O-96-04l�
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ORDINANCE NO. 0 -96 -04
AN ORDINANCE AMENDING THE DEERFIELD
CABLE COMMUNICATIONS ORDINANCE
Published in pamphlet form this
5th day of February-, 1996,
by the President and Board of
Trustees of Deerfield
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TABLE OF CONTENTS
SECTION1.
INTENT ................................................................................................................ ..............................1
SECTION 2.
SHORT TITLE .................................................................................................... ..............................1
SECTION3.
-DEFINITIONS ..................................................................................................... ..............................2
SECTION4.
POLICE POWER ................................................................................................ ..............................6
SECTION 5.
CONTENTS OF FRANCHISE APPLICATION .............................................. ..............................6
SECTION 6.
REVIEW OF FRANCHISE APPLICATIONS ................................................. ..............................7
SECTION 7.
GRANT OF FRANCHISE .................................................................................. ..............................8
SECTION 8.
AUTHORITY FOR USE OF STREETS ............................................................ ..............................9
SECTION 9. CONDITIONS OF STREET OCCUPANCY ................................................... .............................10
SECTION 10. ERECTION OF POLES ..................................................................................... .............................11
SECTION 11. UNDERGROUNDING ........................................................................................ ............................11'
SECTION12. RELOCATION ................................................................................................... .............................12
SECTION 13. MOVEMENT OF BUILDINGS ......................................................................... .............................12
SECTION14. COMPLETION ................................................................................................... .............................12
SECTION15. REMOVAL ..........................................................................................................
.................:...........14
SECTION16. UNIVERSAL SERVICE ..................................................................................... .............................15
SECTION 17. THE FRANCHISE AREA .................................................................................. .............................16
SECTION 18. GENERAL CAPABILITY ................................................................................. .............................16
SECTION19. STANDBY POWER ............................................................................................ .............................16
SECTION 20. OVERRIDE CAPABILITY ............................................................................... .............................16
SECTION 21. INTERCONNECTION ....................................................................................... .............................17
SECTION 22. TECHNICAL STANDARDS ............................................................................. .............................17
SECTION 23. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS .................. .............................18
SECTION 24. SUPPORT FOR USE OF ACCESS ................................................................... .............................18
SECTION 25. AVAILABILITY OF ACCESS FACILITIES .................................................. .............................18
1 SECTION 26. APPROVAL OF CONSTRUCTION BY VILLAGE; INSPECTION; CORRECTION OF
2 DEFECTS IN SYSTEM; BREACH OR DEFAULT BY GRANTEE ............ .............................19
3 SECTION 27. TRANSFERS ....................................................................................................... .............................21
4 SECTION 28. PERFORMANCE BOND / LETTER OF CREDIT ......................................... .............................22
5 SECTION 29. INDEMNIFICATION BY GRANTEE .............................................................. .............................23
6 SECTION 30. GRANTEE INSURANCE .................................................................................. .............................24
7 SECTION 31. PROCEDURE FOR REMEDYING MATERIAL FRANCHISE VIOLATIONS ......................25
8 SECTION 32. ALTERNATIVE REMEDIES ........................................................................... .............................26
9 SECTION 33. NON - ENFORCEMENT ..................................................................................... .............................27
10 SECTION 34. COMMUNICATIONS WITH REGULATORY AGENCIES ......................... .............................27
11 SECTION 35. RATES .......................................................................................................:......... .............................27
12 SECTION 36. CUSTOMER SERVICE STANDARDS ............................................................ .............................30
13 SECTION 37. FRANCHISE FEE .............................................................................................. .............................34
14 SECTION 38. AMOUNT AND PAYMENT OF FRANCHISE FEES .................................... .............................34
15 SECTION 39. INTEREST ON DELINQUENT FRANCHISE FEES ..................................... .............................35
16 SECTION 40. ACCOUNTING AND STANDARDS ................................................................ .............................35
17 SECTION 41. BOOKS AND RECORDS AVAILABLE TO GRANTOR .............................. .............................35
18 SECTION 42. REVIEW OF AUDITING AND FINANCIAL RECORDS ............................. .............................36
19 SECTION 43. FLOW- THROUGH OF REFUNDS .................................................................. .............................37
20 SECTION 44. PUBLICATION COSTS ..................................................................................... .............................37
21 SECTION 45. LIQUIDATED DAMAGES ....................................................:.......................... .............................37
22 SECTION 46. LINE EXTENSIONS .......................................................................................... .............................38
23 SECTION 47. CABLE AND TELECOMMUNICATIONS COMMISSION ......................... .............................39
24 SECTION 48. SPECIAL LICENSES ......................................................................................... .............................40
25 SECTION 49. EMPLOYMENT ................................................................................................. .............................40
26 SECTION 50. CONFLICTING ORDINANCES REPEALED ................................................ .............................40
27 SECTION 51. SEVERABILITY ................................................................................................. .............................40
28 SECTION 52. EFFECTIVE DATE OF ORDINANCE ............................................................ .............................41
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1 ORDINANCE NO. 0 -96 -04
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3 AN ORDINANCE AMENDING THE DEERFIELD
4 CABLE COMMUNICATIONS ORDINANCE
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7 WHEREAS, the Village of Deerfield as a home rule unit may exercise any power
8 and perform any function pertaining to its government and affairs for the protection of
9 the public health, safety, morals and welfare.
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11 WHEREAS, the Village of Deerfield pursuant to its home rule powers has
12 authority to regulate cable communication systems within the boundaries of the Village;
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14 WHEREAS, the Village of Deerfield has previously adopted the Deerfield Cable
15 Communications Ordinance, which ordinance does not incorporate recent changes in
16 the law and technology;
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18 WHEREAS, the Village desires to adopt an updated ordinance which authorizes
19 the granting of franchises to operate and maintain cable communications systems in
20 the Village of Deerfield; sets forth conditions accompanying the grants of franchise;
21 provides for Village regulation and administration of such cable communications
22 systems, and prescribes penalties for violation of franchise provisions.
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24 NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
25 TRUSTEES OF THE VILLAGE OF DEERFIELD, LAKE AND COOK COUNTIES,
26 ILLINOIS, AS FOLLOWS:
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28 Section 1. INTENT
29.
30 The Village finds that the development and availability of cable communications systems
31 have the potential for great benefit and impact upon its residents. Because of the complex
32 and rapidly changing technology associated with cable communications, the Village finds
33 that the public health, safety and general welfare can best be served by establishing
34 certain regulatory powers in the Village as this Ordinance shall designate. It is the intent
35 of this Ordinance to provide for the means to attain the best possible communication and
36 developmental results in the public interest of the citizens and public institutions of the
37 Village and for such public purposes, in these matters; and any Franchise granted
38 pursuant to this Ordinance shall be deemed to include these findings as an integral part
39 thereof.
40 Section 2. SHORT TITLE
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This Ordinance shall be known and may be cited as the "Deerfield Cable
Communications Ordinance of 1996."
Section 3. DEFINITIONS
For the purposes of this Ordinance, 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" shall mean the Cable Communications Policy Act of 1984 (47 USC 521 et
seq.), as amended by the Cable Competition and Consumer Protection Act of 1992 (Pub.
L. No. 103 -385, 106 Stat. 1477 (1992)) or any other federal statutes, as may be amended
from time to time.
(b) "Board" means the Board of Trustees of Deerfield.
(c) "Broadcast services shall mean a broad category of programming which is
received from broadcast television, low power television, and radio stations, and is
capable of being received in the Village.
(d) "Cable Communications System ", "Cable System ", or "System," shall mean a
system of antennae, cables, wires, lines, towers, waveguides, laser beams, satellite
uplinks, microwave links, or other conductors, converters, amplifiers, headend equipment,
master controls, earth stations, equipment and facilities, designed, wired and constructed
or utilized for the purpose of producing, receiving, transmitting, amplifying, storing,
processing or distributing by coaxial cable, digital, fiber optics, Fiber Distributed Data
Interface (FDDI), microwave, Asynchronous Transfer Mode or other means, audio, video,
digital data, telephony and other related forms of electronic or electrical signals within the
Village, other than those communication units that are solely wired on private property.
(e) "Channel shall mean a band of frequencies six (6) MHz wide in the
electromagnetic spectrum capable of carrying video, audio and data signals. This
definition is not intended to limit the availability or allocation of HDTV or other video
services or other types of services occupying lesser or greater bandwidth:
(f) "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.
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(g) "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 zoning dial locations, and which may provide interactive or other service
features. _ _
(h) "Developed parcel' shall mean 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.
(i) "Dwelling unit° shall mean any individual, multiple residential, or business place
of occupancy.
0) "Franchise" shall mean the non - exclusive right granted through a Franchise
Agreement between the Village and a Person, by which the Village authorizes such
person to erect, construct, reconstruct, operate, dismantle, test, use and maintain a
System 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.
• (k) "Franchise Agreement" shall mean a contractual agreement entered into
between the Village and any Grantee hereunder which is enforceable by Village and said
Grantee and which sets forth the rights and obligations between Village and said Grantee
in connection with the Franchise.
(1) "Franchise fee" means any assessment imposed hereunder by the Village on a
Grantee solely because of its status thereas. 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 but not including a tax, fee or assessment which is unduly discriminatory
against Grantee);
(2) Capital costs which are required by the Franchise to be incurred by
Grantee for public, educational or governmental access facilities;
(3) Requirements or charges incidental to the awarding or enforcing of the
Franchise, including payments for bonds, security funds, letters of _ credit,
insurance, indemnification, penalties or liquidated damages; or
(4) Any fee imposed under Title 17, United States Code.
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2 (m) "Grantee" or "Applicant" shall mean any Person granted a Franchise
3 hereunder, including its agents, employees, or subsidiaries. "Grantor" shall mean the
4 Village.
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6 (n) "Gross Revenues" shall mean all cash, credits, property of any kind or nature or
7 other consideration derived directly or indirectly by a Grantee, its subsidiaries, or any
8 other person in which the Grantee has a financial interest or which has a financial interest
9 in the Grantee, arising from or attributable to operation of the System, including but not
10 limited to:
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12 (1) revenue from all charges for services provided to subscribers of
13 entertainment and non - entertainment services;
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15 (2) revenue from all charges for the insertion of commercial advertisements
16 upon the System;
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18 (3) revenue from all charges for leased access or use of studios;
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20 (4) revenue from all charges for the installation, connection and
21 reinstatement of equipment necessary for utilization of the System and provision of
22 subscriber and other services;
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24 (5) revenue from the sale, exchange or use or cablecast of any
25 programming developed on the system for community or institutional use; or
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27 (6) revenue from the sale or use of the system's subscriber list.
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29 Gross Revenues shall include, in value at retail price levels, the value of any
30 goods, services, or other remuneration in non - monetary form, received by the Grantee or
31 others described above in consideration of the performance of any advertising or other
32 service on the System; provided, however, that any value of joint promotions between the
33 Grantee and other local media shall not be included.
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35 (o) "Institutional Network" means a separate cable and /or an allocation of capacity
36 on the System with upstream and downstream capability, designed and constructed to
37 connect the facilities of public service institutions as herein defined, independent of the
38 regular subscriber network.
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40 (p) "Leased Access" shall mean the use of the System by any business enterprise
41 or other entity (whether profit, nonprofit or governmental) to render services to the citizens
42 of the Village, and shall include without limitation all use pursuant to Section 532 of the
43 Act.
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(q) "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 /or
some weekend hours.
(r) "Normal Operating Conditions" means those service conditions which are
within the control of the cable operator. Those conditions which are not within the control
of the cable operator 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 cable operator 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.
(s) "Ordinance" or "Cable Ordinance" shall mean the Cable Communications
Ordinance, as may be amended from time to time.
(t) "Person" shall mean any individual, firm, corporation, partnership, association,
joint venture or organization of any kind and the lawful trustee, successor, assignee,
transferee or personal representative thereof.
1. (u) "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, Educational or
Governmental Access use.
(v) "Public Service Institutions" mean government, educational, and not - for - profit
institutions with offices or operations located in the Village limits, including but not
necessarily limited to 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, West Deerfield Township, and
other institutions as may be specified in the franchise agreement.
(w) "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 which shall
entitle the Village and the Grantee to the use thereof for the purpose of installing and
maintaining the Grantee's cable communications system.
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1 (x) "School" is any public or private elementary school, secondary school, junior
2 college, college or university which conducts classes or provides instructional services
3 and which has been granted a certificate of recognition by the State of Illinois.
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5 (y) "Subscriber" shall mean any person who legally receives any one or more of
6 the services .provided by the System.
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8 (z) "Village" shall mean the Village of Deerfield, State of Illinois, and all the territory
9 within its present and future boundaries and including any other area over which the
10 Village exercises jurisdiction. The Village Board is the governing authority of the Village.
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13 Section 4. POLICE POWER
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15 Nothing in this Ordinance or in any Franchise Agreement shall be construed as an
16 abrogation by the Village of any of its police powers.
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19 Section 5. CONTENTS OF FRANCHISE APPLICATION
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21 (a) Initial applications for a Franchise under this Ordinance shall include at a
22 minimum:
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24 (1) a clear description of the identity of the applicant, its parent and
25 subsidiaries, including but not limited in each case to name, address, and nature
26 of the business entity, and evidence of the compliance of such business entity with
27 all laws applicable thereto;
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29 (2) plans and specifications relating to all aspects of the applicant's, System
30 as are applicable to the building and zoning laws of the Village;
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32 (3) a map or maps of a scale of not less than one inch (1 ") equaling one
33 thousand (1,000) feet showing the precise geographic area for which applicant
34 seeks a Franchise ( "Franchise Area: geographical area ");
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36 (4). projected financial pro forma for System revenue and operation, and
37 evidence of financial responsibility in the form specified under Section 28;
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39 (5) a non - refundable application fee of $7,500.00 to cover the costs of initial
40 application review as to form only, $5,000.00 of which fee may be
41 credited to amounts outstanding and due the Village from time to time
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1 under the Franchise Agreement, for Franchises issued pursuant to this
2 Ordinance; and
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4 (6) detailed plans and specifications for the general System which is
5 proposed by the applicant, including layout of proposed construction reflected
6 upon the map(s) provided pursuant to paragraph (3), and a tentative construction
7 progression schedule.
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9 (b) The provisions for applications under subsection (a), with the exception of
10 subsection (a)(5), shall include applications for renewal of Franchises pursuant to the Act
11 and this Ordinance, and shall be subject to the following additions and modifications:
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13 (1) any communication and /or documentation required for renewals under
14 Section 626 of the Act;
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16 (2) any updated or current information necessary to supplement
17 documentation required under paragraphs 1,2,3,4 or 6 of subsection (a); and
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19 (3) specific documentation of Grantee's experiences during any previous
20 Franchise, relating particularly to:
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22 (A) system maintenance statistics;
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24 (B) nature and processing of complaints received;
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26 (C) difficulties encountered with System installation, expansion and
27 operation;
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29 (D) review of revenue flows and subscriber statistics; and
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31 (E) such other historical documentation as the Village may from
32 time to time reasonably request.
33 Section 6. REVIEW OF FRANCHISE APPLICATIONS
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35 (a) For all applications, the Village shall:
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38 (1) review the application and all information submitted therewith, as to both
39 completeness and competency thereof;
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1 (2) request and evaluate supplemental documentation which may from time
2 to time be required as a function of the thorough review of the application and
3 plans and specifications submitted therewith;
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5 (3) request and review all documentation necessary for verification of the
6 applicant's compliance with all appropriate laws and Village codes and
7 regulations;
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9 (4) require any supporting documentation or studies which relate to the
10 applicant's proposal and applicant's capability for System administration,
11 particularly demonstrating but not limited to: technical capabilities, applications of
12 new technologies, System performance, financial responsibility of applicant,
13 programming and services offered, and applicable company policies, as each may
14 be available; and M«.
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16 (5) collect from applicant all incidental expenses of Village's evaluation of
17 application content under this subsection and any outside contractual expenses of
18 Village necessary to produce studies, data or inspections required hereunder. All
19 such expenses shall be paid by Grantee no later than 60 days following the
20 Grantor's written submission categorizing the expenses.
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22 (b) After the Commission reviews the application and all related materials, the
23 application shall be referred to the Village Board for action in accordance with appropriate
24 Village ordinance.
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26 (c) All applications when filed shall be available for public inspection at places
27 designated by the Village. A decision shall be made by the Village after the filing of the
28 application based upon an evaluation thereof. The Village may grant one or more non -
29 exclusive Franchises, or may decline to grant any Franchise.
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32 Section 7. GRANT OF FRANCHISE
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34 (a) The Grantor may grant a nonexclusive Franchise for all or any defined portion
35 of the Village. The Franchise Area shall be the entire area defined in the Franchise
36 Agreement. The grant shall require an ordinance adopted by the Village Board in
37 accordance with law authorizing execution of the appended Franchise Agreement.
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39 (b) In the event that Grantor shall grant a nonexclusive, revocable Franchise to
40 construct, operate, maintain, and /or reconstruct a System within the Franchise Area, said
41 Franchise shall constitute both a right and an obligation to provide the services of a
42 System as required by the provisions of this Ordinance.
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(c) Any Franchise granted under the provisions hereof shall be consistent with
federal laws and regulations, state laws and regulations to the extent required by law
including local ordinances and regulations, as from time to time amended. In the event of
conflict between the terms and conditions of the Franchise Agreement and the mandated
statutory standards on which the Grantor can grant a franchise, the statutory
requirements shall, without exception, control.
(d) No System shall be allowed to occupy or use the streets in the Village other
than in accordance with this Ordinance and a Franchise granted pursuant
hereto.
(e) The requirements for Franchises established by this Ordinance may be
modified from time to time at the Village's discretion to reflect changing conditions. Such
requirements shall be retroactive to Franchises then in effect, as set forth in Section 4, to
the extent relating to the Village's police powers or as permitted by the Franchise
Agreement, but in any case shall become applicable when the Franchise is renewed.
(f) The term of any new Franchise and all rights, privileges, obligations, and
restrictions pertaining thereto shall be as established in the Franchise Agreement, unless
terminated sooner as hereinafter provided.
(g) As provided for under the Act, any Franchise granted shall be nonexclusive.
The Grantor specifically reserves the right to grant, at any time, such additional
Franchises for a System as it deems appropriate.
(h) Provisions relating to grant of Franchise under this Section shall apply to and
include renewals of Franchise under this Ordinance.
31 Section 8. AUTHORITY FOR USE OF STREETS
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(a) For the purposes of operating and maintaining a System in Village, Grantee
may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under,
upon, across and along the streets within Village such lines, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary and appurtenant to the , operation of the
System, provided that all applicable permits are applied for and granted, all fees paid, all
Village codes and ordinances including this Ordinance are otherwise complied with, and
all obsolete or abandoned equipment must be removed in accordance to procedures set
forth in Section 15 part (a). However, no rights granted under this section relating to the
use of the public streets may be transferred by Grantee to any other entity than Grantee's
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construction agents which construction agents must be reasonably approved by the
Village.
(b) Prior to construction or alteration, Grantee shall in each case file plans with all
appropriate Village departments and receive written approval of such plans, which
approval shall not be unreasonably withheld. No construction or alterations shall
commence until written approval has been received from the Village. Grantee shall
provide a monthly progress report to Village through the completion of construction or
alteration.
(c) Grantee shall construct and maintain the System so as not to interfere with
other uses of the streets. Grantee shall make use of existing poles and other facilities
available to Grantee whenever practicable. Grantee shall individually notify all residents
directly affected by proposed construction prior to the commencement of that work.
(d) Notwithstanding the above grant to use the streets, no street shall be used by
Grantee if Village, in its sole opinion, determines that such use is inconsistent with the
conditions or provisions by which such street was created or dedicated, or presently used.
21 Section 9. CONDITIONS OF STREET OCCUPANCY
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(a) All transmissions and distributions, structures, lines, and equipment erected by
Grantee within the Village shall be so located as to cause minimum interference with the
proper use of streets and other public places and the rights and reasonable convenience
of property owners who adjoin any of said streets or other public places.
(b) In case of disturbance of any street or public place, the Grantee shall, at its
own cost and expense and in a manner approved by. the Village Engineer or such other
official as designated by the Commission, replace and restore such area in as good a
condition as before the work involving such disturbance was done.
(c) The Grantee shall not, and shall prohibit any officer, agent, employee,
contractor or subcontractor which it retains from removing or trimming any tree or portion
thereof (either above, at, or below ground level) which is located within a street, in
violation of the standards promulgated by the Village Engineer. Each Grantee shall be
responsible for, shall indemnify, defend and hold harmless the Village and its officers,
agents and employees from and against any and all damages arising out of or resulting
from the removal„ trimming, mutilation of or any injury to any tree or trees caused by the
Grantee or its officers, agents, employees, contractors or subcontractors.
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1 Section 10. ERECTION OF POLES
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3 (a) Notwithstanding Section 621(a)(2) of the Act, no Franchise shall be deemed to
4 expressly or by implication authorize the Grantee to construct or install poles or
5 wire - holding structures within streets for the purpose of placing cables, wires,
6 lines or otherwise, without the written consent of the Village within which the
7 street is situated. Such consent shall be given upon such terms and conditions
8 as the Village Engineer and the Commission in their sole discretion may
9 prescribe which shall include a requirement that the Grantee perform, at its sole
10 expense, all tree trimming required to maintain the poles clear of obstructions in
11 accordance with Section 9(c).
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13 (b) With respect to any poles or wire - holding structures that a Grantee is
14 authorized to construct and install within streets, a public utility serving the Village may, if
15 denied the privilege of utilizing such poles or wire - holding structures by the Grantee,
16 apply for such permission to the Village Engineer. If the Village Engineer finds that such
17 use would enhance the public convenience and would not unduly interfere with the
18 Grantee's operations, he may authorize such use subject to such terms.and conditions as
19 he deems appropriate. Such authorization shall include the condition that the public utility
20 pay to the Grantee any and all actual and necessary costs incurred by the Grantee in
21 permitting such use.
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24 Section 11. UNDERGROUNDING
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26 (a) Except as hereinafter provided, in all areas of the Village where the cables,
27 wires and other like facilities of a public utility are placed underground, each Grantee shall
28 construct and install its cables, wires and other facilities underground. Amplifier boxes
29 and pedestal mounted terminal boxes may be placed above ground if existing technology
30 reasonably requires, but shall be of such size and design and shall be so located as not
31 to be unsightly or unsafe. In any area of the Village where there are certain cables, wires
32 and other like facilities of a public utility underground and -at least one operable cable,
33 wire or like facility of a public utility is suspended above the ground from poles, a Grantee
34 may construct and install its cables, wires and other facilities from the same pole with
35 permission of the Village Engineer. All underground construction shall be performed in
36 compliance with Village codes.
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38 (b) With respect to any cables, wires and other like facilities constructed and
39 installed by a Grantee above ground, the Grantee shall, at its sole expense, reconstruct
40 and reinstall such cables, wires or other facilities underground pursuant to any project
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1 under which the cables, wires or other like facilities of all like utilities . are placed
2 underground within an area.
3 Section 12. RELOCATION
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5 If during the term of a Franchise the Village, a public utility, a sanitary district or any other
6 similar special district elects to alter, repair, realign, abandon, improve, vacate, reroute or
7 change the grade of any street or to replace, repair, install, maintain, or otherwise alter
8 any above ground or underground cable, wire, conduit, pipe, line, pole, wire - holding
9 structure, structure, or other facility utilized for the provision of utility or other services or
10 transportation of drainage, sewage or other liquids, then Grantee, shall, except as
11 otherwise hereinafter provided, at its sole expense remove or relocate as necessary its
12 poles, wires, cables, underground conduits, manholes and any other facilities that it has
13 installed. If such removal or relocation is required within the subdivision in which all utility
14 lines, including those for the System, were installed at the same time, the entities may
15 decide among themselves who is to bear the cost of relocation; provided that the Village
16 shall not be liable to a Grantee for such costs. Regardless of who bears the costs, a
17 Grantee shall take action to remove or relocate at such time or times as are directed by
18 the agency undertaking the work. Reasonable advance written notice shall be mailed to
19 the Grantee advising the Grantee of the date or dates removal or relocation is to be
20 undertaken.
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23 Section 13. MOVEMENT OF BUILDINGS
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25 Each Grantee shall, upon request by any person holding a building moving permit or
26 other approval issued by the Village, temporarily remove, raise or lower its wire to permit
27 the movement of buildings. The expense of such removal, raising or lowering shall be
28 paid by the person requesting same, and a Grantee shall be authorized to require such
29 payment in advance. Except for emergency situations, a Grantee shall be given not less
30 than 45 days written notice to arrange for such temporary wire changes. This Section is
31 subject to those provisions of state law that are constitutionally binding upon home rule
32 units.
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35 Section 14. COMPLETION
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37 (a) A Final Order of Completion shall be issued by the Village Engineer when:
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39 (1) construction of the System -- whether new construction, a rebuild or a
40 mandatory upgrade -- has been completed within the entirety of each Franchise
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Area in compliance with construction standards and the design and other
requirements of this Ordinance and the Franchise Agreement;
(2) cable services have been made available to one hundred (100 %)
percent of the dwelling units within each developed parcel;
(3) any and all studio facilities, equipment, channels and other services,
resources or benefits required for public, educational, and governmental access
purposes have been completed and made available (with the exception of items to
be completed at a future date);
(4) complete and accurate "as built" plans pursuant to Section 8 have been
filed or made available by the Grantee to the Village; and
(5) a Notice of Completion has been filed by the Grantee as hereinafter
provided.
(b) For purposes of this Ordinance, cable services as defined in the Franchise
Agreement shall be deemed to be made available when offered on a non - discriminatory
basis for immediate usage to the owner, or legal representative of the owner empowered
to consent to use, of the property of each dwelling unit.
(c) For the purpose of determining compliance with the provisions of this
Ordinance and of determining completion under this Section, the total number of dwelling
units within each developed parcel shall be deemed to be the actual number of units
available for occupancy as of a date forty -five (45) calendar days in advance of the date
of filing by the Grantee of the Notice of Completion; provided that the Grantee files the
Notice of Completion with a good faith belief that it has achieved completion as of the
date of filing.
31 (d) A Grantee who asserts completion shall file a written Notice of Completion with
32 the Village Clerk. The Notice of Completion shall state the total number of dwelling units
33 available for occupancy within each Developed Parcel forty -five (45) calendar days in
34 advance of the filing of the Notice, the total number of dwelling units to which cable
35 television service have been made available within each developed parcel as of the date
36 of filing, and shall otherwise certify completion as defined by subsection (a). Neither the
37 Notice of Completion nor the statements, assertions nor certifications contained therein
38 shall be deemed to be binding upon the Village.
(e) In addition to any other rights set forth in this Ordinance, during the period of
construction of the System within the sixty (60) day period following fling of the Notice of
Completion, all elements and components thereof, and all equipment and studio facilities
required by the Franchise documents shall be subject to inspection by Village employees
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1 or authorized agents or representatives thereof, for the purpose of determining whether
2 the System and related facilities comply with the Franchise and the provisions of this
3 Ordinance. The Grantee shall authorize such inspection and provide such information
4 and cooperation as is required in order to permit an adequate investigation to determine
5 the existence or nonexistence of such compliance.
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7 (f) The Grantee shall offer to install, make operational, and render service to all
8 Developed Parcels within the Franchise Area in accordance with this Ordinance and the
9 Franchise Agreement, within the time period specified in the Franchise Agreement.
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12 Section 15. REMOVAL
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14 To protect the public health, safety, and welfare, it is in the Village's interest to provide for
15 the removal, if necessary, of the cable system infrastructure from public and private rights
16 of way, should such removal become necessary for any reason. The Grantee, its
17 successors, or any parent thereof shall be fully responsible for the disposition of
18 franchise - related property installed in public or private rights of way, as follows:
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20 (a) Upon expiration or termination of a Franchise, if the Franchise is not renewed
21 and if neither the Village nor an assignee purchase the System, the Grantee may remove
22 any underground cable from the streets which has been installed in such a manner that it
23 can be removed without trenching or other opening of the streets along the extension of
24 cable to be removed. The Grantee shall not remove any underground cable or conduit
25 that requires trenching or other opening of the streets along the extension of cable to be
26 removed, except as approved by the Village Engineer and as hereinafter- provided. The
27 Grantee shall remove, at its sole cost and expense, any above ground or underground
28 cable or conduit by trenching or opening of the streets along the extension thereof which
29 is ordered to be removed by the Village Engineer based upon a determination, in the
30 discretion of the Village Engineer, that removal is required in order to eliminate or prevent
31 a hazardous condition or promote future utilization of the streets for public purposes. Any
32 order by the Village Engineer to remove cable or conduit shall be mailed to the Grantee
33 not later than thirty (30) days following the date of expiration or termination of the
34 Franchise. A Grantee shall file written notice with the Village Engineer not later than thirty
35 (30) days following the date of expiration or termination of the Franchise of its intention to
36 remove cable intended to be removed and a schedule for removal by location. The
37 schedule and timing of removal shall be subject to approval and regulation by the Village
38 Engineer. Removal shall be completed not later than twelve (12) months following the
39 date of expiration or termination of the Franchise. Underground cable and conduit in the
40 streets not so removed shall be deemed abandoned and title thereto shall be vested in
41 the Village.
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(b) Upon expiration or termination of a Franchise, if the Franchise is not renewed
and if neither the Village nor an assignee purchase the System, the Grantee, at its sole
expense, shall, unless relieved of the obligation by the Village, remove from the streets all
above ground elements of the System, including but not limited to amplifier boxes,
pedestal mounted terminal boxes, and cable attached to or suspended from poles, which
are not purchased by the Village or its assignee.
(c) The Grantee shall apply for and obtain such encroachment permits, licenses,
authorizations or other approvals and pay such fees and deposit such security as
required by the Village, shall conduct and complete the work of removal in compliance
with all such applicable ordinances, and shall restore the streets to the same condition
they were in before the work of removal commenced. The work of removal shall be
completed not later than one year following the date of expiration or termination of the
Franchise; otherwise, the Village may complete such work and charge the expense
thereof against the security required to be provided by Grantee under Section 28.
(d) The Grantee shall not abandon its franchise - related property in the public rights
of way for any reason within its reasonable control. Should, for any reason, Grantee -
owned cable plant occupying public or private rights of way be so abandoned, the Village
may:
(1.) Exercise its police powers to seize such plant and dispose of the plant
or put it to such uses as the Village may deem appropriate, or
(2.) Condemn such plant as a threat to public health, safety and welfare,
and order its removal.
In either case, the Village may charge any related expenses against the security
required under Section 28.
31 Section 16. UNIVERSAL SERVICE
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Each Grantee under this Ordinance shall offer cable services of equal quality and
uniformity, subject only to a reasonable construction schedule established by the Grantee
pursuant to Section 14 (f), to all dwelling units within the developed parcel. Access to
cable services will not be denied to any particular person merely because the income of
residents in a particular area is lower than in other areas within the franchise area.,
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1 Section 17. THE FRANCHISE AREA
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3 The Franchise Agreement shall describe a Franchise Area whose contour, so far as is
4 possible, shall follow streets. Within the perimeter of the contour, no Developed Parcels
5 shall be excluded from the offer of cable services provided to the Franchise Area so
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9 Section 18. GENERAL CAPABILITY
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11 Each Grantee shall, at minimum:
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13 (a) develop and operate a system with the technological capabilities specified in
14 the applicable Franchise Agreement, similar standards being adhered to therein for
15 similar technical applications, and the community needs and interests ascertained under
16 the Act being addressed where possible;
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18 (b) agree to modify the capabilities referred to in subsection (a), in accordance with
19 industry- accepted changes in cable technology, as may be specified in the applicable
20 Franchise Agreement; and
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22 (c) agree to add such system capability provisions to the Franchise Agreement as
23 may, from time.to time, be permitted by law and agreed to by both parties.
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26 Section 19. STANDBY POWER
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28 Each System shall include the equipment capable of providing standby powering which is
29 specified in the Franchise Agreement. The System shall incorporate safeguards
30 necessary to prevent injury to line workers resulting from a standby generator powering a
31 "dead" utility line.
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34 Section 20. OVERRIDE CAPABILITY
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36 Each System shall include an emergency alert capability at no charge to Village, which
37 will permit the Village, in times of emergency, to override by remote control the audio
38 and /or video of all channels simultaneously, under the conditions and in the manner
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specified in the Franchise Agreement, and including those capabilities for alternate
broadcast so specified therein.
Section 21._ INTERCONNECTION
The 'System shall be interconnected with other Systems within the Village and
surrounding jurisdictions as may be specified in the applicable Franchise Agreement.
10 Section 22. TECHNICAL STANDARDS
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To the extent permitted by law:
(a) Each Grantee shall construct, install and maintain its System in a manner
consistent and in compliance with all applicable laws, ordinances, construction standards,
governmental requirements, and technical standards equivalent to those established by
the. Federal Communications Commission (FCC). Each Grantee shall provide to the
Village, upon request, written reports of the Grantee's annual proof of performance tests
conducted pursuant to FCC standards and requirements.
(b) Each Grantee shall at all times comply with the National Electrical Safety Code
(National Bureau of Standards); National Electrical Code (National Bureau of Fire
Underwriters); applicable FCC and other federal, state and local regulations; and codes
and other ordinances of the Village.
(c) In any event, the System shall not endanger or interfere with the safety of
persons or property within the Village or other areas where the Grantee may have
equipment located.
(d) All working facilities, conditions, and procedures, used or occurring during
construction and maintenance of the System shall comply with the standards of the
United States Occupational Safety and Health Administration.
(e) Construction, installation and maintenance of the System shall be performed in
an orderly and workmanlike manner, and in close coordination with public and private
utilities serving the Village following accepted construction procedures and practices and
working through existing committees and organizations.
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1 (f) All cable' and wires shall be installed, where possible, parallel with electric and
2 telephone lines, and multiple cable configurations shall be arranged in parallel and
3 bundled with due respect for engineering consideration.
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5 (g) Any antenna structure used in the System shall comply with construction,
6 marking and_ lighting of antennae structures, required by the United States Department of
7 Transportation.
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9 (h) Any Grantee shall check radio frequency leakage at reception locations for
10 emergency radio services so as to prove no interference signal combinations are
11 possible. Radiation shall be measured adjacent to any proposed aeronautical navigation .
12 or communication radio sites to prove no interference to air navigational reception.
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14 (i) The Village: standards reserves the right to enforce any customer equipment
15 compatibility standards promulgated by the Federal Communications Commission, should
16 franchise authorities be granted enforcement authority over such standards.
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19 Section 23. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
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21 Every System franchised pursuant to the provisions of this Ordinance shall provide for
22 . Public, Educational and Governmental Access pursuant to the Act, and the applicable
23 Franchise Agreement.
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26 Section 24. SUPPORT FOR USE OF ACCESS
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28 Nothing contained in this Ordinance shall be construed to limit the ability of the Grantee to
29 make payments in support of the use of Public, Educational and /or Governmental access.
30 Notwithstanding the foregoing, such payments shall not relieve the Grantee of its
31 obligation to make all other payments required under this Ordinance or the Agreement.
32 Such additional payments hereunder are expressly not a requirement of any Franchise
33 granted hereunder and shall in no event be considered in the calculation of Franchise
34 Fees pursuant to this Ordinance.
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37 Section 25. AVAILABILITY OF ACCESS FACILITIES
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39 (a) Use of facilities for Public, Educational and Governmental Access upon the
40 System shall be made available as provided by. law, under the conditions and in the
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manner provided by rules required hereinbelow, in connection with the production of that
Public, Educational and Governmental Access programming cablecast upon the System.
The Grantee shall accept and cablecast such Public, Educational and Governmental
access programming upon the System as shall be provided to the Grantee by all persons
and entities, under terms described in the Franchise Agreement. To the extent permitted
by the Act,-the Grantee shall allow all persons and entities desiring to cablecast Public,
Educational or Governmental Access programming to produce such programming upon
and, with the technical assistance of the Grantee, electronically interface with the System
so as to effectively cablecast the Public, Educational or Governmental access
programming.
(b) Grantee shall make all reasonable efforts to coordinate the cablecasting of
Public, Educational and Governmental Access programming upon the System with such
programming as is cablecast upon other Systems within the community, and systems
operated in neighboring communities by the Grantee.
(c) Grantee shall have the right as described in the Act to seek use of allocated but
unused Public, Educational, and Governmental Access channel capacity for carriage of
low -power TV signals or other certain mandatory carriage signals, provided the Grantee
notifies the Village and any other affected legal parties at least sixty (60) days in advance
of its intent to re- program said access channels. The Village reserves the right to review
the Grantee's notification and to determine whether existing or planned Public,
Educational, and Governmental Access uses may be harmed. The Village further
reserves the right to recapture access channel capacity upon determination at any
subsequent time that there is sufficient demand and community need to restore access
capacity, with due notice to the Grantee. Grantee will restore said capacity within sixty
(60) days, or any other reasonable length of time determined by the Village.
Section 26. APPROVAL OF CONSTRUCTION BY VILLAGE; INSPECTION;
CORRECTION OF DEFECTS IN SYSTEM; BREACH OR DEFAULT BY GRANTEE
(a) Except for individual service drops, the Grantee shall not, within the Village, run
any line, make any attachment, nor begin construction of any kind without the prior
approval of the Village in accordance with Section 8(b). Such approval shall not be
unreasonably withheld and action shall be taken on any request for approval within ten
(10) business days of receipt of a properly filed request, or it shall be deemed granted.
Grantee shall be able to make emergency repairs as needed. The Village shall have and
maintain the right to inspect from time to time the construction, operation and
maintenance of the System by the Grantee to ensure the proper performance thereof
under the terms of this Ordinance.
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1 (b) In the event the Grantee should violate any of the terms of this Ordinance or
2 any federal, state or local law or regulation, or any of the rules and regulations as may
3 hereafter be from time to time lawfully adopted, or any provision of the Franchise
4 Agreement, the Village shall, after discovery, give the Grantee written notice of the
5 violation, breach, default or noncompliance. The Grantee shall within thirty (30) days of
6 receipt of written notice from the Village substantially undertake and promptly correct
7 such default, breach, violation or noncompliance and certify the same to the Village. In
8 the event that the Grantee fails to substantially undertake such corrective action within
9 thirty (30) days of receipt of such written notice and to promptly complete the corrective
10 action, the Village in addition to any other right or remedy provided herein or by law, may:
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12 (1) Make such correction itself and charge the cost of the same to the
13 Grantee; and /or
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15 (2) Secure the proceeds therefor from any bond or letter of credit posted by
16 the Grantee for each day of breach or violation after the cure date that Grantee
17 fails to meet an agreed upon limit for such activity or otherwise meet-its contractual
18 or legal obligations; and /or
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20 (3) Employ as applicable the liquidated damages provided for in Section 45
21 of this Ordinance; and /or
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23 (4) In the case of a material breach of this Ordinance or the Franchise
24 Agreement; declare the Grantee in default and terminate the franchise and rights
25 granted under the Franchise in accordance with the due process procedure
26 described in Section 31.
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28 (c) Upon any termination of the Franchise by the Village or the Village's refusal to
29 renew the same pursuant to applicable law, except in the case of the provision described
30 in Section 27(g), the Grantee shall remove its facilities and equipment in accordance with
31 Section 15 and in the event that the Grantee does not remove such within the time
32 provided in that Section, the Village may do so, the removal cost to be borne in any event
33 by the Grantee in accordance with Section 15. Any enforcement action or remedy
34 provided by this Ordinance or by the Franchise Agreement shall not be deemed exclusive
35 but shall be alternative or cumulative in nature.
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37 (d) Notwithstanding anything to the contrary in this Ordinance, the Village shall not
38 impose any penalty upon the Grantee where either the violation or failure to cure the
39 same results from force majeure, labor dispute, declaration of war or other hostilities, act
40 of God, or any other cause reasonably beyond the control of the Grantee.
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1 Section 27. TRANSFERS
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(a) No system, or integral part or element of a System, or any other integral real or
personal property which is a part of said System shall be sold, transferred directly or
indirectly, as to operation, control or otherwise, assigned, mortgaged, pledged, leased,
sublet, sold -and leased back, or otherwise encumbered for any purpose whatsoever, nor
shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest
in any party other than the Grantee without the prior written consent of the Village in its
sole discretion. In the absence of extraordinary circumstances, the Village will not
approve any such transfer prior to substantial completion of construction or reconstruction
of the proposed System. The recipient of a transferred Franchise for said System shall
not be subject to the requirements for new Franchises, nor shall the recipient be
considered a new Franchise for any other purpose provided by law. However, the Village
reserves the right to impose certain new franchise terms as a condition of the transfer as
appropriate, including but not limited to new terms relating to possibly different
qualifications of the proposed transferee. Furthermore, the Village reserves the right to
impose, prior to approving transfer, terms and conditions necessary to cure any breaches
of the Franchise Agreement by the transferor.
(b) Whenever any transfer subject to Village approval under subsection (a) hereof
is proposed, the Grantee shall give the Village notice thereof, and such information
concerning the transferee as is then available. No later than one hundred and twenty
(120) days prior to the proposed date of transfer, the Grantee shall formally request the
Village's permission to transfer the Franchise, and will provide the Village with complete
information setting forth the nature, terms, conditions and all other pertinent details of
such proposed transfer and also complete information concerning the proposed
transferee, including all information required under rules of the Federal Communications
Commission or this Ordinance. The Village shall render a decision on transfer within 120
days of a properly filed request accompanied by required documentation, except that the
120 -day limit does not apply to any request for transfer made during the 36 -month holding
period hereinafter described following the acquisition or initial construction of the system
by the operator.
(c) Any transfer approved by the Village shall be made by a bill of sale or similar
document evidencing closing of the transaction in accordance with the terms and
conditions approved by the Village, an executed copy of which shall be filed with the
Village within sixty (60) days after any such transfer. No such transfer shall be approved
unless the proposed transferee shall have agreed in writing to comply with all the
provisions of this Ordinance, as amended, as well as the applicable Franchise Agreement
as may be revised, and is found by the Village to be, in all respects, legally, technically
and financially qualified and possessing the operating experience reasonably deemed
necessary by the Village in order to hold a village cable system franchise. Furthermore,
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no such approval shall be granted unless all moneys accruing to the Village as of the date
of transfer, whether by way of fees, penalties, damages or otherwise, have first been paid
in full or is guaranteed to be paid out of the consideration received by the transferor for
such transfer.
(d) Any sale, transfer, assignment, mortgage, pledge, lease, sublease or other
encumbrance of whatever kind or nature made in violation of the provisions of this
Section shall be void. The word "control" as used in this Section is not limited to major
stockholders but includes actual working control in whatever manner exercised.
(e) As provided under the Act, no franchise may be transferred within a three -year
holding period after original construction of the system or earlier acquisition of the
franchise, unless the Village approves the requested transfer and the Federal
Communications Commission grants a waiver of the holding period, or unless the transfer
meets specific exceptions to anti - trafficking provisions as provided under the Act.
(f) Grantee shall reimburse Village for any incidental administrative expenses -of
Village expended under this section.
(g) The Village reserves its right under the Act to acquire the assets of a cable system
upon denial or revocation of the franchise for cause. The acquisition will be made at a
price to the Grantee calculated in accordance with federally specified standards.
25 Section 28. PERFORMANCE BOND / LETTER OF CREDIT
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(a) Each Grantee shall file upon grant of a Franchise, and maintain at all times
thereafter in full force and effect, a corporate surety bond or letter of credit at the
discretion of the Village and approved by the Commission or its designee and if a bond
issued by a surety licensed therefor by the State of Illinois in an amount, until the
issuance of a Final Order of Completion pursuant to Section 14, equal to the greater of:
(1) the Grantee's estimate of the total cost of construction of the System
within the Franchise area, or
(2) the sum of (i) the product of the number of miles of aerial plant (to the
nearest one tenth (1/10) of a mile) in the Franchise Area and Eighteen thousand
Dollars ($18,000) and (ii) the product of the number of miles of underground plant
(to the nearest one tenth (1/10) of a mile) in the Franchise Area and Thirty Two
Thousand Dollars ($32,000), effective for the entire term of the Franchise and 12
months thereafter; and conditioned that in the event the Grantee shall fail to
comply with any one or more of the provisions of this Ordinance or the Franchise
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1 Agreement, whether or not the Franchise is terminated, then there shall be
2 recoverable jointly and severally from the principal and surety of such bond or
3 letter of credit, any damages, delinquent franchise fees, costs of repairing or
4 completing the System, and cost of removal or abandonment of property and
5 repair of streets and other public or private improvements, up to the full amount of
6 the bond or letter of credit; said condition to be a continuing obligation for the
7 duration of the Franchise and 12 months thereafter until the Grantee has satisfied
8 all of its obligations which may have arisen from the acceptance of the Franchise
9 or from its exercise of any privileges thereunder.
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11 (b) Upon the issuance of a Final Order of Completion pursuant to Section 14, the
12 amount of the aforesaid corporate surety bond or letter of credit shall be reduced to an
13 amount equal to Fifty Dollars ($50) for each dwelling unit located within the Franchise
14 Area upon the date of the Notice of Completion as computed under said Section 14; and
15 the bond or letter of credit shall be maintained at such an amount at all times thereafter
16 during the operation of the System. Grantee shall cause the bond or letter of credit to be
17 replenished by any amount withdrawn by.Grantor for cause within 10 business days.
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19 (c) Neither the provisions of this Section, any bond accepted pursuant thereto, nor
20 any damages recovered thereunder shall be construed to excuse faithful performance by
21 the Grantee or to limit the liability of the Grantee under this Ordinance or the Franchise
22 Agreement for damages, to the full amount of any cancellation by the surety or letter of
23 credit during the term of the Franchise, whether for failure to pay a premium or otherwise,
24 without thirty (30) days advance written notice mailed by the surety to the Village Clerk.
25 The form of the bond and surety or letter of credit shall be subject to the approval by the
26 Village. The bond and surety or letter of credit shall oblige Grantee to provide a 30 -day
27 advance written notice to the Village prior to lawful cancellation.
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30 Section 29. INDEMNIFICATION BY GRANTEE
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32 (a) Consistent with the Act, each Grantee shall, at its sole expense, fully indemnify,
33 defend and hold harmless the Village, and in their capacity as such, the officers, agents
34 and employees thereof, from and against any and all claims, suits, actions, liabilities and
35 judgments for damages or otherwise:
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37 (1) For actual or alleged death or injury to persons or property, including
38 loss of use of property due to an occurrence, whether or not such property is
39 physically damaged or destroyed, in any way arising out of or through or alleged to
40 arise out of or through the acts or omissions of the Grantee or its elected officials,
41 officers, agents, employees, or contractors or those to which the acts or omissions
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1 of Grantee or its officers, agents, employees or contractors, to the extent to which
2 they contribute;
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4 (2) Arising out of or alleged to arise out of any claim for damages for
5 Grantee's invasion of the right of privacy, defamation of any person, firm or
6 corporation, or violation or infringement of any copyright, trade mark, trade name,
7 service mark or patent, or of any other right of any person, firm or corporation; or
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9 (3) Arising out of or alleged to arise out of Grantee's failure to comply with
10 the provisions of any statute, regulation or ordinance of the United States, State of
11 Illinois or any local agency applicable to the Grantee in its business hereunder.
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13 (4) Arising out of or alleged to arise out of the granting of the franchise or
14 the operation of the cable system under the franchise. �a
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16 (b) Nothing herein shall be deemed to prevent the parties indemnified and held
17 harmless herein from participating in the defense of any litigation by their own counsel at
18 their sole expense. Such participation shall not under any circumstances relieve the
19 Grantee from its duties hereunder of defense against or settlement amount or other costs
20 incurred by liability or of paying any judgment entered against such indemnified party.
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23 Section 30. GRANTEE INSURANCE
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25 (a) As a part of the indemnification provided by Section 29, but without limiting the
26 foregoing, each Grantee shall file with the application, and at all times thereafter for a
27 period of 12 months following the expiration of the Franchise Agreement maintain in full
28 force and effect at its sole expense, a policy or policies approved by the Commission or
29 its designee of liability insurance, including comprehensive general liability insurance
30 products /completed operations liability, personal injury liability, owners and contractors
31 protective liability, broad form property damage, contractual liability, automobile liability
32 (owned, non - owned, and hired automobiles), worker's compensation and employer
33 liability. , The policy or policies shall name as primary insured the Village, and in their
34 capacity as such, its officers, agents and employees. The Grantee and said Village and
35 officers, agents and employees shall be named as coinsureds, and the policy or policies
36 shall contain cross - liability endorsements. Policies of insurance shall be in the minimum
37 single limit amount of five million dollars ($5,000,000) per occurrence. The insurance
38 policy or policies shall insure against the types of liabilities covered by the indemnification
39 and hold harmless provisions of Section 29.
40
1
2
3
4
5
6
7
8
9
10
11
12
25
(b) The insurer or insurers shall be authorized to write the required insurance, and
approved therefor by the State of Illinois. The form and substance of the policy or policies
of insurance shall be subject to approval by the Village.
(c) 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 fail 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.
13 Section 31. PROCEDURE FOR REMEDYING MATERIAL FRANCHISE VIOLATIONS
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
(a) In the event that the Commission or the Board has determined that a Grantee
has violated any material provision of the Franchise under Section 26(b)(4), and the
Grantor has sent to, Grantee a written demand on the Grantee that it remedy such
violation under Section 26(b), if the violation is not remedied or is still in the process of
being remedied to the satisfaction of Grantor, within thirty (30) days following any such
demand, Grantor shall determine whether or not such 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 upon thirty (30) days written notice to Grantee of the time and the
place of the hearing; the allegations of Franchise violations; and the remedy
sought by the Village.
(2) If, after notice is given and a hearing is held, the Commission
determines in its decision pursuant to Section 31(a)(5) that such violation by
Grantee was excusable under Section 26(d), Village 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 may reasonably direct. If the Commission
determines that such violation'was inexcusable under a like analysis, then Grantor
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 this Ordinance.
(3) A hearing reviewing the administrative findings may be conducted by a
hearing officer appointed by the Village President with the consent of the Village
Board on an appeal to either the Village or the Commission by the Grantee.
Such hearing officer shall be an attorney licensed to practice under the laws of the
State of Illinois. A Grantee desiring to appeal shall send a written notice of appeal
26
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 Section 31(a)(2).
Such notice of appeal shall contain a brief statement of Grantee's basis for appeal.
The hearing on Grantee's appeal shall be within forty (40) days of the date on
which the Village sent Grantee the notice to impose a remedy.
(4) The cost of either hearing, if any, 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.
(5) 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 Commission may, without holding a further hearing,
either:
(A) Adopt the recommended decision, including findings of fact and
conclusions submitted by the hearing officer;
(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.
(6) 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.
39 Section 32. ALTERNATIVE REMEDIES
40
41 No provision of this Ordinance shall be deemed to bar the right of the Village to seek or
42 obtain judicial relief from a violation of any provision of the Franchise Agreement or any
1 rule, regulation, requirement or directive promulgated thereunder. Neither the existence
2 of other remedies identified in this Ordinance nor the exercise thereof shall be deemed to
3 bar or otherwise limit the right of the Village to recover monetary damages (except where
4 liquidated damages are otherwise prescribed) for such violation by the Grantee, or judicial
5 enforcement of the Grantee's obligations by means of specific performance, injunction
6 relief or mandate, or any other judicial remedy available at law or in equity.
7
8
9 Section 33. NON - ENFORCEMENT
10
11 Subject to the provisions of the Act, a Grantee shall not be relieved of any obligation to
12 comply with any of the provisions of the Franchise Agreement or any 'rule, regulation.,
13 requirement or directive promulgated thereunder by reason of any failure of the Village or
14 its officers, agents or employees to enforce prompt compliance nor shall such be
15 considered a waiver thereof.
16
17 Section 34. COMMUNICATIONS WITH REGULATORY AGENCIES
18
19 Copies of all petitions, applications, communications, and reports submitted by a Grantee
20 to the FCC or any other Federal or State regulatory commission or agency having
21 jurisdiction in respect to any matters directly affecting construction or operation of a
22 System or services provided through such a System, shall be submitted to the Village
23 within one (1) week of filing. Grantee shall make a good -faith effort to assure that all such
24 filings made by a Grantee's parent or affiliates, specifically including Form 10 -K filings with
25 the Securities and Exchange Commission, are similarly submitted to the Village on a
26 continuing basis. Copies of responses or any other communications from the regulatory
27 agencies to a Grantee likewise shall be filed, upon receipt, with the Village. Any filing
28 specifically requested by the Village shall be submitted to the Village as soon as
29 practicable.
30
31
32 Section 35. RATES
33
34 (a) To the extent permitted by law, the Village expressly reserves the right:
35
36 (1) To approve the rates that the Grantee charges its subscribers for basic
37 service and the rates for such other services as Village may hereafter be permitted
38 to regulate by law. The Grantee shall not deny, delay, interrupt or terminate cable
39 facilities to subscribers or users because Village denies a request for a rate
28
1 increase, provided, however, that nothing herein shall be construed to limit the
2 Grantee's right to seek judicial review of such action.
3
4 (2) To require that, consistent with the Act, Federal Communications
5 regulations or other applicable laws, no rate, fee or charge of any kind shall be
6 charged or collected from subscribers by the Grantee for basic service or other
7 regulated services without the written authorization of the Village Board. Violation
8 of this Section shall subject the Grantee to the provisions of Sections 26 and 31,
9 and shall be deemed to be a material breach of any Franchise Agreement and
10 shall subject the Grantee to all remedies and penalties prescribed therein and
11 herein and to all other remedies, legal and equitable, which are available to the
12 Village.
13
14 (3) To require that the Grantee annually file with the Village a full schedule
15 of all subscriber and user rates and all other changes including, but not limited to,
16 pay TV, leased channel and discrete services, made in connection with ther'cable
17 communications system. Said rate schedules shall be amended whenever, such
18 rates change.
19
20 (i) All rates shall be published and on file with the Village.
21
22 (ii) The Grantee shall not discriminate in the assessment, levy,
23 charge, imposition or collection of rates on the basis of age, race, creed,
24 color, religion, national origin, sex or marital status. The rate structure shall
25 be uniform throughout the geographic area in which cable service is
26 provided over the system.
27
28 (4) To require that nothing in this chapter shall be construed to prohibit the
29 reduction or waiving of charges in conjunction with promotional campaigns for the
30 purpose of attracting subscribers or users, or the discounting of basic rates for
31 seniors or other classes of customers.
32
33 (5) To allow the Grantee to require all subscribers to pay for basic service
34 not more than two (2) months in advance. The Grantee shall require no other
35 advancement of payment for basic service, provided, however, that nothing herein
36 shall be construed to prohibit an advancement of payment for installation of cable
37 services.
38
39 (6) To require that the Grantee follow Federal Communications Commission
40 rules with respect to employment of nominal charges for installation, changes in
41 service and service cancellations. These rules include provisions protecting
42 subscribers from charges for changes in service tiers for 30 days after Grantee
43 notice of re- tiering or a rate increase.
29
(7) To allow that in the event that a subscriber's fails to pay as properly due
and owing a fee or charge, the Grantee may disconnect the subscriber's service
outlet, upon giving ten (10) days written notice thereof.
(8) To require that the Grantee establish and conform to the following policy
regarding refunds to subscribers and users:
(i) If the Grantee collects a deposit or advance charge on any service
or equipment requested by a subscriber or user, the Grantee shall provide
such service or equipment within thirty (30) days of the collection of the
deposit or change or it shall refund such deposit or change within five (5)
days thereafter.
(a) Nothing in this section shall be construed to relieve the
Grantee of any responsibility to subscribers or users under any
contractual agreements into which it enters with them.
(b) Nothing in this section shall be construed as limiting the
Grantee's liability for fines or penalties which may be imposed under
this Ordinance or any agreement awarded in accordance herewith
for violation or breach of any of their provisions.
(c) Nothing in this section shall be construed to limit the
Grantee's liability for damages because of its failure to provide the
service for which the deposit or charge was made.
(ii) In the event that a subscriber terminates basic service during the
first twelve (12) months of service because of the failure of the Grantee to
render the service in accordance with the requirement set forth in this
Ordinance or in any agreement awarded in accordance herewith, the
Grantee shall refund to such subscriber an amount equal to the initial
applicable installation or reconnection charge paid by the subscriber;
provided, however, that this subparagraph shall not apply to construction
costs set forth in paragraph 46 of this Ordinance.
(a) In the event that such subscriber has made an advance
payment the amount so advanced shall be refunded to such
subscriber by the Grantee. Nothing in this provision shall be
construed to relieve the Grantee of any liability established under
any other provision of this ordinance or any agreement awarding a
Franchise in accordance herewith.
30
1 (iii) In the event that a subscriber terminates basic service prior to the
2 end of a pre -paid period, the pro -rata portion of any pre -paid subscriber fee
3 which represents payment for services which are no longer to be rendered
4 shall be refunded promptly, but in no case more than sixty 60) days after
5 receipt of the request for termination.
6
7 (9) To require that the Grantee not charge a converter security deposit
8 greater than such converter's actual cost to the Grantee.
9
10 (i) Any converter security deposit collected by the Grantee shall be
11 returned to the subscriber twenty -four (24) months after the installation of
12 such converter, or upon termination of service by the subscriber and return
13 of such converter undamaged with allowance for reasonable wear and tear
14 and payment of any outstanding balance due and payable, whichever'
15 occurs first.
16
17 (b) Whenever Grantee requests a rate increase pursuant to subsection (a)," "the
18 Village shall have thirty (30) days from the date such rate increase is requested to either
19 approve said increase or to toll the review for an additional 90- or 120 -day period as
20 provided under Federal Communications Commission rules. If no action is taken within
21 the thirty (30) day period or the tolled period, the increase shall be deemed to have been
22 approved. If the Village tolls the request for further review, the proposed rate increase
23 shall be suspended during the review period, but in no event shall such proposed
24 increase be suspended longer than the maximum permitted under the Act and Federal
25 Communications Commission rules. Grantee shall have all further legal remedies
26 available to it by law should the Village deny the proposed rate increase or approve only,
27 a partial rate increase.
28
29
30 Section 36. CUSTOMER SERVICE STANDARDS
31
32 (a) The Grantee shall be subject to the following customer service standards,
33 which are consistent with those devised by the Federal Communications Commission. In
34 the event the Commission amends or alters applicable customer service standards, either
35 the new Commission standards or the standards described below, whichever are at that
36 time more stringent, shall become the applicable standards for the purposes of this
37 Ordinance:
38
39 (1) Cable system office hours and telephone availability:
40
31
(A) The cable operator will maintain a local, toll -free or collect call
telephone access line which will be available to its subscribers 24 hours a
day, seven days a week.
(i) Trained company representatives will be available to
respond to customer telephone inquires during normal business
hours.
(ii) After normal business hours, the access line may be
answered by trained company representatives or by a third -party
answering service. At no time shall the access line be dependent
only upon an answering machine or other automated response
system. Inquiries received after normal business hours must be
responded to by a trained company representative on the next
business day.
(B) Under normal operating conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30)
seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed thirty (30) seconds. These standards shall be
met no less than ninety (90) percent of the time under normal operating
conditions, measured on a quarterly basis.
(C) The operator will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear failure to
comply.
(D) Under normal operating conditions, the customer will receive a
busy signal less than three (3) percent of the time.
(E) Customer service center and bill payment locations will be open
at least during normal business hours and will be located within the
Corporate limits of the Village of Deerfield, unless otherwise agreed.
(2) Installations, outages and service calls: Under normal operating
conditions, each of the following four standards will be met no less than ninety -five
(95) percent of the time measured on a quarterly basis:
(A) Standard installations will be performed within seven (7) business
days after an order has been placed. "Standard" installations are those that
are located up to 125 feet from the existing distribution system.
32
(B) Excluding conditions beyond the control of the operator, the
cable operator will begin working on "service interruptions" promptly and in
no event later than 24 hours after the interruption becomes known. The
cable operator must begin actions to correct other service problems the
next business day after notification of the service problem.
(C) The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific time or, at
maximum, a four -hour time block during normal business hours. (The
operator may schedule service calls and other installation activities apart
from normal business hours for the express convenience of the customer.)
(D) An operator may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled
appointment. .
(E) If a cable operator representative is running greater than 30
minutes late for an appointment with a customer and will not be able to
keep the appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time that is convenient
for the customer.
(3) Communications between cable operators and cable subscribers:
(A) Notifications to subscribers:
(i) The cable operator shall provide written information on
each of the following areas at the time of installation of service, at
least annually to all subscribers, and at any time upon request:
(1) products and services offered;
(2) prices and options for programming services and
conditions of subscription to programming and other services;
(3) installation and service maintenance policies;
(4) instructions on how to use the cable service;
(5) channel positions of programming carried on the
system; and,
33
(6) billing and complaint procedures, including the
address and telephone number of the local franchise
authority's cable office.
(ii) Customers will be notified of any changes in rates,
programming services or channel positions as soon as possible
through announcements on the cable system and in writing. Notice
must be given to subscribers a minimum of thirty (30) days in
advance of such changes if the change is within the control of the
cable operator. In addition, the cable operator shall notify
subscribers thirty (30) days in advance of any significant changes in
the other information required by the preceding paragraph.
(B) Billing:
(i) Bills will be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to, basic
and premium service charges and equipment charges. Bills will also
clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
(ii) In case of a billing dispute, the cable operator must
respond to a written complaint from a subscriber within thirty (30)
days.
(C) Refunds: Refund checks will be issued promptly, but no later
than either:
(i) the customer's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or:
(ii) the return of the equipment supplied by the cable operator
if service is terminated.
(D) Credits: Credits for service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
(b) The grantee shall protect the privacy rights of subscribers in their dealings as
customers, consistent with Section 631 of the Act and including, without limitation, all
other applicable state or federal laws. In the event that current requirements of Section
631 are repealed or lessened, the requirements in effect on the effective date of this
34
1 Agreement nevertheless shall continue to apply to the Grantee for the purposes of this
2 agreement.
3
4 (1) Grantee shall not permit the transmission of any signal, aural, visual or
5 digital, including polling of the customer's channel selection, from any subscriber's.
6 premses without first obtaining written permission of the subscriber which shall not
7 have been obtained from the subscriber as a condition of service. The request for
8 such permission shall be contained in a separate document, with a prominent
9 statement that the subscriber is authorizing the permission in full knowledge of its
10 provisions and shall be revocable at any time by the subscriber without penalty of
11 any kind whatsoever. This provision is not intended to prohibit the use or
12 transmission of signals useful only for the control or measurement of system
13 performance or used only for billing subscribers.
14
15 (2) Grantee shall not permit the installation of any special terminal
16 equipment in any subscriber's premises that will permit transmission from
17 subscriber's premises of two -way services using aural, visual or' °digital signals
18 without first obtaining written permission of the subscriber as provided in
19 Paragraph 1 of this Section.
20
21 (3) Grantee, or any of its agents or employees, shall not, without the
22 specific written authorization of the subscriber involved, as provided in Paragraph
23 1 of this Section, sell or otherwise make available to any party any information
24 which identifies the viewing habits or responses of individual subscribers.
25
26
27 Section 37. FRANCHISE FEE
28
29 For purposes of compensating Village for the use of the streets and other impositions and
30 burdens upon the fiduciary trusts of the Village, and for the purposes of providing revenue
31 with which to defray the costs of administration and regulation arising out of the granting
32 of Franchises under this Ordinance, and, to the extent specifically required, for promoting,
33 assisting and financing public, educational, and governmental access programming, each
34 Grantee shall pay franchise fees in the amount prescribed by Section 38 below.
35
36
37 Section 38. AMOUNT AND PAYMENT OF FRANCHISE FEES
38
39 (a) During the term of each Franchise, the Grantee shall pay to the Village an
40 amount equal to the maximum percent per year of the Grantee's annual Gross Revenue
41 permitted by law, up to 5 %. Notwithstanding the foregoing, to the extent permitted by
35
1 law, and in accordance therewith, franchise fees in excess of 5 %, but not more than 10 %,
2 may be levied by the Village after 30 days written notice is given to the Grantee.
3
4 (b) Said fees shall be paid in accordance with the Franchise Agreement. Not later
5 than the date of each payment, each Grantee shall file with the, Village, a written
6 statement signed by an officer of the Grantee, which identifies in detail the sources and
7 amounts of Gross Revenues received by a Grantee during the period for which payment
8 is made.
9
10 (c) No acceptance of any payment shall be construed as an accord that the
11 amount paid is, in fact, the correct amount, nor shall such acceptance of payment be
12 construed as a release of any claim which the Village may have for further or additional
13 sums payable under the provisions of this Section.
14
15 Section 39. INTEREST ON DELINQUENT FRANCHISE FEES
16
17 Any Franchise Fees that remain unpaid after the dates specified shall be delinquent and
18 shall thereafter accrue interest at the maximum rate permitted by law for interest upon
19 judgments, until fully paid. Should a payment not be received within 30 days of the due
20 date,; it will be considered a material breach of this agreement.
21
22
23 Section 40. ACCOUNTING AND STANDARDS
24
25 The Grantee shall annually provide the Village Board with a certification of an
26 independent certified public accountant experienced in similar cable television
27 franchisements certifying the accuracy of the Franchise Fee payments made within the
28 preceding twelve (12) months thereto. Said certification shall be prepared in accordance
29 with generally accepted accounting standards as established by the Financial Accounting
30 Standards Board (FASB).
31
32
33 Section 41. BOOKS AND RECORDS AVAILABLE TO GRANTOR
34
35 (a) The Grantee shall maintain within a local office records of all franchise
36 operations in accordance with a policy that such records shall be totally open and
37 available to the Grantor's inspection at any time during normal business hours, or if
38 requested, copies will be delivered to the Grantor, notwithstanding the franchise fee audit
39 provisions described in Sections 42(b) and 42(c) of this Ordinance. Records shall include
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
36
but not be limited to books, documents, maps, computer files, plans, income tax returns,
financial statements, service complaint and the resolution of those complaints,
performance test results and other like materials of the Grantee relating to the operation
of the Franchise. Grantee at least annually shall notify the Grantor of any change
involving five percent (5 %) or more of the ownership of the stock of the Grantee, and shall.
provide names and addresses of the persons owning five percent (5 %) or more of any
class of said stock, and names and addresses of the Grantee's current officers and
directors.
(b) Access to the aforementioned records shall not be denied by the Grantee on
the basis that said records contain proprietary information, provided, however, that
grantee's submission of said records shall not be deemed a waiver of grantee's claims
respecting the proprietary nature of such records. Grantor shall take all reasonable
precautions and measures to protect the proprietary rights of Grantee in the inspection of
such records.
18 Section 42. REVIEW OF AUDITING AND FINANCIAL RECORDS
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20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
(a) The Finance Director of the Village may, from time to time during the term of a
Franchise prescribe standards governing the nature, extent and type of revenue
accounting system and accounting procedures utilized by a Grantee and require changes
in accounting standards or procedures utilized by a Grantee, for the purpose of promoting
the efficient administration of the Franchise Fee requirements of this Ordinance. Any
such standards shall be in accordance with generally accepted accounting and auditing
principles, shall be in writing, shall be filed with the Village, and shall be mailed to the
Grantee to whom directed. A Grantee shall promptly comply with all such standards and
maintain a local repository of all financial records.
(b) During the term of each Franchise, the Village may, not more frequently than
once each year, conduct a review of the books, records and accounts of the Grantee for
the purpose of determining whether the Grantee has paid Franchise Fees in the amounts
prescribed by Section 38 above. The review may be conducted by the Finance Director
of the Village or his designee, or by an independent certified public accounting firm
retained by the Village, and shall be conducted at the expense of the Village. The party
conducting the review shall prepare a written report containing its findings, and the report
shall be filed with- the Village, and mailed to the Village and Grantee. If such review
determines that the total of the gross revenues received by the Grantee from the
operation of the system is in error by a margin of five percent (5 %) or more, the cost of
such review shall be borne by the Grantee.
37
1 (c) Each Grantee shall make available for inspection by authorized representatives
2 of the Village, its books, accounts, and all other records, and those of its related entities
3 with Franchise - associated financial interests, at reasonable times and upon reasonable
4 advance notice for the purpose of permitting exercise of the authorities conferred by this
5 Section.
6
7
8 Section 43. FLOW- THROUGH OF REFUNDS
9
10 If during the term of the Franchise the Grantee receives refunds of any compulsory
11 copyright payments made for television or radio signals, it shall without delay notify the
12 Village, suggest a plan for flow- through of the refunds to its subscribers, and retain such
13 refunds pending order of the Village. After considering the plan submitted by the
14 Grantee, the Village may order the flow- through of the refunds to the Grantee's
15 subscribers in a fair and equitable manner.
16
17
18 Section 44. PUBLICATION COSTS
19
20 The Grantee shall assume any cost of publication of the Franchise as such publication is
21 required by law and such is payable upon the Grantee's acceptance of Franchise.
22
23
24 Section 45. LIQUIDATED DAMAGES
25
26 (a) By acceptance of the Franchise each Grantee understands and shall
27 agree that failure to comply with any time and performance requirements as stipulated in
28 this Ordinance and the Franchise Agreement will result in damage to the Village, and that
29 it may be impracticable to determine the actual amount of such damage in the event of
30 delay or non performance; therefore, the applicable Franchise Agreement shall include
31 provisions for liquidated damages to be paid by the Grantee, in amounts set forth in the
32 applicable Franchise Agreement and chargeable to a security fund established by the
33 Village for the duration of the collection, in an amount to be determined in accordance
34 with the applicable Franchise Agreement.
35
36 (b) If the Village concludes that a Grantee is liable for liquidated damages pursuant
37 to this Ordinance or the Franchise Agreement, it shall issue to Grantee by certified mail a
38 notice of intention to assess liquidated damages. The notice shall set forth the basis for
39 the assessment, and shall inform the Grantee that liquidated damages will be assessed
40 from the date of the notice unless the assessment notice is appealed for hearing before
38
1 the Commission in accordance with Section 31, and the Commission rules that the
2 violation did not occur or that an extension of time or other relief should be granted. A
3 Grantee desiring a hearing before the Commission shall send a written notice of appeal
4 by certified mail to the Village within fifteen (15) days of the date on which the Village sent
5 the notice of intention to assess liquidated damages. Such notice of appeal shall contain
6 a brief statement of Grantee's basis for appeal. The hearing on Grantee's appeal shall be
7 within forty (40) days of the date on which the Village sent the notice of intention to
8 assess liquidated damages. Unless the Commission indicates to the contrary, said
9 liquidated damages shall be assessed beginning with the date on which the Village sent
10 the notice of the intention to assess liquidated damages and continuing thereafter until
11 such time as the violation ceases, as determined by the Village.
12
13
14 Section 46. LINE EXTENSIONS
15
16 a) Grantee shall be required to extend the system to and to offer the services of
17 the system to potential subscribers, at its sole cost, within all Developed Parcels of the
18 Franchise Area. If the Village approves a plat of subdivision, planned developments or
19 other zoning for the construction of additional dwelling units within the Franchise Area, the
20 Grantee shall complete construction of the cable television system along with public and
21 private utilities within twelve (12) months of the date of the issuance of the first building
22 permit for a dwelling unit within said area. The penalty assessed upon the Grantee will be
23 Five Hundred Dollars ($500) per day for each day of non - compliance with the 12 -month
24 time schedule. The time schedule may be extended by the Grantee for a period of time;
25 subject to approval by the Village, occasioned by delays due to war, riot, insurrection;
26 rebellion, strike, lockout, unavoidable casualty or damage to personnel, materials, or
27 equipment, fire, flood, storm, earthquake, tornado, orders of a court of competent
28 jurisdiction, any act of God, failure to obtain easements, or any cause beyond the control
29 of the Grantee.
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31 (b) In areas annexed by the Village or developed in the Village comprised of less
32 than a minimum density ratio as defined by a Developed Parcel and which areas are
33 hereinafter referred to as "Secondary Service Areas," Grantee will extend service as
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36 (1) When the Grantee is requested to extend service to any person or
37 persons in a Secondary Service Area, Grantee shall undertake an engineering and
38 cost survey within 30 days after such request.
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40 (2) At the conclusion of the survey, the Grantee will determine the total
41 capital cost required to extend service to the Secondary Service Area of the
42 requesting person or persons. Grantee will contribute 50% of the cost and the
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requesting persons shall contribute the balance on a pro -rata basis should they
desire to proceed. Those residents who do accept these conditions will
compromise the Initial Service Group ( "ISG ").
(3) Within 30 days after determination of the ISG and receipt of their
contributions, construction will commence. If, at any time after the determination of
the ISG, an additional resident or residents within the Secondary Service Area
desire service, then they will be required to contribute a pro -rata amount equal to
the amount they would have contributed had they been included as an original
member of the ISG. Said contributions will then be redistributed equally to each
member or his assignee of the ISG by the Grantee
(4) The foregoing procedure will continue until the density ratio in the
Secondary Service Area reaches that of a Developed Parcel.. When this occurs,
Grantee will fully refund to all original members or assignees of the ISG the
balance of the amount they have contributed in excess of standard installation
fees.
20 Section 47. CABLE AND TELECOMMUNICATIONS COMMISSION
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. (a) The Cable and Telecommunications Commission shall consist of nine (9)
members appointed for three -year terms by the Mayor of the Village with the advice and
consent of the Board of Trustees. Vacancies shall be filled for the unexpired term by the
Mayor and with the advice and consent of the Board.
(b) One of the members so appointed shall be named as Chairperson by the
Mayor with the advice and consent of the Board.
(c) Regular meetings shall be held on dates to be determined by the Commission.
Special meetings will be held at the call of the Chair.
(d) The Commission shall have such duties and powers as may be provided
herein and from time to time as determined by the Board. With the advice and consent of
the Board, the Commission shall oversee the cable ordinance and any and all cable
franchise agreements created under the requirements of this ordinance. The
Commission shall report to the Board as necessary in order that the Village may enforce
these regulations.
(e) The Commission may adopt such rules as necessary and advisable to carry
out its duties and functions.
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1 (f) The Commission, with the approval of the Board, may obtain independent
2 advice on technical matters from engineers, consultants or other experts.
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5 Section 48. SPECIAL LICENSES
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7 The Village reserves the right to issue a license, easement or other permit to anyone
8 other than the Grantee to permit that person to traverse any portion of the Grantee's
9 franchise area within the Village in order to provide service outside the Village. Such
10 license or easement, absent a grant or a franchise in accordance with this ordinance,
11 shall not authorize nor permit said person to provide a cable service of any nature to any.
12 home or place of business within the Village, nor to render any service or connect any
13 subscriber within the Village to the Grantee's cable system.
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16 Section 49. EMPLOYMENT
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18 The Grantee shall not refuse to hire, nor discharge from employment, nor discriminate
19 against any person regarding compensation; terms, conditions or privileges of
20 employment because of age, sex, race, color, creed, or national origin. The Grantee shall
21 take affirmative action to ensure that employees are treated during employment without
22 regard to their age, sex, race, color, creed, or national origin. This condition includes, but
23 is not limited to, the following: recruitment advertising, employment interviews,
24 employment, rates of pay, upgrading, transfer, demotion, lay -off, and termination.
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27 Section 50. CONFLICTING ORDINANCES REPEALED
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29 All ordinances or parts of ordinances thereof in conflict herewith are hereby repealed to
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33 Section 51. SEVERABILITY
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35 Any Section or provision of this ordinance that is construed to be invalid or void shall not
36 affect the remaining Sections or provisions, which shall remain in full force and effect
37 thereafter.
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Section 52. EFFECTIVE DATE OF ORDINANCE
This ordinance shall be in full force and effect, and shall be controlling, upon its passage,
approval and publication as provided by law.
SECTION That the Village Clerk is hereby directed to
publish this Ordinance in pamphlet form.
SECTION That this Ordinance shall be in full force and
effect, from and after its passage, approval and publication, as provided
by law.
AYES: thlers, Rosenthal, Seidman, Swanson, Swartz (5)
NAYS: None ( 0 )
ABSENT: Heuberger (1)
PASSED this 5th day of February , A.D., 1996.
APPROVED this 5th day of February , A.D., 1996.
VILLAGE PRESIDENT
ATTEST:
AQ