1981-018s �
ORDINANCE NO. 81 -18
AN ENABLING ORDINANCE PROVIDING SPECIFICA-
TIONS FOR CABLE TELEVISION
WHEREAS, the Village of Buffalo Grove is a Home Rule Unit by virtue of
the provisions of the Constitution of the State of Illinois of 1970;
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS, as follows:
ARTICLE
I:
SHORT
TITLE AND PURPOSES OF THE ORDINANCE
SECTION
1:
SHORT
TITLE
This ordinance shall be known as the Village of Buffalo Grove Cable Commun-
ications Ordinance.
SECTION 2: PURPOSES
The purpose of this ordinance is to:
A. Provide for the franchising and regulation of cable television systems
within the Village of Buffalo Grove (hereinafter Village), and
B. Provide for the payment of a fee and other valuable consideration to
the Village for the use of Village streets and other public ways in the construction
and operation of cable television systems, and to compensate the Village for costs
associated therewith; and
C. Provide for the regulation by the Village of the rates and fees to be
charged by franchisees under this ordinance, and
D. Provide for the development of cable television as a means to improve
communication between tnd among the citizens and public institutions of the Village,
and
E. Provide remedies and prescribe penalties for violation of this ordinance
and the franchises granted hereunder
ARTICLE II: DEFINITIONS
SECTION l: DEFINITIONS
For the purpose of this ordinance, the following terms, phrases, words and
their derivations shall have the meaning given herein, unless the context clearly indi-
cates that another meaning is intended. When not inconsistent with the context, words
used in the present tense include the future, words in the plural number include the
singular - number, and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
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A. "Agency" means the person, department or agency designated by the
Village to act in matters related to cable television, or in the absence of such
designation, the President and Board of Trustees of the Village of Buffalo Grove.
B. "Auxiliary Services "means any communication service in addition to
"regular subscriber services" including, but not limited to services for which a
per program or per channel charge is made, pay TV, burglar alarm services, data or
other electronic transmission services, facsimile reproduction services, meter reading
services and home shopping services, interactive two -way services and any other service
utilizing any facility or equipment of a cable television system operating pursuant to
a franchise granted under this ordinance.
C. "Board" means the Board of Trustees of the Village of Buffalo Grove.
D. "Cable Television System" (or CATV system) means any non - broadcast
facility consisting of a set of transmission paths and associated signal generation,
reception, and control equipment, that distributes or is designed to distribute to
subscribers audio, video and other forms of electronic or electrical.signals, but
such term shall not include any such facility that serves or will serve only sub-
scribers in one or more multiple unit dwellings under common ownership, control or
management, and does not use municipal rights -of -way.
E. "Channel" is a band of frequencies, six megahertz wide in the electro-
magnetic spectrum capable of carrying either one audio - visual television signal and a
few non -video signals, or a large number of non -video signals.
F. "Converter" means an electronic device which converts signals to a fre-
quency 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 de-
livered at designated dial locations.
G. "Depreciated Value" means the value as shown on the Grantee's books and
records of all the cable television system's tangible assets after depreciation which
shall be calculated to the end of the Grantee's last fiscal year and which shall be
based on a straight line depreciation method over the term of the franchise with no
salvage value remaining at the end of the term. Said value shall not include "good
will" or any value that Grantee's books and records attribute to the franchise.
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H. "Fair Market Value" means the price that a willing buyer would pay to a
willing seller for a going concern based on the system valuation and sale multiples
prevailing in the industry.
I. "Federal Communications Commission" or "FCC" means the present federal
agency of that name as constituted by the Communication Act of 1934, or any successor
agency created by the United States Congress.
J. "Franchise" means the non. - exclusive rights granted hereunder to construct
and operate a cable television system along the public ways in the Village, or within
specified areas in the Village, and is not intended to include any license or permit
required for the privilege of transacting and carrying on a business within the Village
as may be required by other ordinances and laws of the Village.
K. "Franchise Area" means that portion of the Village for which a franchise
is granted under the authority of this ordinance. If not otherwise stated in the
franchise, the Franchise Area shall be the corporate limits of the Village including all
territory thereafter annexed, to the Village.
L. "Grantee" means the natural person, partnership, domestic and foreign
corporation, association, joint venture, or organization of any kind granted a franchise
by the Village under this ordinance and its lawful successor, transferee or assignee.
M. "Gross Revenues" means all revenue derived directly or indirectly from
the operation or use of all or part of a Cable Television System franchised pursuant to
this ordinance by the Grantee, its affiliates, subsidiaries, parents, and any person
in which the Grantee has a financial interest including, but not limited to, revenue
from regular subscriber service fees, auxiliary service fees, installation and recon-
nection fees, leased channel fees, converter rentals, studio rental, production equip-
ment and personnel fees, and advertising revenues; provided, however, that this shall not
include revenues received by Grantee's affiliates, subsidiaries, parents and persons
in which Grantee has a financial interest if such revenues would be excluded if received
by persons having no relationship to Grantee or any taxes on services furnished by the
Grantee herein imposed directly upon any subscriber or user by the State, local or other
governmental unit and collected by the Grantee on behalf of said governmental unit.
N. "Net Profit" means the amount remaining after deducting from gross rev-
enues all of the actual, direct and indirect, expenses associated with operating the
cable television system including the franchise fee, interest, depreciation and Federal
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or State income taxes.
0. "Persons" means any people, firms, corporations, associations or other
legally recognized entities.
P. "Public Way" Means the surface, the air space above the surface, and the
area below the surface of any public street, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, parkways, waterways, utility easements or other
public right -of -way 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 television system. No reference herein, or in any franchise, to the
"public way" shallbe: deemed to be a representation or guarantee by the Village that its
title to any property is sufficient to permit its use for such purpose, and the Grantee
shall, by its use of such terms, be deemed to gain only such rights to use property in
the Village as the Village may have the undisputed right and power to give.
Q. "Regular Subscriber Service" shall mean the distribution to subscribers
of signals over the cable television system on all channels except those for which
a per - program or per- channel charge is made, two -way services, and those intended for
reception by equipment other than a television broadcast receiver.
R. "Schools" means all public, and private, elementary and secondary schools,
junior colleges, colleges and universities which have been granted a certificate of
recognition by the Illinois State Board of Education, pursuant to Section 2 -3.25 of the
Illinois School Code
S. "Subscriber" means any person who receives the regular subscriber service
and /or any one or more of such other services as may be provided by the Grantee's cable
television system, and does not further distribute such service(s).
T. "Two -way Service" means the subscriber or any other location shall have the
capability to choose whether or not to respond immediately or by sequential delay by
utilizing any type of terminal equipment whatever, by pushbutton code, dial code, meter,
voice, video including, but not limited to, audio and video, electrical or mechanically
produced signal, display and /or interrogation.
U. "User" means a person or organization utilizing a system channel or system
equipment and facilities for purposes of production and /or transmission of material, as
contrasted with receipt thereof in a subscriber capacity.
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ARTICLE III. GRANT OF AUTHORITY
SECTION 1. REQUIREMENT OF A FRANCHISE
No person, firm, company, corporation or association shall construct, install,
maintain or operate a cable television system within the Village, or within any other
public property of the Village, unless a franchise has first been obtained pursuant to
the provisions of this ordinance, and unless such franchise is in full force and effect.
Such franchise shall not take the place of any other license or permit which may be
legally required of the Grantee in order to conduct such a business.
SECTION 2: FRANCHISE APPLICATIONS
A. After receiving applications for a franchise, the Board, after considering
financial, technical, programming and rate proposals, and the legal and character qual-
ifications of the applicants, may, by ordinance, grant one or more non - exclusive fran-
chises creating a right to construct and operate a cable television system within the
public ways of the Village. Franchise(s) will be granted to the applicant(s) which in
the Board's judgment may best serve the public interest; provided, however, no provision
of this ordinance shall be deemed or construed as to require the Board to grant a
franchise.
B. The application for a cable television franchise shall be submitted to the
Village, or its designee, on a written application form furnished by the Village, and
in accordance with procedures and schedules established by the Village. The
application form may request facts and information the Village deems appropriate.
Applications shall be accompanied by a non - refundable application fee in an amount
determined by the Village, which amount shall be used by the Village to offset direct
expenses incurred in the franchising and evaluation procedures, including but not
limited to, staff time and consulting assistance.
C. An applicant (Grantee) to whom the Village grants a non - exclusive franchise
shall, in addition to the non - refundable fee specified hereinabove, pay the Village at
the time the Grantee files the written instrument specified in Article VII, Section 9,
an amount to be determined by the Board to be used to offset all direct reasonable
expenses actually incurred by the Village in granting the franchise which are not defray-
ed by fees forthcoming from the provisions of Paragraph B of this section.
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ARTICLE IV: FRANCHISE CONDITIONS
SECTION 1: FRANCHISE TERM AND NON- EXCLUSIVITY
A. The term of an original franchise shall be no more than fifteen (15) years
from the date the franchise is accepted by the Grantee. The term of a renewed franchise
shall be no more than fifteen (15) years. No franchise granted pursuant to this
ordinance shall give any exclusive right to a Grantee and every such franchise shall be
deemed to reserve the right to grant other franchises to use and occupy the public ways
of the Village for cable television or any other purpose on such terms as the Village
may then deem appropriate.
SECTION 2: NOTICE TO THE GRANTEE
Except as provided in Section 4 of this Article the Village shall not take
any final action involving the modification, renewal, revocation or termination of the
Grantee's franchise unless the Village has (1) advised the Grantee in writing, at least
thirty (30) days prior to such meeting, as to its time, place and purpose and (2) pub-
lished a notice, at least once, ten (10) days before the meeting in a newspaper of
general circulation within the Village. The Grantee and any interested person shall
be entitled to be heard at such meeting.
SECTION 3: FRANCHISE REVIEW AND MODIFICATION
It shall be the policy of the Village to amend a franchise, upon application
of the Grantee, when necessary to enable the Grantee to take advantage of technological
advancements which will afford it an opportunity to more effectively, efficiently, or
economically serve its subscribers; provided, however that this Section shall not be
construed to require the Village to make any amendment. Further, within the term of
the franchise, the Village may after notice and hearing as required in Section 2
of this Article, adopt a resolution providing for reasonable and appropriate modifica-
tions in franchisee's franchise of a nature that would not result in materially changing
or effectively terminating same. Notwithstanding the foregoing, the Grantee will make
reasonable and appropriate state of the art modifications to the system.
SECTION 4: PERFORMANCE EVALUATION SESSIONS
A. The Village and the Grantee shall hold performance evaluation meetings
within thirty (30) days of the third, fifth, tenth and fourteenth anniversary dates of
the Grantee's award of the franchise and as required by federal and state law. All such
evaluation meetings shall be open to the public. Grantee shall be solely responsible
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for notifying the Village, in writing, at least sixty (60) days in advance, of each,
of the specified performance evaluation meetings, and no notice to the Grantee pur-
suant to Section 2 of this Article shall be required.
B. Special evaluation meetings may be held at any time during the term of
the franchise at the request of the Agency or the Grantee.
C. All evaluation meetings shall be open to the public and announced in a
newspaper of general circulation in accordance with the notice requirements of Article IV,
Section 2. No such newspaper notice shall be required as to any adjourned meetings.
Grantee shall notify subscribers of all evaluation meetings including any adjourned
meetings by announcement on the highest use origination channel on the system no less
than three (3) times between the hours of 7 o'clock P.M. and 9 o'clock P.M. for five
(5) consecutive days immediately preceding each meeting.
D. Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, service rate structures, franchise fees,
penalties, free or discounted services, applications of new technologies, system per-
formance, services provided, programming offered, customer complaints, privacy, amendments
to this ordinance, modification to the franchise, judicial and FCC rulings, line exten-
sion policies and Grantee or Village rules.
E. During a review and evaluation by the Village, the Grantee shall fully
cooperate with the Village and shall provide such information and documents as the
Village may need to reasonably perform its review.
F. If at any time during its review, the Village determines that reasonable
evidence exists of inadequate CATV system performance, it may require the Grantee to
perform tests and analysis directed toward the suspected inadequacies. The Grantee
shall fully cooperate with the Village in performing such testing and shall prepare
results and a report if requested within thirty (30) days after notice. Such report
shall include the following information:
(1) The nature of the complaint or problem which precipitated the special
tests;
(2) What system component was tested;
(3) The equipment used and procedures employed in testing;
(4) The method, if any, in which such complaint or problem was resolved.
(5) Any other information pertinent to said tests and analysis which
may be required.
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6. The Village may require the test to be supervised at Grantee's
expense by a professional engineer to be approved by the Village not on
the permanent staff of the Grantee. The engineer should sign all records of
special tests and forward to the Village such records with a report inter-
preting the results of the test and recommending actions to be taken.
G. The Village right under this section shall be limited to requiring tests,
analysis and reports covering specific subjects and characteristics based on said com-
plaints or other evidence when and under such circumstances as the Village has reason-
able grounds to believe that the complaints or other evidence require that tests be
performed to protect the public against substandard cable service.
SECTION 5: FRANCHISE RENEWAL
A. The Grantee shall be solely responsible for requesting the Village, in
writing, to hold a Village meeting, the purpose of which will be to review the
Grantee's performance during the term of its franchise, to consider the adequacy of
the franchise from the standpoint of the Village, the Grantee, and the Federal
Communications Commission Rules for Cable Television, and to determine the advisability
of renewing the Grantee's franchise. Unless the Board shall consent to some lesser
notice, said request shall be made not less than six (6) months prior to the franchise
expiration date. Upon receipt of said request, the Village shall set forth the time
and place of the Village meeting. If no request for renewal is made, the franchise
shall expire according to its terms.
B. The Village shall hear any interested persons during said Village meeting
and shall determine whether or not the Grantee did reasonably comply with the terms
and conditions imposed by this ordinance and the franchise. Notice of such meeting
shall be given in accordance with Article IV, Section2 and Section 4C.
C. If the Village determines that the Grantee has been in reasonable compli-
ance with the terms and conditions imposed by this ordinance and the franchise, the
Village may, by ordinance, renew the Grantee's franchise, with any modifications
it deems desirable, for a period of time not longer than fifteen (15) years.
D. Notwithstanding the fact that the Village may determine that the Grantee
has been in reasonable compliance with the terms and conditions imposed by this
Ordinance and the franchise, it shall have the right not to renew the franchise.
If the Village does not renew the franchise, the Village shall have an option, to
the extent then permitted by existing law, to acquire the tangible assets (plant,
equipment, and facilities)
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of the Grantee's cable television system,..or the option to require the sale of such
assets to a succeeding Grantee on the terms hereinafter specified, or to require the
Grantee to remove all the tangible assets of the cable television system from the
municipality. If the Village acquires the assets for municipal ownership, or if
the Village requires sale of the assets to a succeeding Grantee, the amount paid for
such assets shall be in the fair market value of the assets, and not less than the
replacement cost of the assets in place as adjusted for their remaining useful life.
Except as provided in Section 8 of this Article, the Village option to acquire
the assets of the Grantee or to require the sale of such assets to a succeeding
Grantee or to require the removal of such assets from the municipality must be
exercised within one (1) year from the date of the franchise expiration, unless
such period is extended with the consent of the Grantee.
E. The Village shall have the right to recoup from the Grantee all direct
expenses incurred pursuant to renewal of the franchise whether or not the franchise
is renewed.
F. If a franchise is not renewed and if a Grantee desires to remove its
tangible assets, Grantee shall comply with the requirements of Paragraph G of
Section 8 of Article VI.
SECTION 6; FRANCHISE REVOCATION PROCEDURE
A. Whenever a Grantee shall refuse, neglect or willfully fail to construct,
operate or maintain its cable television system or to provide service to its sub-
scribers in accordance with the terms of this ordinance and the franchise or to
comply with the conditions of occupancy of any public way or to make required exten-
sions of service, or shall in any other way violate the terms and conditions of
this ordinance, the franchise, or any applicable rule or regulation referenced or
adopted hereunder, or practices any fraud or deceit upon the Village or its sub-
scribers, or fails to pay franchise fees when due, or if a Grantee becomes insolvent,
or unable to or unwilling to pay its debts, or is adjudged bankrupt, or seeks relief
under the bankruptcy laws, then the franchise may be revoked.
Q. In the event the Village or the Agency believes that grounds for revocation
exist or have existed, the Village or Agency may notify a Grantee, in writing, setting
forth the nature and facts of such noncompliance. If, within thirty (30) days follow-
ing such written notification, the Grantee has not furnished reasonably satisfactory
evidence that corrective action has been taken or is being actively and expeditiously
pursued, or that the alleged violations did not occur, or that the alleged violations
were beyond the Grantee's control, the Agency shall thereupon refer the matter to the
Village.
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C. Upon referral from the Agency or by its own motion, the Village may,
following notice and hearing pursuant to Section 2 of this Article, revoke a
franchise pursuant to paragraph A. of this section.
D. A Grantee shall not be subject to the sanctions of this Section
for any act or omission wherein such act or omission was beyond the Grantee's con-
trol. An act or omission shall not be deemed to be beyond a Grantee's control if
committed, omitted, or caused by a corporation or other business entity which holds
a controlling interest in the Grantee, whether held directly or indirectly. Further,
the failure of a Grantee to obtain financing, or to pay any money due from it to
any person, including the Village, for whatever reason, shall not be an act or omis-
sion which is beyond the Grantee's control.
E. In the event that a franchise has been revoked by the Village, the Village
shall have an option, to the extent then permitted by existing law, to either purchase
the tangible assets of.the Grantee's cable television system previously governed by
the franchise at their depreciated value as defined herein, assign such rights to
purchase, to any person, including a successor Grantee, whether or not for considera-
tion paid to the Village and without consideration to the Grantee, or to require the
Grantee to remove all the tangible assets (plant, equipment and facilities) of the cable
television system from the municipality. Unless some later date is agreed to by the
Grantee and except as provided in Section 8 of this Article, such an option must be
exercised within one (1) year from the date of the revocation of the franchise, or the
entry of the final judgment by a court reviewing the question of the Village revocation,
or the entry of a final order upon appeal of same, whichever is later.
F. The termination of a Grantee's rights under a franchise shall in no way
affect any other rights the Village may have under the franchise or under any pro-
vision of law or ordinance.
SECTION 7: ARBITRARY AND CAPRICIOUS ACTION BY GRANTEE
A. If a Grantee arbitrarily and capriciously discontinues service to a greater
than 10 percent of its subscribers, the Grantee's franchise may, be revoked by a resol-
ution of the Village following notice to the Grantee and an opportunity to be heard.
Notwithstanding the provisions of Article IV, Section 2, notice to the Grantee under
this section may be less than thirty (30) days. Provided, further, the Village may
seek appropriate judicial or other relief and /or may proceed to exercise its rights and
powers as provided for herein.
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SECTION 8: PROVISION FOR ARBITRATION
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A. In the event the Village pursues the option to purchase Grantee's
cable television system or any of its assets, and the fair market value, depreciated
value, or replacement cost of the assets in place as adjusted for their remaining
useful life, cannot be agreed upon, said value shall be determined by a panel of
arbitrators which panel may be requested by either the Board or the Grantee no sooner
than ninety (90) days after notice that the Village desires to purchase the system.
The panel shall be composed of one arbitrator chosen by the Village, one arbitrator
chosen by the Grantee, and a third arbitrator chosen by the first two. The expense
of the arbitration, including the fees of the arbitrators, shall be borne by the parties
in such manner as the arbitrators provide in their award, but in no event will the
Village be obligated for more than one -half the expenses. The determination of a
majority of the arbitrators shall be binding on the parties only as to the value of the
fair market value, depreciated value, or replacement cost of the assets in place as
adjusted for their remaining useful life. The arbitrators shall follow the rules and
procedures of the American Arbitration Association except where in conflict with an
express provision of this ordinance. The arbitration hearing shall take place in Cook
County or Lake County, as the Village shall determine, unless otherwise agreed to
by the parties in writing.
B. Notwithstanding any other timetable imposed by this ordinance, the Village
shall, within ninety (90) days following notice to it of the decision of the arbitrators,
either withdraw any notice it may have given of its intent or election to acquire the
Grantee's system or shall affirmatively accept the decision of the arbitrators and
affirm its election to purchase the system or assets. If the Village fails to accept
the arbitrator's decision and affirm its election to purchase within the aforesaid
ninety (90) day period, the rights of the Village to purchase shall expire.
SECTION 9: TRANSFER OF OWNERSHIP TO GRANTOR
In those circumstances wherein the Village shall have elected to purchase
ownership of a Grantee's cable television system or any of its assets, the Village
shall, unless the Grantee shall agree to some other terms pay the price of such assests
to the Grantee within twelve (12) months following the date upon which the election to
purchase becomes irrevocable and title to the system or assets shall pass to the
Grantor upon such payment.
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SECTION 10: GRANTEE'S OBLIGATION AS TRUSTEE
A. At all times from the expiration or revocation of a franchise and
until either (1) a Grantee transfers to the Village or other succeeding operation
of the system all of its rights, title and interest to all assets, real and personal,
related to its cable television system or (2) the Village's right to either acquire or
assign its rights to acquire any of the Grantee -'s assets expires without the Village
having exercised such a right, whichever occurs first, the Grantee shall have a duty
to such successor as a trustee holding such assets for the benefit of such successor
and the Grantee shall not sell any of the system assets nor shall the Grantee make
any physical, material, or administrative operational changes that would tend to
(1) degrade the quality of service to the subscribers, (2) decrease gross revenues,
or (3) materially increase expenses without the expressed permission in writing, of
the Village or its assigns. The Grantee shall at all,times operate the system in
accordance with terms of this ordinance and the terms of the franchise as if the
franchise had not expired or had not been revoked. In the event the Franchisee fails
or refuses to operate the system as a Trustee, the Village shall have the option to name
a successor Trustee or operate the system itself as a trustee in accordance with
the terms of this ordinance and the terms of the franchise.
B. In the event of expiration or revocation of a franchise, this section
shall not be construed to give a Grantee any vested or other franchise right, but
the right of the Grantee in such circumstances shall exist only on a day -to -day basis
until the transfer is effected.
C. As full compensation for its ownership interests and during this interim
period, the Grantee shall be entitled to receive the net profit, as defined herein,
generated during the period between the expiration or revocation of the franchise,
as the case may be, and the transfer of the Grantee's assets to the Village or a
successor.
D. Further, this section shall in no way limit the power of the Village, upon
expiration or revocation of a franchise, to require the Grantee to cease all operations
whatsoever and /or remove its facilities, or otherwise exercise any rights the Village
would otherwise have.
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SECTION 11: FRANCHISE FEE
A. The Grantee, in consideration of the privilege granted under the
franchise for the operation of a cable television system, and the expense of regulation
pursuant to the franchise incurred by the Village, shall pay to the Village five
percent (5%) of its annual gross revenues during the period of its operation under the
franchise or such lesser amount as specified in the franchise granted; or the maximum
amount as may be set from time to time by controlling Federal or State law, if such
maximum is less than five percent (5%),
B. The Grantee shall file with the Village, within thirty (30) days after the
expiration of each of the Grantee's fiscal quarters, a financial statement clearly showing
the gross .revenues received by Grantee during the preceding quarter, and shall simultan-
eously tender payment of the quarterly portion of the franchise fee. The Grantee
shall also file within one hundred twenty (120) days following the conclusion of the
Grantee's fiscal year, an annual report prepared and audited by a Certified Public
Accountant acceptable to the Village, clearly showing the yearly total gross revenues.
Said audit and annual report to be prepared at Grantee's expense.
C. The Village shall have the right, consistent with the provision of
Article V, Section 2, Paragraph D, to inspect the Grantee's income records, the right
of audit and the recomputation of any amounts determined to be payable under this
Ordinance. Any additional amount due the Village as a result of the audit shall be
paid within thirty (30) days following written notice to the Grantee by the Village
which notice shall include a copy of the audit report. The cost of said audit shall
be borne by the Grantee if it is properly determined that the Grantee's annual payment
due to the Village for the preceding year is increased thereby by more than five per-
cent (5%).
D. In the event that any franchise payment or recomputed amount is not made on
or before the applicable dates heretofore specified, interest shall be charged from
such due date at the annual rate of twelve percent (12 %) or two percent (2%) over the
prime rate at the Continental Illinois National Bank, whichever is higher.
E. In the event the franchise is terminated for any reason, the Grantee
shall file with the Village, within thirty (30) days of the termination of service
by the Grantee pursuant to the franchise of this ordinance, a financial statement
clearly showing the gross revenues received by Grantee since the end of the previous
fiscal quarter. The Grantee shall pay the franchise fee due at the time such state-
ment is filed or within thirty (30) days, whichever is sooner.
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SECTION 12: LIABILITY AND INDEMNIFICATION
A. The Grantee shall save and hold the Village, its corporate authorities,
officers, boards, commissions, employees and agents harmless from any injury, claim,
demand, suit, judgment, execution,liability, debt,damages or penalty (hereinafter
referred to as "claims ") arising out of, resulting from, or alleged to arise out
of or result from, the passage.of this ordinance, the granting of a franchise, or the
construction, erection, installation, operation, maintenance of, or other activity
connected with, the Grantee's cable television system, whether or not such acts or omis-
sions are those of the Grantee, and whether or not any such act or omission is author-
ized, allowed or prohibited by this ordinance or the Grantee's franchise. These
damages shall include but not be limited to penalties arising out of copyright infringe-
ments and damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors or licensees of programs to be delivered by the Grantee's
cable television system.
B. The Grantee shall pay and by its acceptance of a franchise shall be deemed
to have specifically agreed that it will pay all expenses incurred by the Village
in defending itself with regard to all claims mentioned in subsection A above. These
expenses shall include all out -of- pocket expenses, such as attorneys' fees, and shall
also include the reasonable value of any services rendered by any employees of the
Village.
C. The Grantee shall maintain at its own expense, and by its acceptance of a
franchise shall be deemed to have specifically agreed that it will maintain throughout
the term of such franchise general comprehensive liability insurance and Umbrella
Liability Insurance, acceptable to the Village, insuring the Village and the Grantee
with regard to all claims mentioned in subsection A above in the minimum amounts of:
(1) Five million dollars ($5,000,000) for bodily injury or death to
any one person, within the limit, however, of ten million dollars ($10,000,000)
for bodily injury or death resulting from any one accident;
(2) Two million dollars ($2,000,000) for property damage, including
damage to Village property, resulting from any one accident;
(3) Two million dollars ($2,000,000) for all other types of liability
resulting from any one occurrence.
D. The Grantee shall maintain at its own expense and by its acceptance of a
franchise shall be deemed to have specifically agreed that it will maintain throughout
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the term of such franchise. a faithful performance. license and franchise bond
running to the Village, with at least one good and sufficient surety licensed
to .do, business in the State of Illinois and approved by the Village, in the penal
sum of Two Hundred Thousand Dollars ($200,000), or such greater or lesser sum as may
be specified in such franchise. When regular subscriber service is available to more
than ninety percent (90 %) of the occupied dwelling units within the Primary Service
Area, as described in Article VI, Section 2, the amount of the bond shall be reduced
to the amount specified in the franchise, or if no amount is specified therein, then
to the sum of Fifty Thousand Dollars ($50,000). Said bond shall be conditioned that
the Grantee shall well and truly observe, fulfill, and perform each term and condition
of this ordinance and its franchise and that in case of any breach of condition of the
bond, the amount thereof shall be recoverable from the principal and surety thereof
by the Village for all damages and costs, whether direct or indirect, resulting from
the failure of the Grantee to well and faithfully observe and perform any provision
of this ordinance or its franchise. Such damages and costs shall be deemed to include,
as a minimum and without limitation, the loss of expected payments of the franchise
fee and other valuable consideration given for the grant of the franchise, and such
additional expenses as may be incurred by the Village as a result of Grantee's
failure to comply with the obligations imposed by this ordinance and the franchise
including, but not limited to, attorney's fees and costs of any action or proceeding,
the cost of refranchising, and the cost of.removal or abandonment of any property, or
other costs which may be in default, which costs shall be conclusively presumed to
amount to a sum equal to at least the penal sum of such bond. The Village shall have
no obligation to devote the proceeds of such bond to the completion, connection,
operation or removal of Grantee's cable television system, all of which shall remain
the obligation of the Grantee. The Village'sright to recover under the bond shall be
in addition to any other rights retained by the Village under this ordinance and other
applicable law.
E. In addition to the bond hereinabove required, the Grantee shall maintain
at its own expense, and by its acceptance of a franchise be deemed to have agreed
that it will maintain on deposit with the Village throughout the term of such franchise
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a cash escrow or a letter of credit from an Illinois financial institution in the
amount of Ten Thousand Dollars ($10,000) or such greater or lesser amount as may be
specified in the franchise. The form and content of such escrow or letter of credit
shall be approved by the Village Attorney. The escrow or letter of credit shall be
conditioned in the same manner as the bond hereinabove required and may be drawn on
by the Village to compensate itself for any of the damages or costs specified in
subsection D above. In particular, but without limitation, such escrow or letter
of credit shall be drawn on in the case of any default or failure of the Grantee
to pay any fees, penalties, claims, liens, or taxes due the Village under this ord-
inance or the franchise. Upon drawing on such escrow or letter of credit for any
reason, the Village shall notify the Grantee. The Grantee shall, within three (3)
days of the receipt of such notification, take all action required to restore.the
escrow or letter of credit to its original full amount. The rights reserved to the
Village with respect to the escrow or letter of credit are in addition to all other
rights of the Village whether reserved by this ordinance or the franchise or
authorized by law, and no action, proceeding or exercise of a right with respect to
such escrow or letter of credit shall affect any other right the Village may have.
F. All insurance policies, bonds, escrows and letters of credit required by
this section shall contain a provision requiring at least thirty (30) days written
notice to both the Village and the Grantee of any cancellation, termination, or other
expiration and shall provide that no such cancellation, termination or expiration
shall be effective prior to such notice. Each such policy, bond, escrow and letter
of credit must be approved by the Village (President and Board of Trustees of the
Village) and copies of such documents, along with written evidence of payment by the
Grantee of required premiums or fees shall be filed and maintained with the Village
Clerk. Notices of renewal of any expiring policy or bond shall be filed with the
Village Clerk at least sixty (60) days prior to the date of such expiration.
G. If the Grantee proposes to secure a new insurance policy, bond or letter
of credit instead of renewing an existing policy, bond or letter of credit, the
Grantee shall, at least sixty (60) days prior to the expiration date of any such
existing insurance policy, bond or letter of credit, submit to the Village (President
and Board of Trustees) a copy of the proposed new policy, bond, or letter of credit,
and such proposed new policy, bond or letter of credit shall become effective only
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upon the expiration date of such expiring policy, bond or letter of credit if the
Village (President and Board of Trustees) have approved the terms and coverage of
the said proposed new policy, bond or letter of credit, which approval shall not
be unreasonably withheld. The Grantee shall comply with all applicable provisions
of this section as to any such new policy, bond or letter of credit.
SECTION 13: TRANSFER OF FRANCHISE
A. A franchise granted under this ordinance shall be a privilege to be
held in personal trust by the Grantee. It shall not be assigned, transferred, sold
or disposed of, transferred in trust, pledged, in whole or in part, by voluntary sale
merger, consolidation or otherwise or by forced or involuntary sale, without prior
consent of the Village expressed by resolution and then on only such conditions as
may therein be prescribed. Any sale, transfer or assignment not made according to
the procedures set forth in this ordinance shall render the franchise void. The
sale, transfer or assignment in bulk of the major part of the tangible assets of the
Grantee shall be considered an assignment and shall be subject to the provisions of
this section.
B. Any sale, transfer or assignment authorized by the Village shall be made
by a bill of sale or similar document, an executed copy of which shall be filed with
the Village within thirty (30) days after any such sale, transfer or assignment. The
Village shall not withhold its consent unreasonably; provided, however, the proposed
assignee agrees to comply with all the provisions of this ordinance and the franchise
and reasonable amendments thereto, and must, at a minimum, satisfy the legal,
financial, technical and character qualifications required by Article III, Section 2
of this ordinance.
C. Prior approval of the Village shall be required where ownership or control
of more than 20% of the right of control of the Grantee is acquired during the term of
the franchise in any transaction or series of transactions by a person or group of
persons acting in concert, none of whom owned or controlled twenty percent (20 %) or
more of such right of control, singularly or collectively on the effective date of
the franchise. By its acceptance of this franchise the Grantee specifically grants
and agrees that any such acquisition occurring without prior approval of the Village
shall render the franchise void.
D. The consent of the Village to any sale, transfer lease, trust, mortgage
or other instrument of hypothecation shall not constitute a waiver or release of any of
the Village under this ordinance and the franchise.
ARTICLE V: SUBSCRIBER AND USER FEES AND RECORDS
SECTION 1: SUBSCRIBER AND USER FEES
0
A. By accepting a franchise granted pursuant to the terms and conditions
imposed by this ordinance, the Grantee agrees that the Village shall have the
authority and right to cause the Grantee's fees for regular subscriber service,
and all other subscriber and user services to the extent permitted by law or FCC
rules and regulations, to conform to the provisions contained herein. The Village
shall also have the .authority and right to fix fees and to deny increases or order
reduction of fees when it determines that in the absence of such action on its part,
the Grantee's fees or proposed fees do not conform to the stipulations contained herein.
B. All charges to subscribers and users shall be consistent with a schedule
of fees for all services offered as established by the Grantee. Changes in the fee
schedule shall not take effect until at least ninety (90) days after notification of
same is delivered to the Village and to current subscribers and users. All charges
to subscribers and users, and any proposed increase in such charges, shall be fair,
reasonable and just and in no event shall any such charge be greater than necessary
to meet the costs of service (assuming efficient and economical management) and to
provide a fair rate of return on the original cost, less depreciation, of property
devoted to such service.
C. The Grantee shall not, with regard to fees, discriminate or grant any
preference or advantage to any person; provided, however, that the Grantee may estab-
lish different rates for different classes of subscribers or users based upon cost of
service differentials, provided that the Grantee not discriminate between any sub -
scribers or users of the same class.
D. Notwithstanding the foregoing provisions, and except in the case of
extraordinary circumstances as approved by the Village, the Grantee shall not increase
the fees for services proposed in the franchise application above the rates specified
in said application for a period of thirty -six (36) months from the time service is
provided to the First subscriber pursuant to the Grantee's franchise; provided, however,
that the Grantee shall have the authority and the right to add to its service or instal-
lation fees any Federal, State, or local taxes or fees directly imposed on subscribers,
and for any additional copyright fees that may be imposed as a result of legislative
or judicial action at the Federal, State, or local level taken after the filing of
the franchise application. If during the term of the franchise, the Grantee receives
refunds of any copyright payments, it shall without delay notify the Village, suggest
a plan for flow- through of the refunds to its subscribers, and retain such refunds in
an interest bearing escrow account pending order of the Village. After considering the
plan submitted by the Grantee, the Village shall order flow- through of the refunds with
accrued interest to the Grantee's subscribers in a fair and equitable manner.
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E. Notwithstanding subsections A. through D. hereof, no action shall
be taken by the Village with respect to the Grantee's rates, nor rules and regulations
applicable thereto, until at least the expiration of thirty (30) months following
the date service is provided to the first subscriber under the franchise. At any
time thereafter, the Village may after proper notice as provided in Article IV,
Section 2, hold public hearings to consider the necessity of regulating the sub-
scriber rates charged by the Grantee, and may, following such hearings, establish
procedures for the review of subscriber and user rates and may order adjustments
to such rates in accordance with the provisions of this Section; provided, however,
that this Section shall not permit the Village to order the Grantee to rebate any
fee or portion thereof charged during the period when such fees were not subject
to regulation by the Village.
F. The Grantee shall be required to apprise in writing each new sub -
scriber of all applicable fees and charges for providing cable television service.
G. Grantee may, at its own discretion, in a non - discriminatory manner,
waive, reduce or suspend connection fees or monthly service fees for promotional
purposes.
H. Except as may be otherwise provided in a franchise, a subscriber shall
have the right to have its service disconnected without charge, which shall include
the removal of any equipment owned by the Grantee from the subscriber's residence.
Such disconnection shall be made as soon as practicable and in no case later than
thirty (30) days following written notice to the Grantee of same, No Grantee shall
enter into any agreement with a subscriber which imposes any charge following dis-
connection of service, except for reconnection and subsequent monthly or periodic
charges, and those charges shall be no greater than charges for new customers.
This Section shall not prevent a Grantee from refusing service to any person because
of the Grantee's prior accounts with that person remain due and owing.
I. Except as may be otherwise provided in a franchise, a Grantee may offer
service which requires advance payment of periodic service charges for no more than
one (1) year in advance subject to the conditions contained in this paragraph. A
subscriber shall have the right, at any time, to have its service disconnected without
charge and with a refund of unused service charges paid to the customer within
thirty (30) days from the date of service, Rate increases shall not be effective
with respect to any subscriber until after the expiration of any period for which
advance payment has been accepted by the Grantee.
SECTION 2: BOOKS AND RECORDS
A. A Grantee shall, (1) within thirty (30) days following the acceptance
of a franchise, and (2) at least yearly thereafter, and (3) within thirty (30) days
of the change of ownership of three percent (3%) or more of any class or series of
the outstanding voting stock or equivalent ownership interest of a Grantee, furnish
the Village a list, showing the names and addresses of persons owning three percent
(3%) or more of any class or series of the outstanding voting stock or equivalent
ownership interest of the Grantee, together with a roster of the Grantee's officers
and directors (or equivalent managerial personnel) and their addresses.
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B. A Grantee shall maintain books and records of its operations within
the Village to show the following in sufficient detail, consistent with generally
accepted accounting principales:
(1) Total revenues, by service category.
(2) Operating expenses, categorized by general and administrative
expenses, technical expenses and programming expenses, and overhead where applicable.
(3) Capital expenditures, to include capitalized interest and overhead,
if any.
(4) Depreciation expenses, by category.
(5) List of inventory to include but not by way of limitation all
physical assets of Grantee within the Village.
C. A Grantee shall maintain such books and records for the Franchise Area
specified in the franchise separately from any other operations; provided, however,
that any expenses or expenditures which apply to both the system in said Franchise
Area and any other operations.shall be reasonably allocated between all such operations.,
consistent with generally accepted accounting principles. Such books and records
shall be retained, in any reasonable form, for a period of not less than fifteen (15)
years. The Village shall have the right to extend the retention period through the
term of any renewed franchise.
D. The books and records of the Grantee's operation within the Village
shall be made available in the Village during normal business hours, for inspection
and audit by the Village within thirty (30) days after such request has been made.
E. Copies of the Grantee's schedule of charges, contract or application
forms for subscriber and user services, policy regarding the processing of sub-
scriber complaints, delinquent subscriber disconnect and reconnect procedures and
any other terms and conditions adopted as the Grantee's policy in connection with its
subscribers or users shall be filed with the Village and shall be made available
for inspection by the public in the Grantee's local office.
ARTICLE VI: SYSTEM OPERATIONS
SECTION 1: FRANCHISE AREAS
A. Every application shall designate a proposed Primary Service Area (PSA)
and a proposed schedule for making service available throughout the PSA. The bound-
aries of the Primary Service Area shall be subject to approval by the Village, and
shall be incorporated into the franchise granted pursuant to this ordinance. If no
PSA is specifically delineated in a franchise, the PSA shall be considered to be
coterminous with the Franchise Area. If no schedule is specified, service shall
be made available throughout the entire PSA within twenty -four (24) months of the
effective date of the franchise.
B. Grantee shall furnish to the Village a map of suitable scale indicating
the Primary Service Area to be served and showing all roads and public buildings
within the PSA.
C. The areas of the Village for which applications for franchise will be
accepted shall be specified by the Village; in the absence of such specification,
applications shall be accepted for any area within the Village.
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SECTION 2: EXTENSION OF SERVICE .
•
Following completion of construction within the PSA, each Grantee shall
extend its CATV System and make CATV Service available beyond the PSA as follows:
( 1.) Along streets or parts of streets beginning at the boundary of the
PSA or any line extension beyond the PSA within one (1) year after any such street
reaches a minimum density of fifty (50) dwelling units per street mile, and,
(2) Concurrently with the installation of utility lines to developing areas
having a planned minimum density of fifty (50) dwelling units per street mile, which
lie contiguous to the boundary of'the Primary Service Area or at the end of any line
extensions beyond the Primary Service Area.
(3.) The Grantee, in its application, may propose a line extension policy
which will result in serving more residents of the Village than as required above,
in which case the Grantee's application will be incorporated by reference in the
Franchise, and will be binding on the Grantee.
SECTION 3: INDIVIDUAL SERVICE DROPS
A. Grantee shall extend and make cable television service available to
any isolated residents within or without the Primary Service Area requesting
connection at the standard connection charge, if the connection to such resident
would require no more than a standard two hundred (200) foot aerial or buried drop
line from a trunk or feeder cable required to be installed pursuant to Section 1 or
2 of this Article.
B. With respect to requests for connection requiring an aerial or buried
drop line in excess of two hundred (200) feet, Grantee shall extend and make avail-
able cable television service to such residents at a connection charge not to exceed
the actual installation costs incurred by the Grantee for the distance exceeding two
hundred (200) feet.
SECTION 4: SYSTEM DESCRIPTION AND SERVICE
A. The cable television system to be installed by Grantee shall comply in
all respects with the requirements set forth in the FCC's Rules for Cable Television
including applicable amendments thereto, provided, however, that nothing contained
herein shall be construed to prohibit the Grantee from proposing to comply with more
rigid technical performance requirements, in which case the Grantee's application
shall be incorporated by reference in the Franchise, and will be binding on the
Grantee, If the FCC should delete said requirements, the Village hereby reserves
the right to amend this ordinance to incorporate similar standards and every franchise
granted pursuant to this ordinance shall be subject to such reserved power whether
or not expressly so conditioned.
B. Applications for franchise may include proposals for the provision of
public, education, local government, and leased access channels. Such proposals
by a Grantee, if accepted by the Village, shall be incorporated into the franchise
granted. No such proposal shall be accepted unless it complies with the following
minimum requirements:
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M) The Grantee shall have available equipment for local production
and presentation of cablecast programs other than automated services and shall permit
its use for the production and presentation of public access programs. The Grantee
shall not enter into any contract, arrangement, or lease for use of its cablecast
equipment which prevents or inhibits the use of such equipment for a substantial
portion of time for public access programming.
( 2.) The Grantee shall have no control over the content of access
cablecast programs, however, this limitation shall not prevent taking appropriate
steps to insure compliance with the operating rules described herein; failure to
comply with such operating rules shall constitute a violation of this ordinance.
M) The public access channel(s) shall be made available to residents
of the Village on a first come, first served, non - discriminatory basis, consistent
with the goal of the maximum availability of access, free of charge. Charges for
equipment, production, personnel and production of public access programming shall
be reasonable and consistent with the goal of affording users a low cost means of
television access. No charges shall be made for the production of live public access
programs not exceeding five minutes in length, or for the replay of user supplied
tapes which are in a form compatible with the Grantee's playback facilities. The
Grantee shall adopt operating Vules for the public access channel(s), to be filed
with the Village prior to the activation of the channel(s), designed to prohibit
the presentation of: any advertising material designed to promote the sale of
commercial products or services (including advertising by or on behalf of candidates
for public office); lottery information, and obscene or indecent matter, as well as
rules requiring first come nondiscriminatory access, and rules permitting public
inspection of a complete record of the names and addresses of all persons or groups
requesting access time, Such a record shall be retained for a period of two years.
( 4.) The education access channel(s) shall be made available for the
use of schools free of charge. The Grantee shall adopt operating rules for the
education access channel(s), to be filed with the Village prior to activation of
the channel(s), designed to prohibit the presentation of: any adversiting material
designed to promote the sale of commercial products or services (including advertising
by or on behalf of candidates for public office); lottery information; and obscene
or indecent matter, as well as a rule permitting public inspection of a complete
record of the sames and addresses of all persons or groups requesting access time.
Such a record shall be retained for a period of two years.
(5.) The local government access channel(s) shall be made available
for the use of the Village or such other unit of local government as shall be
designated by the Village free of charge.
(6.) The leased access channel(s) as specified in the franchise application
shall be made available to leased access users, Priority shall be given part time
users on at least one channel. The Grantee shall adopt operating rules for the
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channel(s), to be filed with the Village prior to activation of the channel(s),
designed to prohibit the presentation of: lottery information, to the extent
such information is prohibited by state law; and obscene or indecent matter and shall
establish rules to this effect; and other rules requiring non - discriminatory access,
sponsorship identification, specifying an appropriate rate schedule and permitting
public inspection of a complete record of the names and addresses of all persons
or groups requesting time. Such a record shall be retained until the earliest
scheduled performance evaluation session described in Article IV, Section 4, of
this ordinance or for a longer period as determined by the Village,
C. Grantee shall provide, without charge within the Primary Service
Area, one service outlet activated for regular subscriber service to each fire
station, school, police station, public library, and such other buildings used for
governmental purposes as may be designated by the Village. Grantee shall be
permitted to recover, from any public building owner entitled to free service,
the direct cost of installing, when requested to do so, more than one outlet, or
concealed inside wiring, or a service outlet requiring more than three hundred (300)
feet of drop cable; provided, however, that the Grantee shall not charge for the
provision of regular subscriber service to the additional service outlets once
installed.
D. The Grantee shall not permit the transmission of any programming
in violation of any federal, state or local law. Grantee shall inform each sub-
scriber of the availability of a device capable of locking out any programming
video and audio signals and shall provide such a device for each outlet to any
subscriber upon request at no additional charge.
SECTION 5: OPERATIONAL REQUIREMENTS AND RECORDS
A. Grantee shall construct, operate, and maintain the cable television
system in full compliance with the rules and regulations, including applicable
amendments, of the Federal Communications Commission and all other applicable,
Federal, State, or local laws and regulations, including the latest editions of
the National Electrical Safety Code and the National Fire Protection Association
National Electrical Code. The cable television system and all its parts shall be
subject to inspection by the Village and the Village hereby reserves the right to
review Grantee's construction plans prior to the commencement of construction. The
Village shall not, however, be required to make inspections or approve the Grantee's
system and plans, and specifically disclaims such obligation, the Grantee shall
be solely responsible for taking all steps necessary to assure compliance with such
laws and regulations and the safety of its system as installed.
B. Grantee shall maintain an office, within the Village unless otherwise
stated in the Franchise, which shall be open and accessible to the public with
adequate telephone service during normal business hours. Grantee shall employ an
operator or maintain a telephone answering service twenty -four (24) hours per day,
each day of the year, to receive subscriber complaints and to dispatch assistance
i •
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in the case of any emergency or major system malfunction affecting a number of
subscribers,
C. Grantee shall design, construct, operate, and maintain the system at
all times so that signals carried are delivered to subscribers without material
degradation in quality.
D. Copies of all correspondence, petitions, reports, applications and
other documents filed by Grantee with Federal or State agencies having appropriate
jurisdiction in matters affecting cable television operation or received from
said agencies shall be furnished simultaneously to the Village by Grantee.
E. In the case of any emergency or disaster, the Grantee shall, upon
request of the Village, make available its facilities to the Village, without cost,
for emergency use during the emergency or disaster period.
SECTION 6: TESTS AND PERFORMANCE MONITORING
A. Not later than ninety (90) days after any new or substantially
rebuilt portion of the system is made available for service to subscribers, technical
performance tests shall be conducted by the Grantee to demonstrate full compliance
with the Technical Standards applicable pursuant to Paragraph A of Section 4, and
Paragraph C of Section 5 of this Article. Such tests shall be performed by, or
under the supervision of a qualified and independent registered professional engineer
or an engineer with proper training and experience. A copy of the report shall be
submitted to the Village, describing test results, instrumentation, calibration and
test procedures, and the qualifications of the engineer responsible for the tests.
B. System monitor test points shall be established at or near the
output of the last amplifier in the longest feeder line, at or near trunk line
extremities, or at the locations to be specified in the franchise. Such periodic
tests shall be made at the test points as shall be required by the Village.
C. At any time after commencement of service to subscribers, the Village
may require additional reasonable tests, including full or partial repeat tests,
different test procedures, or tests involving a specific subscriber's terminal, at
the Grantee's expense to the extent such tests may be performed by the Grantee's
employees utilizing its existing facilities and equipment; provided, however, that
the Village reserves the right to conduct its own tests upon reasonable notice to the
Grantee and if non- compliance is found, the expense thereof shall be borne by the
Grantee. The Village will endeavor to arrange its request for such special tests
so as to minimize hardship or inconvenience to Grantee or to the subscriber.
D. A copy of the annual performance test report required by the Federal
Communications Commission shall be submitted to the Village within thirty (30) days
of its completion.
E. The Village shall have the right to employ qualified consultants if
necessary or desirable to assist in the administration of this, or any other section
of this ordinance.
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SECTION 7: SERVICE, ADJUSTMENT AND COMPLAINT PROCEDURE
A. Grantee shall establish a maintenance service capable of locating
and correcting major system malfunctions promptly except for circumstances beyond
the Grantee's control such as strikes, acts of God, wars, riots and civil dis-
turbances. Said maintenance service shall be available at all hours to correct
such major system malfunctions affecting a number of subscribers,
B. A listed local telephone number shall be made available to subscribers
for service calls at any time of the day or night. Investigative actions shall be
initiated in response to all service calls, other than major system malfunctions,
not later than the next business day after the call is received; action on major
malfunctions shall be initiated immediately upon receipt of notice. Corrective
action shall be completed as promptly as practicable. Appropriate records shall be
made of service calls showing when and what corrective action was completed. Such
records shall be available to the Village during normal business hours and retained
in Grantee's files until the next scheduled performance evaluation session described
in Article IV, Section 4, of this ordinance or for a longer period as directed by
the Village. A summary of such calls shall be prepared by the Grantee and sub -
mitted to the Village annually, beginning twelve (12) months after service is
provided to the first subscriber.
C. The Grantee shall furnish each subscriber at the time service is installed
written instructions that clearly set forth procedures for placing a service call, or
requesting an adjustment. Said instructions shall also include the name, address
and telephone number of the Agency or other designated employee of the Village and
a reminder that the subscriber can call or write the Agency or other designated
employee for information regarding terms and conditions of the Grantee's franchise
if the Grantee fails to respond to the subscriber's request for installation,
service or adjustment within a reasonable period of time.
D. In the event a subscriber does not obtain a satisfactory response or
resolution to his request for service or an adjustment within a reasonable period
of time, he may advise the Agency or other designated employee in writing of his
dissatisfaction, The Agency or other designated employee shall have authority to
investigate any subscriber or user complaint or request for adjustment and to order
corrective action as shall be appropriate. The Village may require Grantee to establish
rules and procedures regulating complaint resolution in the Franchise agreement.
E. The Grantee shall interrupt system service after 7:00 A.M. and before
1:00 A.M. only with good cause and for the shortest time possible and, except in
emergency situations, only after cablecasting notice of service interruption at least
twenty -four (24) hours in advance of the service interruption. Service may be
interrupted between 1:00 A.M. and 7 :00 A.M. for routine testing, maintenance, and
repair, with notification, on any day except Saturday or Sunday, or the day following
a legal holiday,
SECTION 8: STREET OCCUPANCY
A. Grantee shall utilize existing poles, conduits and other facilities
whenever possible, and shall not construct or install any new, different, or additional
poles, conduits, or other facilities whether on the public way or on privately -owned
•
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0
property within the Village until the written approval of the Village, and, if
necessary, of the property owner is obtained. Such approval shall not be unreas-
onably withheld by the Village. No location of any pole, wire - holding structure
or other facility of the Grantee shall be a vested interest and such poles,
structures and facilities shall be removed, relocated or modified by the Grantee
at its own expenses whenever the Village or other governmental authority determines
that the public convenience would be enhanced thereby. Nothing herein or in any
franchise shall be construed to entitle Grantee to the use of any property other-than
the public way.
B. The Village shall be entitled to make use of the Grantee's poles and
holding structures so long as such use does not unreasonably interfere with
Grantee's operations.
C. Where a public utility serving the Village desires to make use of the
poles or other wire - holding structures of the Grantee but agreement therefor-with the
Grantee cannot be reached, the Village may require the Grantee to permit such use
for such consideration and upon such terms as the Village shall determine to be just
and reasonable, if the Village determines that the use would enhance the public con-
venience and would not unduly interfere with the Grantee's operations.
D. All transmission lines, equipment and structures shall be installed and
located in compliance with all applicable local ordinances and so as to cause minimum
interference with the rights and reasonable convenience of property owners who adjoin
any public way and at all times shall be kept and maintained in a safe, adequate, and
substantial condition, and in good order and repair, consistent with the provisions
of paragraph F, of this section. The Grantee shall at all times employ reasonable
care and shall install and maintain in use commonly accepted methods and devices
for preventing failures and accidents which are likely to cause damage, injuries, or
nuisances to the public. Suitable barricades, flags, lights, flares, or other devices
shall be used at such times and places as are required by applicable ordinances and
at such additional times and places as are reasonably required for the safety of all
members of the public. Any poles or other fixtures placed in any public way by the
Grantee shall be placed and maintained in such a manner as not to interfere with the
usual travel or other existing or projected uses of such public way. The Grantee
shall at all times comply with any and all rules and regulations enacted or to be
enacted by the Village with reference to construction activity in 'public ways.
r 0
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E. Grantee shall remove, replace, or modify at its own expense, the instal-
lation of any of its facilities as reasonably necessary and when directed to do so
by the Village.
F. All installations shall be underground in those areas of the Village
where public utilities providing both telephone and electric service are underground
at the time of installation. In areas where either telephone or electric utility
facilities are above ground at the time of installation, the Grantee may install its
service aboveground, provided that at such time as those facilities are required to
be placed underground by the Village or are placed underground, the Grantee shall likewis
place its services underground without additional cost to the Village or to the
individual subscriber so served within the Village. Where not otherwise required
to be placed underground. by this ordinance, the Grantee's television facilities shall
be located underground at the request of the adjacent property owner, provided that
the excess cost over aerial location shall be borne by the property owner making the
request.
G. In the event of disturbance of any public way, private property or
improvement on either of them by the Grantee, it shall, at its own expense and in a
manner approved by the Village or other appropriate governmental authority and the
owner, replace and restore such public ways, private property or improvement in as
good a condition as before the work causing such disturbance was done. In the event
the Grantee fails to perform such replacement or restoration the Village or the owner
shall have the right to do so at the sole expense of the Grantee. Demand for payment
to the Village or owner for such replacement or restoration shall be in writing.
H. Whenever, in case of emergency, it becomes necessary in the judgment of
the Village to remove or damage any of the Grantee's facilities, no charge shall be
made by the Grantee against the Village for restoration and repair.
I. At the request of any person holding a valid building moving permit issued
by the Village or other appropriate governmental authority and upon at least 48 hours
notice, Grantee shall temporarily raise, lower, or cut its wires as may be necessary
to facilitate such move. The direct expense of such temporary changes, including
standby time, shall be paid by the permit holder, and Grantee shall have the authority
to require payment in advance.
6 0
M-9a
J. Grantee shall not cut or trim any tree, shrub or vegetation on public
property without first obtaining specific written authorization from the Village.
Any such work shall be done at Grantee's expense and shall be subject to the super-
vision and direction of the Village.
SECTION 9: CONSTRUCTION SCHEDULE AND REPORTS
A. Upon accepting the franchise, Grantee shall, within sixty (60) days, file
the documents required to obtain all necessary Federal, State and local licenses, permits
and authorizations required for the conduct of its business, and shall submit monthly
reports to the Village on progress in this respect until all such documents are in
hand. Failure of the Grantee to pursue all necessary steps to secure the aforemen-
tioned authorizations with due diligence shall constitute a substantial violation of
this ordinance.
B. Franchise applications shall include a schedule for construction of the
cable television system, including a timetable for commencement of cable television
service to subscribers. Said schedule shall be incorporated into the franchise and
shall be enforceable as to the Grantee under the provisions of this ordinance.
C. Each Grantee shall fill all requests for CATV service, once facilities
are in place consistent with the proposed schedule for service, within thirty (30)
days after the date of each request. A record of all service requests shall be kept
until the next scheduled performance evaluation session described in Article IV,
Section 4, of this ordinance or for a longer period as determined by the Board and shall
be available for public inspection at the local office of the Grantee during regular
office hours.
D. Within three (3) months after accepting the franchise, Grantee shall furnish
the Village a detailed construction schedule and map setting forth target dates by areas
for commencement of service to subscribers. The schedule and map shall be updated
whenever substantial changes become necessary.
E. Every three (3) months after the start of construction, Grantee shall
furnish the Village a report on progress of construction until complete. The report
shall include a map that clearly defines the areas wherein regular subscriber service
is available.
SECTION 10: PROTECTION OF PRIVACY
A. Grantee shall not permit the transmission of any signal, aural, visual
or digital, including "polling" the channel selection, from any subscriber's premises
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without first obtaining informed consent of the subscriber which shall not have
been obtained from the. subscriber as a condition of any service for which trans-
mission is not an essential element. The request for such consent shall be contained
in a separate document, which specially enumerates and describes the transmissions
being authorized and includes a prominent statement that the subscriber is authorizing
the permission in full knowledge of its provision and shall be revocable at any time
by the subscriber without penalty of any kind whatsoever. This provision is not
intended to prohibit the use or transmission of signals useful only for the control
or measurement of system performance or used for billing subscribers.
B. Grantee shall not permit the installation of any special terminal equipment
in any subscriber's premises that will permit transmission from subscriber's premises
of two -way services utilizing aural, visual or digital signals without first obtaining
written permission of the subscriber as provided in Paragraph A of this section.
C. Grantee, or any of its agents or employees, shall not, without the
specific written authorization of the subscriber involved, as provided in Paragraph A
of this section, sell or otherwise make available to any party any information which
identifies the viewing habits or responses of individual subscribers.
SECTION 11: PROHIBITION FROM ENGAGING IN RADIO AND TELEVISION
SALES OR SERVICE
A. The Grantee, its subsidiaries and affiliates are specifically prohibited,
from engaging directly or indirectly, in the sale or leasing of television receivers,
radio receivers, or television or radio parts, except such parts and accessories
required for any type of cable connections, such as converters and connection plugs
and accessories, individually or with any person, any where in the Village, whether or
not for a fee or charge, and is further prohibited from engaging in any type of repair
service to television receivers or radio receivers.
SECTION 12: AREAWIDE INTERCONNECTION OF CATV SYSTEMS
A. Each Grantee, if ordered to do so by resolution of the Village, shall
interconnect Access Channels and /or Local Origination Channels of its CATV System with
all other CATV Systems in adjacent areas.
B. Upon receiving an order to interconnect, the Grantee shall make a good
faith effort to obtain agreements for the sharing of interconnection costs among all
interconnecting companies. The Village may extend the time to interconnect or may
rescind its order to interconnect upon finding that the Grantee has made a good faith
9 0
-30-
effort but has been unable to obtain a reasonable interconnection agreement or that
the cost of the interconnection would cause an unreasonable increase in subscriber
rates.
C. Each Grantee shall cooperate with any entity established for the purpose
of regulating, financing, or otherwise providing for the interconnection of CATV
systems.
D. The Village may require a Grantee to provide Local Origination equipment
that is compatible with that used by other CATV Systems within the adjacent areas.
E. Grantee shall make every reasonable effort to cooperate with cable
television franchise holders in contiguous communities in order to provide cable
service in areas outside the Grantee's Franchise Area.
F. The Village shall make every reasonable effort to cooperate with the
franchising authorities in contiguous communities, and with the Grantee, in order
to provide cable television service in areas outside the Village.
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ARTICLE VII: GENERAL PROVISIONS
SECTION 1: LIMITS ON GRANTEE'S RECOURSE
A. Grantee shall have no recourse against the Village for any loss,
expense or damage resulting from the terms and conditions of this ordinance or
the franchise or because of the Village granting or enforcement thereof nor for
the Village's failure to have the authority to grant the franchise. The Grantee
expressly agrees that upon its acceptance of the franchise it does so relying
upon its own investigation and understanding of the power and authority of the
Village to grant said franchise.
B. The Grantee, by accepting the franchise, acknowledges that it has
not been induced to accept same by any promise, verbal or written, by or on behalf
of the Village or by any third person regarding any term or condition of this
ordinance or the franchise not expressed therein. The Grantee further pledges that
no promise or inducement, oral or written, has been made by any Village employee
or official regarding receipt of the cable television franchise other than as
contained in the franchise agreement.
C. The Grantee further acknowledges by acceptance of the franchise that
it has carefully read the terms and conditions of this ordinance and the franchise
and accepts.without reservation the obligations imposed by the terms and conditions
thereof.
D. The decision of the Board concerning Grantee selection and awarding
of the franchise shall be final.
E. The Grantee shall not apply for any waivers, exceptions, or declaratory
rulings from the Federal Communications Commission or any other Federal or State
regulatory agency without prior written notice to the Village.
SECTION 2: COMPLIANCE WITH STATE AND FEDERAL LAW
The Grantee shall, at all times,.comply with all laws of the State and
Federal government and the rules and regulations of any Federal or State administra-
tive agency and all ordinances and rules'and regulations of the Village, unless
waived by the Village by Ordinance or Resolution.
SECTION 3: SPECIAL LICENSE
A. Upon such conditions as the Village may deem necessary, and notwith-
standing the provision of Article 3 of this ordinance, the Village may issue a
license, easement or other permit to anyone other than a Grantee to permit that
person to traverse any portion of the Village in order to provide service outside
the Village. Such license or easement, absent a grant or a franchise in accordance
with this ordinance, shall not authorize nor permit said person to provide a
cable television service of any nature to any home or place of business within the
Village, nor to render any service or connect any subscriber within the Village to
a,Grantee's cable television system.
0 -32- 46
SECTION 4: FRANCHISE VALIDITY
A. The Grantee agrees, by the acceptance of the franchise, to accept the
validity of the terms and conditions of this ordinance and the franchise in their
entirety and that it will not, at any time, proceed against the Village in any claim
or proceeding challenging any term or provision of this ordinance or the franchise
as unreasonable, arbitrary or void, or that the Village did not have the authority
to impose such term or condition.
B. In case of conflict or ambiguity between this ordinance, the franchise
or the Grantee's franchise application, the Grantee agrees that the provision
which provides the greatest benefit to the Village,in the sole discretion of the
Village,shall prevail.
SECTION 5: FAILURE TO ENFORCE FRANCHISE
The Grantee shall not be excused from complying with any of the terms and
conditions of this ordinance or the franchise by any failure of the Village upon
any one or more occasions, to insist upon the Grantee's performance or to seek
Grantee's compliance with any one or more of such terms or conditions,
SECTION 6: RIGHTS RESERVED TO THE GRANTOR_.
A. The Village hereby expressly reserves the following rights which shall
not be deemed to be waived or abrogated by any franchise granted pursuant to this
ordinance.
( 1.) To exercise its governmental powers, now or hereafter, to the
full extent that such powers may be vested in or granted to the Village.
( 2.) To adopt, in addition to the provisions contained herein and in
the franchise and in any existing applicable ordinances, such additional regulations
as it shall find necessary to protect the health, safety and welfare of its inhabitants.
( 3) To renegotiate any franchise granted pursuant to this ordinance
should substantial section(s) of the ordinance or franchise be rendered void by the
Federal Communications Commission, or by subsequent changes in applicable federal
or state laws, rendered void by the Federal Communications Commission, or by subsequent
changes in applicable federal or state laws.
SECTION 7: EMPLOYMENT REQUIREMENT
A. The Grantee shall not refuse to hire, nor discharge from employment,
nor discriminate against any person regarding compensation, terms, conditions, or
privileges of employment because of age, sex, race, color, creed, or national origin.
The Grantee shall take affirmative action to insure that employees are treated
fairly and equally during employment, without regard to their age, sex, race, color
creed or national origin. The condition includes, but is not limited to the following:
recruitment advertising, employment interviews, employment, rates of pay, upgrading,
transfer, demotion, lay -off, and termination.
SECTION 8: TIME ESSENCE OF AGREEMENT
Whenever this ordinance or the franchise sets forth any time for any act
to be performed by the Grantee, such time shall be deemed of the essence and
the Grantee's failure to perform within the time allotted shall, in all cases, be
sufficient grounds for the Village to invoke the remedies available under the terms
• 33. 6
and conditions of this ordinance and the franchise.
SECTION 9: ACCEPTANCE
This ordinance and the franchise and their terms and conditions shall
be accepted by the Grantee by written instrument filed with the Village within thirty
(30) days after the granting of the franchise, unless said period is extended
by the Village at its sole discretion. In its acceptance, the Grantee shall declare
that it has carefully read the terms and conditions of this ordinance and the
franchise and accepts all of the terms and conditions imposed by this ordinance
and the franchise and agrees to abide by same.
SECTION 10: PUBLICATION COSTS
The Grantee shall assume the cost of publication of this ordinance and
franchise and such is payable upon the Grantee's filing of acceptance as set forth
in Article VII, Section 9.
SECTION 11: RESELLING SERVICE PROHIBITED
No person receiving within the Village any cable service, program or
signal transmitted by a cable television company operating under a franchise issued
by the Village, shall resell such service, program or signal without the expressed,
written consent of both the Grantee and the Village.
SECTION 12: PENALTIES
A. It shall be unlawful for any person to attach or affix or to cause
to be attached or affixed any equipment or device which allows access to or use of
any cable television service without payment to the Grantee for same.
B. Persons, whether natural or artificial, or commercial entities who
violate any of the provisions of this Ordinance shall be subject to a fine not to
exceed Five Hundred ($500.00) dollars for each offense, or the entry of an order
of supervision pursuant to Section 1005 -6 -1 of Chapter 38, Illinois Revised Statutes
(1979), as may be amended from time to time. Each day a violation continues or is
permitted to exist shall constitute a separate and distinct offense. In addition
to any penalty which may be imposed herein, the Village may initiate injunctive
relief, including the issuance of temporary restraining orders and preliminary
injunctions in the Circuit Courts of Cook and Lake Counties, including Municipal
Branch Districts within the jurisdiction of the Village, to abate any violation of
this ordinance the continuation of which would be injurious to the welfare of the
residents or which would frustrate or defeat the intent and purpose of this ordinance.
SECTION 13: GRANTEE MAY PROMULGATE RULES
Grantee shall have the authority to promulgate such rules, regulations
terms and conditions of its business as shall be reasonably necessary to enable it to
exercise its rights and perform its services under this Ordinance and the Rules of
the FCC, and to assure uninterrupted service to each and all of its subscribers.
i
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Such rules and regulations shall not be deemed to have the force of law. Such
rules and regulations shall be filed with the Village and shall not, unless the
Village consents in writing to an earlier.effective date, take effect until
thirty (30) days after such filing.
SECTION 14: DELEGATION OF POWERS
Any right, power or duty of the Village, the Agency or any official of
the Village under this Ordinance may be transferred or delegated by ordinance,
resolution, or other appropriate action of the Village to an appropriate officer,
employee, or department of the Village, or any other legal authority, including
any intergovernmental agency created for the purpose of regulating the operation and
development of the cable television system.
SECTION 15: SEVERABILITY
If any section of this ordinance or the franchise, or any portion thereof,
is held invalid or unconstitutional by any court of competent jurisdiction or
administrative agency, such decision shall not affect the validity of the remain-
ing portions hereof, except as otherwise provided for herein.
SECTION 16: REPEAL
Ordinance #66 -4 is hereby repealed in its entirety.
SECTION 17: EFFECTIVE DATE
This Ordinance shall become effective following its passage, approval and
publication as provided by law. This ordinance may be published in pamphlet form.
AYES: 6 - Marienthal, Stone, O'Reilly, Hartstein Kavitt Gersch.efske
NAYES: 0 - None '
ABSENT: 0 - None
PASSED: April 6 1981
APPROVED:_ April 6 1981
PUBLISHED: April 8 - 1981
ATTEST:
Village er
s
Village President
1.
VILLAGE OF BUFFALO GROVE
ORDINANCE NO.
ADOPTED BY THE PRESIDENT
AND BOARD OF TRUSTEES OF THE VILLAGE
OF BUFFALO GROVE
Tt1 i S .... DAY OF ��, 19 4
Published in pamphlet form by authority of the
President and Board of Trustees of the Village
of Buffalo Grove, Cook and Lake Counties, Illinois,
t i s . i�-6k day of ,Q 19.
_.-
/ r i,
Y
1
ORDINANCE NO. 81 -18
AN ENABLING ORDINANCE PROVIDING SPECIFICA-
TIONS FOR CABLE TELEVISION
WHEREAS, the Village of Buffalo Grove is a Home Rule Unit by virtue of
the provisions of the Constitution of the State of Illinois of 1970;
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS, as follows:
ARTICLE I: SHORT TITLE AND PURPOSES OF THE ORDINANCE
SECTION 1: SHORT TITLE
This ordinance shall be known as the Village of Buffalo Grove Cable Commun-
ications Ordinance.
SECTION 2: PURPOSES
The purpose of this ordinance is to:
A. Provide for the franchising and regulation of cable television systems
within the Village of Buffalo Grove (hereinafter Village), and
B. Provide for the payment of a fee and other valuable consideration to
the Village for the use of Village streets and other public rays in the construction
and operation of cable television systems, and to compensate the Village for costs
associated therewith; and
C. Provide for the regulation by the Village of the rates and fees to be
charged by franchisees under this ordinance, and
D. Provide for the development of cable television as a means to improve
communication between &nd among the citizens and public institutions of the Village,
and
E. Provide remedies and prescribe penalties for violation of this ordinance
and the franchises granted hereunder
ARTICLE II: DEFINITIONS
SECTION 1: DEFINITIONS
For the purpose of this ordinance, the following terms, phrases, words and
their derivations shall have the meaning given herein, unless the context clearly indi-
cates that another meaning is intended. When not inconsistent with the context, words
used in the present tense include the future, words in the plural number include the
singular number, and words in the singular number include the plural number. The word
"shall" is always mandatory and not merely directory.
-1-
-2-
A. "A enc ' means the person, department or agency designated by the
Village to act in matters related to cable television, or in the absence of such
designation, the President and Board of Trustees of the Village of Buffalo Grove.
B. "Auxiliary Services "means any communication service in addition to
"regular subscriber services" including, but not limited to services for which a
per program or per channel charge is made, pay TV, burglar alarm services, data or
other electronic transmission services, facsimile reproduction services, meter reading
services and home shopping services, interactive two -way services and any other service
utilizing any facility or equipment of a cable television system operating pursuant to
a franchise granted under this ordinance.
C. "Board" means the Board of Trustees of the Village of Buffalo Grove.
D. "Cable Television System" (or CATV system)_ means any non - broadcast
facility consisting of a set of transmission paths and associated signal generation,
reception, and control equipment, that distributes or is designed to distribute to
subscribers audio, video and other forms of electronic or electrical signals, but
such term shall not include any such facility that serves or will serve only sub-
scribers in one or more multiple unit dwellings under common ownership, control or
management, and does not use municipal rights -of -way.
E. "Channel" is a band of frequencies, six megahertz wide in the electro-
magnetic spectrum capable of carrying either one audio - visual television signal and a
few non -video signals, or a large number of non -video signals.
F. "Converter" means an electronic device which converts signals to a fre-
quency 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 de-
livered at designated dial locations
G. "Depreciated Value" means the value as shown on the Grantee's books and
records of all the cable television system's tangible assets after depreciation which
shall be calculated to the end of the Grantee's last fiscal year and which shall be
based on a straight line depreciation method over the term of the franchise with no
salvage value remaining at the end of the term. Said value shall not include "good
will" or any value that Grantee's books and records attribute to the franchise.
-3-
H. "Fair Market Value" means the price that a willing buyer would pay to a
willing seller for a going concern based on the system valuation and sale multiples
prevailing in the industry.
I. "Federal Communications Commission" or "FCC" means the present federal
agency of that name as constituted by the Communication Act of 1934, or any successor
agency created by the United States Congress.
J. "Franchise" means the non - exclusive rights granted hereunder to construct
and operate a cable television system along the public ways in the Village, or within
specified areas in the Village, and is not intended to include any license or permit
required for the privilege of transacting and carrying on a business within the Village
as may be required by other ordinances and laws of the Village.
K. "Franchise Area" means that portion of the Village for which a franchise
is granted under the authority of this ordinance. If not otherwise stated in the
franchise, the Franchise Area shall be the corporate limits of the Village including all.
territory thereafter annexed to the Village.
L. "Grantee" means the natural person, partnership, domestic and foreign
corporation, association, joint venture, or organization of any kind granted a franchise
by the Village under this ordinance and its lawful successor, transferee or assignee.
M. "Gross Revenues" means all revenue derived directly or indirectly from
the operation or use of all or part of a Cable Television System franchised pursuant to
this ordinance by the Grantee, its affiliates, subsidiaries, parents, and any person
in which the Grantee has a financial interest including, but not limited to, revenue
from regular subscriber service fees, auxiliary service fees, installation and recon-
nection fees, leased channel fees, converter rentals, studio rental, production equip-
ment and personnel fees, and advertising revenues; provided, however, that this shall not
include revenues received by Grantee's affiliates, subsidiaries, parents and persons
in which Grantee has a financial interest if such revenues would be excluded if received
by persons having no relationship to Grantee or any taxes on services furnished by the
Grantee herein imposed directly upon any subscriber or user by the State, local or other
governmental unit and collected by the Grantee on behalf of said governmental unit.
N. "Net Profit" means the amount remaining after deducting from gross rev-
enues all of the actual, direct and indirect, expenses associated with operating the
cable television system including the franchise fee, interest, depreciation and Federal
-4-
or State income taxes.
0. "Persons" means any people, firms, corporations, associations or other
legally recognized entities.
P. "Public Way" Means the surface, the air space above the surface, and the.
area below the surface of any public street, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, parkways, waterways, utility easements or other
public right -of -way 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 television system. No reference herein, or in any franchise, to the
"public way" shall be-.deemed to be a representation or guarantee by the Village that its
title to any. property is sufficient to permit its use for such purpose, and the Grantee
shall, by its use of such terms, be deemed to gain only such rights to use property in
the Village as the Village may have the undisputed right and power to give.
Q. "Regular Subscriber Service" shall mean the distribution to subscribers
of signals over the cable television system on all.channels except those for whi.ch
a per - program or per - channel charge is made, two -way services, and those intended for
reception by equipment other than a television broadcast receiver.
R. "Schools" means all public, and private, elementary and secondary schools,
junior colleges, colleges and universities which have been granted a certificate of
recognition by the Illinois State Board of Education, pursuant to Section 2 -3,25 of the
Illinois School Code.
S. "Subscriber" means any person who receives the regular subscriber service
and /or any one or more of such other services as may be provided by the Grantee's cable
television system, and does not further distribute such service(s).
T. "Two -way Service" means the subscriber or any other location shall have the
capability to choose whether or not to respond immediately or by sequential delay by
utilizing any type of terminal equipment whatever, by pushbutton code, dial code, meter,
voice, video including, but not limited to, audio and video, electrical or mechanically
produced signal, display and /or interrogation.
U. "User" means a person or organization utilizing a system channel or system
equipment and facilities for purposes of production and /or transmission of material, as
contrasted with receipt thereof in a subscriber capacity.
-5-
ARTICLE III. GRANT OF AUTHORITY
SECTION 1. REOUIREMENT OF A FRANCHISE
No person, firm, company, corporation or association shall construct, install,
maintain or operate a cable television system within the Village, or within any other
public property of the Village, unless a franchise has first been obtained pursuant to
the provisions of this ordinance, and unless such franchise is in full force and effect.
Such franchise shall not take the place of any other license or permit which may be
legally required of the Grantee in order to conduct such a business.
SECTION 2: FRANCHISE APPLICATIONS
A. After receiving applications for a franchise, the Board, after considering
financial, technical, programming and rate proposals, and the legal and character qual-
ifications of the applicants, may, by ordinance, grant one or more non - exclusive fran-
chises creating a right to construct and operate a cable television system within the
public ways of the Village. Franchise(s) will be granted to the applicant(T) which in
the Board's judgment may best serve the public interest; provided, however, no provision
of this ordinance shall be deemed or construed as to require the Board to grant a
franchise.
B. The application for a cable television franchise shall be submitted to the
Village, or its designee, on a written application form furnished by the Village, and
in accordance with procedures and schedules established by the Village. The
application form may request facts and information the Village deems appropriate.
Applications shall be accompanied by a non - refundable application fee in an amount
determined by the Village, which amount shall be used by the Village to offset direct
expenses incurred in the franchising and evaluation procedures, including but not
limited to, staff time and consulting assistance.
C. An applicant (Grantee) to whom the Village grants a non - exclusive franchise
shall, in addition to the non - refundable fee specified hereinabove, pay the Village at
the time the Grantee files the written instrument specified in Article VII, Section 9,
an amount to be determined by the Board to be used to offset all direct reasonable
expenses actually incurred by the Village in granting the franchise which are not defray-
ed by fees forthcoming from the provisions of Paragraph B of this section.
ARTICLE IV: FRANCHISE CONDITIONS
SECTION 1: FRANCHISE TERM AND NON- EXCLUSIVITY
A. The term of an original franchise shall be no more than fifteen (15) years
from the date the franchise is accepted by the Grantee. The term of a renewed franchise
shall be no more than fifteen (15) years. No franchise granted pursuant to this
ordinance shall give any exclusive right to a Grantee and every such franchise shall be
deemed to reserve the right to grant other franchises to use and occupy the public ways
of the Village.for cable.television or any other purpose on such terms as the Village
may then deem appropriate.
SECTION 2: NOTICE TO THE GRANTEE
Except as provided in Section 4 of this Article the Village shall not take
any final action involving the modification, renewal, revocation or termination of the
Grantee's franchise unless the Village has (1) advised the Grantee in writing, at least
thirty (30) days prior to such meeting, as to its time, place and purpose and (2) pub-
lished a notice, at least once, ten (10) days before the meeting in a newspaper of
general circulation within the Village. The Grantee and any interested person shall
be entitled to be heard at such meeting.
SECTION 3: FRANCHISE REVIEW AND MODIFICATION
It shall be the policy of the Village to amend a franchise, upon application
of the Grantee, when necessary to enable the Grantee to take advantage of technological
advancements which will afford it an opportunity to more effectively, efficiently, or
economically serve its subscribers; provided, however that this Section shall not be
construed to require the Village to make any amendment. Further, within the term of
u
the franchise, the Village may after notice and hearing as required in Section 2
of this Article, adopt a resolution providing for reasonable and appropriate modifica-
tions in franchisee's franchise of a nature that would not result in materially changing
or effectively terminating same. Notwithstanding the foregoing, the Grantee will make
reasonable and appropriate state of the art modifications to the system.
SECTION 4: PERFORMANCE EVALUATION SESSIONS
A. The Village and the Grantee shall hold performance evaluation meetings
within thirty (30) days of the third, fifth, tenth and fourteenth anniversary dates of
the Grantee's award of the franchise and as required by federal and state law. All such
evaluation meetings shall be open to the public. Grantee shall be solely responsible
-7-
for notifying the Village, in writing, at least sixty (60) days in advance, of each
of the specified performance evaluation meetings, and no notice to the Grantee pur-
suant to Section 2 of this Article shall be required.
B. Special evaluation meetings may be held at any time during the term of
the franchise at the request of the Agency or the Grantee.
C. All evaluation meetings shall be open to the public and announced in a
newspaper of general circulation.in accordance with the notice requirements of Article IV,
Section 2. No such newspaper notice shall be required as to any adjourned meetings.
Grantee shall notify subscribers of all evaluation meetings including any adjourned
meetings by announcement on the highest use origination channel on the system no less
than three (3) times between the hours of 7 o'clock P.M. and 9 o'clock P.M. for five
(5) consecutive days immediately preceding each meeting.
D. Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, service rate structures, franchise fees,
penalties, free or discounted services, applications of new technologies, system per-
formance, services provided, programming offered, customer complaints, privacy, amendments
to this ordinance, modification to the franchise, judicial and FCC rulings, line exten-
sion policies and Grantee or Village rules.
E. During a review and evaluation by the Village, the Grantee shall fully
cooperate with the Village and shall provide such information and documents as the
Village may need to reasonably perform its review.
F. If at any time during its review, the Village determines that reasonable
evidence exists of inadequate CATV system performance, it may require the Grantee to
perform tests and analysis directed toward the suspected inadequacies. The Grantee
shall fully cooperate with the Village in performing such testing and shall prepare
results and a report if requested within thirty (30) days after notice. Such report
shall include the following information:
(1) The nature of the complaint or problem which precipitated the special
tests;
(2); What system component was tested;
(3) The equipment used and procedures employed in testing;
(4) The method, if any, in which such complaint or problem was resolved.
(5) Any other information pertinent to said tests and analysis which
may be required.
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6. The Village may require the test to be supervised at Grantee's
expense by a professional engineer to be approved by the Village not on
the permanent staff of the Grantee. The engineer should sign all records of
special tests and forward to the Village such records with a report inter-
preting the results of the test and recommending actions to be taken.
G. The Village right under this section shall be limited to requiring tests,
analysis and reports covering specific subjects and characteristics based on said com-
plaints or other evidence when and under such circumstances as the Village has reason-
able grounds to believe that the complaints or other evidence require that tests be
performed to protect the public against substandard cable service.
SECTION 5: FRANCHISE RENEWAL
A. The Grantee shall be solely responsible for requesting the Village, in
writing, to hold a Village meeting, the purpose of which will be to review the
Grantee's performance during the term of its franchise, to consider the adequacy of
the franchise from the standpoint of the Village, the Grantee, and the Federal
Communications Commission Rules for Cable Television, and to determine the advisability
of renewing the Grantee's franchise. Unless the Board shall consent to some lesser
notice,'said request shall be made not less than six (6) months prior to the franchise
expiration date. Upon receipt of said request, the Village shall set forth the time
and place of the Village meeting. If no request for renewal is made, the franchise
shall expire according to its terms.
B. The Village shall hear any interested persons during said Village meeting
and shall determine whether or not the Grantee did reasonably comply with the terms
and conditions imposed by this ordinance and the franchise. Notice of such meeting
shall be given in accordance with Article IV, Section2 and Section 4C.
C. If the Village determines that the Grantee has been in reasonable compli-
ance with the terms and conditions imposed by this ordinance and the franchise, the
Village may, by ordinance, renew the Grantee's franchise, with any modifications
it deems desirable, for a period of time not longer than fifteen (15) years.
D. Notwithstanding the fact that the Village may determine that the Grantee
has been in reasonable compliance with the terms and conditions imposed by this
Ordinance and the franchise, it shall have the right not to renew the franchise.
If the Village does not renew the franchise, the Village shall have an option, to
the extent then permitted by existing law, to acquire the tangible assets (plant,
equipment, and facilities)
in
of the Grantee's cable television system, or the option to require the sale of such
assets to a succeeding Grantee on the terms hereinafter specified, or to require the
Grantee to remove all the tangible assets of the cable television system from the
municipality. If the Village acquires the assets for municipal ownership, or if
the Village requires sale of the assets to a succeeding Grantee, the amount paid for
such assets shall be in the fair market value of the assets, and not less than the
replacement cost of the assets in place as adjusted for their remaining useful life.
Except as provided in Section 8 of this Article, the Village option to acquire
the assets of the Grantee or to require the sale of such assets to a succeeding
Grantee or to require the removal of such assets from the municipality must be
exercised within one (1) year from the date of the franchise expiration, unless
such period is extended with the consent of the Grantee.
E. The Village shall have the right to recoup from the Grantee all direct
expenses incurred pursuant to renewal of the franchise whether or not the franchise
is renewed.
F. If a franchise is not renewed and if a Grantee desires to remove its
tangible assets, Grantee shall comply with the requirements of Paragraph G of
Section 8 of Article VI.
SECTION 6: FRANCHISE REVOCATION PROCEDURE
A. Whenever a Grantee shall refuse, neglect or willfully fail to construct,
operate or maintain its cable television system or to provide service to its sub-
scribers in accordance with the terms of this ordinance and the franchise or to
comply with the conditions of occupancy of any public way or to make required exten-
sions of service, or shall in any other way violate the terms and conditions of
this ordinance, the franchise, or any applicable rule or regulation referenced or
adopted hereunder, or practices any fraud or deceit upon the Village or its sub-
scribers, or fails to pay franchise fees when due, or if a Grantee becomes insolvent,
or unable to or unwilling to pay.its debts, or is adjudged bankrupt, or seeks relief
under the bankruptcy laws, then the franchise may be revoked.
B. In the event the Village or the A9ency believes that grounds for revocatio
exist or have existed, the Village or Agency may notify a Grantee, in writing, setting
forth the nature and facts of such noncompliance. If, within thirty (30) days follow-
ing such written notification, the Grantee has not furnished reasonably satisfactory
evidence that corrective action has been taken or is being actively and expeditiously
pursued, or that the alleged violations did not occur, or that the alleged violations
were beyond the Grantee's control, the Agency shall thereupon refer the matter to the
Village.
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C. Upon referral from the Agency or by its own motion, the Village may,
following notice and hearing pursuant to Section 2 of this Article, revoke a
franchise pursuant to paragraph A. of this section.
D. A Grantee shall not be subject to the sanctions of this Section
for any act or omission wherein such act or omission was beyond the Grantee's con-
trol. An act or omission shall not be deemed to be beyond a Grantee's control if
committed, omitted, or caused by a corporation or other business entity which holds
a controlling interest in the Grantee, whether held directly or indirectly. Further,
the failure of a Grantee to obtain financing, or to pay any money due from it to
any person, including the Village, for whatever reason, shall not be an act or omis-
sion which is beyond the Grantee's control.
E. In the event that a franchise has been revoked by the Village, the Village
shall have an option, to the extent then permitted by existing law, to either purchase
the tangible assets of.the Grantee -'s cable television system previously governed by
the franchise at their depreciated value as defined herein, assign such rights to
purchase, to any person, including a successor Grantee, whether or not for considera-
tion paid to the Village and without consideration to the Grantee, or to require the
Grantee to remove all the tangible assets (plant, equipment and facilities) of the cable
television system from the municipality. Unless some later date is agreed to by the
Grantee and except as provided in Section 8 of this Article, such an option must be
exercised within one (1) year from the date of the revocation of the franchise, or the
entry of the final judgment by a court reviewing the question of the Village revocation,
or the entry of a final order upon appeal of same, whichever is later.
F. The termination of a Grantee's rights under a, franchise shall in no way
affect any other rights the Village may have under the franchise or under any pro-
vision of law or ordinance.
SECTION 7: ARBITRARY AND CAPRICIOUS ACTION BY GRANTEE
A. If a Grantee arbitrarily and capriciously discontinues service to a greater
than 10 percent of its subscribers, the Grantee's franchise may be revoked by a resol-
ution of the Village following notice to the Grantee and an opportunity to be heard.
Notwithstanding the provisions of Article IV, Section 2, notice to the Grantee under
this section may be less than thirty (30) days. Provided, further, the Village may
seek appropriate judicial or other relief and /or may proceed to exercise its rights and
powers as provided for herein.
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SECTION 8: PROVISION FOR ARBITRATION
A. In the event the Village pursues the option to purchase Grantee's
cable television system or any of its assets, and the fair market value, depreciated
value, or replacement cost of the assets in place as adjusted for their remaining
useful life, cannot be agreed upon, said value shall be determined by a panel of
arbitrators which panel may be requested by either the Board or the Grantee no sooner
than ninety (90) days after notice that the Village desires to purchase the system.
The panel shall be composed of one arbitrator chosen by the Village, one arbitrator
chosen by the Grantee, and a third arbitrator chosen by the first two. The expense
of the arbitration, including the fees of the arbitrators, shall be borne by the parties
in such manner as the arbitrators provide in their award, but in no event will the
Village be obligated for more than one -half the expenses. The determination of a
majority of the arbitrators shall be binding on the parties only as to the value of the
fair market value, depreciated value, or replacement cost of the assets in place as
adjusted for their remaining useful life. The arbitrators shall follow the rules and
procedures of the American Arbitration Association except where in conflict with an
express provision of this ordinance. The arbitration hearing shall take place in Cook
County or Lake County, as the Village shall determine, unless otherwise agreed to
by the parties in writing.
B. Notwithstanding any other timetable imposed by this ordinance, the Village
shall, within ninety (90) days following notice to it of the decision of the arbitrators,
either withdraw any notice it may have given of its intent or election to acquire the
Grantee's system or shall affirmatively accept the decision of the arbitrators and
affirm its election to purchase the system or assets. If the Village fails to accept
the arbitrator's decision and affirm its election to purchase within the aforesaid
ninety (90) day period, the rights of the Village to purchase shall expire.
SECTION 9: TRANSFER OF OWNERSHIP TO GRANTOR
In those circumstances wherein the Village shall have elected to purchase
ownership of a Grantee's cable television system or any of its assets, the Village
shall, unless the Grantee shall agree to some other terms pay the price of such assests
to the Grantee within twelve (12) months following the date upon which the election to
purchase becomes irrevocable and title to the system or assets shall pass to the
Grantor upon such payment.
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SECTION 10: GRANTEE'S OBLIGATION AS TRUSTEE
A. At all times from the expiration or revocation of a franchise and
until either (1) a Grantee transfers to the Village or other succeeding operation
of the system all of its rights, title and interest to all assets, real and personal,
related to its cable television system or (2) the Village's right to either acquire or
assign its rights to acquire any of the Grantee's assets expires without the Village
having exercised such a right, whichever occurs first, the Grantee shall have a duty
to such successor as a trustee holding such assets for the benefit of such successor
and the Grantee shall not sell any of the system assets nor shall the Grantee make
any physical, material, or administrative operational changes that would tend to
(1) degrade the quality of service to the subscribers, (2) decrease gross revenues,
or (3) materially increase expenses without the expressed permission in writing, of
the Village or its assigns.. The Grantee shall at all times operate the system in
accordance with terms of this ordinance and the terms of the franchise as if the
franchise had not expired or had not been revoked. In the event the Franchisee fails
or refuses to operate the system as a Trustee, the Village shall have the option to name
a successor Trustee or operate the system itself as a trustee in accordance with
the terms of this ordinance and the terms of the franchise.
B. In the event of expiration or revocation of a franchise, this section
shall not be construed to give a Grantee any vested or other franchise right, but
the right of the Grantee in such circumstances shall exist only on a day -to -day basis
until the transfer is effected.
C. As full compensation for its ownership interests and during this interim
period, the Grantee shall be entitled to receive the net profit, as defined herein,
generated during the period between the expiration or revocation of the franchise,
as the case may be, and the transfer of the Grantee's assets to the Village or a
successor.
D. Further, this section shall in no way limit the power of the Village, upon
expiration or revocation of a franchise, to require the Grantee to cease all operations
whatsoever and /or remove its facilities, or otherwise exercise any rights the Village
would otherwise have.
r
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SECTION 11: FRANCHISE FEE
A. The Grantee, in consideration of the privilege granted under the
franchise for the operation of a cable television system, and the expense of regulation
pursuant to the franchise incurred by the Village, shall pay to the Village five
percent (5%) of its annual gross revenues during the period of its operation under the
franchise or such lesser amount as specified in the franchise granted; or the maximum
amount as may be set from time to time by controlling Federal or State law, if such
maximum is less than five percent (5%),
B. The Grantee shall file with the Village, within thirty (30) days after the
expiration of each of the Grantee's fiscal quarters, a financial statement clearly showir
the gross .revenues received by Grantee during the preceding quarter, and shall simultan-
eously tender payment of the quarterly portion of the franchise fee. The Grantee
shall also file within one hundred twenty (120) days following the conclusion of the
Grantee's fiscal year, an annual report prepared and audited by a Certified Public
Accountant acceptable to the Village, clearly showing the yearly total gross revenues.
Said audit and annual report to be prepared at Grantee's expense.
C. The Village shall have the right, consistent with the provision of
Article V, Section 2, Paragraph D, to inspect the Grantee's income records, the right
of audit and the recomputation of any amounts determined to be payable under this
Ordinance. Any additional amount due the Village as a result of the audit shall be
paid within thirty (30) days following written notice to the Grantee by the Village
which notice shall include a copy of the audit report. The cost of said audit shall
be borne by the Grantee if it is properly determined that the Grantee's annual payment
due to the Village for the preceding year is increased thereby by more than five per-
cent (5%).
D. In the event that any franchise payment or recomputed amount is not made on
or before the applicable dates heretofore specified, interest shall be charged from
such due date at the annual rate of twelve percent (12 %) or two percent (2%) over the
prime rate at the Continental Illinois National Bank, whichever is higher.
E. In the event the franchise is terminated for any reason, the Grantee
shall file with the Village, within thirty (30) days of the termination of service
by the Grantee pursuant to the franchise of this ordinance, a financial statement
clearly showing the gross revenues received by Grantee since the end of the previous
fiscal quarter. The Grantee shall pay the franchise fee due at the time such state-
ment is filed or within thirty (30) days, whichever is sooner.
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SECTION 12: LIABILITY AND INDEMNIFICATION
A. The Grantee shall save and hold the Village, its corporate authorities,
officers, boards, commissions, employees and agents harmless from any injury, claim;
demand, suit, judgment, execution,liability, debt,damages or penalty (hereinafter
referred to as "claims ") arising out of, resulting from, or alleged to arise out
of or result from, the passage.of this ordinance, the granting of a franchise; or the
construction, erection, installation, operation, maintenance of, or other activity
connected with, the Grantee's cable television system, whether or not such acts or omis-
sions are those of the Grantee, and whether or not any such act or omission is author-
ized, allowed or prohibited by this ordinance or the Grantee's franchise. These
damages shall include but not be limited to penalties arising out of copyright infringe-
ments and damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors or licensees of programs to be delivered by the Grantee's
cable television system.
B. The Grantee shall pay and by its acceptance of a franchise shall be deemed
to have specifically agreed that it will pay all expenses incurred by the Village
in defending itself with regard to all claims mentioned in subsection A above. These
expenses shall include all out -of- pocket expenses, such as attorneys' fees, and shall
also include the reasonable value of any services rendered by any employees of the
Village.
C. The Grantee shall maintain at its own expense, and by its acceptance of a
franchise shall be deemed to have specifically agreed that it will maintain throughout
the term of such franchise general comprehensive liability insurance and Umbrella
Liability Insurance, acceptable to the Village, insuring the Village and the Grantee
with regard to all claims mentioned in subsection A above in the minimum amounts of:
(1) Five million dollars ($5,000,000) for bodily injury or death to
any one person, within the limit, however, of ten million dollars ($10,000,000)
for bodily injury or death resulting from any one accident;
(2) Two million dollars ($2,000,000) for property damage, including
damage to Village property, resulting from any one accident;
(3) Two million dollars ($2,000,000) for all other types of liability
resulting from any one occurrence.
D. The Grantee shall maintain at its own expense and by its acceptance of a
franchise shall be deemed to have specifically agreed that it will maintain throughout
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the term of such franchise, a faithful performance. license and franchise bond
running to the Village, with at least one good and sufficient surety licensed
to do? business in the State of Illinois and approved by the Village, in the penal
sum of Two Hundred Thousand Dollars ($200,000), or such greater or lesser sum as may
be specified in such franchise. When regular subscriber service is available to more
than ninety percent (90%) of the occupied dwelling units within the Primary Service
Area, as described in Article VI, Section 2, the amount of the bond shall be reduced
to the amount specified in the franchise, or if no amount is specified therein, then
to the sum of Fifty Thousand Dollars ($50,000). Said bond shall be conditioned that
the Grantee shall well and truly observe, fulfill, and perform each term and condition
of this ordinance and its franchise and that in case of any breach of condition of the
bond, the amount thereof shall be recoverable from the principal and surety thereof
by the Village for all damages and costs, whether direct or indirect, resulting from
the failure of the Grantee to well and faithfully observe and perform any provision
of this ordinance or its franchise. Such damages and costs shall be deemed to include,
as a minimum and without limitation, the loss of expected payments of the franchise
fee and other valuable consideration given for the grant of the franchise, and such
additional expenses as may be incurred by the Village as a result of Grantee's
failure to comply with the obligations imposed by this ordinance and the franchise
including, but not limited to, attorney's fees and costs of any action or proceeding,
the cost of refranchising, and the cost of removal or abandonment of any property, or
other costs which may be in default, which costs shall be conclusively presumed to
amount to a sum equal to at least the penal sum of such bond. The Village shall have
no obligation to devote the proceeds of such bond to the completion, connection,
operation or removal of Grantee's cable television system, all of which shall remain
the obligation of the Grantee. The Village'sright to recover under the bond shall be
in addition to any other rights retained by the Village under this ordinance and other
applicable law.
E. In addition to the bond hereinabove required, the Grantee shall maintain
at its own expense, and by its acceptance of a franchise be deemed to have agreed
that it will maintain on deposit with the Village throughout the term of such franchise
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a cash escrow or a letter of credit from an Illinois financial institution in the
amount of Ten Thousand Dollars ($10,000) or such greater or lesser amount as may be
specified in the franchise. The form and content of such escrow or letter of credit
shall be approved by the Village Attorney. The escrow or letter of credit shall be
conditioned in the same manner as the bond hereinabove required and may be drawn on
by the Village to compensate itself for any of the damages or costs specified in
subsection D above. In particular, but without limitation, such escrow or letter
of credit shall be drawn on in the case of any default or failure of the Grantee
to pay any fees, penalties, claims, liens, or taxes due the Village under this ord-
inance or the franchise. Upon drawing on such escrow or letter of credit for any
reason, the Village shall notify the Grantee. The Grantee shall, within three (3)
days of the receipt of such notification, take all action required to restore the
escrow or letter of credit to its original full amount. The rights reserved to the
Village with respect to the escrow or letter of credit are in addition to all other
rights of the Village whether reserved by this ordinance or the franchise or
authorized by law, and no action, proceeding or exercise of a right with respect to
such escrow or letter of credit shall affect any other right the Village may have.
F. All insurance policies, bonds, escrows and letters of credit required by
this section shall contain a provision requiring at least thirty (30) days written
notice to both the Village and the Grantee of any cancellation, termination, or other
expiration and shall provide that no such cancellation, termination or expiration
shall be effective prior to such notice. Each such policy, bond, escrow and letter
of credit must be approved by the Village (President and Board of Trustees of the
Village) and copies of such documents, along with written evidence of payment by the
Grantee of required premiums or fees shall be filed and maintained with the Village
Clerk. Notices of renewal of any expiring policy or bond shall be filed with the
Village Clerk at least sixty (60) days prior to the date of such expiration.
G. If the Grantee proposes to secure a new insurance policy, bond or letter
of credit instead of renewing an existing policy, bond or letter of credit, the
Grantee shall, at least sixty (60) days prior to the expiration date of any such
existing insurance policy, bond or letter of credit, submit to the Village (President
and Board of Trustees) a copy of the proposed new policy, bond, or letter of credit,
and such proposed new policy, bond or letter of credit shall become effective only
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upon the expiration date of such expiring policy, bond or letter of credit if the
Village (President and Board of Trustees) have approved the terms and coverage of
the said proposed new policy, bond or letter of credit, which approval shall not
be unreasonably withheld. The Grantee shall comply with all applicable provisions
of this section as to any such new policy, bond or letter of credit.
SECTION 13: TRANSFER OF FRANCHISE
A. A franchise granted under this ordinance shall be a privilege to be
held in personal trust.by the Grantee. It shall not be assigned, transferred, sold
or disposed of, transferred in trust, pledged, in whole or in part, by voluntary sale
merger, consolidation or otherwise or by forced or involuntary sale, without prior
consent of the Village etressed by resolution and then on only such conditions as
may therein be prescribed. Any sale, transfer or assignment not made according to
the procedures set forth in this ordinance shall render the franchise void. The
sale, transfer or assignment in bulk of the major part of the tangible assets of the
Grantee shall be considered an assignment and shall be subject to the provisions of
this section.
B. Any sale, transfer or assignment authorized by the Village shall be made
by a bill of sale or similar document, an executed copy of which shall be filed with
the Village within thirty (30) days after any. such sale, transfer or assignment. The
Village shall not withhold its consent unreasonably; provided, however, the proposed
assignee agrees to comply with all the provisions of this ordinance and the franchise
and reasonable amendments thereto, and must, at a minimum, satisfy the legal,
financial, technical and character qualifications required by Article III, Section 2
of this ordinance.
C. Prior approval of the Village shall be required where ownership or control
of more than 20% of the right of control of the Grantee is acquired during the term of
the franchise in any transaction or series of transactions by a person or group of
persons acting in concert, none of whom owned or controlled twenty percent (20 %) or
more of such right of control, singularly or collectively on the effective date of
the franchise. By its acceptance of this franchise the Grantee specifically grants
and agrees that any such acquisition occurring without prior approval of the Village
shall render the franchise void.
D. The consent of the Village to any sale, transfer lease, trust, mortgage
or other instrument of hypothecation shall not constitute a waiver or release of any of
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the Village under this ordinance and the franchise.
ARTICLE V: SUBSCRIBER AND USER FEES AND RECORDS
SECTION 1: SUBSCRIBER AND USER FEES
A. By accepting a franchise granted pursuant to the terms and conditions
imposed by this ordinance, the Grantee agrees that the Village shall have the
authority and right to cause the Grantee's fees for regular subscriber service,
and all other subscriber and user services to the extent permitted by law or FCC
rules and regulations, to conform to the provisions contained herein. The Village
shall also have the authority and right to fix fees and to deny increases or order
reduction of fees when it determines that in the absence of such action on its part,
the Grantee's fees or proposed fees do not conform to the stipulations contained herein.
B. All charges to subscribers and users shall be consistent with a schedule
of fees for all services offered as established by the Grantee. Changes in the fee
schedule shall not take effect until at least ninety (90) days after notification of
same is delivered to the Village and to current subscribers and users. All charges
to subscribers and users, and any proposed increase in such charges, shall be fair,
reasonable and just and in'no event shall any such charge be greater than necessary
to meet the costs of service (assuming efficient and economical management) and to
provide a fair rate of return on the original cost, less depreciation, of property
devoted to such service.
C. The Grantee shall not, with regard to fees; discriminate or grant any
preference or advantage to any person; provided, however, that. the Grantee may estab-
lish different rates for different classes of subscribers or users based upon cost of
service differentials, provided that the Grantee not discriminate between any sub-
scribers or users of the same class.
D. Notwithstanding the foregoing provisions, and except in the case of
extraordinary circumstances as approved by the Village, the Grantee shall not increase
the fees for services proposed in the franchise application above the rates specified
in said application for a period of thirty -six (36) months from the time service is
provided to the first subscriber pursuant to the Grantee's franchise; provided, however,
that the Grantee shall have the authority and the right to add to its service or instal-
lation fees any Federal, State, or local taxes or fees directly imposed on subscribers,
and for any additional copyright fees that may be imposed as a result of legislative
or judicial action at the Federal, State, or local level taken after the filing of
the franchise application. If during the term of the franchise, the Grantee receives
refunds of any copyright payments, it shall without delay notify the Village, suggest
a plan for flow - through of the refunds to its subscribers, and retain such refunds in
an interest bearing escrow account pending order of the Village. After considering the
plan submitted by the Grantee, the Village shall order flow- through of the refunds with
accrued interest to the Grantee's subscribers in a fair and equitable manner.
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E. Notwithstanding subsections A. through D. hereof, no action shall
be taken by the Village with respect to the Grantee's rates, nor rules and regulations
applicable thereto, until at least the expiration of thirty (30) months following
the date service is provided to the first subscriber under the franchise. At any
time thereafter, the Village may after proper notice as provided in Article IV,
Section 2, hold public hearings to consider the necessity of regulating the sub-
scriber rates charged by the Grantee, and may, following such hearings, establish
procedures for the review of subscriber and user rates and may order adjustments
to such rates in accordance with the provisions of this Section; provided, however,
that this Section shall not permit the Village to order the Grantee to rebate any
fee or portion thereof charged during the period when such fees were not subject
to regulation by the Village.
F. The Grantee shall be required to apprise in writing each new sub-
scriber of all applicable fees and charges for providing cable television service.
G. Grantee may, at its own discretion, in a non - discriminatory manner,
waive, reduce or suspend connection fees or monthly service fees for promotional
purposes.
H. Except as may be otherwise provided in a franchise, a subscriber shall
have the right to have its service disconnected without charge, which shall include
the removal of any equipment owned by the Grantee from the subscriber's residence.
Such disconnection shall be made as soon as practicable and in no case later than
thirty (30) days following written notice to the Grantee of same. No Grantee shall
enter into any agreement with a subscriber which imposes any charge following dis-
connection of service, except for reconnection and subsequent monthly or periodic
charges, and those charges shall be no greater than charges for new customers.
This Section shall not prevent a Grantee from refusing service to any person because
of the Grantee's prior accounts with that person remain due and owing.
I. Except as may be otherwise provided in a franchise, a Grantee may offer
service which requires advance payment of periodic service charges for no more than
one (1) year in advance subject to the conditions contained in this paragraph. A
subscriber shall have the right, at any time, to have its service disconnected without
charge and with a refund of unused service charges paid to the customer within
thirty (30) days from the date of service. Rate increases shall not be effective
with respect to any subscriber until after the expiration of any period for which
advance payment has been accepted by the Grantee.
SECTION 2: BOOKS AND RECORDS
A. A Grantee shall, (1) within thirty (30) days following the acceptance
of a franchise, and (2) at least yearly thereafter, and (3) within thirty (30) days
of the change of ownership of three percent (3%) or more of any class or series of
the outstanding voting stock or equivalent ownership interest of a Grantee, furnish
the Village a list, showing the names, and addresses of persons owning three percent
(3%) or more of any class or series of the outstanding voting stock or equivalent
ownership interest of the Grantee, together with a roster of the Grantee's officers
and directors (or equivalent managerial personnel) and their addresses.
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B. A Grantee shall maintain books and records of its operations within
the Village to show the following in sufficient detail, consistent with generally
accepted accounting principales:
(1) Total revenues, by service category.
(2) Operating expenses, categorized by general and administrative
expenses, technical expenses and programming expenses, and overhead where applicable.
(3) Capital expenditures, to include capitalized interest and overhead,
if any.
(4) Depreciation expenses, by category.
(5) List of inventory to include but not by way of limitation all
physical assets of Grantee within the Village.
C. A Grantee shall maintain such books and records for the Franchise Area
specified in the franchise separately from any other operations; provided, however,
that any expenses or expenditures which apply to both the system in said Franchise
Area and any other operations shall be reasonably allocated between all such operations.,
consistent with generally accepted accounting principles. Such books and records
shall be retained, in any reasonable form, for a period of not less than fifteen (15)
years. The Village shall have the right to extend the retention period through the
term of any renewed franchise.
D. The books and records of the Grantee's operation within the Village
shall be made available in the Village during normal business hours, for inspection
and audit by the Village within thirty (30) days after such request has been made.
E. Copies of the Grantee's schedule of charges, contract or application
forms for subscriber and user services, policy regarding the processing of sub-
scriber complaints, delinquent subscriber disconnect and reconnect procedures and
any other terms and conditions adopted as the Grantee's policy in connection with its
subscribers or users shall be filed with the Village and shall be made available
for inspection by the public in the Grantee's local office.
ARTICLE VI: SYSTEM OPERATIONS
SECTION 1: FRANCHISE AREAS
A. Every application shall designate a proposed Primary Service Area (PSA)
and a proposed schedule for making service available throughout the PSA. The bound-
aries of the Primary Service Area shall be subject to approval by the Village, and
shall be incorporated into the franchise granted pursuant to this ordinance. If no
PSA is specifically delineated in a franchise, the PSA shall be considered to be
coterminous with the Franchise Area. If no schedule is specified, service shall
be made available throughout the entire PSA within twenty -four (24) months of the
effective date of the franchise.
B. Grantee shall furnish to the Village a map of suitable scale indicating
the Primary Service Area to be served and showing all roads and public buildings
within the PSA.
C. The areas of the Village for which applications for franchise will be
accepted shall be specified by the Village; in the absence of such specification,
applications shall be accepted for any area within the Village.
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SECTION 2: EXTENSION OF SERVICE
Following completion of construction within the PSA, each Grantee shall
extend its CATV System and make CATV Service available beyond the PSA as follows:
(1.) Along streets or parts of streets beginning at the boundary of the
PSA or any line extension beyond the PSA within one (1) year after any such street
reaches a minimum density of fifty (50) dwelling units per street mile, and,
(2.) Concurrently with the installation of utility lines to developing areas
having a planned minimum density of fifty (50) dwelling units per street mile, which
lie contiguous to the boundary of the Primary Service Area or at the end of any line
extensions beyond the Primary Service Area.
(3.) The Grantee, in its application, may propose a line extension policy
which will result in serving more residents of the Village than as required above,
in which case the Grantee's application will be incorporated by reference in the
Franchise, and will be binding on the Grantee.
SECTION 3: INDIVIDUAL SERVICE DROPS
A. Grantee shall extend and make cable television service available to
any isolated residents within or without the Primary Service Area requesting
connection at the standard connection charge, if the connection to such resident
would require no more than a standard two hundred (200) foot aerial or buried drop
line from a trunk or feeder cable required to be installed pursuant to Section 1 or
2 o this Article.
B. With respect to requests for connection requiring an aerial or buried
drop line in excess of two hundred (200) feet, Grantee shall extend and make avail-
able cable television service to such residents at a connection charge not to exceed
the actual installation costs incurred by the Grantee for the distance exceeding two
hundred (200) feet.
SECTION 4: SYSTEM DESCRIPTION AND SERVICE
A. The cable television system to be installed by Grantee shall comply in
all respects with the requirements set forth in the FCC's Rules for Cable Television
including applicable amendments thereto, provided, however, that nothing contained
herein shall be construed to prohibit the Grantee from proposing to comply with more
rigid technical performance requirements, in which case the Grantee's application
shall be incorporated by reference in the Franchise, and will be binding on the
Grantee. If the FCC should delete said requirements, the Village hereby reserves
the right to amend this ordinance to incorporate similar standards and every franchise
granted pursuant to this ordinance shall be subject to such reserved power whether
or not expressly so conditioned.
B. Applications for franchise may include proposals for the provision of
public, education, local government, and leased access channels. Such proposals
by a Grantee, if accepted by the Village, shall be incorporated into the franchise
granted. No such proposal shall be accepted unless it complies with the following
minimum requirements:
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( 1.) The Grantee shall have available equipment for local production
and presentation of cablecast programs other than automated services and shall permit
its use for the production and presentation of public access programs. The Grantee
shall not enter into any contract, arrangement, or lease for use of its cablecast
equipment which prevents or inhibits the use of such equipment for a substantial
portion of time for public access programming.
( 2.) The Grantee shall have no control over the content of access
cablecast programs, however, this limitation shall not prevent taking appropriate
steps to insure compliance with the operating rules described herein; failure to
comply with such operating rules shall constitute a violation of this ordinance.
( 3.) The public access channel(s) shall be made available to residents
of the Village on a first come, first served, non - discriminatory basis, consistent
with the goal of the maximum availability of access, free of charge. Charges for
equipment, production, personnel and production of public access programming shall
be reasonable and consistent with the goal of affording users a low cost means of
television access. No charges shall be made for the production of live public access
programs not exceeding five minutes in length, or for the replay of user supplied
tapes which are in a form compatible with the Grantee's playback facilities. The
Grantee shall adopt operating Vules for the public access channel(s), to be filed
with the Village prior to the activation of the channel(s), designed to prohibit
the presentation of: any advertising material designed to promote the sale of
commercial products or services (including advertising by or on behalf of candidates
for public office); lottery information, and obscene or indecent matter, as well as
rules requiring first come nondiscriminatory access, and rules permitting public
inspection of a complete record of the names and addresses of all persons or groups
requesting access time. Such a record shall be retained for a period of two years.
( 4.) The education access channel(s) shall be made available for the
use of schools free of charge. The Grantee shall adopt operating rules for the
education access channel(s), to be filed with the Village prior to activation of
the channel(s), designed to prohibit the presentation of: any advertiting material
designed to promote the sale of commercial products or services (including advertising
by or on behalf of candidates for public office); lottery information; and obscene
or indecent matter, as well as a rule permitting public inspection of a complete
record of the sames and addresses of all persons or groups requesting access time.
Such a record shall be retained for a period of two years.
(5.) The local government access channel(s) shall be made available
for the use of the Village or such other unit of local government as shall be
designated by the Village free of charge.
(6.) The leased access channel(s) as specified in the franchise application
shall be made available to leased access users, Priority shall be given part time
users on at least one channel. The Grantee shall adopt operating rules for the
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channel(s), to be filed with the Village prior to activation of the channel(s),
designed to prohibit the presentation of: lottery information, to the extent
such information is prohibited by state law; and obscene or indecent matter and shall
establish rules to this effect; and other rules requiring non - discriminatory access,
sponsorship identification, specifying an appropriate rate schedule and permitting
public inspection of a complete record of the names and addresses of all persons
or groups requesting time. Such a record shall be retained until the earliest
scheduled performance evaluation session described in Article IV, Section 4, of
this ordinance or for a longer period as determined by the Village.
C. Grantee shall provide, without charge within the Primary Service
Area, one service outlet activated for regular subscriber service to each fire
station, school, police station, public library, and such other buildings used for
governmental purposes as may be designated by the Village. Grantee shall be
permitted to recover, from any public building owner entitled to free service,
the direct cost of installing, when requested to do so, more than one outlet, or
concealed inside wiring, or a service outlet requiring more than three hundred (300)
feet of drop cable; provided, however, that the Grantee shall not charge for the
provision of regular subscriber service to the additional service outlets once
installed.
D. The Grantee shall not permit the transmission of any programming
in violation of any federal, state or local law. Grantee shall inform each sub-
scriber of the availability of a device capable of locking out any programming
video and audio signals and shall provide such a device for each outlet to any
subscriber upon request at no additional charge.
SECTION 5: OPERATIONAL REQUIREMENTS AND RECORDS
A. Grantee shall construct, operate, and maintain the cable television
system in full compliance with the rules and regulations, including applicable
amendments, of the Federal Communications Commission and all other applicable,
Federal, State, or local laws and regulations, including the latest editions of
the National Electrical Safety Code and the National Fire Protection Association
National Electrical Code. The cable television system and all its parts shall be
subject to inspection by the Village and the Village hereby reserves the right to
review Grantee's construction plans prior to the commencement of construction. The
Village shall not, however, be required to make inspections or approve the Grantee's
system and plans, and specifically disclaims such obligation, the Grantee shall
be solely responsible for taking all steps necessary to assure compliance with such
laws and regulations and the safety of its system as installed.
B. Grantee shall maintain an office, within the Village unless otherwise
stated in the Franchise, which shall be open and accessible to the public with
adequate telephone service during normal business hours. Grantee shall employ an
operator or maintain a telephone answering service twenty -four (24) hours per day,
each day of the year, to receive subscriber complaints and to dispatch assistance
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in the case of any emergency or major system malfunction affecting a number of
subscribers,
C. Grantee shall design, construct, operate, and maintain the system at
all times so that signals carried are delivered to subscribers without material
degradation in quality.
D. Copies of all correspondence, petitions, reports, applications and
other documents filed by Grantee with Federal or State agencies having appropriate
jurisdiction in matters affecting cable television operation or received from
said agencies shall be furnished simultaneously to the Village by Grantee.
E. In the case of any emergency or disaster, the Grantee shall, upon
request of the Village, make available its facilities to the Village, without cost,
for emergency use during the emergency or disaster period.
SECTION 6: TESTS AND PERFORMANCE MONITORING
A. Not later than ninety (90) days after any new or substantially
rebuilt portion of the system is made available for service to subscribers, technical
performance tests shall be conducted by the Grantee to demonstrate full compliance
with the Technical Standards applicable pursuant to Paragraph A of Section 4, and
Paragraph C of Section 5 of this Article. Such tests shall be performed by, or
under the supervision of a qualified and independent registered professional engineer
or an engineer with proper training and experience. A copy of the report shall be
submitted to the Village, describing test results, instrumentation, calibration and
test procedures, and the qualifications of the engineer responsible for the tests.
B. System monitor test points shall be established at or near the
output of the last amplifier in the longest feeder line, at or near trunk line
extremities, or at the locations to be specified in the franchise. Such periodic .
tests shall be made at the test points as shall be required by the Village.
C. At any time after commencement of service to subscribers, the Village
may require additional reasonable tests, including full or partial repeat tests,
different test procedures, or tests involving a specific subscriber's terminal, at
the Grantee's expense to the extent such tests may be performed by the Grantee's
employees utilizing its existing facilities and equipment; provided, however, that
the Village reserves the right to conduct its own tests upon reasonable notice to the
Grantee and if non - compliance is found, the expense thereof shall be borne by the
Grantee. The Village will endeavor to arrange its request for such special tests
so as to minimize hardship or inconvenience to Grantee or to the subscriber.
D. A copy of the annual performance test report required by the Federal
Communications Commission shall be submitted to the Village within thirty (30) days
of its completion.
E. The Village shall have the right to employ qualified consultants if
necessary or desirable to assist in the administration of this, or any other section
of this ordinance.
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SECTION 7: SERVICE, ADJUSTr"FNT AND COMPLAINT PROCEDURE
A. Grantee shall establish a maintenance service capable of locating
and correcting major system malfunctions promptly except for circumstances beyond
the Grantee's control such as strikes, acts of God, wars, riots and civil dis-
turbances. Said maintenance service shall be available at all hours to correct
such major system malfunctions affecting a number of subscribers.
B. A listed local telephone number shall be made available to subscribers
for service calls at any time of the day or night. Investigative actions shall be
initiated in response to all service calls, other than major system malfunctions,
not later than the next business day after the call is received; action on major
malfunctions shall be initiated immediately upon receipt of notice. Corrective
action shall be completed as promptly as practicable. Appropriate records shall be
made of service calls showing when and what corrective action was completed. Such
records shall be available to the Village during normal business hours and retained
in Grantee's files until the next scheduled performance evaluation session described
in Article IV, Section 4, of this ordinance or for a longer period as directed by
the Village. A summary of such calls shall be prepared by the Grantee and sub -
mitted to the Village annually, beginning twelve (12) months after service is
provided to the first subscriber.
C. The Grantee shall furnish each subscriber at the time service is installed
written instructions that clearly set forth procedures for placing a service call, or
requesting an adjustment. Said instructions shall also include the name, address
and telephone number of the Agency or other designated employee of the Village and
a reminder that the subscriber can call or write the Agency or other designated
employee for information regarding terms and conditions of the Grantee's franchise
if the Grantee fails to respond to the subscriber's request for installation,
service or adjustment within a reasonable period of time.
D. In the event a subscriber does not obtain a satisfactory response or
resolution to his request for service or an adjustment within a reasonable period
of time, he may advise the Agency or other designated employee in writing of his
dissatisfaction. The Agency or other designated employee shall have authority to
investigate any subscriber or user complaint or request for adjustment and to order
corrective action as shall be appropriate. The Village may require Grantee to establish
rules and procedures regulating complaint resolution in the Franchise agreement.
E. The Grantee shall interrupt system service after 7:00 A.M. and before
1:00 A.M. only with good cause and for the shortest time possible and, except in
emergency situations, only after cablecasting notice of service interruption at least
twenty -four (24) hours in advance of the service interruption. Service may be
interrupted between 1:00 A.M. and 7:00 A.M. for routine testing, maintenance, and
repair, with notification, on any day except Saturday or Sunday, or the day following
a legal holiday.
SECTION 8: STREET OCCUPANCY
A. Grantee shall utilize existing poles, conduits and other facilities
whenever possible, and shall not construct or install any new, different, or additional
poles, conduits, or other facilities whether on the public way or on privately -owned
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property within the Village until the written approval of the Village, and, if
necessary, of the property owner is obtained. Such approval shall not be unreas-
onably withheld by the Village. No location of any pole, wire - holding structure
or other facility of the Grantee shall be a vested interest and such poles,
structures and facilities shall be removed, relocated or modified by the Grantee
at its own expenses whenever the Village or other governmental authority determines
that the public convenience would be enhanced thereby. Nothing herein or in any
-franchise shall be construed to entitle Grantee to the use of any property other than
the public way.
B. The Village shall be entitled to make use of the Grantee's poles and
holding structures so long as such use does not unreasonably interfere with
Grantee's operations.
C. Where a public utility serving the Village desires to make use of the
poles or other wire - holding structures of the Grantee but agreement therefor with the
Grantee cannot be reached, the Village may require the Grantee to permit such use
for such consideration and upon such terms as the Village shall determine to be just
and reasonable, if the Village determines that the use would enhance the public con-
venience and would not unduly interfere with the Grantee's operations.
D. All transmission lines, equipment and structures shall be installed and
located in compliance with all applicable local ordinances and so as to cause minimum
interference with the rights and reasonable convenience of property owners who adjoin
any public way and at all times shall be kept and maintained in a safe, adequate, and
substantial condition, and in good order and repair, consistent with the provisions
of paragraph F, of this section. The Grantee shall at all times employ reasonable
care and shall install and maintain in use commonly accepted methods and devices
for preventing failures and accidents which are likely to cause damage, injuries, or
nuisances to the public. Suitable barricades, flags, lights, flares, or other devices
shall be used at such times and places as are required by applicable ordinances and
at such additional times and places as are reasonably required for the safety of all
members of the public. Any poles or other fixtures placed in any public way by the
Grantee shall be placed and maintained in such a manner as not to interfere with the
usual travel or other existing or projected uses of such public way. The Grantee
shall at all times comply with any and all rules and regulations enacted or to be
enacted by the Village with reference to construction activity in public ways.
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E. Grantee shall remove, replace, or modify at its own expense, the instal-
lation of any of its facilities as reasonably necessary and when directed to do so
by the Village.
F. All installations shall be underground in those areas of the Village
where public utilities providing both telephone and electric service are underground
at the time of installation. In areas where either telephone or electric utility
facilities are above ground at the time of installation, the Grantee may install its
service aboveground, provided that at such time as those facilities are required to
be placed underground by the Village or are placed underground, the Grantee shall likewi
place its services underground without additional cost to the Village or to the
individual subscriber so served within the Village. Where not otherwise required
to be placed underground by this ordinance, the Grantee's television facilities shall
be located underground at the request of the adjacent property owner, provided that
the excess cost over aerial location shall be borne by the property owner making the
request.
G. In the event of disturbance of any public way, private property or
improvement on either of them by the Grantee, it shall, at its own expense and in a
manner approved by the Village or other appropriate governmental authority and the
owner, replace and restore such public ways, private property or improvement in as
good a condition as before the work causing such disturbance was done. In the event
the Grantee fails to perform such replacement or restoration the Village or the owner
shall have the right to do so at the sole expense of the Grantee. Demand for payment
to the Village or owner for such replacement or restoration shall be in writing.
H. Whenever, in case of emergency, it becomes necessary in the judgment of
the Village to remove or damage any of the Grantee's facilities, no charge shall be
made by the Grantee against the Village for restoration and repair.
I. At the request of any person holding a valid building moving permit issued
by the Village or other appropriate governmental authority and upon at least 48 hours
notice, Grantee shall temporarily raise, lower, or cut its wires as may be necessary
to facilitate such move. The direct expense of such temporary changes, including
standby time, shall be paid by the permit holder, and Grantee shall have the authority
to require payment in advance.
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J. Grantee shall not cut or trim any tree, shrub or vegetation on public
property without first obtaining specific written authorization from the Village.
Any such work shall be done at Grantee's expense and shall be subject to the super-
vision and direction of the Village.
SECTION 9: CONSTRUCTION SCHEDULE AND REPORTS
A. Upon accepting the franchise, Grantee shall, within sixty (60) days, file
the documents required to obtain all necessary Federal, State and local licenses,. permit
and authorizations required for the conduct of its business, and shall submit monthly
reports to the Village on progress in this respect until all such documents are in
hand. Failure of the Grantee to pursue all necessary steps to secure the aforemen-
tioned authorizations with due diligence shall constitute 'a substantial violation of
this ordinance.
B. Franchise applications shall include a schedule for construction of the
cable television system, including a timetable for commencement of cable television
service to subscribers. Said schedule shall be incorporated into the franchise and
shall be enforceable as to the Grantee under the provisions of this ordinance.
C. Each Grantee shall fill all requests for CATV service, once facilities
are in place consistent with the proposed schedule for service, within thirty (30)
days after the date of each request. A record of 611 "service requests shall be kept
until the next scheduled performance evaluation session described in Article IV,
Section 4, of this ordinance or for a longer period as determined by the Board and shall
be available for public inspection at the local office of the Grantee during regular
office hours.
D. Within three (3) months after accepting the franchise, Grantee shall furnish
the Village a detailed construction schedule and map setting forth target dates by areas
for commencement of service to subscribers. The schedule and map shall be updated
whenever substantial changes become necessary.
E. Every three (3) months after the start of construction, Grantee shall
furnish the Village a report on progress of construction until complete. The report
shall include a map that clearly defines the areas wherein regular subscriber service
is available.
SECTION 10: PROTECTION OF PRIVACY
A. Grantee shall not permit the transmission of any signal, aural, visual
or digital, including "polling" the channel selection, from any subscriber's premises
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-29-
without first obtaining informed consent of the subscriber which shall not have
been obtained from the. subscriber as a condition of any service for which trans-
Mission is not an essential element. The request for such consent shall be contained
in a separate document, which specially enumerates and describes the transmissions
being authorized and includes a prominent statement that the subscriber is authorizing
the permission in full knowledge of its provision and shall be revocable at any time
by the subscriber without penalty of any kind whatsoever. This provision is not
intended to prohibit the use or transmission of signals useful only for the control
or measurement of system performance or used for billing subscribers.
B. Grantee shall not permit the installation of any special terminal equipment
in any subscriber's premises that will permit transmission from subscriber's premises
of two -way services utilizing aural, visual or digital signals without first obtaining
written permission of the subscriber as provided in Paragraph A of this section.
C. Grantee, or any of its agents or employees, shall not, without the
specific written authorization of the subscriber involved, as provided in Paragraph A
of this section, sell or otherwise make available to any party any information which
identifies the viewing habits or responses of individual subscribers.
SECTION 11: PROHIBITION FROM ENGAGING IN RADIO AND TELEVISION
SALES OR SERVICE
A. The Grantee, its subsidiaries and affiliates are specifically prohibited,
from engaging directly or indirectly, in the sale or leasing of television receivers,
radio receivers, or television or radio parts, except such parts and accessories
required for any type of cable connections, such as converters and connection plugs
and accessories, individually or with any person, any where in the Village, whether or
not for a fee or charge,.and is further prohibited from engaging in any type of repair
service to television receivers or radio receivers.
SECTION 12: AREAWIDE INTERCONNECTION OF CATV SYSTEMS
A. Each Grantee, if ordered to do so by resolution of the Village, shall
interconnect Access Channels and /or Local Origination Channels of its CATV System with
all other CATV Systems in adjacent areas.
B. Upon receiving an order to interconnect, the Grantee shall make a good
faith effort to obtain agreements for the sharing of interconnection costs among all
interconnecting companies. The Village may extend the time to interconnect or may
rescind its order to interconnect upon finding that the Grantee has made a good faith
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effort but has been unable to obtain a reasonable interconnection agreement or that
the cost of the interconnection would cause an unreasonable increase in subscriber
rates.
C. Ea.Ch Grantee shall cooperate with any entity established for the purpose
of regulating, financing, or otherwise providing for the interconnection of CAN
systems.
D. The Village may require a Grantee to provide Local Origination equipment
that is compatible with.that used by other CATV Systems within the adjacent areas.
E. Grantee shall make every reasonable effort to cooperate with cable
television franchise holders in contiguous communities in order to provide cable
service in areas outside the Grantee's Franchise Area.
F. The Village shall make every reasonable effort to cooperate with the
franchising authorities in contiguous communities, and with the Grantee, in order
to provide cable television service in areas outside the Village.
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ARTICLE VII: GENERAL PROVISIONS
�n
SECTION 1: LIMITS ON GRANTEE'S RECOURSE
A. Grantee shall have no recourse against the Village for any loss,
expense or damage resulting from the terms and conditions of this ordinance or
the franchise or because of the Village granting or enforcement thereof nor for
the Village's failure to have the authority to grant the franchise. The Grantee
expressly agrees that upon its acceptance of the franchise it does so relying
upon its own investigation and understanding of the power and authority of the
Village to grant said franchise.
B. The Grantee, by accepting the franchise, acknowledges that it has
not been induced to accept same by any promise, verbal or written, by or on behalf
of the Village or by any third person regarding any term or condition of this
ordinance or the franchise not expressed therein. The Grantee further pledges that
no promise or inducement, oral or written, has been made by any Village employee
or official regarding receipt of the cable television franchise other than as
contained in the franchise agreement.
C. The Grantee further acknowledges by acceptance of the franchise that
it has carefully read the terms and conditions of this ordinance and the franchise
and accepts.without reservation the obligations imposed by the terms and conditions
thereof.
D. The decision of the Board concerning Grantee selection and awarding
of the franchise shall be final.
E. The Grantee shall not apply for any waivers, exceptions, or declaratory
rulings from the Federal Communications Commission or any other Federal or State
regulatory agency without prior written notice to the Village.
SECTION 2: COMPLIANCE WITH STATE AND FEDERAL LAW
The Grantee shall, at all times, comply with all laws of the State and
Federal government and the rules and regulations of any Federal or State administra-
tive agency and all ordinances and rules and regulations of the Village, unless
waived by the Village by Ordinance or Resolution.
SECTION 3: SPECIAL LICENSE
A. Upon such conditions as the Village may deem necessary, and notwith-
standing the provision of Article 3 of this ordinance, the Village may issue a
license, easement or other permit to anyone other than a Grantee to permit that
person to traverse any portion of the Village in order to provide service outside
the Village. Such license or easement, absent a grant or a franchise in accordance
with this ordinance, shall not authorize nor permit said person to provide a
cable television service of any nature to any home or place of business within the
Village, nor to render any service or connect any subscriber within the Village to
a Grantee's cable television system.
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SECTION 4: FRANCHISE VALIDITY
A. The Grantee agrees, by the acceptance of the franchise, to accept the
validity of the terms and conditions of this ordinance and the franchise in their
entirety and that it will not, at any time, proceed against the Village in any claim
or proceeding challenging any term or provision of this ordinance or the franchise
as unreasonable, arbitrary or void, or that the Village did not have the authority
to impose such term or condition.
B. In case of conflict or ambiguity between this ordinance, the franchise
or the Grantee's franchise application, the Grantee agrees that the provision
which provides the greatest benefit to the Village,in the sole discretion of the
Village,shall prevail.
SECTION 5: FAILURE TO ENFORCE FRANCHISE
The Grantee shall not be excused from complying with any of the terms and
conditions of this ordinance or the franchise by any failure of the Village upon
any one or more occasions, to insist upon the Grantee's performance or to seek
Grantee's compliance with any one or more of such terms or conditions.
SECTION 6: RIGHTS RESERVED TO THE GRANTOR,
A. The Village hereby expressly reserves the following rights which shall
not be deemed to be waived or abrogated by any franchise granted pursuant to this
ordinance.
( l.) To exercise its governmental powers, now or hereafter, to the
full extent that such powers may be vested in or granted to the Village.
.( 2.) To adopt, in addition to the provisions contained herein and in
the franchise and in any existing applicable ordinances, such additional regulations
as it shall find necessary to protect the health, safety and welfare of its inhabitants.
( 3) To renegotiate any franchise granted pursuant to this ordinance
should substantial section(s) of the ordinance or franchise be rendered void by the
Federal Communications Commission, or by subsequent changes in applicable federal
or state laws, rendered void by the Federal Communications Commission, or by subsequent
changes in applicable federal or state laws.
SECTION 7: EMPLOYMENT REQUIREMENT
A. The Grantee shall not refuse to hire, nor discharge from employment,
noi° discriminate against any person regarding compensation, terms, conditions, or
privileges of employment because of age, sex, race, color, creed, or national origin.
The Grantee shall take affirmative action to insure that employees are treated
fairly and equally during employment, without regard to their age, sex, race, color
creed or national origin. The condition includes, but is not limited to the following:
recruitment advertising, employment interviews, employment, rates of pay, upgrading,
transfer, demotion, lay -off, and termination.
SECTION 8: TIME ESSENCE OF AGREEMENT
Whenever this ordinance or the.franchise sets forth any time for any act
to be performed by the Grantee, such time shall be deemed of the essence and
the Grantee's failure to perform within the time allotted shall, in all cases, be
sufficient grounds for the Village to invoke the remedies available under the terms
6
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and conditions of this ordinance and the franchise.
SECTION 9: ACCEPTANCE
This ordinance and the franchise and their terms and conditions shall
be accepted by the Grantee by written instrument filed with the Village within thirty
(30) days after the granting of the franchise, unless said period is extended
by the Village at its sole discretion. In its acceptance, the Grantee shall declare
that it has carefully read the terms and conditions of this ordinance and the
franchise and accepts all of the terms and conditions imposed by this ordinance
and the franchise and agrees to abide by same.
SECTION 10: PUBLICATION COSTS
The Grantee shall assume the cost of publication of this ordinance and
franchise and such is payable upon the Grantee's filing of acceptance as set forth
in Article VII, Section 9.
SECTION 11: RESELLING SERVICE PROHIBITED
No person receiving within the Village any cable service, program or
signal transmitted by a cable television company operating under a franchise issued
by the Village, shall resell such service, program or signal without the expressed,
written consent of both the Grantee and the Village.
SECTION 12: PENALTIES
A. It shall be unlawful for any person to attach or affix or to cause
to be attached or affixed any equipment or device which allows access to or use of
any cable television service without payment to the Grantee for same.
B. Persons, whether natural or artificial, or commercial entities who
violate any of the provisions of this Ordinance shall be subject to a fine not to
exceed Five Hundred ($500.00) dollars for each offense, or the entry of an order
of supervision pursuant to Section 1005 -6 -1 of Chapter 38, Illinois Revised Statutes
(1979), as may be amended from time to time. Each day a violation continues or is
permitted to exist shall constitute a separate and distinct offense. In addition
to any penalty which may be imposed herein, the Village may initiate injunctive
relief, including the issuance of temporary restraining orders and preliminary
injunctions in the Circuit Courts of Cook and Lake Counties, including Municipal
Branch Districts within the jurisdiction of the Village, to abate any violation of
this ordinance the continuation of which would be injurious to the welfare of the
residents or which would frustrate or defeat the intent and purpose of this ordinance.
SECTION 13: GRANTEE MAY PROMULGATE RULES
Grantee shall have the authority to promulgate such rules, regulations
terms and conditions of its business as shall be reasonably necessary to enable it to
exercise its rights and perform its services under this Ordinance and the Rules of
the FCC, and to assure uninterrupted service to each and all of its subscribers.
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Such rules and regulations shall not be deemed to have the force of law. Such
rules and regulations shall be filed with the Village and shall not, unless the
Village consents in writing to an earlier effective date, take effect until
thirty (30) days after such filing.
SECTION 14: DELEGATION OF POWERS
Any right, power or duty of the Village, the Agency or any official of
the Village under this Ordinance may be transferred or delegated by ordinance,
resolution, or other appropriate action of the Village to an appropriate officer,
employee, or department.of the Village, or any other legal authority, including
any intergovernmental agency created for the purpose of regulating the operation and
development of the cable television system.
SECTION 15: SEVERABILITY
If any section of this ordinance or the franchise, or any portion thereof,
is held invalid or unconstitutional by any court of competent jurisdiction or
administrative agency, such decision shall not affect the validity of the remain-
ing portions hereof, except as otherwise provided for herein.
SECTION 16: REPEAL
Ordinance #66 -4 is hereby repealed in its entirety.
SECTION 17: EFFECTIVE DATE
This Ordinance shall become effective following its passage, approval and
publication as provided by law. This ordinance may be published in pamphlet form.
AYES: 6 - Marienthal, Stone, O'Reilly. Nartstei.n. Kavitt, Gerschefske
NAYES: 0 - None
ABSENT: 0 - None
PASSED: April 6 1981
APPROVED: April 6 1981
PUBLISHED: April 8 1981
ATTEST:
T—Mge 3br`
r ,
Village President