O-81-34I
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INDEX
CABLE COMMUNICATIONS SYSTEM
ENABLING ORDINANCE
ARTICLE
SECTION
TITLE)
PAGE
Short Title And Purposes
1
Short Title
1
Of The Ordinance
2
Purposes
1
Definitions
1
Definitions
1
Grant Of Authority
1
Requirements of A Franchise
5
2
Franchise Applications
5
Franchise Conditions
1
Franchise Term
6
2
Notice To The Grantee
6
3
Franchise Review
6
4
Performance and Evaluation
Session
7
-5
Franchise Renewal
8
6
Franchise Revocation
Procedure
10
7
Arbitrary and Capricious
Action By Grantee
12
8
Provision For Arbitration
12
9
Transfer Of Ownership
To Grantor
12
10
Grantee's Obligation As
As Trustee
13
11
Franchise Fee
14
12
Insurance- Bonds- Indemnity
15
13
Transfer Of Franchise
18
14
Cable Advisory Commission
19
15
Letter Of Credit
20
Subscriber Fees And Records
1
Subscriber Fees
21
2
Books And Records
24
System Operations
1
Franchise Areas
25
2
Primary Service Area
25
3
Extension Of Service
25.
4
System Description And
Service
26
5
Operational Requirements
And Records
28
6
Tests And Performance
Monitoring
29
7
Service, Adjustment And
Complaint Procedure
30
8
Street Occupancy
32
9
Construction Schedule
And Reports
34
10
Protection Of Privacy
35
11
Prohibition From Engaging
In Radio And Television
Sales Or Service
36
12
Areawide Interconnection
Of CATV Systems
36
VII
ARTICLE SECTION'
TITLE
PAGE
General Provisions 1
Limits On Grantee's
Recourse
37
2
Compliance With State
and Federal Law
38
3
Special License
38
4
Franchise Validity
38
5
Failure To Enforce
Franchise
38
6
Rights Reserved To The
Grantor
39
7
Employment Requirement
39
8
Time Essence Of Agreement
39
9
Acceptance
39
10
Publication Costs
40
11
Landlord /Tenant Relations
40
12
Penalties
40
13
Grantee May Promulgate Rules
41
14
Delegation Of Powers
41
15
Severability
41
16
Effective Date
41
CABLE COMMUNICATIONS SYSTEMS FRANCHISE
ENABLING ORDINANCE
ARTICLE I: SHORT TITLE AND PURPOSES OF THE ORDINANCE
SECTION 1: SHORT TITLE
This ordinance shall be known as the Deerfield Cable
Communications Ordinance.
SECTION 2: PURPOSES
The purpose of this ordinance is to:
A. Provide for the franchising and regulation of cable
communication systems within the Village of Deerfield, and
B. Provide for the payment of a fee and other valuable
consideration to the Village for the construction and operation of
cable communication systems, and
C. Provide for the review and regulation by the Village
of the rates to be charged to subscribers for cable communication
service, and
D. Provide for the development of cable communication as
a means to improve communication between and among the citizens and
a
public institutions of the Village, and
E. Provide remedies and prescribe penalties for violation
of this ordinance and the franchise(s) granted hereunder.
ARTICLE II: DEFINITIONS
SECTION 1: DEFINITIONS
For the purpose of this ordinance, the following terms,
phrases, words and their derivations shall have the meaning given
herein, unless the context clearly indicates that another meaning is
intended. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number include
the singular number, and words in the singular number include the
plural number. The word "shall" is always mandatory and not merely
directory.
A. "Auxiliary Services" means any communication service
in addition to "regular subscriber services" including, but not
limited to pay TV, burglar alarm services, data or other electronic
transmission services, facsimile reproduction services, meter
reading services and home shopping services, etc.
B. "Board" means the Board of Trustees of Deerfield.
C. "Commission" means the Cable Advisory Commission
created under the provisions here of and designated by the Board of
Trustees to act in matters related to cable communication as herein
provided.
D. "Cable Communications System" (or CATV system) means
any non - broadcast facility consisting of a set of transmission paths
and associated signal generation, reception, and control equipment,
that distributes or is designed to distribute to subscribers audio,
video and other forms of electronic or electrical signals, but such
term shall not include any such facility that serves or will serve
only subscribers in one or more multiple unit dwellings under common
ownership, control or management, and does not use municipal
rights -of -way.
E. "Channel" is a band of frequencies, six megahertz wide
in the electro- magnetic spectrum capable of carrying either one
audio - visual television signal and a few non -video signals or a
large number of non -video signals.
F.• "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 at
designated dial locations.
G. "Fair Market Value" means the price that a willing
buyer would pay to a willing seller for a going concern based on the.
system valuation and sale multiplier prevailing in the industry.
H. "Federal Communications Commission" or "FCC" means the
present federal agency of that name as constituted by the
Communication Act of 1934, or any successor agency created by the
United States Congress.
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I. "Franchise" means the non - exclusive rights granted
hereunder to construct and operate a cable communication system
alongthe public ways in the Village, or within specified areas in
the Village,'and is not intended to include any 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.
J. "Franchise Area" means that portion of the Village for
which a franchise is granted under the authority of this ordinance.
If not otherwise stated in the franchise, the Franchise Area shall
be the corporate.limits of the Village including all territory
thereafter annexed to the Village..
K. "Grantee" means the natural person, partnership,
domestic and foreign corporation, association, joint venture, or
entity granted a franchise by the Board under this ordinance and its
lawful successor, transferee or assignee.
L. "Gross Revenue" means all revenue derived directly or
indirectly by the Grantee, its affiliates, subsidiaries, parents,
and any person in which the Grantee has a financial interest from or
in connection with the operation of a cable system within the
Village or in any way from a franchise granted by the Village
including., but not limited to, regular subscriber service fees,
auxiliary service fees, installation and reconnection fees, leased
channel fees, converter sales and rentals, studio rental, production
equipment and personnel fees, and advertising revenues; provided,
however, that this shall not include any taxes on services furnished
by the Grantee herein imposed directly upon any subscriber or user
by the State, local or other governmental unit and collected by the
Grantee on behalf of said governmental unit.
M. "Institutional Network" means a separate cable, called
the B Cable, with upstream and downstream capacity, designed and
constructed to connect the facilities of public service institutions
as herein defined, to each other independently of the regular
subscriber network.
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N. "Net Profit" means the amount remaining after
deducting from gross revenues all of the actual, direct and
indirect, expenses associated with operating the cable communication
system including but not limited to the franchise fee, interest,
depreciation and Federal or State income taxes in accordance with
generally accepted accounting principles.
0. "Public Service Institutions" mean and include the
Village of Deerfield, Deerfield Park, District, Deerfield Village
Library, Deerfield- Bannockburn Fire Department, Deerfield School
District No. 109, Deerfield High School District No. 113, Holy Cross
School and West Deerfield Township.
P. "Persons" means any people, firms, corporations,
associations or other legally recognized entities.
Q. "Public Way" 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 -ways, and any
temporary or permanent fixtures or improvements located thereon now
or hereafter held by the Village which shall entitle the Village and
the Grantee to the use thereof for the purpose of installing and
maintaining the Grantee's cable communication system.
R. "Regular Subscriber Service" shall mean the
distribution to subscribers of signals over the cable communication
system on all channels except those for which a per - program or
per - channel charge is made, two -way services, and those intended for
reception by equipment other than a television broadcast receiver.
S. "Subscriber" means any member of the general public
who receives the regular subscriber service and /or any one or more
of such other services as may be provided by the Grantee's cable
communication system (except Universal Tier service only), and does
not further distribute such service(s).
T. "Two -way Service" means the subscriber or any other
location shall have the capability to choose whether or not to
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respond immediately or by sequential delay by utilizing any type of
terminal equipment whatever, by pushbutton code, dial code, meter,
voice, video including, but not limited to, audio and video,
electrical or mechanically produced signal, display and /or
interrogation.
U. "User" means a person or organization utilizing a
system channel for purposes of production and /or transmission of
material, as contrasted with receipt thereof in a subscriber
capacity.
V. "Village" means the Village of Deerfield.
ARTICLE III: GRANT OF AUTHORITY
SECTION 1: REQUIREMENTS OF A FRANCHISE
No person, firm, company, corporation or association shall
construct, install, maintain or operate a cable communication system
within the Village, or within any other public property of the
Village, unless a franchise has first been obtained pursuant to the
provisions of this ordinance, and unless such franchise is in full
force and effect. Such franchise shall not take the place of any
other license or permit which may be legally required of the Grantee
in order to conduct such a business.
SECTION 2: FRANCHISE APPLICATIONS
A. After receiving applications for a franchise and the
recommendation of the Commission or Special Committee with respect
thereto, the Board, after considering financial, technical,
programming and rate proposals, and the legal and character
qualifications of the applicants, may, by ordinance, grant one or,
more nonexclusive franchises creating a right to construct and
operate a cable communication system within the public ways of the
Village. Franchise(s) will be granted to the applicant(s) which in
the Board's judgment may best serve the public interest; provided,
however, no provision of this ordinance shall be deemed or construed
as to require the Board to grant a franchise.
B. Applications.for a cable communication franchise shall
be submitted to a Special Committee designated by the President and
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Board of Trustees for such purpose, or the Commission on a written
application form furnished by such Special Committee or the
Commission, and in accordance with procedures and schedules
established by the Committee or Commission. The application form
may request such facts and information as the Committee or
Commission deems appropriate. Applications shall be accompanied by
a non - refundable application fee in an amount determined from time
to time by the Board, which amount shall be used by the Village to
offset direct expenses incurred in the franchising and evaluation
procedures, including, but not limited to, staff time and consulting
assistance.
C. An applicant (Grantee) to whom the Board grants a
non - exclusive franchise shall, in addition to the non - refundable fee
specified hereinabove, pay to the Village at the time the Grantee
files the written acceptance specified in Article VII, Section 9, an
amount to be determined by the Board to be used to offset all
reasonable expenses actually incurred by the Village in granting the
franchise which are not defrayed by fees paid under the provisions
of Paragraph (B) of this Section 2. Said payment shall also be
non - refundable and shall be made to the order of the "Village of
Deerfield ".
ARTICLE IV: FRANCHISE CONDITIONS
SECTION 1: FRANCHISE TERM
The term of an original franchise shall be fifteen -(15)
years from the date the franchise is accepted by the Grantee. The
term of a renewed franchise shall be no more than fifteen (15) years.
No franchise granted pursuant to this ordinance shall give any
exclusive right to a Grantee and every such franchise shall be
deemed to reserve the right to grant other franchises to use and
occupy the public ways of the Village for cable television of any
other purpose on such terms as the Board may then deem appropriate.
SECTION 2: NOTICE TO THE GRANTEE
The Board shall not take any final action involving the
review, renewal, revocation or termination of the Grantee's franchise
unless the Village has (1) advised the Grantee in writing, at least
thirty (30) days prior to such meeting, as to its time, place and
purpose and (2) published a notice, at least once, ten (10) days
before the meeting in a newspaper of general circulation within the
Village. At such meeting and before taking any final action, the
Grantee shall be afforded the opportunity to be heard.
SECTION 3: FRANCHISE REVIEW
It shall be the policy of the Village to amend a franchise,
upon application of the Grantee, when necessary to enable the
Grantee to take advantage of advancements in the state -of -the art
which will afford it an opportunity to more effectively, efficiently,
or economically serve its subscribers; provided, however, that this
Section shall not be construed to require the Village to make any
amendment. Further, within the term of the franchise, the Board may
adopt a resolution setting forth the time and place of a special
Board meeting, the purpose of which will be to consider system
performance, system design modification, and the possible need for
reasonable and appropriate modifications in a franchise of a nature
that would not result in effectively terminating same.
SECTION 4: PERFORMANCE AND EVALUATION SESSION
A. The Commission and the Grantee shall hold scheduled
performance and evaluation sessions within thirty (30) days of the
third, fifth, tenth and fourteenth anniversary dates of the
Grantee's award of the franchise and as required by federal and
state law from time to time. All such evaluation sessions shall be
open to the public. Grantee shall be solely responsible for
notifying the Commission, in writing, at least sixty (60) days in
advance, of a proposed date, time and place for each of the
specified performance evaluation sessions.
B: Special evaluation sessions may be held at any time
during the term of the franchise at the request of the Commission or
the Grantee.
C. All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation in accordance
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with legal notice, as provided in Article IV, Section 2 above.
Grantee shall notify subscribers of all evaluation sessions by
announcement on at least one (1) channel on the system between the
hours of 7 o'clock p.m. and 9 o'clock p.m. for five (5) consecutive
days preceding each session.
D. Topics which may be discussed at any scheduled or
special evaluation session may include, but not be limited to,
service rate structures, franchise fees, penalties, free or
discounted services, applications of new technologies, system
r
performance, services provided, programming offered, customer
complaints, privacy amendments to this ordinance, judicial and FCC
rulings, line extension policies and Grantee or Commission rules.
E. During a review and evaluation by the Commission, the
Grantee shall fully cooperate with the Commission and shall provide
such information and documents as the Commission may need to
reasonably perform its review. Grantee may submit such additional'
information as it deems necessary to fully advise the Commission.
F. If at any time during its review, the Commission
determines that reasonable evidence exists of inadequate CATV system
performance, it may require the Grantee to perform tests and
analysis directed toward the suspected inadequacies. The Grantee
shall fully cooperate with the Commission in performing such testing
and shall prepare results and a report if requested within sixty
(60) days after notice. Such report shall include the following
information:
1. The nature of the complaint or problem which
precipitated the special tests;
testing;
2., What system component was tested;
3. The equipment used and procedures employed in
4. The method, if any, in which such complaint or
problem was resolved.
5. Any other information pertinent to said tests and
analysis which may be required.
G. The Commission may require the test to be supervised
at Grantee's expense by a professional engineer to be approved by
the Commission not on the permanent staff of the Grantee. The
engineer should sign all records of special tests and - forward to the
Commission such records with a report interpreting the results of
the test and recommending actions to be taken.
.H. The Commission, under this Section, shall be limited
to requiring tests, analysis and reports covering specific subjects
and characteristics based on complaints or other evidence when and
under such circumstances as the Commission has reasonable grounds to
believe that the complaints or other evidence require that tests be
performed to protect the public against substandard cable service.
SECTION 5: FRANCHISE ;RENEWAL
A. The Grantee shall be solely responsible for requesting
the Commission, in writing, to hold a special meeting, the purpose
of which will be to review the Grantee's performance during the
entire term of its franchise, to consider the adequacy of the
franchise from the standpoint of the Village, the Grantee, and the
Federal Communications Rules for Cable Television, and to recommend
to the Board the advisability of renewing the Grantee's franchise.
Said request shall be made not less than six (6) months prior to the
franchise expiration date. The Commission shall give appropriate
public notice of the receipt of said request, and the time and place
of the special meeting.
B. The Commission may hear any interested persons during
said special meeting and may determine whether or not the Grantee
did reasonably comply with the terms and conditions imposed by this
ordinance and the franchise.
C. If the Commission determines that the Grantee has been
in reasonable compliance with the terms and conditions imposed by
this ordinance and the franchise, and so recommends to the Board,
the Board may, by resolution, renew the Grantee's franchise, with
any modification it deems desirable, for a period of time not longer
than the initial franchise term. The Board shall have the right to
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recoup from the Grantee those direct expenses incurred pursuant,to
renewal of the franchise, in the same manner as provided in Article
III, Section 2, C.
D. Notwithstanding the fact that the Commission may
determine that the Grantee has been in reasonable compliance with the
terms and conditions imposed by this ordinance and the franchise and
recommends renewal of the franchise, the Board shall have the right
not to renew the franchise. If the'Board does not renew the fran-
chise, the Board shall have an option, to the extent then permitted
by existing law, to acquire the tangible assets (plant, equipment
and facilities) of the Grantee's cable communication system, or the
option to permit a succeeding Grantee to acquire such assets, or to
require the Grantee to remove all the tangible assets of the cable
communication system from the municipality. If the Village acquires
the assets for municipal ownership, the amount paid for such assets
shall be the reproduction cost of the assets in place as adjusted
for their remaining useful life. If the Village permits a
succeeding Grantee to purchase such tangible assets, the amount paid
for such assets shall be the fair market value of the assets, but
not less than the reproduction cost of the assets in place as
adjusted for their remaining useful life. The Village's option to
acquire the assets of the Grantee or to permit a succeeeding Grantee
to acquire such assets or to require the removal of such assets from
the municipality must be exercised within one (1) year from the date
of the franchise expiration.
SECTION 6: FRANCHISE REVOCATION PROCEDURE
A. Whenever a Grantee shall refuse, neglect or willfully
fail to construct, operate or maintain its cable communication
system in substantial accordance with the terms of this ordinance
and the franchise or to comply with the conditions of occupancy of
any public lands, or to make required extensions of service, or in
any other way substantially violates the terms and conditions of
this ordinance, the franchise, or any rule or regulation adopted
thereunder, or practices any fraud or deceit upon the Village or its
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subscribers, or if a Grantee becomes insolvent, or unable to or
unwilling to pay its debts, or is adjudged bankrupt, or seeks relief
under the bankruptcy laws, then the franchise may be revoked.
B. In the event the Board or the Commission believes that
grounds for revocation exist or have existed, the Board or
Commission may notify a Grantee, in writing, setting forth the nature
and facts of such noncompliance. If, within thirty (30),days
following such written notification, the Grantee has not furnished
proof satisfactory to the Board or the Commission that corrective
action has been taken or is being actively and expeditiously
pursued, or evidence that the alleged violations did not occur, or
that the alleged violations were beyond the Grantee's control, the
Commission shall thereupon refer the matter to the Board.
C. Upon referral from the Commission or by its own
motion, the Board may revoke a franchise pursuant to paragraph A of
this Section.
D. The Board shall not revoke a franchise pursuant to
paragraph C of this Section until it has given notice to the Grantee
that it proposes to take such an action and the grounds therefor.
Further, the Board shall not revoke a franchise until the Grantee,
or its representative, has had reasonable opportunity to be heard
before the Board and show that the proposed grounds for revocation
did not or do not exist, as the case may be.
E. A Grantee shall not be subject to the sanctions of
this Section for any act or omission wherein such act or omission
was beyond the Grantee's control. An act or omission shall not be
deemed to be beyond a Grantee's control if committed, omitted, or
caused by a corporation or other business entity which holds a
controlling interest in the Grantee, whether held directly or
indirectly. Further the inability of a Grantee to obtain financing,
for whatever reason, shall not be an act or omission which is
"beyond the Grantee's control."
F. In the event that a franchise has been revoked by the ,
Board, the Board shall have an option, to the extent then permitted
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by existing law, to either purchase the tangible assets of the
Grantee's cable communication system previously governed by the
franchise at their reproduction cost as adjusted for their remaining
useful life or assign such rights to purchase, or to require the
Grantee to remove all the tangible assets (plant, equipment and
facilities) of the cable communication system from the municipality.
Such an option must be exercised within six (6) months from the date
of the revocation of the franchise, or the entry of the final
judgment by a court reviewing the question of the Board's revocation,
or the entry of a final order upon appeal of same, whichever is
later.
G. The termination of a Grantee's rights under a
franchise shall in no way affect any other rights the Village may
have under the franchise or under any provision of law.
SECTION 7: ARBITRARY AND CAPRICIOUS ACTION BY GRANTEE
A. If a Grantee arbitrarily and capriciously discontinues
service to a substantial number of its subscribers, the Grantee's
franchise may be revoked by a resolution of the Board following
notice to the Grantee and an opportunity to be heard. Notwith-
standing the provisions of Article IV, Section 2, notice to the
Grantee under this Section may be less than thirty (30) days.
Provided further, the Village may seek appropriate judicial or other
relief and /or may proceed to exercise its rights and powers as
provided for herein.
SECTION 8: PROVISION FOR ARBITRATION
A. In the event that the Board pursues the option to
purchase Grantee's cable communication system, or any of its
tangible assets, and the reproduction cost, as adjusted for the
remaining useful life of the tangible assets cannot be agreed upon,
said value shall be determined by a panel of arbitrators, which
panel may be requested by either the Board or the Grantee no sooner
than ninety (90) days after notice that the Board desires to purchase
the system. The panel shall be composed of one arbitrator chosen by
the Village, one arbitrator chosen by the Grantee, and a third
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arbitrator chosen by the first two. The expenses of the arbitration,
including the fees of the arbitrators, shall be borne by the parties
in such manner as the arbitrators provide in their award, but in no
event will the Village be obligated for more than one -half the
expenses. The determination of a majority of the arbitrators shall
be binding on the parties. The arbitrators shall follow the rules
and procedures of the American Arbitration Association except where
in conflict with an express provision of this ordinance. The
arbitration hearing shall take place in Lake County, unless
otherwise agreed to by the parties in writing.
SECTION 9: TRANSFER OF OWNERSHIP TO GRANTOR
A. In those circumstances provided for in this ordinance
wherein the Village shall have the right to purchase ownership of a
Grantee's cable communication system or any of its tangible assets,
the Village may give notice.that it elects to exercise such right
andacquire such assets at the time of payment of the value thereof.
In those circumstances where the question of value has been
submitted to arbitration, the Board may affirmatively accept the
decision of-the arbitrators within ninety (90) days after the
rendering of the arbitrators' decision. However, if the Board fails
to accept the arbitrators' decision within the aforesaid ninety (90)
day period, the rights of the Village to purchase shall expire.
B. If any time lapses between the time of transfer of
assets and the time of payment therefor, the Grantee shall be
entitled to interest during the interim at the rate provided by
Chapter 74, Section 3, Ill.Rev.Stat., as amended, for interest on
judgments.
SECTION 10: GRANTEE'S OBLIGATION AS TRUSTEE
A. At all times from the expiration or revocation of a
franchise and until either (1) a Grantee transfers to the Village or
other succeeding operator of the system all of its rights, title and
interest to all assets, real and personal, related to its cable
communication system or (2) the Village's right to either acquire or
assign its rights to acquire any of the Grantee's assets expires
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without the Village having exercised such a right, whichever occurs
first, the Grantee shall have a duty to such successor as a trustee
holding such assets for the benefit of such successor and the Grantee
shall not sell any of the system assets nor shall the Grantee make
any physical, material, or administrative operational changes that
would tend to (1) degrade the quality of service to the subscribers,
(2) decrease gross revenues, or (3) materially increase expenses
without the expressed permission, in writing, of the Village or its
assigns. The Grantee shall at all times operate the system in
accordance with terms of this ordinance and the terms of the
franchise as if the franchise had not expired or had not been
revoked. In the event the Grantee fails or refuses to operate the
system as a Trustee, the Village shall have the option to name a
successor Trustee or operate the system itself as a trustee in
accordance with the terms of this ordinance and the terms of the
franchise.
B. In the event of expiration or revocation of a
franchise, this Section shall not be construed to give a Grantee any
vested or other franchise right, but the right of the Grantee in
such circumtances shall exist only on a day -to -day basis until the
transfer is effected.
C. For its management services during this interim period
as trustee, the Grantee shall be entitled to receive as compensation
the net profit, as defined herein, generated during the period
between the expiration or revocation of the franchise, as the case
may be, and the transfer of the Grantee's assets to the Village or a
successor.
D. Further, this Section shall in no way limit the power
of the Village, upon expiration or revocation of a franchise, to
require the Grantee to cease all operations whatsoever and /or remove
its facilities, or otherwise exercise any rights the Village would
otherwise have.
SECTION 11: FRANCHISE FEE
A. The Grantee, in consideration of the privilege granted
under the franchise for the operation of a cable communication
14 -
system, and the expense of regulation pursuant to the franchise
incurred by the Village, shall pay to the Village five percent (5 %)
of its annual gross revenues during the period of its operation
under the franchise or the maximum amount as may be set from time to
time by controlling Federal or State law, whichever is greater, or
such lesser amount as may be specified in the Franchise Agreement.
B. The Grantee shall file with the Village, within thirty
(30) days after the expiration of each quarter of the Grantee's
fiscal year, a financial statement clearly showing the gross
revenues received by Grantee during the -preceding quarter, and shall
simultaneously tender payment of such quarterly portion of the
franchise fee. The Grantee shall also file, within one hundred
twenty (120) days following the conclusion of the Grantee's fiscal
year,,an annual report of total gross revenues prepared and audited
by a Certified Public Accountant acceptable to the Village, clearly
showing the yearly total gross revenues.
C. The Village shall have the right, consistent with the
provision of Article V, Section 2,Paragraph D, to inspect the
Grantee's income records, the right of audit and the recomputation
of any amounts determined to be payable under this ordinance. Any
additional amount due the Village as a result of the audit shall be
paid within thirty (30) days following written notice to the Grantee
by the Village which notice shall include a copy of the audit report.
The cost of said audit shall be borne by the Grantee if it is
properly determined that the Grantee.'s annual payment due to the
Village for the preceding year is increased thereby by more than
five percent (5%).
D. In the event that any franchise payment or recomputed
amount is not made on or before the applicable dates heretofore
specified, interest shall be charged from such due date at the prime
rate provided by Chapter 74, Section 3, Ill.Rev.Stat., as amended.
E. In the event the franchise is terminated prior to its
expiration date, and the Village invokes its right to purchase the
Grantee's cable communication system', the Grantee shall file with
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the Village, within thirty (30) days of the date that ownership and
control passes to the Village or its assignee, a financial statement
clearly showing the gross revenues received by Grantee since the end
of the previous month. The Grantee shall pay the franchise fee due
at the,time such statement is filed or within thirty (30) days,
whichever is sooner.
SECTION 12: INSURANCE - BONDS- INDEMNITY
A.• Upon the granting of a,franchise and within thirty
(30) days following the filing of the acceptance required under
Article VII, Section 9 hereof and at all times during the term of
the franchise including the time for removal of facilities or
management as a trustee as provided for herein, the Grantee shall
obtain, pay all premiums for, and file with the Village written
evidence of payment of premiums and certificates of insurance for
the following:
1. A general comprehensive public liability policy
indemnifying, defending and holding harmless the Village, its
officers, boards, commissions, agents or employees from any and all
claims by any person whatsoever on account of injury to or death of
a person or persons occasioned by the operations of the Grantee under
the franchise herein granted, or alleged to have been so caused or
occurred, with a minimum liability of Five Million Dollars
($5,000,000) per personal injury or death of any one person and Ten
Million Dollars ($10,000,000) for personal injury or death of two or
more persons in any one occurrence.
2. Property damage insurance indemnifying, defending,
and holding harmless the Village, its officers, boards, commissions,
agents and employees from and against all claims by any person
whatsoever for property damage occasioned by the operation of Grantee
under the franchise herein granted, or-alleged to have been so
caused or occurred, with a minimum liabiity of One Million Dollars
($1,000,000) for property damage to the property of any one person
and Two Million Dollars ($2,000,000) for property damage to the
property of two or more persons in any one occurrence.
- 16 -
3. A performance bond running to the Village with
good and sufficient surety approved by the Village in the amount
specified in the franchise, or if no amount is specified therein,
then in the sum of Two Hundred Thousand Dollars ($200,000),
conditioned upon the faithful performance and discharge of the
obligations imposed by the ordinance and the franchise awarded
hereunder from the date thereof including, but not limited to,
faithful compliance with the construction timetable proposed by the
Grantee in its application as incorporated into the franchise,
unless appropriate extension is approved by the Board. When regular
subscriber service is available to more than ninety percent (90 %) of
the occupied dwelling units within the Primary Service Area as
described in Article VI, Section 2, as certified by the Commission
to the Board, the amount of the bond shall be reduced to the amount
specified in the franchise, or if no amount is specified therein,
then to the sum of Fifty Thousand Dollars ($50,000). The Village's
right to recover under the bond shall be in addition to any other
rights retained by the Village under this ordinance and other
applicable law. Any proceeds recovered under the bond may be used
to reimburse the Village for the loss of expected payments of the
franchise fee and other valuable consideration given for the grant
of the franchise, and such additional expenses as may be incurred by
the Village as a result of Grantee's failure to comply with the
obligations imposed by this ordinance and the franchise including,
but not limited to, attorney's fees and costs of any action or
proceeding, the cost of refranchising, and the cost of removal or
abandonment of any property, or other costs which may be in default.
B. The bond and all insurance policies and certificates
of insurance called for herein shall be in a form satisfactory to
the Village Attorney and shall require thirty (30) days written
notice of any cancellation to both the Village and the Grantee. The
surety on the bond shall be authorized to do business in Illinois
and shall have at least an AAAA financial rating in the most recent
edition of Best's Insurance Reports. The insurance carrier writing
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such insurance policies shall be authorized to do business in
Illinois and shall be subject to the approval of the Board of
Trustees. The Grantee shall, in the event of any such cancellation
notice, obtain, pay all premiums for, and file with the Village,
written evidence of the issuance of 'replacement.bond or policies
within thirty (30) days following receipt by the Village or the
Grantee of any notice of cancellation. Grantee will cause letters
to be issued by the insurance companies or its agents in order to
clarify any items as requested by the Village.
C. The Grantee shall, at its sole cost and expense,
indemnify and hold harmless the Village, its officials, boards,
commission, agents and employees against any and all claims, suits,
causes of action, proceedings, and judgments for damage arising out
of the granting of the franchise or the operation of the cable
communication system under the franchise. These damages shall
include but not be limited to penalties arising out of copyright
infringements and damages arising out of any failure by Grantee to
secure consents from the owners, authorized distributors or
licensees of programs to be delivered by the Grantee's cable
communication system whether or not any act or omission complained
of is authorized, allowed, or prohibited by the franchise.
Indemnified expenses shall include, but not be limited to, all
out -of- pocket expenses, such as attorney fees, and shall also
include the reasonable value of any services rendered by the Village
Attorney or his assistants or any employees of the Village.
SECTION 13: TRANSFER OF FRANCHISE
A. A franchise granted under this ordinance shall be a
privilege to be held in personal trust by the Grantee. It shall not
be assigned, transferred, sold or disposed of, transferred in trust,
pledged, in whole or in part, by voluntary sale, merger,
consolidation or otherwise or by forced or involuntary sale, without
prior consent of the Board expressed by resolution and then on only
such conditions as may therein be prescribed. Any sale, transfer or
assignment not made according to the procedures set forth in this
90"i W
ordinance shall render the franchise void. The sale, transfer or
assignment in bulk of the major part of the tangible assets of the
Grantee shall be considered an assignment and shall be subject to
the provisions of this Section.
B. Any sale, transfer or assignment authorized by the
Board shall be made by a bill of sale or similar document, and
executed copy of which shall be filed with the Village within thirty
(30) days after any such sale, transfer or assignment. The Board
shall not withhold its consent unreasonably; provided, however, the
proposed assignee agrees to comply with all the provisions of this
ordinance and the franchise and reasonable amendments thereto, and
must at a minimum, satisfy the legal, financial, technical and
character qualifications required by Article III, Section 2 of this
ordinance.
C. Prior approval of the Board shall be required where
ownership or control of more than 20% of the rr ight of control of the
Grantee is acquired during the term of the .franchise in any
transaction or series of transactions by a person or group of
persons acting in concert, none of whom owned or controlled 20% or
more of such right of control, singularly or collectively on the
effective date of the franchise. By,its acceptance of this
franchise the Grantee specifically grants and agrees-that any such
acquisition occurring without prior approval of the Board shall
render the franchise void.
D. The consent of the Board to any sale, transfer, lease,
trust, mortgage or other instrument of hypothecation shall not
constitute a waiver or release of any of the rights of the Village
under this ordinance and the franchise.
SECTION 14: CABLE ADVISORY COMMISSION
A. There is hereby established a Cable Advisory
Commission consisting of seven (7) members appointed by the
President of the Village by and with the advice and consent of the
Board of Trustees. The members of the Commission, first appointed,
shall serve respectively for the following terms:
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Two (2) for 'one (1) year
Two (2) for two (2) years
Three (3) for three (3) years
B. The successor of each member so appointed shall serve
for a term of three (3) years. Vacancies shall be filled by the
President by and with the advice and consent of the Board of
Trustees for the unexpired term.
C. One of the members so appointed shall at the time of
his appointment be named as Chairman by the President with the
advice and consent of the Board of Trustees.
D. Regular meetings shall be held on dates to be
determined by the Cable Advisory Commission. Special meetings shall
be held at the call of the Chairman.
E. The Cable Advisory Commission shall have such duties
and powers as may be provided herein and from time to time as
determined by the Board of Trustees.
F. The Cable-Advisory Commission may adopt such rules as
necessary and advisable to carry out its duties and functions.
G. The Cable Advisory Commission, with the approval of
the Board of Trustees, may obtain independent advice on technical
matters from engineers, consultants or other experts.
SECTION 15: LETTER OF CREDIT
A. Within ten (10) days after the award of the franchise,
the Grantee shall deposit with the Village a letter of credit from a
financial institution in the amount of Ten Thousand Dollars
($10,000). The form and content of such letter of credit shall be
approved by the Village Attorney. The letter of credit shall be
used to insure the faithful performance by the Grantee of all
provisions of the franchise and this ordinance; and compliance with
all orders, permits and directors of any agency, commission, board,
department, division or office of the Village having jurisdiction
over its acts or defaults under the franchise or this ordinance, and
the payment by the Grantee of any penalties, claims, liens and taxes
due the Village, the Agency, or other governmental entities which
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arise by reason of the construction, operation or maintenance of the
System.
B. If the Grantee fails to pay to the Village any
compensation due the Village within the time fixed herein; or,
fails, after thirty (30) days notice to pay to the Village any taxes
due and unpaid; or fails to repay the Village within thirty (30)
days, any damages, costs or expenses which the Village is compelled
to pay by reason of any act or default of the Grantee in connection
with the franchise; or, fails, after fifteen (15) days notice of
such failure by the Grantee to comply with any provision of the
franchise or this ordinance which the Board reasonably determines
can be remedied by demand on the letter of credit, the Board may
immediately request payment of the amount thereof, with interest and
any penalties, from the letter of credit. Upon such request for
payment, the Board shall notify the Grantee of the amount and date
thereof.
C. The letter of credit shall be maintained at Ten
Thousand Dollars ($10,000) during the entire term of the franchise.
If amounts are withdrawn pursuant to paragraph A or,B of this
Section, the Grantee, if necessary, shall take any action required
to maintain the letter of credit at said full amount within fifteen
(15) days of the notification of the Board of its withdrawal against
the letter of credit.
D. The rights reserved to the Board with respect to the
letter of credit are in addition to all other rights of the Village,
whether reserved by the franchise or authorized by law, and no
action, proceeding or exercise of a right with respect to such
letter of credit shall affect any other right the Board or the
Village may have.
E. The letter of credit shall contain the following
endorsement:
"It is hereby understood and agreed that
this letter of credit shall not be cancelled
by the surety until thirty (30) days after
receipt by the Board, by registered mail, of
a written notice of such intention to cancel
or not to renew."
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I
ARTICLE V: SUBSCRIBER FEES AND RECORDS
SECTION 1: SUBSCRIBER FEES
A. By accepting a franchise granted pursuant to the terms
and conditions imposed by this ordinance, the Grantee agrees that
the Board shall have the authority and right to cause the Grantee's
fees for regular subscriber service, and all other services to the
extent permitted by law or FCC rules and regulations, to conform to
the provisions contained herein. The Board, pursuant to notice and
hearing as 'hereinafter provided, shall also have the authority and
right to deny increases or order reduction of fees when it
determines that in the absence of such action on its part, the
Grantee's fees or proposed fees do not conform to the stipulations
contained herein.
B. All charges to subscribers shall be consistent with a
schedule of fees for all services offered as established by the
Grantee. Changes in the fee schedule shall not take effect until at
least ninety (90) days after notification of same is delivered to
the Commission and to current subscribers.
C. The Grantee shall not, with regard to fees,
discriminate or grant any preference or advantage to any person;
provided, however, that the Grantee may establish different rates
for different classes of subscribers based upon cost of service
differentials, provided that the Grantee not discriminate between
any subscribers of the same class.
D. Notwithstanding the foregoing provisions, and except
in the case of extraordinary circumstances as approved by the Board,
the Grantee shall not increase the fees for services proposed in the
franchise application above the rates specified in said application
for a period of twenty four (24) months from the time service is
available to 90% of the residences, institutions and commercial and
industrial establishments within the:Village; provided, however,
that the Grantee shall have the authority and the right to add to
its service or installation fees any Federal, State or local taxes
or fees directly imposed on subscribers, and for any additional
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copyright fees that may be imposed as a result of legislative or
judicial action at the Federal, State or local level taken after the
filing of the franchise application. If during the term of the
franchise, the Grantee receives refunds of any copyright payments,
it shall without delay notify the Commission, suggest a plan for
flow- through of the refunds to its subscribers, and retain such
refunds in an interest bearing escrow account pending order of the
Board. After considering the plan submitted by the Grantee, the
Commission shall recommend and the Board shall order flow - through of
the refunds with accrued interest to the Grantee's subscribers in a
fair and equitable manner.
E. By acceptance of a franchise, the Grantee further
acknowledges that the Village retains the right to review and
regulate rates for regular subscriber service, and all other services
to the extent permitted by law or FCC rules and regulations. Such
rates as determined by the Village shall be just, reasonable and
compensatory and comparable to rates charged for similar services in
other franchise areas in the Chicago Metropolitan Area.
1. Any time after eighteen (18) months from the date
service is provided to 100% of the subscribers requesting service
within the Village, the Commission, after proper notice as provided
in Article IV, Section 2, may hold public hearings to consider the
necessity of regulating the subscriber rates charged by the Grantee,
and by reasonable amendment of the ordinance and franchise, and /or
by adoption of rules and regulations, may establish procedures for
the review of subscriber rates; provided, however, that this Section
shall not permit the Village to order the Grantee to rebate any fee
or portion thereof charged during the period when such fees were not
subject to regulation by the Village.
F. The Grantee shall be required to apprise in writing
each new subscriber of all applicable fees and charges for providing
cable communication'service.
G. Grantee may, at its own discretion, in a non-
discriminatory manner, waive, reduce or suspend connection fees for
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specific or indeterminate periods and /or monthly service fees for
promotional purposes.
H. Except as may be otherwise provided in a franchise, a
subscriber shall have the right to have its service disconnected
without charge, which shall include the removal of any equipment
owned by the Grantee from the subscriber's residence; such
disconnection shall be made as soon as practicable and in no case
later than thirty (30) days following notice to the Grantee of
same. No Grantee shall enter into any agreement with a subscriber
which imposes any charge following disconnection of the entire
service, except for reconnection and subsequent monthly or periodic
charges, and those charges shall be no greater than charges for new
customers. This Section shall not prevent a Grantee from refusing
service to any person because the Grantee's prior accounts with that
person remain due and owing.
I. Except as may be otherwise provided in a franchise, a
Grantee may offer service which requires advance payment of periodic
service charges for no more than one (1) year in advance subject to
the conditions contained in this paragraph. A subscriber shall have
the right, at any time to have its service disconnected without
charge and with a refund of unused service charges paid to the
customer within thirty (30) days'from the date of service. Rate
increases shall not be effective with respect to any subscriber
until after the expiration of any period for which advance payment
has been accepted by the Grantee.
SECTION 2: BOOKS AND RECORDS
A. A Grantee shall, (1) within thirty (30) days following,
the acceptance of a franchise, and (2) at least yearly thereafter,
and (3) within thirty (30) days of the change of ownership of five
percent (5 %) or more of any class or series of the outstanding voting
stock or equivalent ownership interest of a Grantee, furnish the
Village a list, showing the names and addresses of persons owning
five percent (5 %) or more of any class or series of the outstanding
voting stock or equivalent ownership interest of the Grantee. Such
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a list shall include a roster of the Grantee's officers and
directors (or equivalent managerial personnel) and their addresses.
B. A Grantee shall maintain books and records of its
i operation within the Village to show the following in sufficient
detail, consistent with generally accepted accounting principles:
1. Total revenues, by service category.
2. Operating expenses, categorized by general and
administrative expenses, technical expenses, and programming
expenses, and overhead where applicable.
3. Capital expenditures, to include capitalized
interest and overhead, if any.
4. Depreciation expenses, by category.
C. A Grantee shall maintain such books and records -for
the Franchise Area specified in the franchise separately from any
other operations; provided, however, that any expenses or
expenditures which apply to both the system in said Franchise Area
and any other operations shall be reasonably allocated between all
such operations, consistent with generally accepted accounting
principles. Such books and records shall be retained, in any
reasonable form, for a period of not less than fifteen (15) years.
The Village shall have the right to,extend the retention period
through the term of any renewed franchise.
D. The books and records of the Grantee's operation within
the Village shall be made available in the Village during normal
business hours, for inspection and audit by the Village within thirty
(30) days after such request has been made.
E. Copies of the Grantee's schedule of charges, contract
or application forms for subscriber service, policy regarding the
processing of subscriber complaints, delinquent subscriber disconnect
and reconnect procedures and any other terms and conditions adopted
as the Grantee's policy in connection with its subscribers shall be
filed with the Village and shall be made available for inspection by
the public in the Grantee's local office.
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ARTICLE VI: SYSTEM OPERATIONS
SECTION 1: FRANCHISE AREAS
The areas of the Village for which applications for
franchise will be accepted shall be specified by the Board and the
area franchised shall be specified in each franchise.
SECTION 2: PRIMARY SERVICE AREA
A. Grantee shall furnish to the Village a map of suitable
scale showing all roads and public buildings, which indicates the
Primary Service Area (PSA) to be served.
B. The Primary Service Area shall be subject to approval
by the Board, and shall be incorporated into a franchise granted
pursuant to this ordinance. If no PSA is specifically delineated in
a franchise, the PSA shall be considered to be coterminous with the
Franchise Area.
SECTION 3: EXTENSION OF SERVICE
A. Each Grantee shall extend its CATV System and make
CATV service available beyond the Primary Service Area as follows:
1. Concurrently with the installation of utility
lines to developing areas having a planned minimum density of fifty
(50) dwelling units per street mile, beginning at the boundary of
the Primary Service Area or any line extension beyond the Primary
Service Area.
B. Grantee must extend and make cable communication
service available to any isolated resident within or without the
Primary Service Area requesting connection at the standard
connection charge, if the connection to the isolated resident would
require no more than a standard one hundred fifty (150) foot aerial
or buried drop line.
C. With respect to requests for connection requiring an
aerial or -- buried drop line in excess of one hundred fifty (150)
feet, Grantee must extend and make available cable communication
service to such residents at -a connection charge not to exceed the
actual installation costs incurred by the Grantee for the distance
exceeding one hundred fifty-(15 0) feet.
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D. The Grantee, in its application, may propose a line
extension policy which will result in serving more residents of the
Village than as required above, in which case the Grantee's
application will be incorporated by reference in the Franchise, and
will be binding on the Grantee.
SECTION 4: SYSTEM DESCRIPTION AND SERVICE
A. The cable communication system to be installed by
Grantee shall comply in all respects with the requirements set forth
in the FCC's Rules for Cable Television including applicable
amendments thereto, provided, however, that nothing contained herein
shall be construed to prohibit the Grantee from proposing to comply
with more rigid technical performance requirements, in which case
the Grantee's application will be incorporated by reference in the
Franchise, and will be binding on the Grantee. If the FCC should
delete said requirements, the Village hereby reserves the right to
amend this ordinance to incorporate similar standards. In addition
to a cable for regular subscriber service, Grantee's cable
communication system shall include a separate cable or Institutional
Network as herein defined.
B. Applications for franchise may include proposals for
the provision of public education, local government, and leased
access channels. Such proposals by a Grantee shall be incorporated
into the franchise granted, and shall be subject to the following
requirements:
1. The Grantee shall have available equipment for
local production and presentation of cablecast programs other than
automated services and permit its use for the production and
presentation of public access programs. The Grantee shall not enter
into any contract, arrangement, or lease for use of its cablecast
equipment which prevents or inhibits the use of such equipment for a
substantial portion of time for public access programming.
2. The Grantee shall have responsibility for the
content of access cablecast programs subject to operating rules to
be adopted by the Grantee and reviewed by the Commission.
- 27 -
3. The public access'channels(s) shall be made
available to residents of the Village on a first -come, first- served,
non - discriminatory basis, consistent with the goal of the maximum
availability of access, free of charge. Charges for equipment,
personnel, and production of public access programming shall be
reasonable and consistent with the goal of affording users a
low -cost means of television access. No charges shall be made for
the production of live public access programs not exceeding five
minutes in length, or for the replay of user- supplied tapes which
are in a form compatible with the Grantee's playback facilities.
The Grantee shall adopt operating rules for the public access
channel(s), to be filed with the Commission prior to the activation
of the channel(s), designed to prohibit the presentation of: any
advertising material designed to promote the sale of commercial
products or services (including advertising by or on behalf of
candidates for public office); lottery information; obscene or
indecent matter, as well as rules requiring first -come
non - discriminatory °access, and rules, permitting public inspection of
a complete record of the names and addresses of all persons or
groups requesting access time. Such a record shall be retained for
a period of two years.
4. The education access channel(s) shall be made
available for the use of local educational authorities identified in
Article II, Section 1, Subsection 0,; hereof, free of charge. The
Grantee shall adopt operating rules,for the education access
channel(s), to be filed with the Commission prior to activation of
the channel(s), designed to prohibit the presentation of: any
advertising material designed to promote the sale of commercial
products or services (including advertising by or on behalf of
candidates for public office); lottery information; and obscene or
indecent matter, as well as a rule permitting public inspection of a
complete record of the names and addresses of all persons or groups
requesting access time. Such a record shall be retained for a
period of two years.
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5. The local government access channel(s) shall be
made.available for the use of the Village or such other unit of
local government as shall be designated by the Board, free of charge.
6. The leased access channel(s) shall be made
available to leased access users. Priority shall be given part -time
users on at least one channel. The Grantee shall adopt operating
rules for the channel(s), to be filed with the Board prior to
activation of the channel(s), designed to prohibit the presentation
of: lottery information, to the extent such information is
prohibited by state law; and obscene or indecent matter and shall
establish rules to this effect; and other rules requiring
non - discriminatory access, sponsorship identification, specifying an
appropriate rate schedule and permitting public inspection of a
complete record of the names and addresses of all persons or groups
requesting time. Such a record shall be retained until the earliest
scheduled performance evaluation session described in Article IV,
Section 4, of this ordinance or for a longer period as determined by
the Board.
C. Grantee shall provide, without charge within the
Primary Service Area, one service outlet activated for regular
subscriber service to each public building designated by the Public
Service Institutions owning or in possession of such building.
D. The Grantee shall not permit the transmission of any
programming under its control that is obscene or indecent. At the
option of the subscriber,.the Grantee shall provide at no cost, a
device capable of locking out any premium programming video and
audio signals.
SECTION 5: OPERATIONAL REQUIREMENTS AND RECORDS
A. Grantee shall construct, operate and maintain the
cable communication system in full compliance with the rules and
regulations, including applicable amendments, of the Federal
Communications Commission and all other applicable Federal, State,
or local laws and regulations, including the latest editions of the
National Electrical Safety Code and the National Fire Protection
- 29 -
or under the supervision of, a qualified registered professional
engineer or an engineer with proper training and experience. A copy
of the report shall be submitted to the Village, describing test
results, instrumentation, calibration, and test procedures, and the
qualifications of the engineer responsible for the tests.
B. System monitor test points shall be established at or
near the output of the last amplifier in the longest feeder line, at
or near trunk line extremities, or at the locations to be specified
in the franchise. Such periodic tests shall be made at the test
points as shall be described by the Village.
C. At any time after commencement of service to
subscribers, the Village may require additional reasonable tests,
including full or partial repeat tests, different test procedures,
or tests involving a specific subscriber's terminal, at the Grantee's
expense to the extent such tests may be performed by the Grantee's
employees utilizing its existing facilities and equipment; provided,
however, that the Village reserves the right to conduct its own
tests upon reasonable notice to the Grantee and if non - compliance is
found, the expense thereof shall be borne by the Grantee. The
Village will endeavor to arrange its 'request for such special tests
so as to minimize hardship or inconvenience to Grantee or to the
subscriber.
D. A copy of the annual performance tests report required
by the Federal Communications Commission shall be submitted to the
Village within thirty (30) days of its completion.
E. The Village shall have the right to employ qualified
consultants if necessary or desirable to assist in the
administration of this, or any other Section of this ordinance.
SECTION 7: SERVICE, ADJUSTMENT AND COMPLAINT PROCEDURE
A. Grantee shall establish a maintenance service capable
of locating and correcting major system malfunctions promptly except
for circumstances beyond the Grantee's control such as strikes, acts
of God, wars, riots and civil disturbances. Said maintenance service
shall be available at all hours, to correct such major system
malfunctions affecting a number of subscribers.
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B. A listed local telephone number shall be made available
to subscribers for service calls at any time of the day or night.
Investigative action shall be initiated in response to all service
calls, other than major outages, not later than the next business
day after the call is received. Corrective action shall be
completed as promptly as practicable. Appropriate records shall be
made of service calls showing when and what corrective action was
completed. Such records shall be available to the Village during
normal business hours and retained in Grantee's files until the
earliest scheduled performance evaluation session described in
Article IV, Section 4, of this ordinance or for a longer period as
determined by the Board. A summary of such calls shall be prepared
by the Grantee and submitted to the Village annually, beginning
twelve (12) months after service is provided to the first subscriber.
C. The Grantee shall furnish each subscriber at the time
service is installed written instructions that clearly set forth
procedures for placing a service call, or requesting an adjustment.
Said instructions shall also include the name, address and telephone
number of the Commission and a reminder that the subscriber can call
or write the Commission for information regarding terms and
conditions of the Grantee's franchise if the Grantee fails to
respond to the subscriber's request for installation, service or
adjustment within a reasonable period of time.
D. In the event a subscriber does not obtain a satisfactory
response or resolution to his request for service or an adjustment
within a reasonable time period, he may advise the Commission in
writing of his dissatisfaction and the Commission shall have
authority to investigate the matter and to order corrective action
as shall be appropriate: The Village may require Grantee to
establish rules and procedures regulating complaint resolution in
the Franchise agreement.
E. The Grantee shall interrupt system service after 7:00
a.m. and before 1:00 a.m. only with good cause and for the shortest
time possible and, except in emergency situations, only after
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cablecasting notice of service interruption at least twenty -four
(24) hours in advance of the service interruption. Service may be
interrupted between 1:00 a.m. and 7:00 a.m. for routine testing,
maintenance, and repair, with notification, on any day except
Saturday or Sunday, or a holiday.
SECTION 8: STREET OCCUPANCY
A. Grantee shall utilize existing poles, conduits and
other facilities whenever possible, and shall not construct or
install any new, different, or additional poles, conduits, or other
facilities whether on public property or on privately -owned property
until-the written approval of the appropriate governmental
authority, and, if necessary, of the property owner is obtained, and
which approval shall not be unreasonably withheld by the
municipality. No location of any pole or wire - holding structure of
the Grantee shall be a vested interest and such poles or structures
shall'be removed or modified by the Grantee at its own expense
whenever the Village or other governmental authority determines that
the public convenience would be enhanced thereby. Provided,
however, that nothing contained herein shall be construed to entitle
Grantee to the use of any property which is determined to be
privately -owned where the Grantee, private property owners, Village,
or other governmental 'authority initially believed the Village to be
the property owner.
B. Where the Village or a,public utility serving the
Village desires to make use of the poles or other wire - holding
structures of the Grantee but agreement therefor with the Grantee
cannot be reached, the Board may require the Grantee to permit such
use for such consideration and upon such terms as the Board shall
determine to be just and reasonable, if the Board determines that
the use would enhance the public convenience and would not unduly
interfere with the Grantee's operations.
C. All transmission lines, equipment and structures shall
be so installed and located in compliance with all applicable local
ordinances so as to cause minimum interference with the rights and
-33-
appearance and reasonable-convenience of property owners who abut
any road and at all times shall be kept and maintained in a safe,
adequate, and substantial condition, and in good order and repair,
consistent with the provisions of paragraph E, of this Section. The
Grantee shall at all times employ reasonable care and shall install
and maintain in use commonly accepted methods and devices for
preventing failures and accidents which are likely to cause damage,
injuries, or nuisances to the public. Suitable barricades, flags,
lights, flares, or other devices shall be used at such times and
places as are reasonably required for the safety of all members of
the public. Any poles or other fixtures placed in any public way by
the Grantee shall be placed in such a manner as not to interfere
with the usual travel on such public way.
D. Grantee shall remove, replace, or modify at its own
expense, the installation of any of its facilities as may be deemed
necessary by the Village or other appropriate governmental authority
to meet its proper responsibilities.
E. All installations shall be underground in those areas
of the Village where public utilities providing both telephone and
electric utility facilities are underground at the time of
installation. In areas where both telephone and electric utility
facilities are aboveground at the time of installation, the Grantee
may install its service aboveground, provided that at such time as
those facilities are required to be placed underground by the
Village or are placed underground, the Grantee shall likewise place
its services underground without additional cost to the Village or
to the individual subscriber so served within the Village. If the
facilities of either the electric or the telephone utility are
aerial, the television facilities may be located underground at the
request of a property owner, provided that the excess cost over
aerial location shall be borne by the property owner making the
request. In those areas of the Village where there are facilities
both aboveground and below ground, Grantee may install its service
either above or below ground.
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F. In the event of disturbance of any road or private
property by the Grantee, it shall, at its own expense and in a
manner approved by the Village or other appropriate governmental
authority and the owner, replace and restore such road or private
property in as good a condition as before the work causing such
disturbance was done. In the event the Grantee fails to perform
such replacement or restoration the Village or the owner shall have
the right to do so at the sole expense of the Grantee. Demands for
payment to the Village or owner for such replacement or restoring of
such roads or private property as may have been disturbed must be in
writing to the Grantee.
G. Whenever, in case of fire or other disaster, it becomes
necessary in the judgment of the Village to remove or damage any of
the Grantee's facilities, no charge shall be made by the Grantee
against the Village for restoration and repair.
H. At the request of any person holding a valid building
moving permit issued by the Village or other appropriate
governmental authority and upon at least 48 hours notice, Grantee
shall temporarily raise, lower, or cut its wires as may be necessary
to facilitate such move. The direct; expense of such temporary
changes, including standby time, shall be paid by the permit holder,
and Grantee shall have the authority to require payment in advance.
I. Grantee shall have the authority to trim trees on
public property at its own expense as may be necessary to protect
its wires and facilities, subject to-the supervision and direction
of the Village or other appropriate governmental authority.
SECTION 9: CONSTRUCTION SCHEDULE AND REPORTS
A. Upon accepting the franchise, Grantee shall, within
sixty (60) days, file the initial documents required to obtain all
necessary Federal, State and local licenses, permits and authoriza-
tions required for the conduct of its business, and shall submit
monthly reports to the Village on progress in this respect until all
such documents are in hand. Failure of the Grantee to pursue all
necessary steps to secure the aforementioned authorizations with due
diligence shall constitute a substantial violation of this ordinance.
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B. Franchise applications shall include a schedule for
construction of the cable communication system, including a
timetable for commencement of cable communication service to
subscribers. Said schedule shall be incorporated into the franchise
and shall be enforceable as to the Grantee under the provisions of
this ordinance.
C. Each Grantee shall fill all requests for CATV service,
once facilities are in place consistent with the proposed schedule
for service, within thirty (30) days' after the date of each
request. A record of all service requests shall be kept until the
earliest scheduled performance evaluation session described in
Article IV, Section 4, of this ordinance or for a longer period as
determined by the Board and shall be available for public inspection
at the local office.of the Grantee during regular office hours.
D. Within three (3) months after accepting the franchise,
Grantee shall furnish the Village a detailed construction schedule
and map setting forth target dates by areas for commencement of
service to subscribers. The schedule and map shall be updated
whenever substantial changes become necessary.
E. Every three (3) months after the start of construction,
Grantee shall furnish the Village a report on progress of
construction until complete. The report shall include a map that
clearly defines the areas wherein regular subscriber service is
available.
SECTION 10: PROTECTION OF PRIVACY
A. Grantee shall not permit the transmission of any
signal, aural, visual or digital, including "polling" the channel
selection, from any subscriber's premises without first obtaining
written permission of the subscriber, which shall not have been
obtained from the subscriber as a condition of service. The request
for such permission shall be contained in a separate document, with
a prominent statement that the subscriber is authorizing the
permission in full knowledge of its provision and shall be revocable
at any time by the subscriber without penalty of any kind
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whatsoever. This provision is not intended to prohibit the use or
transmission of signals useful only for the control or measurement
of system performance or used only for billing subscribers.
B. Grantee shall not permit the installation of any
special terminal equipment in any subscriber's premises that will
permit transmission from subscriber's premises of two -way services
utilizing aural, visual or digital signals without first obtaining
written permission of the subscriber as provided in Paragraph A of
this Section.
C. Grantee, or any of its agents or employees, shall not,
without the specific written authorization of the subscriber
involved, as provided in Paragraph A of this Section, sell or
otherwise make available to any party any information which
identifies the viewing habits or responses of individual.subscribers.
SECTION 11: PROHIBITION FROM ENGAGING IN RADIO AND TELEVISION
SALES OR SERVICE
A. The Grantee, its subsidiaries and affiliates and any
and all of its officers, agents and employees are specifically
prohibited, directly or indirectly, from engaging in the sale or
leasing of television receivers, radio receivers, or television or
radio parts, except such parts and accessories required for any type
of cable connections, such as converters and connection plugs and
accessories, individually or with any person, anywhere in the
Village, whether or not for a fee or charge, and is further
prohibited from engaging in any type of repair service to television
receivers or radio receivers.
SECTION 12: AREAWIDE INTERCONNECTION OF CATV SYSTEMS
A. Each Grantee shall interconnect Access Channels and /or
Local Origination Channels of its CATV System with all other CATV
Systems in adjacent areas.
B. Upon receiving an order to interconnect, the Grantee
shall make a good faith effort to obtain agreements for the sharing
of interconnection costs among all interconnecting companies. The
Board may extend the time to interconnect or may rescind its order
to interconnect upon finding that the Grantee has made.a good faith
O
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effort but has been unable to obtain a reasonable interconnection
agreement or that the cost of the interconnection would cause an
unreasonable increase in subscriber rates.
C. Each Grantee shall cooperate with any entity established
for the purpose of regulating, financing, or otherwise providing for
the interconnection of CATV Systems.,
D. The Village may require a Grantee to provide Local
Origination equipment that is compatible with that used by other
CATV Systems operated by the Grantee within the adjacent areas.
ARTICLE VII: GENERAL PROVISIONS
SECTION 1: LIMITS ON GRANTEE'S RECOURSE
A. Grantee shall have no recourse against the Village for
any loss, expense or damage resulting from the terms and conditions
of this ordinance or the franchise or because of the Village's
enforcement thereof nor for the Village's failure to have the
authority to grant the franchise. The Grantee expressly agrees that
upon its acceptance of the franchise, it does so relying upon its own
investigation and understanding of the power and 'authority of the
Village to grant said franchise.
B. The Grantee, by accepting the franchise, acknowledges
that it has not been induced to accept same by any promise, verbal
or written, by or on behalf of the Village or by any third person
regarding any term or condition of this ordinance or the franchise
not expressed therein. The Grantee further pledges that no promise
or inducement, oral or written has been made to any Village employee
or official regarding receipt of the cable communication franchise.
C. The Grantee further acknowledges by acceptance of the
franchise that it has carefully read the terms and conditions of
this ordinance and the franchise and accepts without reservation the
obligations imposed by the terms and conditions herein.
D. The decision of the Board concerning Grantee selection
and awarding of the franchise shall be final.
E. The Grantee shall not apply for any waivers,
exceptions, or declaratory rulings from the Federal Communications
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Commission or any other Federal or State regulatory agency without
prior written notice to the Village.
SECTION 2: COMPLIANCE WITH STATE AND FEDERAL LAW
A. The Grantee shall, at all times, comply with all laws
of the State and Federal government and the rules and regulations of
any.Federal or State administrative agency.
SECTION 3: SPECIAL LICENSE
A. The Village reserves the right to issue a license,
easement or other permit to anyone other than the Grantee to permit
that person to traverse any portion of the Grantee's franchise area
within the Village in order to provide service outside the Village.
Such license or easement, absent a grant or a franchise in
accordance with this ordinance, shall not authorize nor permit said
person to provide a cable communication service of any nature to any
home or place of business within the Village, nor to render any
service or connect any subscriber within the Village to the
Grantee's cable communication system.
SECTION 4: FRANCHISE VALIDITY
A. The.Grantee agrees, by the acceptance of the franchise,
to accept the validity of the terms and conditions of this ordinance
and the franchise in their entirety and that it will not, at any
time, proceed against the Village in any claim or proceeding
challenging any term or provision of this ordinance or the franchise
as unreasonable, arbitrary or void, or that the Village did not have
the authority to impose such term or condition.
B. In case of conflict or ambiguity between this
ordinance, the franchise or the Grantee's franchise application, the
Grantee agrees that the provision which provides the greatest
benefit to the Village in the sole discretion of the Board, shall
prevail.
SECTION 5: FAILURE TO ENFORCE FRANCHISE
A. The Grantee shall not be excused from complying with
any of the terms and conditions of this ordinance or the franchise
by any failure of the Village upon any one or more occasions, to
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insist upon the Grantee's performance or to seek Grantee's
compliance with any one or more of such terms or conditions.
SECTION 6: RIGHTS RESERVED TO THE GRANTOR
rights:
A. The Village hereby expressly reserves the following
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
herein and in the franchise and in any existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of its police power-
3. To renegotiate the franchise granted pursuant to
this ordinance should substantial section(s) of the ordinance or
franchise be rendered void by the Federal Communications Commission,
or by subsequent changes in applicable federal or state laws.
SECTION 7: EMPLOYMENT REQUIREMENT
A. The Grantee shall not refuse to hire, nor discharge
from employment, nor discriminate against any person regarding
compensation, terms, conditions, or privileges of employment because
of age, sex, race, color, creed, or national origin. The Grantee
shall take affirmative action to insure that employees are treated
during employment, without regard to their age, sex, race, color,
creed or national origin. This condition includes, but is not
limited to, the following: recruitment advertising, employment
interviews, employment,•rates of pay, upgrading, transfer, demotion,
lay -off, and termination.
SECTION 8: TIME ESSENCE OF AGREEMENT
A. Whenever this ordinance or the franchise sets forth any
time for any act to be performed by or on the behalf of the - Grantee,
such time shall be deemed of the essence and the Grantee's failure
to perform within the time allotted shall, in all cases, be
sufficient grounds for the Board to invoke the remedies available
under the terms and conditions of. this ordinance and the franchise.
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SECTION 9: ACCEPTANCE
This ordinance and the franchise and their terms and
conditions shall be accepted by the Grantee by written'instrument
filed with the Board within thirty (30) days after the granting of
the franchise, unless said period is extended by the Board at its
sole discretion. In its acceptance,,the Grantee shall declare that
it has carefully read the terms and conditions of this ordinance and
the franchise and accepts all of the terms and conditions imposed by
this ordinance and the franchise and agrees to abide by same.
SECTION 10: PUBLICATION COSTS
The Grantee shall assume the cost of publication of this
ordinance and franchise and such is payable upon the Grantee's
filing of acceptance as in Article VII, Section 9 above.
SECTION 11: LANDLORD /TENANT RELATIONS
Reselling Service Prohibited
No person shall resell, without the express, written
consent of both the Grantee and the Board, any cable service,
program or signal transmitted by a cable television company
operating under a franchise issued by the Village; provided,
however, that this Section shall not apply to the resale of such
service by a facility to its own occupants in one or more multiple
unit dwellings under common ownership, control or management, that
does not use municipal rights of way.
SECTION 12: PENALTIES
A. It shall be unlawful for any person to attach or affix
or to cause to be attached or affixed any equipment or device which
allows access to or use of the cable communication service without
payment to the Grantee for same.
B. The following acts shall be deemed misdemeanors under
this ordinance: willful action or inaction by Grantee as described
in Article IV., Section 6A; non - compliance by a Grantee as described
in Article IV., Section 6A; arbitrary or capricious action by a
Grantee as described in Article IV., Section 7A; willful failure by
a Grantee to comply with the laws, rules, or regulations described
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in Article VI., Section 4A; transmission by a Grantee of a signal
from a subscriber's premises in violation of Article VI., Section 1;
and any person attaching or affixing or causing to.be attached or
affixed any equipment or device as described.in Paragraph A of this
Section, and each such equipment or device shall be deemed a
separate offense. Persons, whether natural or artificial, or
commercial entities who commit the misdemeanors described herein
shall be subject to a fine not to exceed Five Hundred Dollars
($500.00) for each offense; each day of said violations shall
constitute a separate offense.
SECTION 13: GRANTEE MAY PROMULGATE RULES
Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions of its business as shall be
reasonably necessary to enable it to exercise its rights and perform
its services under this Ordinance and the Rules of the FCC, and to
assure uninterrupted service to each and all of its subscribers.
Such rules and regulations shall be subject to the approval of the
Board of Trustees, but shall not be deemed to have the force of law.
SECTION 14: DELEGATION OF POWERS
Any right, power or duty of;the Village, the Board, the
Agency, or any official of the Village under this Ordinance may be
transferred or delegated by ordinance, resolution, or other
appropriate action of the Board to an appropriate officer, employee,
or department of the Village, or any other legal authority,
including any intergovernmental agency created for the purpose of
regulating the operation and development of the cable communication
system.
SECTION 15: SEVERABILITY
A. If any section of this ordinance or the franchise, or
any portion thereof, is held invalid or unconstitutional by any
court of competent jurisdiction or administrative agency, such
decision shall not affect the validity of the remaining portions
hereof, except as otherwise provided for herein.
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• t
SECTION 16: EFFECTIVE DATE
A. This ordinance shall become effective May 4, 1981
AYES: Ehlers, Heisler, Marty, Seidman, Swanson, York (6)
NAYS: None (0)
ABSENT: None (0) .
PASSED this 4th day of May A.D., 1981.
APPROVED this 4th day of May , A.D., 1981.
ATTEST:
VILLAGE CLERK
VILLAGE PRESIDENT
i
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