ORDINANCE NO. 1110
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AN ORDINANCE REGULATING CABLE TELEVISION SYSTEMS
WITHIN THE VILLAGE OF UNIVERSITY PARK, ILLINOIS,
PROVIDING FOR VILLAGE REGULATION OF THE USE THEREOF
CONSISTENT WITH FEDERAL COMMUNICATIONS COMMISSION
RULES AND REGULATIONS; AWARDING A CABLE TELEVISION
FRANCHISE; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANTING OF A CABLE TELEVISION SYSTEM FRANCHISE,
PROVIDING FOR OPERATIONAL STANDARDS; ESTABLISHING
CONDITIONS FOR THE USE OF VILLAGE PUBLIC RIGHTS OF WAY AND OTHER
VILLAGE-OWNED PROPERTY; PROVIDING FOR PENALTIES AND VIOLATIONS
THEREOF; AND AMENDING ORDINANCES NOS. 499, 698 AND 794
WHEREAS, the Village of University Park (the "Village") is a home rule,
Illinois municipal corporation located in Cook and Will Counties; and
WHEREAS, on August 25, 1981 the President and Board of Trustees of the
Village adopted Ordinance No. 499 granting a 15-year, non-exclusive franchise to
Centel Communications Company ("Centel") to construct, install, maintain and
operate a community antenna television system in the Village of University Park;
and
WHEREAS, on September 12, 1989, the President and Board of Trustees of the
Village adopted University Park Resolution No. 794 approving the transfer of the
franchise granted pursuant to Ordinance No. 499 from Centel to Cable TV Fund
15-A, Ltd. ("Jones Intercable"); and
WHEREAS, the franchise granted pursuant to Ordinance No. 499 expires on
August 25, 1996; and
WHEREAS, the Village and Jones have approved an extension of the existing
franchise through September 25, 1996 (Bd. mt. Aprvd. July 23, 1996); and
WHEREAS, Jones Intercable has requested that the Village renew the existing
franchise; and
WHEREAS, as part of the renewal process, the Village and Jones Intercable
have jointly developed, agreed to, and accepted a new franchise agreement, the
terms, conditions, and provisions of which are set forth in this Ordinance and
in the exhibits attached hereto; and
WHEREAS, pursuant to the Federal Cable Communications Policy Act of 1984,
as amended, 47 U.S.C. (S)(S) 521 et seq. (the "Cable Act") and Section 11-42-11
of the Illinois Municipal Code, 65 ILCS 5/11-42-11, the President and Board of
Trustees are authorized to license, franchise, and impose charges in connection
with the business of operating a cable communication system within the Village;
and
WHEREAS, the President and Board of Trustees believe that it is appropriate
and necessary to enact this Ordinance comprehensively amending and superseding
Ordinance Nos. 499, 698 and 794:
NOW, THEREFORE, BE IT ORDAINED by the President and Board of Trustees of
the Village of University Park, Lake County and State of Illinois, as follows:
Section 1, Recitals. The foregoing recitals are incorporated herein as findings
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of the President and Board of Trustees.
Section 2. Short Title. This Ordinance shall be known and referred to as the
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University Park Cable Communication Ordinance.
Section 3. New Cable Franchise. University Park Ordinance Nos. 499, 698 and 794
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including all amendments thereto, shall be, and it is hereby, comprehensively
amended, replaced and superseded by this Ordinance to establish and create a new
University Park Cable
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Communication Franchise as set forth on Exhibit "A", which is attached hereto
and by this reference, incorporated herein as follows:
Section 4. Home Rule Authority. This Ordinance is an exercise of the powers of a
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home rule unit of local government.
Section 5. Effective Date. This Ordinance shall become effective upon its
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passage in the manner provided by law.
ADOPTED: This 24th day of September, 1996.
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AYES: Trustees Johnson, Simpson, Bernd, Hodgkin, Palmer, McCalip &
President Williams
NAYES: None
ABSENT: None
APPROVED: This 24th of September, 1996.
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/s/ Rudolph Williams
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RUDOLPH WILLIAMS
Village President
ATTEST:
/s/ Irma Berry
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IRMA BERRY
Village Clerk
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EXHIBIT A
VILLAGE 0F UNIVERSITY PARK
CABLE COMMUNICATION FRANCHISE
PART 1: PURPOSES AND POLICIES
1-1: Purposes and Policies. The purposes and policies of this Franchise are to:
A. Provide assurance that cable television and communication systems are
responsive to the needs and interests of the Village and its residents; and
B. Grant to Jones Intercable a franchise to permit the use of Village streets
and other public ways for a cable communication system, but only to the
extent and only in the manner provided in this Franchise; and
C. Provide for the regulation by the Village of the erection, construction,
reconstruction, installation, operation, maintenance, dismantling, testing,
repair, and use of the cable communication system authorized pursuant to
this Franchise, in, upon, along, across, above, over, or under, or in any
other manner connected with, the streets and other public ways in the
Village; and
D. Provide for the payment by Jones Intercable of fees and other valuable
consideration to the Village (1) in exchange for the privilege of having
been granted the Franchise and the use permitted herein of Village streets
and other public ways; and (2) to compensate the Village for the costs
associated with such use and with the regulation and administration of the
Franchise; and
E. Provide for the development of a cable communication system as a means to
improve communications between and among, and to otherwise serve the
present and future needs of, the government, the citizens, the private and
public institutions and organizations, and the commercial enterprises of
the Village and surrounding communities; and
F. Provide for remedies and prescribe penalties for violations of this
Franchise.
PART 11: DEFINITIONS AND INTERPRETATION
2-1: Definitions
A. The following terms, phrases, words, and their derivations shall have the
meanings hereafter ascribed to them.
1. "Activation" of a Cable Communication System shall be deemed to occur,
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unless otherwise provided herein, on the first date that trunk and feeder
cable have been
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installed and constructed so as to be available to serve any potential
Subscriber at levels of equipment and service standards in compliance with
the provisions of this Ordinance.
2. "Authorized Agent" means any Person, department, board, commission, or
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agency that is delegated authority or designated by the Board of Trustees
of the Village to act for the Village in matters related to cable
communications. "Authorized Agent" shall include such Person, department,
board, commission, or agency only when he, she, or it is acting within the
scope of authority granted by the Board of Trustees.
3. "Basic Service" means any level of service which includes the
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retransmission of local television signals.
4. "Board" or "Board of Trustees" means the President and Board of Trustees of
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the Village or their Authorized Agent.
5. "Cable Communication System" or "Cable System" means all or any part of any
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facility operating by means of coaxial cable, optical fiber, or other
transmission, and associated equipment, devices, and facilities, the
primary function of which is to receive, through any means including
without limitation coaxial cable, optical fiber, or satellite or microwave
transmission, and to distribute the signals of one or more broadcast
television or radio stations and of other sources of video, audio, voice,
or data signals. Said facility, or any part thereof, also may be one that
distributes to, from, or among Subscribers or other Persons such other
video, audio, voice, or data signals as may originate within the Village or
elsewhere.
6. "Cable Drop" means the cable or other wires extending from the attachment
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pole to the subscriber receiving cable service, and that conducts the cable
system signal from the attachment pole to the subscribers receiving or
transmitting equipment. "Cable Drop" shall include the cable that is
installed within the structure receiving the Cable Service and the
transformer that matches the impedance of the cable to the input leads of
the receiving equipment.
7. "Cable Ordinance" or "Ordinance" means University Park Ordinance No.___,
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being the University Park Cable Communication Ordinance, including all
exhibits, modifications, and amendments thereto.
8. "Cable Service" Shall mean: (1) the one-way transmission to subscribers of
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video programming and (ii) subscriber interaction, if any, which is
required for the selection of such video programming.
9. "Cable Service Area" means all residential areas within the Village to be
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provided with access to cable service in accordance with the Franchisee's
provision of service policies contained in this Franchise.
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10. "Channel" means a band of frequencies, in the electromagnetic spectrum, or
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any other means of transmission (including, without limitation, optical
fibers or any other now available or that may become available) capable of
carrying a video signal, an audio signal, a voice signal, or a data signal.
11. "Connection" means the attachment of the Cable Drop to the radio or
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television receiver of a Subscriber, including the installation of a
Converter where applicable and necessary.
12. "Community Access Channel" means a Channel specifically designated,
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intended, and reserved for noncommercial, origination programming on a
first-come, first-served, nondiscriminatory basis, to provide the general
public with maximum availability of low-cost access to television
production, transmission, and communication capability.
13. "Control" or "Controlling Interest" means actual working control in
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whatever manner exercised.
14. "Converter" means an electronic device that converts, signals to a
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frequency not susceptible to off-air interference, within the receiver of a
Subscriber, and that, by an appropriate Channel selector, also permits a
Subscriber to view or use all signals delivered in the Basic Service and
all other Services delivered at designated converter dial locations for
which the Subscriber pays a fee.
15. "FCC" means the Federal Communications Commission as constituted by the
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Communications Act of 1934, or any successor agency created by the United
States Congress.
16. "Franchise" means the nonexclusive right to make use of the Public Ways in
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the Village, or within specified areas of the Village, for the purpose of
constructing and operating a Cable Communication System, as granted to
Franchisee pursuant to University Park Ordinance No. ___ "Franchise" does
not include any license or permit required for the privilege of transacting
and carrying on a business within the Village as may be required by Village
ordinances and laws.
17. "Franchisee" means Cable TV Fund, 15-A, Ltd. and any and ail of its agents,
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employees, lawful successors, transferees, or assignees.
18. "Franchise Fee" means the fee required to be paid by the Franchisee
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pursuant to Subsection 4-7A of this Franchise.
19. "Gross Revenue" means all revenue, as determined in accordance with
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generally accepted accounting principles, that is derived, directly or
indirectly, by the Franchisee from or in connection with the provision of
Cable Service including without limitation
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(a) the distribution of any Cable Service over the Cable System; (b)
installation, reconnection, and similar fees; (c) Converter rentals and
sales; (d) studio and other facility or equipment rentals; (e) advertising
revenues. "Gross Revenue" shall not include any taxes imposed directly on
any Subscriber or user by a state, local, or other governmental unit; bad
debts; Franchise Fees; and subscriber deposits.
20. "Installation" means the process of installing a Cable Drop and completing
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a Connection of the Cable System.
21. "Person" means any natural person, or any association, firm, partnership,
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joint venture, corporation, or other legally recognized entity or
organization, whether for-profit or not-for-profit, but excluding the
Village.
22. "Public Property" means any real property owned by any governmental unit,
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other than a Public Way.
23. "Public Way" means, except where expressly limited by this Ordinance and,
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in any event, only to the extent necessary to permit the installation and
maintenance of a Cable System, 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, conduit, tunnel,
park, parkway, waterway, utility easement (as defined in Section 541 of the
Cable Act) or other public right-of-way now or hereafter held by the
Village or dedicated for use by the Village, use by the general public. No
reference in this Ordinance to "Public Way" shall be deemed to be a
representation or guarantee by the Village that its title or interest in
any property is sufficient to permit its use for such purpose, and this
Ordinance shall, by the use of such term, be deemed to grant only such
rights to use property in the Village as the Village may have the right and
power to grant in this Ordinance.
24. "Resident" means any Person residing in the Village or as otherwise defined
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by applicable law.
25. "Service" means any Cable Service, non-cable or any other service, whether
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originated by the Franchisee or any other person.
26. "Subscriber" means any Person who lawfully receives, or has legally
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contracted for the right to receive, any Cable Service by means of or in
connection with the Cable System, and does not further distribute said
Cable Service.
27. "Village" means the Village of University Park and its Board of Trustees.
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Unless the Board of Trustees shall have designated an Authorized Agent to
act for the Village, references in this Franchise to actions by the Village
shall be construed to refer to actions by the Board of Trustees.
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B. Any word or term defined in the Cable Act but not defined in
Subsection 2.lA of this Franchise shall have the meaning set forth in the Cable
Act.
2-2: Interpretation.
A. Word Use. When not inconsistent with the context, any word used in the
present tense includes the future tense, any word used in plural includes
the singular, and any word used in the singular includes the plural.
"Shall" and "will" are always mandatory and not merely directory. "May" is
permissive.
B. Federal and State Law. This Franchise is adopted pursuant to the authority
of the Village under the Cable Act and the Constitution and statutes of the
State of Illinois. Where any provision of this Franchise conflicts with any
provision of federal or State law, this Franchise shall control to the full
extent permitted by law.
C. Prior Drafts. In no event shall prior drafts of this Franchise, or any
exhibits to this Franchise, if any, be used, considered, or relied upon in
any way to interpret or construe any provision of this Franchise, or any
exhibit to this Franchise.
D. Headings. The headings contained in this Franchise are to facilitate
reference only, do not form a part of this Franchise, and shall not be
used, considered, or relied on in any way to interpret or construe any
provision of this Franchise or any exhibit to this Franchise.
PART III: GRANT AND ACCEPTANCE OF FRANCHISE
3-1: Grant of Franchise. Pursuant to and in strict accordance with the terms,
provisions, and conditions set forth in this Franchise, the Village hereby
grants to the Franchisee this nonexclusive Franchise to construct, install,
maintain and operate a Cable System in the Village and to use the Public Ways in
furtherance thereof. The franchise is hereby made subject to the codified
ordinances of the Village now in effect or hereafter made effective. Nothing in
this franchise shall be deemed to waive the requirements of the various codes
and ordinances of the Village regarding permits, fees to be paid or manner of
consideration.
3-2: Franchise Term. The Franchise granted pursuant to this Ordinance shall be
effective for a period of twelve (12) years from and after the Effective Date.
3-3: Nonexclusivity of Grant. Village reserves the right to award additional
Franchises; provided, however that in the event another person uses the public
rights-of-way to construct, operate or maintain a Cable System, or otherwise
uses the streets for the delivery of any Service on material terms and
conditions which are more favorable or less burdensome than those applied to
Franchisee, with respect to the following matters: (1) the term of any such
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authorization shall be no more than the term of this Franchise; (2) the
Franchise fee assessed on any such other person shall be no less, as a percent
of the portion of the persons Gross Revenues that are attributable to its
provision of any Service, than the fee Franchisee pays under this Franchise; and
(3) the channels, support and facilities for public, educational and government
access channels provided by any such other person shall be no less than the
channels, support and facilities provided by the Franchisee.
PART IV: FRANCHISE CONDITIONS
4-1: Franchise Variance.
Variance Initiated by Franchisee. Applications for a Variance to this Franchise,
to accommodate a significant change in circumstances, to prevent unreasonable
hardship to the Franchisee, or to permit technical variations which will
satisfy the purpose of this Franchise, may be made by the Franchisee to the
Village. The Village shall review the application within thirty (30) calendar
days, or earliest meeting of the Village Board of Trustees and the Cable
Advisory Commission, and/or shall hold a public hearing on the Franchisee's
Application, if the Village determines that a public hearing would be in the
best interests of the public. The Village shall render a decision on the
Application within no later than forty five (45) days after the Franchisee
submitted an Application for Variance to the Village, and the Village will issue
a written report of the findings of the Village. The Franchisee may appeal a
final determination by the Village to a court of competent jurisdiction.
4-2: Performance Evaluation Meetings.
A. Regular Evaluation Meetings. The Village and the Franchisee shall hold
regular performance evaluation meetings within 30 days after the third
anniversary date of the Effective Date. Ail such evaluation meetings shall
be noticed in advanced and open to the public.
B. Special Evaluation Meetings. Special evaluation meetings may be held at any
time during the term of this Franchise on the written request of either the
Village or the Franchisee.
C. Elements of Evaluation. Topics that may be discussed at any regular or
special evaluation meeting may include specifically, but without
limitation, programming, Subscriber rate structures, Franchise Fees, free
or discounted Service, penalties, application of new technologies, Cable
System performance, Services provided, Subscriber and community complaints,
privacy, modification to this Ordinance, judicial and FCC rulings, line
extension policies, and the Franchisee or Village rules and regulations.
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D. Franchisee Cooperation. The Franchisee shall fully cooperate with the
Village in all matters relating to any regular or special evaluation
pursuant to this Section and shall, provide such reasonable information,
data, and documents as the Village may reasonably request in connection
with any such evaluation.
4-3: Franchise Renewal.
A. Renewal Request Requirements. The Franchisee may file a written request to
renew the Franchise; provided, however, that unless the Village shall
consent to some lesser notice, the Franchisee's renewal request shall be
filed in accordance with federal law. The Franchisee's renewal request
shall include all data and information that the Franchisee considers
pertinent in support of the request and the Franchisee's specific
proposals, if any, for revision or modification of this Franchise.
B. Franchise Renewal Standards. This Franchise may be renewed if:
1. the Franchisee has substantially complied with the material terms of
the existing Franchise and with applicable laws;
2. the quality of the Franchisee's service has been reasonable in light
of community needs;
3. the Franchisee has the financial, legal, and technical ability to
provide the services, facilities, and equipment set forth in the
Franchisee's proposal, and
4. Franchisee's proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the cost of meeting
such needs and interests.
C. Renewal Proceeding. In any renewal proceeding, the Franchisee shall be
afforded adequate notice and the Franchisee and the Village, or its
designee, shall be afforded fair opportunity for full participation,
including the right to introduce evidence, to require the production of
evidence, and to question witnesses. A transcript shall be made of any such
proceeding at Franchisee's expense.
1. A proceeding under this subsection shall be completed within twelve
(12) months of its commencement, within which time the Village shall
issue a written decision granting or denying the proposal for renewal
based upon the record of such proceeding, and transmit a copy of such
decision to the Franchisee. Such decision shall state the reasons
therefor.
2. Any denial of a proposal for renewal shall be based on one or more
adverse findings made with respect to the factors described in
subsection B, pursuant to
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the record of the proceeding under this subsection. Village may not
base a denial of renewal on a failure to substantially comply with the
material terms of the Franchise under subsection B or on events
considered under subsection B unless the Village has provided
Franchisee with notice and the opportunity to cure, or in any case in
which it is documented that the Village has waived its right to
object, or Franchisee gives written notice of a failure or inability
to cure and the Village fails to object within a reasonable time after
receipt of such notice.
3. Franchisee is reserved expressly its rights of appeal under federal
and state law. In addition to such rights, this Franchise shall remain
in effect at all times during which a renewal proceeding or appeal
remains pending. Notwithstanding the provisions of subsections A
through C of this Section, Franchisee may submit a proposal for the
renewal of the Franchise, and Village may, after affording the public
adequate notice and opportunity for comment, grant or deny such
proposal at any time (including after proceedings pursuant to this
Section have commenced). The denial of a renewal pursuant to this
subsection shall not affect action on a renewal proposal that is
submitted in accordance with subsections A through C.
4. Village may not, upon the expiration of this Franchise, or otherwise,
acquire an ownership interest in the System, or require a sale of the
System to any other person, unless Village or such other person
acquires the ownership interest at not less than fair market value for
the System as a going concern.
D. Franchise Expiration; Temporary Extensions. If no request for renewal is
filed pursuant to this Section, and in any case in which such a request is
filed but denied or not yet granted, this Franchise shall expire according
to its terms; provided, however, that the Village may extend the term of
this Franchise in such increments as is reasonable while considering a
franchise renewal request filed pursuant to this Section or while
negotiating a new franchise with another Person.
E. Village Rights on Expiration and Nonrenewal. If this Franchise expires
according to its terms, or if the Village exercises its right not to renew
the Franchise pursuant to Subsection 4-3D of this Franchise, then the
Village shall have the option to:
1. Approve a sale by the Franchisee to a successor; or
2. Require the Franchisee to remove all such assets from the Public Ways
in the manner and within the times set forth in Subsection 4-6 of this
Ordinance.
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4-4: Termination.
A. Date of Termination. The termination of the Franchise granted pursuant to
this Ordinance and all of the rights granted to the Franchisee pursuant
hereto shall take place on the earlier of:
1. the revocation of the Franchise by action of the Village, as provided
in Section 4-5 of this Ordinance;
2. the abandonment of the Cable System (for purposes of this section
abandonment of the Cable System shall take place when the Franchisee
fails to provide any Cable Service over the Cable System for a period
greater than 7 days) in whole or material part, by the Franchisee
without the express, prior written approval of the Village; or
3. the expiration of the term of the Franchise, if not renewed pursuant
to Section 4-3 of this Franchise.
B. Rights Upon Termination. If, on the date that this Franchise terminates
pursuant to Section 4-4 of this Ordinance, the Franchisee is in possession
or control of the Franchise or the Cable System, then, as of that date: (1)
the Village shall have the right to order the removal in accordance with
Subsection 4-6 of this Ordinance, or to effect a (2) transfer of the Cable
System.
4-5: Franchise Revocation.
A. Grounds for Revocation. The Village may revoke this Franchise only after a
declaration of intent to revoke and only for the following reasons:
1. the Franchisee willfully or excessively violates any material
provision of the franchise; or
2. the Franchisee's construction schedule is delayed for over 18 months;
or
3. the Franchisee becomes insolvent, unable or unwilling to pay its
debts, or is adjudged a bankrupt; or
4. the Franchisee is found to have practiced any fraud or deceit upon the
Village.
B. Revocation Procedures. If the Village determines that grounds for
revocation exist or have existed, then the Village shall notify the
Franchisee in writing of its intent to revoke and the lawful grounds
therefore. If, within 60 days after such written notification, the
Franchisee does not furnish evidence satisfactory to the Village that the
grounds for revocation have been eliminated or that corrective action has
been
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taken or is being actively and expeditiously pursued, or that the alleged
grounds did not exist, or that the alleged grounds were caused by a Force
Majeure, then the Village shall call, notice, and conduct a public hearing
to consider revocation of the Franchise. The Village shall give the
Franchisee no fewer than 15 days written notice of the revocation hearing.
Such hearing shall provide Franchisee with full due process rights. Any
decision shall be in writing and shall be based upon written findings of
fact. If the Village, after such hearing, finds that grounds for revocation
exist, then the Village may thereon and in lieu of or in addition to any
other rights or remedies available to it, revoke, by ordinance duly
adopted, this Franchise.
C. Review and Appeal. In the event the Village orders termination of the
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Franchise, the Franchisee shall have the right to appeal the determination
of the Village in accordance with the Illinois Administrative Review Act,
735 ILCS 5/3-101, et. seq, or in accordance with the Cable Act. The
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Village's determination to terminate this Franchise shall not be effective
until final resolution of all appeals under this Section.
D. No Election of Remedies. The revocation of this Franchise pursuant to this
Section shall in no way affect any other rights the Village may have under
this Franchise or any applicable law.
4-6: Removal After Termination.
Upon termination of this Franchise, the Village shall have the right to direct
the Franchisee to remove, at the Franchisee's sole cost and expense, all or any
portion of the Cable System from all Public Ways and other Public Property
within the Village, subject to the following terms and conditions:
1. In removing the Cable System, or any portion thereof, the Franchisee
shall refill and compact, at its sole cost and expense, any resulting
excavation and shall leave all Public Ways and other property in as
good a condition as that prevailing immediately prior to the
Franchisee's removal activities or excavation.
2. The Village shall have the right to inspect and approve the condition
of all Public Ways and property affected by any of the Franchisee's
removal activities.
3. The financial security, liability, indemnification, and insurance
provisions of this Franchise shall remain in full force and effect
until the Village has inspected and approved the completion of all of
Franchisee's removal obligations required pursuant to this Subsection.
4. The Franchisee shall commence removal activities no later than 30 days
after the Franchisee receives the Village's removal order.
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5. The Franchisee shall complete all removal activities no later than 180
days after the date on which the Franchisee is required to commence
removal activities pursuant to this Subsection 4-6 of this Franchise.
6. If the Franchisee fails to substantially complete such removal within
180 days after the date on which the Franchisee is required to
commence removal activities pursuant to this subsection, then, to the
extent not inconsistent with applicable law, the Village shall have
the right to: (a) declare all rights, title, and interest to the Cable
System, and any portion thereof, to belong to the Village along with
all rights of ownership including, without limitation, the right to
operate the Cable System or to effect a transfer of the Cable System
to another Person for operation; or (b) authorize another Person,
including the Village, to remove the Cable System, or portion thereof
as designated by the Village, at the Franchisee's sole cost and
expense.
4-7: Franchise Fee and Other Payments.
A. Franchise Fee.
1. Amount of Fee. The Franchisee shall pay to the Village a franchise
fee in an amount equal to 5 percent of the Franchisee's annual Gross
Revenues (the "Franchise Fee"). The Franchise Fee shall be in
consideration of the privilege granted pursuant to this Ordinance to
the Franchisee to use the valuable Public Ways and the expense of
regulation and administration of the Franchise.
2. Time of Payment. The Franchisee shall pay Franchise Fees on a
quarterly basis, for the preceding quarter, as of March 31, June 30,
September 30, and December 31. Each quarterly payment shall be due and
payable no later than thirty (30) days after the dates listed in the
previous sentence. Each payment shall be accompanied by a brief report
showing the basis of the computation and such other relevant facts as
may be required by the Village.
3. Village Inspection and Audit. The Village shall have the right to
inspect and audit the Franchisee's books and records upon reasonable
request during normal business hours at the Franchisee's local office
for a period of two years after receipt of the Franchise fee payment,
after which payments shall be final. Based on any such inspection and
audit, the Village shall have the right to recompute any Franchise Fee
due. Whenever an independent auditor shall certify that the results of
any such Village inspection, audit, or recomputation demonstrate that
the Franchise Fee due in any fiscal year was underpaid the Franchisee
shall pay the amount due and interest thereon, calculated at the rate
of three (3) percentage points over the then prevailing Chicago prime
rate. In addition, if the amount underpaid is more than ten (10)
percent, the Franchisee
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shall reimburse the Village, in addition to paying the amount due plus
interest, for the costs of such inspection, audit, or recomputations.
4. Acceptance by Village. The acceptance by the Village of any Franchise
Fee payment shall not in any way be construed as an accord that the
amount paid is in fact the correct amount, nor shall such acceptance
of any payment be construed as a release of any claim the Village may
have for further or additional sums payable under the provisions of
this Ordinance.
5. Change in Franchise Fee. In the event that the maximum allowable
Franchise Fee is increased by the FCC and the Village desires an
increase in its franchise fee payment, the Village shall provide the
Franchisee with written notice of its desire to increase the fee, and
the Franchisee shall increase the franchisee fee payment in accordance
with the new federal limit. The Franchisee reserves the right to
request a public hearing to debate the proposed increase in the
Franchise Fee payment. The Franchisee shall increase the Franchise Fee
payment on the next Franchise Fee payment to the Village, as long as
the written request of the Village, or the public hearing on the
issue, is held, before the end of the current calendar quarter for
which the franchise fee payment is due. In the event the written
request is not received prior to the end of the calendar quarter, or
the Village is not able to hold a public hearing on the issue by the
end of the calendar quarter, then the increase to the franchisee fee
shall be due on the next calendar quarter, with no monies owing to the
Village due to the requested increase in the franchisee fee payment,
for the previous calendar quarter. In the event another provider of
video programming, including video dialtone, uses the Public rights-
of-way for purposes of constructing, operating and maintaining a
facility for the distribution of Video programming, the Franchisee
shall not be required to pay a franchise fee on the portion of its
Gross Revenues derived from its provision of any service unless such
other provider is also required to pay a franchise fee or local
telecommunications tax on the same portion of its gross revenues
attributable to its provision of that service. The fee payable by the
Franchisee, as a percentage of any portion of its Gross Revenues,
shall not exceed the percentage payable by the other provider on the
same portion of its Gross Revenue.
B. Other Payments.
1. Acknowledgment by the Franchisee. The Franchisee acknowledges that all
contributions, Services, equipment, facilities, support, resources,
and other activities to be paid or supplied by the Franchisee pursuant
to this Franchise are for the benefit of all Subscribers and the
public at large. The Franchisee also acknowledges that said
contributions, Services, equipment, facilities, support, resources,
and other activities shall not be deemed to be a part of the
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Franchise Fee or chargeable against the Franchise Fee, except as
federal law allows. The Franchise Fee shall take precedence over all
other payments, contributions, services, equipment, facilities,
support, resources, and other activities to be paid or supplied by the
Franchisee.
2. Scholarship Payment. Franchisee shall make an annual payment to the
Village of five hundred dollars ($500.00), for the duration of this
Franchise, to fund a scholarship for a Village of University Park
student demonstrating the aptitude and commitment for a career in
Telecommunications or Electronic Journalism. The Village and the
Franchisee shall agree to the criteria and process for selection of
such student and payment of the scholarship amount.
3. Continuation of Service. In the event the Franchisee continues to
operate all or any part of the Cable System after this Franchise
expires, then the Franchisee shall continue to comply with all
applicable provisions of this Franchise, including specifically, but
without limitation, all Franchise Fee and other payment provisions
throughout the period of such continued operation.
4-8: Liability, Indemnification, Insurance, and Performance Bond.
A. Liability.
1. Franchisee. The Franchisee shall be responsible for any and all
damage or loss to any real or personal property of the Village or of
any Person, and for any injury to or death of any individual Person,
or any officer, employee, or agent of the Village, arising out of or
in connection with the Franchisee's construction, operation,
maintenance, repair, or removal of the Cable System. The Franchisee
shall, at its sole cost and expense, replace, repair, and restore all
such property to its prior condition, and shall pay all legal damages
in the event of any such injury to or death of any individual or any
injury to property.
2. Village. Neither the Village nor its officers, employees, or agents
shall be liable for any loss or damage to any real or personal
property of any Person, or for any injury to or death of any
individual Person, arising out of or in connection with the
Franchisee's construction, operation, maintenance, repair, or removal
of, or other action or event with respect to the Cable System, or the
distribution of Cable Service over the Cable System.
3. Emergency and Other Actions.
a. The Village may, at any time in case of fire, disaster, or other
emergency as determined by the Village in its reasonable
discretion, cut or move any of the wires, cables, amplifiers,
poles, appurtenances, or
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other parts of the Cable System as necessary to respond to the
fire, disaster, or other emergency. If the Village takes any such
emergency action, then the Village shall not be liable therefor
to the Franchisee or any affiliate of the Franchisee. When
practical in the Village's reasonable discretion, the Village
shall consult with the Franchisee before the Village takes any
such emergency action, and the Village shall give the Franchisee
reasonable opportunity to perform such emergency work itself.
b. The Village shall consult with the Franchisee at least fifteen
(15) days before undertaking any public work, public improvement,
alteration of any municipal structure, any change in the grade or
line of any public way, or the elimination or discontinuation,
and closing of any public way, that may result in the breaking
through, movement, removal, alteration, or relocation of any part
of the Cable System. The Franchisee shall be given the
opportunity to perform such work pertaining to the cable system
itself.
c. Neither the Village nor its officers, employees, or agents shall
be liable to the Franchise or any affiliate of the Franchisee for
any special, incidental, consequential, punitive, or other
damages as a result of the exercise of any right of the Village
pursuant to this Franchise, including without limitation the
right of the Village to terminate this Franchise and to take any
action subsequent thereto.
B. Indemnification.
1. Hold Harmless. The Franchisee shall save, indemnify, and hold the
Village and its corporate authorities, elected and appointed
officials, officers, boards, commissions, legal counsel, employees,
and agents harmless from any injury, claim, demand, suit, judgment,
execution, liability, debt, damages, or penalty (the "Claims") arising
out of, resulting from, or alleged to arise out of or result from the
Franchisee's construction, operation, maintenance, repair, or removal
of the Cable System, whether such acts or omissions are those of the
Franchisee or its officers, employees, agents, or contractors, and
whether any such act or omission is authorized, allowed, or prohibited
by this Franchise.
2. Defense. The Franchisee shall pay ail expenses incurred in defense of
any claims. The Village must give the Franchisee timely written notice
of the making of any claim or of the commencement of any action, suit
or other proceeding for which coverage is requested pursuant to the
indemnity provisions of this Section. In the event such claim arises,
the Village or any other indemnified party shall tender the defense
thereof to the Franchisee and
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the Franchisee shall have the right to defend, settle or compromise
any claims arising hereunder and the Village shall cooperate fully
therein.
C. Insurance.
1. General Liability. The Franchisee shall carry and maintain, throughout
the term of this Franchise, liability insurance insuring the
Franchisee, the Village, and the Village's officers, boards,
commissions, elected and appointed officials, agents, and employees
with regard to any of the matters listed in Paragraphs 1 and 2 of
Subsection 4-9B of this Franchise, and in the minimum amounts as
follows:
a. $2,000,000 for bodily injury or death to each Person.
b. $2,000,000 for property damage resulting from any one accident.
c. $2,000,000 for all other types of liability.
2. Automobile. The Franchisee shall carry and maintain in its own name
automobile liability insurance with a limit of $2,000,000 for each
Person and $2,000,000 for each accident for property damage with
respect to owned and non-owned automobiles for the operations of which
the Franchisee is responsible.
3. Hazard. Because the Franchisee is authorized by this Franchise to
undertake certain work within the Public Ways, the Franchisee's
insurance shall cover comprehensive form, premises-operations,
explosions and collapse hazard, underground hazard and products
completed hazard, in the minimum amount of $2,000,000, or whatever
limits are permitted by the State of Illinois for bodily injury and
property damage combined.
4. Evidence of Insurance Policies. Within thirty (30) days of the
effective date of this Franchise, Franchisee shall furnish proof to
the Village that the insurance policies required by this Subsection
have been obtained, along with written evidence of payment of the
required premiums, in the form of a certificate of insurance.
5. Maintenance of Insurance Policies. The insurance policies required by
this Subsection shall be carried and maintained by the Franchisee
throughout the term of this Franchise and such other period of time
during which the Franchisee operates or is engaged in the removal of
the Cable System as subject to Village inspection and approval. Each
such insurance policy shall contain the following endorsement: "It is
hereby understood and agreed that this policy may not be canceled nor
the intention not to renew be stated until
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30 days after receipt by the Village of University Park, by registered
mail, of a written notice addressed to the Village Administrator of
such intent to cancel or not to renew."
6. No Limit of Liability. The legal liability of the Franchisee to the
Village and any Person for any of the matters that are the subject of
the insurance policies required by this Subsection shall not be
limited by said insurance policies nor by the recovery of any amounts
thereunder.
D. Performance Bond
The Franchisee shall maintain through the term of this Ordinance, a
faithful performance bond running to the Village, with a good and
sufficient surety to be approved by the Village, in the penal sum of
$100,000 on the condition that the Village shall well and truly observe,
fulfill and perform in connection with each provision, term and condition
of this Ordinance, and that in case of any breach, the Village shall be
entitled to recover from the principal and sureties on such bond that
amount of any damages and all costs and attorney's fees incurred by the
Village, proximately resulting from the failure of the Village to well and
faithfully observe and perform under any and ail of the provisions, terms
and conditions which this Ordinance requires it to perform.
4-9: Assignments, Transfers, and Similar Actions
A. Village Approval Required. Except as provided in Subsection E of this
Section, neither this Franchise nor any rights or obligations of the
Franchisee, or any portion thereof, shall be assigned, transferred, pledged
leased, sublet, hypothecated, or mortgaged, in any manner, in whole or in
part, to any Person; nor shall title thereto, either legal or equitable, or
any right or interest therein, or any property or assets relating to this
Franchise, pass to or vest in any Person; nor shall any change in control
of the Franchisee occur, either by act of the Franchisee, by operation of
law, or otherwise, without the prior written approval of the Village. The
Village shall not unreasonably withhold its approval.
B. Notice to Village. The Franchisee shall submit a petition ("Transfer
Petition") to the Village Board requesting the Village's approval of the
Transfer Petition at least 120 days before the proposed effective date of
the Transfer. The Village shall have 120 days following the submission of
the Transfer Petition to render a decision. If the Village does not render
a decision within this 120 time period, the transfer shall be deemed
approved. The Transfer Petition shall fully describe the proposed transfer,
assignment or similar action, and shall be accompanied by a justification
for the Transfer Petition and such additional supporting information as the
Village may require in order to review and evaluate the Transfer Petition.
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C. Village Review. After receipt of the Transfer Petition, the Village may,
in its reasonable discretion, conduct a public hearing on the proposed
Transfer Petition. The Franchisee shall provide all requested assistance
to the Village in connection with any such public hearing and the
Village's review and consideration of the Transfer Petition. The
Franchisee shall cause all Persons involved in the proposed Transfer
Petition to cooperate with and provide assistance to the Village. In
determining whether to approve any Transfer Petition, the Village shall
consider the following factors:
1. The financial, technical, and business qualifications of each Person
involved in the Transfer Petition; and
2. The cable television experience of each Person involved in the
Transfer Petition.
D. Conditions. As a condition precedent to Village approval of any Transfer
Petition, the Franchisee shall pay all money that the Franchisee owes to
the Village pursuant to this Ordinance, including specifically, but
without limitation, all fees, penalties, and damages. In addition, as a
condition to approving any Transfer Petition, the Village may require that
each Person involved in the proposed Transfer Petition shall execute an
unconditional agreement and consent, in a form approved by the Village
Attorney that provides that the Person assumes and agrees to be bound by
all of the terms, conditions, and provisions of this Franchise.
E. Permitted Actions. For purposes of this Section any (1) assignment,
pledge, lease, sublease, mortgage, or other transfer of all or any part of
the Franchise, or any right or interest therein, for solely financing
purposes, or (2) any assignment or transfer to any parent, affiliate, or
subsidiary company of the Franchisee, shall not be considered an
assignment or transfer under this Franchise and is not subject to the
Assignment and Transfer provisions of this Section, provided that each
such assignment, pledge, lease, sublease, mortgage, or other transfer
shall be subject and subordinate to the rights of the Village pursuant to
this Franchise, or applicable law. The Franchisee shall provide the
Village with notice of any action described in number 2 of this
Subparagraph.
4-10: Foreclosure, Condemnation, and Receivership.
A. Foreclosure. The Franchisee shall notify the Village immediately whenever
the Franchisee becomes aware of (1) any foreclosure or other judicial sale
of all or any part of the Cable System, or (2) the termination of any
lease or mortgage covering all or any part of the Cable System. Said
notification shall be treated as a notification of a Transfer Petition, as
defined in Subsection 4-9(B) of this Franchise, and the terms, conditions,
and provisions of Section 4-9 of this Franchise, including the requirement
for Village approval, shall apply to any such Consent Action.
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B. Condemnation. If the Cable System, or any part thereof, is taken,
appropriated, or condemned pursuant to law, and if any such taking,
appropriation, or condemnation materially frustrates or impedes the ability
of the Franchisee to comply with the terms, conditions, and provisions of
this Franchise, then the Village may revoke the Franchise in accordance
with the applicable provisions of this Franchise.
C. Receivership.
1. Franchisee Notification. The Franchisee shall immediately notify the
Village, in writing, if any of the following occur:
a. The Franchisee files a voluntary bankruptcy petition, a voluntary
petition to reorganize its business, or a voluntary petition to
effect a plan or other arrangement with creditors.
b. The Franchisee files an answer admitting the jurisdiction of the
court and the material allegations of an involuntary petition
filed pursuant to the Bankruptcy Code.
c. The Franchisee is adjudicated bankrupt, makes an assignment for
the benefit of creditors, applies for or consents to the
appointment of any receiver or trustee of all or any part of its
property, including specifically, but without limitation, all or
any part of the Cable System.
d. The Franchisee institutes dissolution or liquidation proceedings
with respect to its business.
e. An order is entered (i) approving an involuntary petition to
reorganize the business of the Franchisee, (ii) to effect a plan
or other arrangement with creditors of the Franchisee, or (iii)
appointing for the Franchisee a receiver or trustee of all or any
part of the Franchisee's property, including specifically, but
without limitation, all or any part of the Cable System.
f. A writ or warrant of attachment, execution, distant, levy,
possession, or any similar process is issued by any court against
all or any part of the Franchisee's property, including
specifically, but without limitation, all or any part of the
Cable System.
2. Revocation and Exceptions. If any of the events set forth in Paragraph
4-10A-C, of this Franchise are not dismissed, stayed, rescinded, or
terminated, as the case may be, within 60 days after the issuance,
making, or commencement thereof, and if the effect thereof is to
materially frustrate or impede the ability of the Franchisee to comply
with the terms, conditions, and provisions of this
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Franchise, as determined by the Village in its reasonable discretion,
then the Village may revoke this Franchise, unless: (a) within 120
days after a receiver or trustee has been elected or appointed, the
receiver or trustee of the Franchisee, or, within 120 days after the
commencement thereof, the Franchisee itself as a debtor in possession
in connection with any such reorganization or similar proceedings,
shall have remedied any uncured failure to comply with any of the
terms, conditions, and provisions of this Franchise; and (b) within
said 120 days, said receiver or trustee, or the Franchisee itself as
debtor in possession, shall have executed an agreement, duly approved
by the Village and the court having jurisdiction over the premises,
whereby said receiver or trustee or the Franchisee, in said capacity,
assumes ail obligations and agrees to be bound fully by each and every
one of the terms, conditions, and provisions of this Franchise.
PART V: CABLE SYSTEM OPERATIONS
5.1: Cable System Requirements.
A. Channel Capacity. Franchisee will construct a cable system capable of
providing at least 54 channels.
B. Access Channel: Franchisee shall provide the Village with at least one
Access Channel to be used for the following purposes:
1. Municipal Access
2. Educational Access
3. Public Access
C. Local Origination Programming: Franchisee shall provide the Village with at
least one Local Origination channel to be programmable by the Franchisee.
D. Access Channels: Facilities and Equipment; and Local Origination
Programming
1. Studio: Franchisee will provide at the Franchisee's sole cost, in
------
addition to the equipment currently in place in the University Park
Studio, and in addition to the equipment that may be purchased by the
Village from the annual access payment of $16,000, made pursuant to
University Park Ordinance 698, the new equipment specified on Exhibit
A to this Agreement. Further, University Park Ordinance No. 698 is
amended by deleting Sections 2(a), (b) and (c), and replacing these
sections with the following language, and by redesignating Section
2(d) and (e) as Section 2 (b) and (c) respectively:
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(a) Access Payment. Franchisee will provide the Village with a total
--------------
annual access payment of $16,000.00. This payment shall be adjusted
annually for inflation by the percentage increase, if any, by which
the Consumer Price Index for the U.S.-All Urban Consumers-U.S. City
Average, (or such successor index as the U.S. Department of Labor,
Bureau of Labor Statistics may develop as a successor index),
increased during the twelve month period ending on the first
anniversary date (and each anniversary date thereafter) for the
calendar year immediately preceding the effective date of this
Franchise Agreement for the duration of this Franchise. This annual
access payment shall be used to fund new equipment purchases,
maintenance of the studio equipment, and to reimburse the Village, in
part, for the operational expenses of the Village Studio UPTV. In
addition, Franchisee shall continue to make available to the residents
of the Village interested in production of local programming, the
Franchisee's mobile van for those residents who are certified to use
such facilities.
2. Local Origination Coverage. Franchisee agrees that at a minimum, it
--------------------------
shall air five (5) University Park events per annum, on the
Franchisee's regional local origination channel.
E. Parental Control Lockout Device. Franchisee shall provide Subscribers, upon
request at no cost, with a parental control locking device or digital code
that permits inhibiting the viewing of premium channels.
F. Provision of Cable Service
1. Mandatory Extension of Service. The Franchisee shall design and
construct the Cable System to provide Cable Service to all residential
areas within the Village, provided that all such permission as may be
required from the owner of the property is reasonably available, and
that service can be provided in accordance with the following
requirements: in new housing districts, areas with occupancy densities
of more than twenty-five (25) homes per mile which are contiguous to
the system will be provided service as soon as it is technically
feasible. For housing areas less than twenty-five (25) homes per mile,
service will be provided on a cost-sharing basis with the Franchisee,
as soon as it is technically and economically feasible. Further,
Franchisee will be required to provide service to multi-dwelling
units, so long as the owner of the facility consents to the following:
1. To Franchisee's providing of the service to units of the
facility;
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2. To reasonable conditions and times for installation,
maintenance, and inspection of the system on the facility
premises;
3. To reasonable conditions promulgated by Franchisee to
protect Franchisee's equipment and to encourage widespread
use of the system; and
4. To not demand or accept payment from Franchisee for
permitting Franchisee to provide service to the facility and
to not discriminate in rental charges, or otherwise, between
tenants who receive Cable Service and those who do not.
4. Governmental Units. Franchisee shall provide one cable television
service connection and Basic Service, at no charge, Village Hall, the
Police Department, Fire Department Station 1, Public Schools located
within University Park, Rigel Farm, and the Village library.
5. Transmission Sites. The Franchisee shall provide the capability to
provide live transmissions from Village Hall and the UPTV Studio.
6. Standard Installations: For standard installations, as defined by
Federal Communication Commission rules, barring any unforeseen
circumstances, Franchisee will complete these installations within
seven (7) days of request for service.
G. Maintenance. The Franchisee shall employ or have available to it, on a
full-time basis, a professional engineer or its equivalent, and a service
and repair force of competent technicians.
H. Emergency Requirements.
1. Emergency Override. The Franchisee shall provide a local "Emergency
Alert System" that shall, at a minimum, be capable of overriding all
audio on all Channels of the Cable System. The "Emergency Alert
System" shall be capable of being activated and utilized by any
official designated by the Village. The control equipment necessary
for the override function shall be provided and installed by the
Franchisee without charge.
2. Emergency Power. At a minimum, the headend facility shall be equipped
with standby generator. The Franchisee shall provide continuous and
uninterrupted service and operation during any and all emergency
conditions.
I. Village Messages and Announcements. The Franchisee shall make available
to the Village, free of charge, at least one alphanumeric character
generator to program
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visual messages and announcements and a modulator to inject programming
into the Cable System.
J. Basic Service. The Cable System and Cable Service shall be maintained,
constructed, and provided so that Subscribers with cable ready televisions
receiving Basic Service can receive the Basic Service without using a
Converter.
K. Noninterference With Existing Reception. The Cable System shall be designed
to operate, and shall be operated by the Franchisee, in such a manner as to
avoid causing interference with reception of the off-the-air signals by
non-Subscribers of the Franchisee.
L. Customer Service Audits. Franchisee will conduct monthly telephone customer
survey audits. In addition, Franchisee will conduct with the Village
written surveys at least once every two (2) years, or longer, as may be
mutually agreed to by the Village and the Franchisee. The Franchisee and
the Village shall work together to determine the subject matter of the
survey, but it is intended that Subscribers will be asked about their
satisfaction with the Cable Service and suggested improvements. The
Franchisee shall share the results of the survey with the Village and the
Franchisee and the Village shall share the costs of the survey.
PART VI: CONSTRUCTION
6-1: Plans and Permits.
A. Right to Review. Except for line extensions, the Village shall have the
right to review the Franchisee's construction plans and specifications
prior to the commencement of any new construction to assure compliance with
the standards specified in this Franchise and to inspect all aspects of
Cable System construction. The Village shall not, however, be required to
review or approve such plans and specifications or to make such inspections
and specifically disclaims such obligation. The Franchisee shall be solely
responsible for taking all steps necessary to assure compliance with such
standards and to ensure that the Cable System is installed in a safe manner
and pursuant to the terms and conditions of this Ordinance.
B. Construction Briefings and Progress Reports. Except for line extensions,
before beginning new construction of or on any part of the Cable System,
the Franchisee's chief engineer or designated individual shall meet with,
the Village Administrator or designated individual to explain the
Franchisee's construction plans and work program in detail. Similar
briefings shall be held from time to time as deemed necessary by either the
Village or the Franchisee until the Cable System is fully constructed in
accordance with this Ordinance.
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C. "As-Built" Plans. The Franchisee shall, furnish to the Village complete
"as-built" plans of the Cable System upon request.
D. Construction Codes and Permits. The Franchisee shall obtain permits from
the Village before commencing any new construction except as provided for
in section 6-1 :(A)&(B), of or within the Cable System, with specific
permission being required for the opening or disturbance of any Public Way
within the Village. The Franchisee shall also, before the commencement of
construction of the Cable System, become a member of the J.U.L.I.E. system.
Emergency locates shall be done immediately.
6-2: General Construction Standard. All work involved in the construction,
operation, maintenance, repair, and removal of the Cable System, or any part
thereof, shall be performed in a workmanlike manner using materials of good and
durable quality. If, at any time, it is determined by the Village or any other
agency or authority of competent jurisdiction that any part of the Cable System,
including, without limitation, any means used to distribute signals over or
within the Cable System, is harmful to the health or safety of any Person, then
the Franchisee shall, at its sole cost and expense, promptly correct all such
conditions. Any contractor, subcontractor, or other Person proposed to be
employed for the installation, maintenance, relocation, or repair of Cable
System equipment or facilities shall be licensed in accordance with applicable
laws and shall be thoroughly experienced in the work for which he or she is
retained.
6-3: Cable Drops.
A. Standards.
1. Personnel. Only employees of the Franchisee or qualified independent
contractors under the direct supervision and control of the Franchisee
shall be used to install cable and connect Subscriber facilities on a
Subscriber's property. All such personnel shall be bonded and shall be
covered by liability and property damage insurance in the amounts
specified in Section 4-9 of this Ordinance.
2. Compliance with Applicable Law. Cable Drops shall be installed in
compliance with the National Electric Code, as the same may be amended
from time to time, and in compliance with all other applicable law.
3. Notice to Subscriber. Except in cases requiring emergency repair, or
related to a specific Service problem, or installation of regular
subscription Services at the Subscribers residence or business, the
Franchisee shall give each Subscriber at least three days advance
notice before attempting to perform any construction, reconstruction,
or installation within the Subscriber's residence or business. Such
notice shall be by door hanger or by mail.
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6-4: Construction On and In Public Ways. Unless expressly provided otherwise in
this Franchise, the Franchisee 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. All poles, wires, conduits, cables,
equipment, pipes, appurtenances, structures, and other facilities of the Cable
System shall be installed and located in compliance with all applicable Village
ordinances and the applicable provisions of this Franchise so as to cause
minimum interference with the rights and reasonable convenience of the general
public, all as determined by the Village in reasonable discretion. All such
facilities shall at all times be kept and maintained in a safe condition and in
good order and repair. The Franchisee shall at all times employ reasonable care
and shall install, maintain, and use commonly accepted methods and devices for
preventing failures and accidents that are likely to cause damage, injuries, or
nuisances to the general 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 required
for the safety of all members of the general public, as determined by the
Village in its sole and absolute discretion. Any such facilities placed in any
Public Way by the Franchisee 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.
6-5: Damage to Public or Private Property. The Franchisee shall arrange its
lines, cables, and other appurtenances on Public Ways, Public Property and
private property in such a manner prevent failures and accidents which are
likely to cause damage or injury to the Public Ways, Public Property, or Private
Property by any person. In the event of such damage, any public right-of-way,
public property or private property that is disturbed or damaged shall be
promptly repaired by Franchisee, at its sole expense.
6-6: Excavation Work and Time Periods.
A. Excavation Restricted. No excavation on or in any Public Way, Public
Property, or private property in the Village permitted hereunder in
connection with the installation of any Cable System facilities shall be
made more than 24 hours immediately before installation of such
facilities.
B. Prior Notification. The Franchisee shall notify the Village Administrator
at least 72 hours before any excavation on or in any Public Way, Public
Property, or private property so that the Village Administrator will have
the opportunity to inspect such excavation work.
C. Excavations in Lawns and Parkways. All excavations in lawns or grassy
parkways shall be promptly backfilled, tamped, and restored with sod in
accordance with the applicable provisions of this Ordinance.
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6-7: Location of Cables. The principles set forth in Subsections A through D of
this Section, in that order of priority, shall govern the location of the
Franchisee's cables, wires, and other appurtenances.
A. All of Franchisee's facilities except Cable Drops shall be located within
existing public easements only, except only as provided in, and subject to
the limitations established in, Section 6-8 of this Franchise.
B. Wherever existing utility poles can physically accommodate, with or
without modification, the Franchisee's cables, wires, or other
appurtenances, or whenever existing utility conduits, ducts, vaults, or
other existing utility facilities can physically accommodate the
Franchisee's cables, wires, or other appurtenances, the Franchisee shall
utilize such existing utility facilities and shall not construct or
install any new, different, or additional facilities.
C. For new installations, if either or both of the existing electric or
telephone utility facilities are above ground at a particular location,
then the Franchisee may install its facilities above ground.
D. For new installations, if both the electric and telephone utilities are
underground at a particular location, then the Franchisee shall install
its facilities underground.
6-8: Franchisee Use of Public Ways Not Exclusive. The right of the Franchisee
to use and occupy the Public Ways pursuant to this Franchise shall not be
exclusive. The Village reserves the right to grant the right to use of such
Public Ways to any Person in accordance with the terms and conditions of Section
3-1.
6-9: Establishment of Easements and Dedications. The Franchisee shall have the
use of any easement or right-of-way dedicated for use by the Village, general
public or use compatible with the cable system operation.
6-10: Reservations of Public Way Rights. The following reservations in the use
of the Public Ways shall be complied with by the Franchisee notwithstanding the
grant to use Public Ways pursuant to this Franchise:
A. Sewers, Public Ways, Water Mains, and Public Works. Nothing in this
Franchise shall be construed to prevent the Village from constructing
sewers in, or from grading, paving, repairing, or altering any Public Way,
or laying down, repairing, or removing water mains or constructing or
establishing any other public work. All such work shall be done, insofar
as practicable in such manner as not to obstruct, injure, or prevent the
free use and operation of the poles, wires, conduits, cables, equipment,
pipes, appurtenances, or other facilities of the Franchisee. If any such
property of the Franchisee shall interfere with the construction or repair
of any Public Way or public improvement, whether it is the construction,
repair, or removal of a sewer or water
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main or the construction, repair, or removal of a Public Way or any other
public improvement, the Village shall give the Franchisee 30 days written
notice, and such poles, wires, conduits, equipment, pipes, appurtenances,
or other facilities of the Franchisee shall be relocated, removed, or
replaced by the Franchisee in such a manner as shall be reasonably
directed by the Village so that the same shall not interfere with the
public work of the Village. Franchisee shall not be reimbursed for such
relocation, removal or replacement.
B. Creation or Dedication of Public Way. No Public Way shall be used by the
Franchisee if the Village, in its sole and absolute discretion, determines
that such use is inconsistent with the terms, conditions, or provisions by
which such Public Way was created or dedicated, or is then being used.
C. Improvements or Changes on Public Way. If the Village shall make
improvements or changes on all or any part of any Public Way, over, under,
or along which any part of the Cable System has been installed, then and
in every case the Franchisee shall, at its sole expense after 30 days
written notice from the Village, alter, change, vacate, or remove from the
Public Way any part of the Cable System necessary to conform with said
Village improvements or changes. Franchise shall be reimbursed for such
work to the extent any utilities are reimbursed.
D. Construction and Use. All construction upon, over, or under or other use
of Public Ways by the Franchisee shall comply with all applicable
ordinances of the Village.
6-11: Public Way Vacation or Abandonment. If any Public Way or portion thereof
used by the Franchisee shall be vacated by the Village, or the use thereof
discontinued by the Village or the Franchisee, during the term of this
Franchise, then the Franchisee shall forthwith at its sole cost and expense
remove its facilities therefrom unless specifically permitted to continue to use
the same and, on the removal thereof, and restore, repair or reconstruct the
Public Way area where such removal has occurred to its original condition as
required by the Village. In the event of any failure, neglect, or refusal by the
Franchisee, after 30 days written notice from the Village to repair, improve, or
maintain such Public Way, the Village may, but shall be under no obligation to,
conduct such work, or cause it to be conducted, at cost and shall be reimbursed
by the Franchisee.
6-12: Movement or Removal. If it is necessary to move or remove temporarily any
of the Franchisee's poles, wires, conduits, cables, equipment, pipes,
appurtenances, or other facilities to move a large object, vehicle, building, or
other structure over the Public Ways of the Village, the Franchisee shall, upon
10 days written notice, move or remove such poles, wires, conduits, cables,
equipment, pipes, appurtenances, or other facilities. If requested by the
Village or other public body, such movement or removal shall be at the
Franchisee's sole cost and expense. Franchise shall be reimbursed for this work
to the extent any utility is reimbursed. If requested by a private Person, such
movement or removal shall be at said Person's sole cost and expense. Any service
interruption limitations of this Franchise shall
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not apply if such movement or removal of the Franchisee's facilities results in
reasonably temporary service interruptions.
6-13: Village Right of Inspection. The Village shall have the right to inspect
and approve all construction. All construction shall comply with all Village,
State of Illinois, and federal laws, ordinances, rules, and regulations,
including specifically, but without limitation, State and national electrical
codes.
6-14: Trimming Trees. Franchisee shall have the prior right to cut or trim any
tree, shrub, or other vegetation in or on any Public Way. The Franchisee may not
cut or trim trees, shrubs, or other vegetation on private property as necessary
without the express prior written consent and permission of the owner of the
property on which any such tree, shrub, or vegetation is located. All such
trimming shall be in accordance with standard horticultural practices, and no
trimming shall occur until the wires, cables, or other fixtures have first been
attached to the poles in order to ensure trimming to the minimum extent
necessary. All trimming debris shall be removed from the work area on a
reasonable basis.
6-15: Restoration.
A. Franchisee Obligation. If the Franchisee destroys, damages, or disturbs
any Public Way, Public Property, or private property in the Village, or
any improvement on any of them, then the Franchisee shall, at its sole
cost and expense and in a manner approved in advance by the Village or the
affected property owner, as the case may be, promptly repair, replace, and
restore such Public Way, Public Property, private property, or improvement
in as good a condition as existed before the destruction, damage, or
disturbance took place. If it becomes practically impossible to repair,
replace, or restore any such Public Way, Public Property, private
property, or improvement, then the Franchisee shall cause the Village or
the owner of the property, as the case may be, to be justly compensated.
B. Continuing Responsibility. If the destruction, damage, or disturbance of
any Public Way, Public Property, private property, or improvement located
thereon is not immediately discovered, or if any subsequent restoration
effort does not comply with the standards set forth in this Ordinance, the
Franchisee shall have a continuing responsibility to perform or re-perform
all necessary restoration work.
C. Failure, Neglect, or Refusal to Repair. If, after 30 days written notice
from the Village, the Franchisee fails, neglects, or refuses to repair any
destroyed, damaged, or disturbed Public Way, Public Property, private
property, or any improvement located thereon, then the Village may, but
shall be under no obligation to, do such work, or cause it to be done, at
cost, and shall be paid by the Franchisee in the time and manner as
directed by the Village. The Village may recover the costs of any such
Village work by court action, or otherwise.
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6-16: Time for Notice. In the event of an emergency involving life or property,
as determined by the Village in its reasonable the Village may reduce or
eliminate the notice requirements set forth in Part VI of this Franchise, and
otherwise take all necessary action to protect the public health, safety and
welfare.
PART VII: OPERATION AND MAINTENANCE
7-1: Ownership Restrictions; Books and Records.
A. Ownership Restrictions Governed by Cable Act. To the extent applicable,
Section 533 of the Cable Act, and any FCC regulations promulgated
thereunder, shall govern and restrict ownership of this Franchise.
B. Ownership Records. The Franchisee shall (1) within 30 days after the
Effective Date, and (2) once annually furnish the Village with a list,
showing the names and addresses of Persons owning 5 percent or more of any
class or series of the outstanding voting stock or equivalent ownership
interest of the Franchisee, together with a roster of the Franchisee's
officers and directors (or equivalent managerial personnel) and their
addresses.
C. Financial Records. The Franchisee shall maintain books and records of its
operations within and related to the Village and the Cable System in
sufficient detail to show Gross Revenue, by service category, consistent
with generally accepted accounting principles. The Franchisee shall,
annually within 90 days after the close of the Franchisee's fiscal year,
prepare in accordance with generally accepted accounting principles, and
submit to the Village, a statement of Gross Revenues covering the
Franchisee's operations in and relating to the Village and the Cable
System. Said books and records shall be retained during the entire term of
this Franchise.
D. Operating Records. The Franchisee shall maintain reasonable records
pertaining to the operation of the Cable System, Cable System performance,
Cable System complaints, Cable System testing, Cable System use, Cable
System programming, and any other records specifically required to be
maintained by this Ordinance. Upon a request for confidentiality by the
Franchisee, Franchise information obtained by the Village pursuant to this
shall be made available only to persons needing access to the materials in
order to perform their responsibilities on behalf of or for the Village,
and as to all other persons, shall to the extent permitted by laws, be
treated as confidential. Franchisee also maintain the right to require
that the Village execute a confidentiality and/or non-appropriation
agreement prior to gaining access to any materials under this Franchise.
E. Village Access to Records. The Village shall have the right to inspect and
audit any or all of such books and records at any time during normal
business hours upon reasonable request. Upon a request for confidentiality
by the Franchisee, Franchise
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information obtained by the Village pursuant to this shall be made
available only to persons needing access to the materials in order to
perform their responsibilities on behalf of or for the Village, and, as to
all other persons, shall to the extent permitted by law, be treated as
confidential. Franchisee also maintain the right to require that the
Village execute a confidentiality and/or non-appropriation agreement prior
to gaining access to any material under this Franchise.
F. Franchisee Forms, Policies, Rules, and Similar Documents. Copies of the
Franchisee's (1) schedule of charges, (2) application forms for Subscriber
services, (3) policies regarding the processing of Subscriber complaints,
(4) delinquent Subscriber disconnect and reconnect procedures, (5) Cable
System rules and regulations, and (6) all other terms and conditions
adopted as the Franchisee's policy in connection with its Subscribers,
shall be filed with the Village and shall be made available for inspection
by the public at the Franchisee's local office during normal business
hours.
7-2: Reports and Documents. The Franchisee shall submit to the Village a copy
of the annual proof of performance tests report required by the FCC within 30
days after tests are conducted. Upon request, the Franchisee shall also submit
to the Village copies of all other correspondence, petitions, reports,
applications, and other documents filed by the Franchisee with the FCC, the
Securities and Exchange Commission, or any other federal or state regulatory
commission or agency having jurisdiction with respect to matters affecting the
Cable System, or received by the Franchisee from any such commission or agency,
within 5 days after any such request.
7-3: Monthly System Reports. The Franchisee shall submit monthly reports to the
Village documenting, monthly system activity, written complaints received and
resolution of these complaints, and outage activity.
7-4: Annual Reports. On each annual anniversary of the Effective Date during
the term of this Franchise, the Franchisee shall file with the Village, at the
Franchisee's sole cost and expense, (A) financial statements certified by the
Franchisee, consisting of a balance sheet, income statement, and statement of
any changes in the financial position of the Franchisee as of the end of each
calendar year; and (B) a current copy of the Franchisee's Subscriber service
contract if any, and, (C) the Franchisee's complaint procedures.
7-5: Audits. The Village shall have the right to arrange for and conduct an
audit of the Franchisee, and shall have the right to copy the books and records
of the Franchisee; provided, however, that the Village shall not conduct more
than one such audit during each calendar year. The Village shall give the
Franchisee 10 days written notice of the Village's audit request, the
description and purpose of the audit, and a description, to the best of the
Village's ability, of the books, records, and documents that the Village desires
to review. In the event that said audit discusses an underpayment in the
Franchise Fee by an amount in excess of 10 percent of the applicable Franchise
Fee, then the Franchisee shall pay the full cost of such audit.
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7-6: Subscriber Practices.
A. Initial Installation. The Franchisee shall fill all requests for standard
installation of Cable System Service within seven (7) days after the date
of any such request. The Franchisee shall keep a record of all such
requests at all times during the term of this Franchise.
B. Disconnection and Reconnection. Unless the Subscriber agrees otherwise,
said disconnection shall be made as soon as practicable, and in no case
later than 30 days after the Subscribers written request to the Franchisee.
If a Subscriber fails to pay the properly due monthly subscription fee, or
any other property due fee or charge, then the Franchisee may disconnect
the Subscribers Service, provided that such disconnection shall not take
place until 20 days after delivery to such Subscriber of a written notice
of the intent to disconnect. Such notice shall not be sent until at least
30 days after the due date of the delinquent fees or charges. The
Franchisee shall not disconnect service to a Subscriber so long as the
Subscriber pays all amounts due before the later to occur of either of the
foregoing dates. After disconnection, upon payment in full of the
delinquent fee or charge and the payment of a reconnection charge, if any,
the Franchisee shall promptly reinstate and reconnect the Subscribers
Service. The Franchise maintains the right not to reconnect in the event of
subscriber fraud or deceit.
C. Refunds. Refunds to Subscribers shall be made or determined in the
following manner
1. If the Franchisee fails, upon request of a Subscriber, to provide any
Cable Service then being offered, then the Franchisee shall promptly
refund all deposits or advance charges paid for such Cable Service by
said Subscriber. This provision does not alter the Franchisee's
responsibility to Subscribers under any separate contractual agreement
or relieve the Franchisee of any other liability or obligation.
2. If a Subscriber terminates any Cable Service prior to the end of a
prepaid period, then the Franchisee shall refund to the Subscriber a
proportionate portion of any prepaid Subscriber Cable Service Fee,
using the number of days, based on a 365-day year, as a basis. The
Franchisee shall make such refund within 30 days after disconnection
of the terminated Cable Service.
D. Advance Payments. Except as expressly otherwise approved by the Village, no
Cable Service shall be offered that requires payment more than one month in
advance; provided, however, that the Franchisee may offer longer advance
payment programs as an option in connection with any Cable Service.
7-7: Service and Subscriber Contracts and Information.
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A. Provision of Information to Subscribers. The Franchisee shall, prior to or
at the time of installation of any Cable Service, provide the Subscriber,
at a minimum, with, (1) a description of all Services offered, (2)
instructions on the use of the Cable System, (3) billing and collection
practices, and (4) Subscriber complaint and service procedures.
B. Statement. All Subscriber contracts shall contain the following statement:
"The Franchisee shall not, as to rates, charges, service facilities, rules,
regulations, or in any other respect, make or grant any preference or
advantage to any Person, nor subject any Person to any prejudice,
disadvantage, or discrimination. The Franchisee is not prohibited, however,
from establishing special contracts for nonprofit organizations, employees
of the Franchisee residing in the Village, or discounts available to all
persons for promotional campaigns."
C. Franchisee Authority. The Franchisee shall have the authority to promulgate
such rules, regulations, terms, and conditions governing the conduct of its
business as shall be reasonably necessary to enable the Franchisee to
exercise its rights and to perform its obligations under this Franchise and
to ensure uninterrupted Service to each and all of its Subscribers;
provided, however, that no such rules, regulations, terms, or conditions
shall be in conflict with the any of the terms, conditions, or provisions
of this Franchise, or with any ordinances of the Village or the laws of the
State of Illinois or the United States.
D. Items to be Provided. If a Subscriber contract is utilized, then all items
required to be provided pursuant to this Section shall be provided to each
new Subscriber at the time a contract is entered into or at the time any
Service begins, whichever is earlier. All items required to be provided
pursuant to this Section shall be provided to all existing Subscribers not
less than once each year.
7-8: Complaints and Service Calls.
A. Notice of Procedures. The Franchisee shall furnish each Subscriber, at the
time Cable Service is installed, written instructions that clearly set
forth procedures for registering a complaint, placing a service call,
requesting a billing adjustment, or otherwise obtaining information or
assistance from the Franchisee. Said instructions shall include the
telephone number described in Subsection B of this Section.
B. Telephone Number. The Franchisee shall have a publicly listed, toll free
telephone number, operated to efficiently receive Subscriber complaints and
requests for repairs or Service, 24 hours-a-day, 7 days-a-week.
C. Service Interruption. The Franchisee shall prevent Service interruptions,
render efficient Service, and make repairs promptly. The Franchisee shall
not interrupt Cable
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Service after 7:00 a.m. and before 1:00 a.m., except for good cause and for
the shortest time possible and, except in emergency situations.
D. Franchisee Response, Rebates Required. The Franchisee shall maintain a
repair force of technicians that shall respond to Subscriber complaints or
requests for Service within twenty-four (24) hours after receipt of the
complaint or request. All repairs necessary to correct a malfunction of the
System shall be made as soon as possible. The Franchisee shall, with notice
from the Subscriber, credit a Subscriber's bill for any interruption of
service effecting the Subscriber and which occurs during the billing period
except for such interruption as may occur between the hours of 1:00 a.m.
and 7:00 a.m.
E. Customer Service Office. The Franchisee shall maintain a customer service
office in close proximity to the Village. The office shall be open and
accessible to the public during normal business hours.
F. Identification. During construction or repair, all employees, contractors,
and subcontractors of the Franchisee shall carry a photo identification
card at all times.
G. Service Records. The Franchisee shall keep a record of all service calls
received. Said record shall include copies of all service calls and
complete reports showing when said call was received, the time of
disposition, the service technician employed, and the nature of the
problem. The Franchisee shall also maintain a record of the nature, time,
duration, and probable cause of all Cable System failures reported to or
discovered by the Franchisee. Said records, which may be combined by the
Franchisee, shall be available for public inspection at the Franchisee's
local office during normal business hours. All records required to be
maintained under this subsection shall be maintained for a period of at
least three years.
7-9: Safety.
A. Standard of Care. The Franchisee shall at all times utilize the standard of
care attendant to the risks involved and shall install and maintain in use
commonly accepted methods and devices for preventing failures and accidents
that are likely to cause damage, injury, or nuisance to the public or to
employees of the Franchisee.
B. Equipment Installation and Maintenance. All Cable System installations
shall be made so as not to impair the fire integrity of any building or
structure. The Franchisee shall install and maintain its wires, cables,
fixtures, and other equipment in accordance with the requirements of all
applicable codes, and in such manner that they will not interfere with any
installations of the Village or any public utility. All lines, equipment,
and connections in, over, under, and upon the Public Ways, Public Property,
and private property within the Village, wherever situated or located,
shall at
32
7-10: Motor Vehicle Operation. All operators of vehicles under the Franchisee's
control shall have, at the time of their employment, and throughout the term
of their employment, a valid drivers license issued by the State of Illinois.
7-11: Tests and Performance Monitoring. All Cable System testing procedures
shall be in accordance with the most recent edition of "Standards of Good
Engineering Practices for Measurements on Cable Television System," published by
the National Cable Television Association, or such other generally accepted
industry procedures. Properly calibrated, state of-the-art equipment shall be
used in all testing.
33
PART VIII: RIGHTS OF INDIVIDUALS PROTECTED
8-1: Employment Requirement; No Discrimination.
A. Equal Employment Opportunity; Discrimination Governed by Cable Act. To the
extent applicable, Section 554 of the Cable Act, and the federal
regulations promulgated thereunder, shall govern the employment practices
of the Franchisee.
B. Equal Employment Opportunity; Discrimination Where Cable Act Not
Applicable. To the extent Section 554 of the Cable Act is repealed,
modified, or otherwise not applicable, the Franchisee shall conform to
applicable federal, State of Illinois, and Village laws, ordinances,
resolutions, rules, and regulations.
8-2: No Discrimination. The Franchisee shall not deny any Service, deny access,
or otherwise discriminate against Subscribers or other Persons on the basis of
age, sex, race, color, creed, national origin, or on any other basis prohibited
by law. The Franchisee shall comply at all times with all applicable federal,
State of Illinois, and Village laws, and all executive and administrative
regulations, rules, and orders, and any provisions of this Franchise, relating
to nondiscrimination. The Franchisee shall not deny any Service or access to any
individual or group of potential residential Subscribers on the basis of income.
8-3: Subscriber Privacy. The Franchisee shall comply at all times with all
applicable federal rules, and orders, and any provisions of this Franchise
relating to the protection of privacy of any Subscriber.
8-4: Permission of Property Owner Required. To the extent that the Cable Act,
the Illinois Municipal Code, or this Franchise allow the Franchisee to place its
equipment within easements where utility equipment exists without the permission
of this applicable property owner then the Franchisee may place its equipment in
such easements without such permission provided that such placement is in
accordance with the provisions of this Franchise. If the Franchisee desires to
place its equipment in a location on private property where no utility equipment
exists, then the Franchisee shall secure a written authorization from the
applicable property owner, its authorized agent, or a duly elected or appointed
representative of the property involved.
PART IX: GENERAL PROVISIONS
9-1: Work Performed by Others.
Written Notice. Upon request, the Franchisee shall give notice to the Village
specifying the name and address of any Person other than the Franchisee who
perform any obligations of the Franchisee pursuant to this Franchise; provided,
however, that all provisions of this Franchise shall remain the responsibility
of the Franchisee.
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9-2: Limits on the Franchisee Recourse.
A. Release and Waiver of Claims. The Franchisee shall have no recourse
against the Village for any loss, expense, or damage resulting from the
terms and conditions of this Franchise nor because of the Village's
enforcement thereof. The Franchisee shall be deemed to expressly agree
that it accepts this Franchise relying solely on its own investigation and
understanding of the power and authority of the Village to grant said
Franchise and that, in partial consideration of the grant of the
Franchise, the Franchisee waives and releases all claims of damages of any
kind whatsoever, either known or unknown, existing or future, that it may
have in connection with any matter specified in this Subsection.
B. No Extraneous Inducements. The Franchisee acknowledges that it has not
been induced to accept this Franchise 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 Franchise not otherwise expressed herein. The
Franchisee shall further be deemed to warrant that no promise or
inducement, oral or written, has been made to any Village employee or
official regarding receipt of this Franchise, other than as contained in
this Franchise.
9-3: Compliance With Law. The Franchisee shall, at all times during the term of
this Franchise, comply with all applicable federal State of Illinois and local
laws, rules, and regulations, regardless of whether such law, rule, or
regulation is expressly referenced in this Franchise.
9-4: Subsequent Action by Federal, State, or Local Authorities.
A. Subsequent Law, Agreement, or Regulation. If any subsequent law,
ordinance. regulation, controlling judicial review, or decision shall
require or permit the Franchisee to perform any act or shall prohibit the
Franchisee from performing any act such that the Franchisee may not be in
compliance with the terms and conditions of this Franchise, then, as soon
as possible after knowledge thereof, the Franchisee shall so notify the
Village. If the Village determines, in agreement with the Franchisee that
a material provision of this Franchise is affected by such changed or new
law, ordinance, or regulation, then the Village and the Franchisee shall
enter into good faith negotiations to modify this Franchise to conform
with such changed requirements.
B. Change in Federal or State Laws or Regulations. If any federal or State of
Illinois law or regulation, including without limitation the Cable Act,
is, at any time after the effective Date, changed, modified, interpreted
in a final and nonreviewable decision by a court of competent jurisdiction
or appropriate administrative agency, amended, repealed, or invalidated so
as to allow for greater regulation by the Village of the Franchisee or a
Cable Communication System, or so as to permit greater benefits to
35
the Village, the Franchisee and the Village shall enter into good faith
negotiations to modify this Franchise.
9-5: Nonenforcement by Village. The Franchisee shall not be excused from
complying with any of the terms and conditions of this Franchise by any
failure of the Village, on any one or more occasions, to insist on the
Franchisee's performance of, or to seek the Franchisee's compliance with,
any one or more of said terms or conditions except as may be permitted by
federal law.
9-6: Rights and Remedies. In the event of a violation or an alleged violation
of this Franchise by the Franchisee, the Village, by suit, action,
mandamus, or other proceeding, in law or in equity, may enforce or compel
the performance of the terms of this Franchise to the full allowable
extent. In the event of a judicial proceeding by the Franchisee against
the Village of all costs and expenses, including reasonable attorneys
fees, incurred in connection with such judicial proceeding shall be
determined by the court or other authority in charge of rendering
decisions in the case.
9-7: Village Right to Delegate Authority and Functions. The Village shall have
the right to delegate any or all of its authority or rights under this
Franchise to any Person, department, board, commission, or agency within
or outside the Village or to designate any Person, department, board,
commission, or agency within or outside the Village to act on its behalf
under this Franchise; provided, however, that no such delegation or
designation shall be effective to bind the Village, or for any other
purpose, unless evidenced by an ordinance or resolution duly adopted by
the President and Board of Trustees of the Village and provided further
that no such delegation or designation shall be effective to authorize any
authority or action beyond those expressed in said ordinance or
resolution. When and to the extent so delegated or designated, said
Person, department, board, commission, or agency shall be deemed to be an
Authorized Agent of the Village or its Board of Trustees as this term is
used in this Franchise.
9-8: Unauthorized Reception and Reselling Prohibited.
A. Unauthorized Reception and Reselling Where Cable Act Applicable. To the
extent applicable, the Cable Act shall govern the prohibitions against and
penalties for unauthorized reception and reselling of Cable Service.
B. Unauthorized Reception and Reselling Where Cable Act Not Applicable. To
the extent the Cable Act is modified, repealed, or otherwise do not apply,
the following standards shall govern the unauthorized receipt or reselling
of Cable Service:
1. Unauthorized Connection. No Person shall make any unauthorized
connection, whether physically, electrically, acoustically,
inductively, or otherwise, with any part of the Cable System existing
in the Village for the purpose of enabling
36
said Person or others to use or receive television signals, radio
signals, pictures, programs, sounds, or any other information or
intelligence transmitted over the Cable System without payment to the
Franchisee.
2. Tampering, Removal, or Injury. Except as otherwise provided in this
Franchise, no Person shall, without the consent of the Franchisee,
willfully tamper with, remove, or injure any cable, wires, or other
equipment used for the distribution of television signals, radio
signals, pictures, programs, sounds, or any other information or
intelligence transmitted over the Cable System.
3. Unauthorized Use or Receipt. The existence of any connection, wire,
conduct or, or other device whatsoever that enables any Person to use
or receive the cable television service without such use or receipt
being specifically authorized by, or compensation paid to, the
Franchisee may be considered as evidence of intent to violate this
Section.
4. Reselling. No Person in the Cable Service Area receiving any Cable
Service, program, or signal transmitted over the Cable System shall
resell such Cable Service, program, or signal without the express
written consent of the Franchisee and the Village.
9-9: Time Essence of Agreement. Except as provided in Section 9-10 of this
Franchise, whenever this Franchise sets forth any time for any act to be
performed by the Village or the Franchisee, said time shall be deemed to be of
the essence.
9-10: Force Majeure. Whenever a period of time is provided for in this
Franchise for either the Village or the Franchisee to do or perform any act or
obligation, neither party shall be liable for any delays or inability to perform
due to causes beyond the control of said party such as war, insurrection,
rebellion, strike, lockout, unavoidable casualty or damage to personnel,
materials or equipment, fire, flood, storm, earthquake, tornado, or any act of
God; provided, however, that said time period shall be extended for only the
actual amount of time said party is so delayed.
9-11: Severability. If any section, subsection, sentence, clause, phrase, or
other portion or provision of this Franchise, or its application to any Person,
is for any reason declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, said
decision shall not affect the validity of the remaining portions hereof.
9-12: Franchisee Acknowledgment. The Franchisee acknowledges that: (A) it has
carefully read the terms, conditions, and provisions of this Franchise; (B) it
unequivocally accepts the obligations imposed by said terms, conditions, and
provisions; (C) it agrees to accept unequivocally the validity of said terms,
conditions, and provisions; (D) it unequivocally agrees to abide by said terms,
conditions, and provisions.
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9-13: Effective Date
This Franchise shall be in full force and effect only on, and not before, the
Passage and approval, of University Park Ordinance No. ____.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on its behalf in accordance with the effective date stated above.
VILLAGE UNIVERSITY PARK, ILLINOIS
ATTEST: BY: /s/ Rudolf Will
--------------------------
/s/ Irma Berry TITLE: Village President
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CABLE TV FUND 15-A, LTD.
a Colorado limited partnership
BY: Jones Intercable, Inc.
a Colorado corporation as
its General Partner
ATTEST: BY: /s/ Rick Wime
----------------------------------
/s/ Nancy L. Mann TITLE: Group Vice President/Operation
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ASST. SECRETARY
38