
or equipment shall be accompanied by a responsible adult who
shall supervise the use of facilities and equipment and execute
the necessary assurances that authorization has been obtained
concerning the use of the studio and equipment and /or appearance
of any minors on a cablecast program. The adult shall also be
responsible for liability resulting from the use or appearance
by a minor. The Public Access Coordinator may waive these
requirements in appropriate circumstances.
Section 5: PUBLIC INSPECTION
(A)'' The Public Access Coordinator shall maintain a complete
record of the names and addresses of all persons, groups,
organizations or entities requesting use of access facilities and
channel time. Such records will be available for public inspection
between the hours of 9:00 a.m. and 5:00 p.m., Monday through
Friday, except on legal holidays.
(B) Persons requesting public inspection shall identify
themselves by name and address in order to ensure administrative
control of such records.
(C) Access channels will not be made available to any access
user which refuses to have his or her identity maintained in the
records and available for public inspection as required by this
Section.
(D) All records required herein, including requests for access
channels, shall be maintained for a period of two years.
Section 6: RATE SCHEDULE
There will be no charge for the use of the public access
channel, public access facilities, channel time or basic training
courses.
Section 7: CERTIFICATION OF USERS
(A) All persons requesting use of the facilities and equipment
shall be certified by the Public Access Coordinator. Basic
certification for persons who have not been trained to use
equipment shall require a minimum of ten hours training. Persons
62
who have been trained to use access facilities shall require
retraining for at least two hours when their certifications have
lapsed. The prior certification of a user who has not taken any
further training or participated in program production for a
continuous period of 12 months shall be considered to have lapsed.
The Public Access Coordinator may make reasonable exceptions to
this policy based on evidence that a user has acquired equivalent
training or experience in lieu of certification, and when suitable
training courses are not promptly available.
(B) Once certified by successfully completing equipment
training courses, that user shall be entitled to use such
equipment in accordance with an Equipment Loan Agreement to be
supervised by the Public Access Coordinator.
(C) The normal check -out period for remote equipment shall be
for no more than a six -hour block or overnight, as appropriate.
The Public Access Coordinator shall allow reasonable exceptions
based on reasonable program production requirements, scheduling
availability and the�,interests of program diversity.
(D) Failure to return portable equipment on time may result in
restriction on the further use of such equipment, at the option of
the Public Access Coordinator. Any such decision may be appealed
to the Cable Commission.
(E) Access producers shall not identify themselves as employees
or representative of the cable Grantees. Producers must take all
reasonable measures to identify themselves to persons being
photographed and to obtain all clearances that may be necessary.
(F) All programming produced using public access equipment and
facilities controlled by these rules shall be made available for
original cablecast on the Public Access Channels provided along
with said facilities. Said programming nevertheless shall be
considered the intellectual property of its producer(s). c
(G) The Public Access Coordinator shall, upon request, provide
to producers recorded copies of their access programs and /or raw
footage at no more than the actual cost of dubbing stock.
Producers may supply their own dubbing stock, in which case dubs
shall be free of charge. Dubs shall be made in any available
video format supported by the access facility.
(H) Any time after a program is initially cablecast on the
Public Access Channels, producers shall be free to "bicycle" or
otherwise redistribute the programs to other public access
channels and outlets, locally or elsewhere. Such programs shall
carry a message stating where the program originally was produced.
(I) Upon providing to a producer a program dub under Paragraph
(G) of this section, the Public Access Coordinator shall have the
63
right to obtain from the producer a written statement. The
statement shall state that should the producer distribute the
program in question via third -party viewing outlets and in payment
for such distribution collect revenue or in -kind contributions,
the producer agrees to reimburse the originating Public Access
operation up to the actual, calculated value of all original
production costs associated with the Public Access operation's
facilities and equipment. Such reimbursement shall not apply in
cases where a producer has received any monetary or in -kind prizes
or awards made in connection with any legitimate video contest or
judging, or in the case of any third -party grants originally
awarded to the Public Access operation or to producers, which
grants already have been used to underwrite all or a portion of
program production costs.
Section 8: REVIEW OF RULES
The Cable Commission shall review these rules annually and
revise them as it may consider necessary, taking into account the.
performance and history of public access and any record of
complaints or suggestions for improvements.
Section 9: PROGRAM CONTENT CONTROL
Notwithstanding the indecency and obscenity provisions in
Section 3, the Public Access Coordinator, the Commission and any
other parties that may be responsible for overseeing these rules
shall not exert any form of programming censorship or editorial
control over access programming not in violation of federal, state
or local rules and regulations.
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