(A)
Title. This Article 2 shall be known as the "Village of Lincolnwood
Cable Ordinance."
(B)
Purposes. The purposes of this Article 2 are:
(1)
To enable the Village of Lincolnwood to franchise and regulate
cable television systems operating within its corporate boundaries.
(2)
To enable the formation of municipal policies and procedures
regarding cable television services and operations.
(3)
To establish standards and procedures which support the immediate
and future development of cable television systems within the Village
of Lincolnwood.
(4)
To ensure that franchise grantees operating cable television
systems are understanding of community needs and interests, and that
the community is served by a cable system embodying high quality of
cable television signal transmission.
(5)
To protect the public welfare and public interest through the
establishment of consumer protection provisions as they concern cable
system construction, maintenance, and general operation.
(6)
To maintain policies which protect its infrastructure by requiring
cable system operators who perform work or construct facilities in
Village rights-of-way.
(7)
To establish cable television as a means of encouraging communications
by and between the citizens of Lincolnwood, their institutions, businesses,
organizations, and neighboring communities.
(8)
To allow for the payment of fees and other consideration of
value to the Village for the use of municipal property, rights-of-way,
easements, and other public lands by the cable system operator in
its construction, operation and maintenance of the cable system, and
to compensate the Village of Lincolnwood for costs incidental to the
award and implementation of any and all cable television franchises.
(9)
To provide for remedies and ordain penalties for violations
of this Article 2 and for the cable television franchises granted
hereunder.
(10)
To enable the regulation of rates and fees charged by a cable
system franchise grantee operating under the provisions of this Article
2.
(C)
Legislative authority. This Article 2 shall be governed by the Communications
Act of 1934 as amended, the Cable Communications Policy Act of 1984,
the Cable Television Consumer Protection and Competition Act of 1992,
and the Telecommunications Act of 1996, as may be amended. This Article
2 shall also be governed by provisions of 65 ILCS 5/11-42-11 et seq.,
as may be amended.
For the purposes of this Article 2, the following phrases, terms, words, and their derivations shall have the meanings set forth in this Section 13-2-2. Unless a section provides otherwise, references to statutory enactments shall include any and all amendments thereto and any successor provisions. For the purpose of an approved franchise agreement that is subject to this Article 2, the terms in the franchise agreement shall prevail where there is a conflict between this Article 2 and the franchise agreement. Where the franchise agreement is silent, the terms of this Article 2 and the Cable Act shall control.
The Communications Act of 1934, the Cable Communications
Policy Act of 1984, as amended by the Cable Television Consumer Protection
and Competition Act of 1992 (47 U.S.C. § 521 et seq.) and
the Telecommunications Act of 1996 as may be amended.
Any service tier which includes the retransmission of local
television broadcast signals and the public, educational, and government
access channels.
The Village of Lincolnwood Cable Communications Ordinance.
(See also "ordinance.")
Any person or persons, including, but not limited to, corporations,
partnerships, and joint ventures, who provide cable services through
means of a cable system, or multichannel video providers which may
include, but are not limited to, open video system providers or video
providers which provide a video signal to their subscribers by means
of leased telephone or other telecommunications lines which are located
in a public right-of-way, or any person or persons who manage, control,
coordinate, or direct the operations of a cable system. Cable operator
also includes multichannel video provider.
The one-way transmission to subscribers of: a) video programming,
or b) other programming service, and subscriber interaction, if any,
which is required for the selection or use of such video programming
or other programming service.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include: a) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; b) a facility that serves subscribers without using any
public right-of-way; c) a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Act, except
that such facility shall be considered a cable system [other than
for purposes of Section 621(c) of the Act] to the extent such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services; d) an open video system that complies with Section 653 of
the Act; or e) any facilities of any electric utility used solely
for operating its electric utility systems.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by the Federal Communications
Commission by regulation.
An electronic device which converts signal carriers from
one form to another.
A channel which is transmitted in a direction from the headend
to the subscriber's television set.
Any single-family or multiple-family residential place of
occupancy.
A noncommercial educational access channel or channels set
aside and so designated for the use of schools and related educational
institutions.
The Federal Communications Commission or successor agency
created by the United States Congress with the authority to regulate
and license in connection with the subject matter of this Article
2.
The nonexclusive right granted through the authority of a
franchise agreement between the Village and any grantee hereunder
which allows the grantee to own, operate, construct, reconstruct,
upgrade, dismantle, test, use, and maintain a cable system within
the corporate boundaries of the Village, or within specified areas
of the Village and is not intended to include any license or permit
required for the privilege of transacting and carrying on a business
within the Village as may be required by other laws or ordinances
of the Village.
That certain written agreement entered into between a grantee
and the Village/franchising authority wherein the franchise and the
terms thereof are conferred upon the grantee.
That portion within the corporate limits of the Village for
which a franchise is granted under the authority of a franchise agreement.
If not otherwise stated within a franchise agreement, the franchise
area shall be the corporate limits of the Village of Lincolnwood including
all territory thereafter annexed to the Village.
Any assessment imposed herein by the Village on a grantee
solely because of its status as a grantee. The term "franchise fee"
does not include any tax, fee or assessment of general applicability
(including any such tax, fee, or assessment imposed upon both utilities
and cable operators or their services), but not including, a tax,
fee or assessment which is unduly discriminatory against the grantee
or cable subscribers; capital costs which are required by the franchise
to be incurred by the grantee for the establishment and operation
of public, educational, or governmental access facilities; requirements
or charges incidental to the awarding or enforcing of the franchise,
including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, liquidated damages; or any fee imposed
under Title 17, United States Code.
The corporate authorities of the Village.
A noncommercial channel or channels set aside and so designated
for the use of units of local government.
Any person or persons, including corporations, limited liability
companies, partnerships, associations, joint ventures, or organizations
of any type granted a franchise hereunder, and its agents, employees,
subsidiaries, assignees, transferees or lawful successors.
Includes all revenue received by a grantee derived from and in connection with the operation of the grantee's cable system to provide cable service within the Village, including, but not limited to, revenues, fees, receipts or charges from or for: basic tier cable service; any tier of video programming service other than basic service; any optional, premium, per channel or per program service; any installation, disconnection, reconnection, change-in-service or other customer service; rentals of converters, remotes or other customer premises equipment; provision of data services, such as internet services carried over the cable system which are cable services as defined by Title VI of the Act; commercial leased channels or channel access; advertising revenues (including infomercials); including a per subscriber share of revenues for the grantee's subscribers within the Village which is received for advertising carried on one or more cable systems in addition to the grantee's cable system within the Village; revenues from home shopping channels; the sales of programming guides, and such other revenue sources from the provision of cable service as may now exist or hereafter develop, provided that such revenues, fees, receipts or charges may lawfully be included in the gross revenue base on which the Village may calculate and collect franchise fees. Gross revenues shall not include any amounts refunded to subscribers, any unpaid subscriber or advertiser accounts and any sales tax, telecommunications tax, utility message tax or other taxes imposed directly upon any subscriber or user by the Village, the state or other governmental unit and collected by the grantee on behalf of and for remittance to the Village, the state or other governmental unit. As used herein, annual gross revenues shall mean gross revenues attributable to a twelve-month accounting period, or portion thereof. This definition of gross revenues shall be the basis for computing the fee imposed pursuant to Section 13-2-11 of this Code.
The control center of a cable television system, where incoming
signals are amplified, converted, processed, and combined into a common
cable along with any origination cablecasting, for transmission to
subscribers. Headend usually includes antennas, preamplifiers, frequency
converters, demodulators, processors, and other related equipment.
The connection from system feeder cable to the subscriber's
converter or terminal and the provision of service.
A two-way cable system that has the capability to provide
upstream and downstream communications and subscriber interaction.
A cable television channel or channels or parts thereof,
designated for cable casting which is provided by means of a lease
arrangement for cablecast airtime between the cable operator and the
lessee. Shall include without limitations all use pursuant to Section
612 of the Act (47 U.S.C. § 532).
A channel providing programs that are produced or acquired
by the cable operator which is under the control of the cable operator.
Any system distributing video programming to subscribers
which use all or part of the Village right-of-way in order to distribute
such video programming or which distributes such programming to subscribers
over the lines of a common carrier which are located in all or part
of the Village right-of-way.
The Village of Lincolnwood Cable Communications Ordinance,
as may be amended from time to time (See also "cable communications
ordinance.")
A cable television channel specifically designated as a channel
available to the public for the production of noncommercial television
programming as subject to applicable law.
Those facilities utilized for the production and playback
of public, educational, and governmental access programming.
The surface, the air space above the surface, and the area
below the surface of any public street, road, highway, lane, path,
alley, sidewalk, boulevard, drive, or bridge, now or hereafter held
by the Village. No reference herein, or in any franchise, to the public
street shall be deemed to be a representation or guarantee by the
Village that its title to any property is sufficient to permit its
use for such purpose, and a grantee shall, by the use of such terms,
be deemed to gain only such rights to use property in the Village
as the Village may have the undisputed right and power to give.
The surface and the space above and below the surface of
any public parkway, driveway, sidewalk, conduit, tunnel, bridge, park,
square, waterway, utility easement, or other public right-of-way now
or hereafter held by the Village. No reference herein, or in any franchise
agreement to the public street shall be deemed to be a representation
or guarantee by the Village that its title to any property is sufficient
to permit its use for such purpose, and a grantee shall, by the use
of such terms, be deemed to gain only such rights to use property
in the Village as the Village may have the undisputed right and power
to give.
Any public street, public way, alley, other land or waterway,
dedicated or commonly used for utility purposes, including utility
easements in which the Village has the right and authority to authorize,
regulate or permit the location of facilities other than those of
the Village. Right-of-way shall not include any real or personal Village
property that is not specifically described in the previous two sentences
and shall not include Village buildings, fixtures, and other structures
or improvements, regardless of whether they are situated in the right-of-way.
All public and private elementary and secondary schools,
junior colleges, colleges, and universities which have been granted
a certificate of recognition by the Illinois State Board of Education.
The grantee's on-site visits to a subscriber's
residence regarding cable service.
The loss of picture or sound on one or more cable channels.
Any person who receives one or more of the services provided
by a grantee's cable system, and does not further distribute
such services.
A cable (currently coaxial) which connects the tap of a feeder
cable to ground block at the subscriber's premises.
Unless otherwise specifically provided in a franchise agreement,
any transactions or series of transactions which, singularly or collectively,
result in the sale, assignment or transfer of all or a majority of
the assets of a grantee or the cable system or a change of 5% or more
of the ownership or working control of a grantee, of the ownership
or working control of the franchise or of the ownership or working
control of affiliated entities having ownership or working control
of the grantee, the franchise or cable system. Franchise transfers
require Village approval as provided in this Article 2. Transactions
between affiliates of a grantee are not exempt from Village approval,
except as specifically provided in a franchise agreement between the
Village and a grantee.
A channel which is transmitted in a direction from the subscriber's
terminal to the headend or hub.
(A)
Franchise required. No person, firm, company, corporation, joint
venture, partnership, trust, organization or association of any kind,
including cable operators and multichannel video providers as defined
herein, shall construct, install, maintain, or operate within the
Village of Lincolnwood or within any other public right-of-way or
property of the Village unless a franchise has first been granted
by the Village pursuant to the provisions of this Article 2, and unless
such franchise is in full force and effect. Such franchise shall not
take the place of any other license or permit which may be legally
required of the grantee in order to conduct such a business.
(B)
Franchise term. The term of any new franchise, and all rights, privileges,
obligations, and restrictions pertaining thereto shall be as established
in the franchise agreement between the grantee and the Village, unless
terminated sooner as hereinafter provided.
(C)
Nonexclusivity of franchise. Any franchise granted by the Village
under the terms and conditions of this Article 2 shall be nonexclusive.
Consistent with applicable law the Village specifically reserves the
right to grant, at any time, such additional franchises for a cable
television system to use and occupy the public streets and public
ways of the Village for cable television as the Village deems appropriate.
(D)
Franchise area. The Village may grant a franchise for the area within
the corporate boundaries of the Village. The franchise agreement shall
indicate the specific boundaries for the franchise area.
(E)
Obligation to provide services. Upon issuance of a nonexclusive,
revocable franchise by the Village for construction, installation,
maintenance, and operation of a cable system within the designated
franchise area, the grantee shall be obligated to provide the services
of a cable system as required herein, and by the terms and conditions
of the franchise agreement.
(F)
Initial franchise applications. The franchising authority shall require
the submissions of applications for a franchise under this Article
2. Initial applications for a franchise shall include at a minimum:
(1)
A clear and precise description of the identity of the applicant,
including, but not limited to, the name of the applicant, the address
of the applicant, a description of the type of business entity which
characterizes the applicant, a statement of those persons who hold
ownership of more than 5% of the stock of the business entity of the
applicant, or more than 5% of partnership holdings if the entity is
a partnership, a description of the major activities of the business
entity of the applicant, and evidence of the compliance of the business
entity of the applicant with all applicable federal, state, and local
laws applicable thereto.
(2)
Plans and specifications relating to all aspects of the applicant's
proposed cable system, as are applicable to the building and zoning
laws of the Village.
(3)
A map or maps of a scale of not less than one inch equaling
1,000 feet showing the precise geographic area for which the applicant
seeks a franchise (franchise area).
(4)
Projected financial pro forma for system revenue, expenditures,
debt servicing, and operation for a period of no less than 10 years,
and evidence of financial responsibility in the form specified by
this Article 2.
(5)
Financial statements, annual corporate reports and balance sheets,
profit and loss statements for no less than the previous two years.
(6)
Written documentation of financial support from a financial
institution for issuance of any loans, bonds, notes, or other related
instruments to the applicant for the purpose of defraying the costs
of cable system construction or operation.
(7)
A nonrefundable application fee shall be paid to the Village
in an amount to be determined by the corporate authorities by resolution
and based upon actual costs incurred by the Village to cover those
costs of initial application review as to form only, and which fee
shall be used by the franchising authority solely to offset direct
expenses incurred in the evaluation and awarding of franchise sought
by said application issued pursuant to this Article 2.
(8)
Detailed plans and specifications for the cable system which are proposed by the applicant showing the routing of trunk and feeder cables reflected by the maps provided pursuant to Section 13-2-3(F)(3) of this Code, and a schedule for cable system construction.
(9)
A statement of the applicant's technical service and repair
capabilities within the Village, and customer service operations for
the community.
(10)
A listing of all franchises wholly or partially owned by the
applicant or the applicant's business entity within the State
of Illinois, and date of expiration for each such franchise.
(11)
A statement by the applicant indicating if a franchise held
by the applicant or the applicant's business entity has been
revoked or denied renewal. Such statement shall also include representations
that the owners, partners, operating officers, principals, or principal
stockholders owning more than 5% of the applicant's business
entity have not been convicted of a crime, nor have been placed under
investigation or indictment for alleged illegal or improper activities
by any state investigative agency, or federal investigative or regulatory
agency, including, but not limited to, the U.S. Department of Justice,
Federal Communications Commission, Securities and Exchange Commission,
or the Federal Trade Commission.
(12)
Any additional information or facts requested by the franchising
authority that are pertinent and appropriate to the evaluation and
awarding of a cable television franchise.
(G)
Compliance with laws. A grantee shall at all times comply with all
applicable laws and regulations of federal, state and local governments,
or any administrative agencies thereof.
(H)
Filing of franchise agreements. A fully executed copy of all franchise
agreements shall be maintained in the office of the Village Clerk.
(A)
Notice to the grantee of public meetings or hearings. The Village
shall not take any final action with regard to the evaluation, modification,
renewal, revocation, or termination of the grantee's franchise
unless the Village has:
(1)
Called a meeting for the purpose of taking such action as specified
above; and
(2)
Complied with the public notice provisions of the Illinois Open
Meetings Act, 5 ILCS 120/1 et seq.; and
(3)
Advised the grantee in writing by either certified United States
mail or delivery by hand, at least 14 days prior to such meeting as
to its time, place, and purpose; and
(4)
The grantee and any interested person are given an opportunity
to be heard at such meeting.
(B)
Written notice to grantee. Where the franchising authority provides
written notice to the grantee regarding any matter concerning this
Article 2, any of the other ordinances of the Village, or the franchise
agreement, the franchising authority shall provide all such notices
in writing with delivery by either of the following: certified United
States mail, return receipt requested; by overnight delivery service
for which written confirmation of delivery is received; or if the
parties agree, by electronic facsimile transfer ("fax"). Notice shall
be deemed to have been given to the grantee upon the date of transmittal;
however, this shall not preclude the Village from allowing the grantee
to act upon such notice, where action is applicable, within a specified
time period starting from the date of receipt by the party to which
the notice was sent.
The grantee and the franchising authority shall follow the procedure
for Section 625 franchise modifications as established by Section
625 of the Cable Act.
At the Village's sole option, within six to 12 months after
the completion of construction or rebuild of the system and every
three years thereafter throughout the term of the franchise, the Village
and a grantee shall meet publicly to review the performance and quality
of service of the cable system.
(A)
Topics for discussion. Topics for discussion and review may include,
but shall not be limited to, services provided, application of new
technologies, system performance, programming, developments in the
law, and technical and economic feasibility of system expansion or
upgrading. Either the Village or the grantee may select additional
topics for discussion.
(B)
Issuance of report. Within 30 days after the conclusion of the review,
the Village may issue a report with respect to the adequacy of system
performance and quality of service. If inadequacies are found, the
Village may direct the grantee to correct the inadequacies within
a reasonable period of time.
(C)
Failure to correct inadequacies. Failure of a grantee, after due
notice, to correct any inadequacies found during the review may be
a violation of a specific provision of the franchise or this Article
2. The Village may, at its sole discretion, exercise any remedy within
the scope of this Article 2 considered appropriate.
(A)
Conditions established. The franchising authority and the grantee
shall agree to follow the terms, conditions and proceedings established
by Section 626 of the Cable Act.
(B)
Procedures in the event of repeal of Section 626. In the event that
Section 626 of the Cable Act shall be repealed, the franchising authority
and any grantee shall agree to follow the procedures set forth in
Section 626 of the Act.
(A)
Assignment or transfer. The grantee's franchise shall not be transferred or assigned, in whole or in part, without the prior written consent of the Village. As used in this Section 13-2-8, the terms "assigned" and "transferred" shall mean any transaction or series of transactions defined as a "transfer" in this Article 2 unless otherwise set forth in a franchise agreement.
(B)
Notice of transfers. Notwithstanding the foregoing, a grantee may
transfer ownership or control of the franchise or the system to an
entity controlling, controlled by, or under common control with the
grantee, where such transfer does not result in a change in the management,
operation or ultimate controlling entity of the franchise or the system,
provided, a grantee shall give the Village at least 30 days'
prior written notice of any such transfer. For the purpose of determining
whether a transfer will result in a change in the management, operation
or ultimate controlling entity of the franchise or cable system, the
Village may make a due diligence inquiry into the transfer and a grantee
shall assist the Village in such inquiry.
(C)
Granting of a security interest. No consent from the Village is required
prior to the granting of a security interest in any of the grantee's
assets by pledge, mortgage or other hypothecation to secure an indebtedness.
(D)
Notification of foreclosure. A grantee shall notify the Village in writing of any foreclosure or any other judicial sale of the franchise or of a substantial part of the assets of the grantee or of the cable system. Such notification shall be considered by the Village as notice of a franchise transfer and the provisions of this Chapter 13 governing the application for Village consent to the transfer shall apply.
(E)
Written application. A grantee and any proposed assignee or transferee
of the franchise shall submit a written application to the Village
containing or accompanied by such information as is required in accordance
with applicable law and FCC regulations. Any transferee shall agree
in writing to abide by all terms and conditions of a franchise agreement.
(F)
Village inquiries. For the purpose of determining whether it shall
consent to such franchise transfer, the Village may inquire into the
legal, financial and technical qualifications of the prospective transferee
or controlling party to operate and maintain the system, to comply
with all franchise obligations for the remainder of the franchise
term, and to promptly cure any present or ongoing franchise violations
or defaults. The grantee and the prospective transferee or controlling
party (the "applicants") shall provide reasonable information requested
by the Village in connection with such inquiry.
(G)
Village consent. The consent of the Village shall not be unreasonably
delayed or denied. As prescribed by the Cable Act (47 U.S.C. § 537),
the Village shall be deemed to have consented to a proposed transfer
if the Village fails to render a final decision on the request for
approval of the proposed transfer within 120 days following the Village's
receipt of the written application for consent to the transfer, unless
the Village and the applicant agree in writing to extend the time
for the Village to review the application and to grant or deny its
consent.
(H)
Out-of-pocket costs. Unless otherwise provided for in a franchise
agreement, upon the application, or notice, of a request for transfer,
sale or delegation of ownership by a grantee, the franchising authority
shall prepare an estimate of its costs to consider the transfer, sale,
or delegation. The costs may include, but shall not be limited to,
reasonable fees for any or all of the following professionals: an
attorney, an accountant, an engineer, municipal staff, and other professionals
with expertise or training relating to the modification. The franchising
authority shall provide to a grantee the estimate of fees and costs
within 30 days after a grantee's application or notice.
(A)
Revocation. The franchise granted to the grantee pursuant to the
franchise agreement is subject to revocation in the event of any substantial
breach of the franchise agreement or default in performance of the
grantee's performance of the franchise. The following events,
acts or omissions on the part of the grantee are a substantial breach
and may be considered cause for revocation of the franchise and termination
of the franchise agreement:
(1)
Failure to complete initial construction or upgrade of cable
system as specified herein.
(2)
Repeated failure, after notice and an opportunity to cure, to
comply with the material provisions of this Article 2.
(3)
Repeated failure, after notice and an opportunity to cure, to
comply with the material terms of the franchise agreement.
(4)
Repeated failure to cure material violations of this Article
2 or the franchise agreement within a reasonable time after notice
from the Village.
(5)
Material fraud or misrepresentation in obtaining the franchise.
(6)
Willful failure to pay taxes, franchise fees, costs or penalties
when and as due the Village.
(7)
Willful failure to maintain required insurance coverage.
(8)
Failure to restore system-wide service after 48 consecutive
hours of interrupted service, provided the grantee's failure
to restore system-wide service is not caused by circumstances or events
beyond the grantee's reasonable control.
(9)
Insolvency or bankruptcy of the grantee.
(B)
Notice of substantial breach. Written notice shall be given to the
grantee setting forth:
(C)
Answer to notice of breach. Within 30 days the grantee shall respond
in writing to the Village, together with documentation in support
of its response:
(1)
That it contests the Village's notice of substantial breach
and requests an opportunity to be heard as provided herein.
(2)
That corrective action has been implemented by the grantee and
the substantial breach or default has been cured.
(3)
That corrective action has been implemented by the grantee and
is being actively and diligently pursued in accordance with a written
corrective action plan to be submitted to the Village.
(D)
Hearing. If requested by the grantee, or if the Village is not satisfied
that sufficient corrective action is being actively and expeditiously
pursued by the grantee to remedy the substantial breach or default,
the Village shall schedule a public hearing to hear and determine
the issues and to consider whether sufficient cause exists to revoke
the franchise. The Village shall give the grantee not less than 14
days' written notice specifying the Village's intent to
consider the revocation of the grantee's franchise, and the date,
time and place of the public hearing to be held before the corporate
authorities, or a hearing officer appointed by the corporate authorities.
If a hearing officer has been designated, the hearing officer shall
hear the relevant evidence and shall render a record of the administrative
hearing and recommended findings and decision to the corporate authorities.
(E)
Determination. If the recommended findings and decision in Section 13-2-9(D) of this Code are provided to the corporate authorities by a hearing officer, the parties shall be entitled to an opportunity to present their respective positions to the corporate authorities. The corporate authorities shall hear the relevant evidence, provide the grantee the opportunity to be heard on said relevant evidence and shall determine whether or not a substantial breach or default by the grantee has occurred, whether it has been cured or a satisfactory corrective action plan has been submitted and is being actively and diligently pursued and whether cause exists to revoke the franchise. If the corporate authorities are persuaded that a substantial breach or default has occurred, the corporate authorities shall consider the nature, circumstances, extent and gravity of the substantial breach or default, as reflected by the following factors, in considering whether some lesser sanction or cure, if any, should be imposed.
(F)
Ordinance. If the corporate authorities determine that cause exists
to revoke the franchise, it may by ordinance declare a grantee's
franchise to be terminated and revoked, provided that the Village
may grant a grantee an additional period of time to remedy the substantial
breach or default before such ordinance is fully effective.
(G)
Judicial relief. No provision of this Section 13-2-9 shall be deemed to bar or otherwise limit the right of the franchising authority to seek or obtain judicial relief to enforce the provisions of the Cable Communications Ordinance or the franchise agreement.
(H)
Village acquisition of cable system. In the event that a franchise
has been revoked by the Village and the Village acquires ownership
of the cable system, or effects a transfer of ownership of a grantee's
cable system to another person, any such acquisition or transfer shall
be governed under Section 627 of the Cable Act (47 U.S.C. § 547)
or its successor provision.
(I)
Removal of cable system plant and equipment. If, upon revocation
of a grantee's franchise, the Village does not elect to purchase
the cable system, and no sale of the cable system is made to a successor
grantee, then the Village shall require that the grantee terminate
and dismantle the cable system, including its wiring, equipment, headend
facilities, if located within the Village limits, and related appurtenances
except that in the event that the grantee is providing telecommunications
services as defined by the Cable Act, the grantee shall not be required
to remove those facilities which provide said services. Upon completion
of termination and dismantling of the cable system, the grantee shall,
upon direction by the Village, restore any property, public or private,
to the condition in which it existed prior to erection or construction
of the cable system, including any improvements made to such property
subsequent to construction of the system. Restoring of Village property,
including all public streets and public ways as defined herein, and
other public lands, shall be in accordance with the directions and
specifications of the Village set forth herein and all applicable
laws. The grantee shall restore said public streets, public ways and
properties at its expense.
(A)
Continued provision of service. In the event of revocation of the
franchise, expiration of the franchise, or transfer of the franchise
between the existing grantee and a successor grantee, the existing
grantee shall continue to provide cable service to its subscribers
for a reasonable period of time in the same manner and with the programming,
customer service, and repair capabilities under the same terms and
conditions as provided by a franchise agreement and this Article 2
prior to the change in status of the franchise.
(B)
Failure to operate the system. In the event the grantee fails to
operate the cable system for 72 consecutive hours without prior approval
of the Village or without just cause, the Village may, at its option,
operate the cable system or designate an operator until such time
as the grantee restores cable services. If the Village is required
to fulfill this obligation for a grantee, the grantee shall reimburse
the Village for all reasonable costs or damages that are the result
of the grantee's failure to perform.
(A)
Payment of franchise fee. The grantee shall pay to the Village, on a quarterly basis, an amount equal to 5% per year of the grantee's annual gross revenue as permitted by law. "Gross revenue" shall be defined as stated in Section 13-2-2 of this Code. Should the law permit an increase in the percentage of gross revenues to be collected by the franchising authority as franchise fees, the parties will meet and confer to discuss the ramifications of such increase on subscriber bills. In accordance with applicable law, increases in franchise fees may be levied by the Village by ordinance after 90 days' advance written notice is given to grantee.
(B)
Identification of sources and amounts of gross revenues. The franchise
fee payment shall include a statement identifying in detail the sources
and actual amounts of gross revenues received by the grantee during
the preceding period for which payment is made. Unless otherwise agreed
to in a franchise agreement, said statement, at a minimum, shall contain
those items identified herein as follows: basic broadcast, satellite
and other services (includes guide, remote, installation and change
of services revenues); premium channels; and advertising and home
shopping. Said payment shall be paid by the grantee by the 16th day
following the close of the fiscal quarter for which the payment is
being made. Such dates shall be not later than May 31, August 31,
November 31, and February 28/29.
(C)
Payment of franchise fee in the event of termination or revocation.
In the event the grantee continues operation of all or any part of
the cable system beyond the revocation or the expiration of the franchise
agreement, the grantee shall pay to the Village the compensation set
forth hereinabove at the rate in effect at the time of such revocation
or expiration, and in the manner set forth in the franchise agreement,
together with any taxes it would have been required to pay had its
operation been duly authorized.
(D)
Annual gross revenue report. A grantee shall also file, within 120
days following the conclusion of a grantee's fiscal year, an
annual report prepared and attested to by the grantee's chief
financial officer for the cable system, clearly showing the yearly
total gross revenues. Said annual report is to be prepared at the
grantee's expense according to generally accepted standards by
the Financial Accounting Standards Board (FASB).
(E)
Filing of annual corporate report required. A grantee's annual corporate report shall be filed with the Village and shall contain a listing of all the grantee's directors, officers, and shareholders who own, directly or indirectly, at least 5% of the stock in the corporation of which a grantee is an entity if said listing of directors has changed from the prior year. Where a grantee or its parent is a publicly traded stock company, the filing by the grantee with the franchising authority of a copy of the annual report to stockholders shall constitute compliance with the provisions of this Section 13-2-11.
(F)
Audit of franchise fees.
(1)
The franchising authority shall have the right to audit the
franchise fees, the right to conduct agreed upon procedures financial
reviews of the franchise fees, and the right to require recomputation
of any amounts determined to be payable under the franchise agreement,
in order to verify the accuracy of such franchise fees paid to the
Village. The Village and its independent auditor, shall have the right
to inspect, the grantee's income records, worksheets, journals,
ledgers, and other such appropriate relevant financial records as
may be necessary and appropriate to verify the accuracy of the franchise
fee payment or other payments owed to the Village for a period as
agreed to in a franchise agreement. The grantee may require the Village
or its duly authorized agent to enter into a confidentiality agreement
limiting the release of information disclosed through the inspection,
audit, and/or recomputation.
(2)
The franchising authority shall provide the grantee with no
less than 30 calendar days' notice of the franchising authority's
intent to conduct an inspection of the grantee's financial records.
The grantee shall comply with the request of the franchising authority
and make available all such records as are reasonably required at
the grantee's office in the Chicago metropolitan area.
(3)
Any undisputed additional amount due as a result of such audit
or agreed-upon procedures shall be paid within 30 days following written
notice to the grantee by the franchising authority which notice shall
include a copy of the audit report or agreed-upon procedures report.
The cost of said audit or agreed-upon procedures shall be borne by
the grantee if it is properly determined that the grantee's annual
payment due to the Village for the preceding year is increased by
such percentages as agreed to in a franchise agreement.
(G)
Interest payments. In the event that any franchise payment or recomputed
amount is not made on or before the applicable dates heretofore specified,
interest shall be charged from such due date at the annual rate of
12% or 2% over the prime rate (compounded monthly), whichever is higher,
at LaSalle National Bank (or its successor) on the date upon which
the franchise payment was due.
(H)
Financial statements on termination of franchise. In the event the
franchise is terminated for any reason, the grantee shall file with
the franchising authority, within 30 days after the termination of
service by the grantee, a financial statement, certified by a certified
public accountant, clearly showing the unreported gross revenues received
by the grantee since its last report of gross revenues to the Village.
The grantee shall submit such documentation with the final franchise
fee payment. The grantee shall not be responsible for payment of any
franchise fees incurred after the date upon which the grantee ceased
providing cable services.
(I)
No limitation of liability. Nothing in this Article 2 or a franchise
agreement shall be construed to limit the liability of the grantee
for all applicable federal, state, and local taxes. Payment of the
franchise fee by the grantee to Village shall not be considered in
the nature of a tax or assessment, but shall be in addition to any
and all taxes and assessments which are of general applicability now
or hereinafter required to be paid by any law to the Village.
(A)
Requirement to maintain specific books and records. Unless otherwise
provided for in a franchise agreement:
(1)
To the extent practicable, the grantee shall maintain all records pertaining to the operation of the cable system in a manner specific to the franchise area. The grantee shall not maintain its only records concerning the cable system within the franchise area in aggregate form which commingles such records with those of cable systems in other communities to the extent that the grantee's records for the franchise area cannot be separately distinguished. All records pertaining to subscribers, cable system operations, and finances of the grantee shall be maintained in a local office, or in a regional office in the Chicago metropolitan area. This Section 13-2-12 shall not apply to records generated by a third party with respect to cable system programming or operations.
(2)
Where the grantee is unable to locate books and records specific
to the franchise area at a location which is either within the Village
of Lincolnwood, or within the Chicago metropolitan area, the grantee
may maintain such books and records at a remote location which is
set forth by the grantee with the provision that in the event that
the franchising authority, or its designee requests to inspect such
records, the grantee shall permit the inspection of such records within
15 calendar days after the franchising authority's request. If
it is found that the franchising authority reasonably believes that
such inspection has identified an infraction, the grantee shall pay
for all reasonable travel expenses incurred by all personnel of the
franchising authority, or its designee.
(B)
Records to be provided. Unless otherwise provided for in a franchise
agreement a grantee shall provide to the franchising authority, a
monthly cable operations and service profile in the form and manner
agreed to in a franchise agreement or in such other form reasonably
acceptable to the grantee and to the Village. The grantee shall provide
such additional information as the Village may reasonably request
from time to time, provided such requests relate to matters within
the scope of the Village's regulatory authority. The grantee
may reasonably require the execution of a confidentiality agreement
by the Village in accordance with applicable Illinois law prior to
providing any records containing privileged, confidential or proprietary
information. Upon request, or as provided for in a franchise agreement,
the grantee will provide a monthly report for all temporary subscriber
drops installed, including snow drops, including location, the date
of installation, and the date of burial.
(C)
Other records to be provided to Village. Unless otherwise provided
for in a franchise agreement:
(1)
The grantee shall provide the franchising authority with an
annual listing of all reports, petitions, applications, and correspondence
generated from its regional and local office filed with the FCC, which
are not a part of the grantee's public inspection file, the United
States Securities and Exchange Commission, the United States Federal
Trade Commission, or any other federal agency which has jurisdiction
over the operation of the grantee's cable system. Such listing
shall be filed with the franchising authority no later than 30 days
following the close of the calendar year. The franchising authority
may request a copy of any of the documents referred hereto at such
time that the franchising authority determines that such documents
would be of benefit to the Village's understanding of the operation
of the cable system which directly concern the franchise area.
(2)
The Village and the grantee shall collect and disclose subscriber
information in compliance with Section 631 of the Cable Communications
Policy Act of 1984, as now or hereinafter amended, or any successor
provision.
(3)
The grantee may seek relief from providing reports mandated
by this Article 2 if the grantee can show that the subject or subjects
which address a specified problem or problems which are the focus
of the report are no longer necessary to be provided due to cessation
of the problem being addressed by the report.
(D)
Duration of maintenance of records. Unless otherwise provided for
in a franchise agreement, the grantee shall maintain the following
records for the amount of time as specified hereunder:
(A)
Channel capacity and activation.
(1)
Minimum channel capacity and related technical requirements.
The minimum capacity for a new, upgraded, or rebuilt cable system
operated by any grantee shall be a 750-megahertz cable system having
a channel capacity of, at minimum, 80 video programming channels.
A grantee shall, as a part of the acceptance of an initial franchise,
provide the franchising authority with a written description of the
cable system within the franchise area, including technical characteristics,
channel capacity, channel carriage, and a strand map.
(2)
Minimum technical criteria for new, upgraded, and rebuilt cable
systems. Any grantee seeking to construct, rebuild or upgrade an existing
cable system shall provide the Village with an estimated construction
schedule for the upgrade within 90 days after the effective date of
an agreement to do so. The estimated construction schedule shall include
a staging plan indicating specific milestones for completion of reconstruction
activities, and other related requirements of this Article 2 or as
may otherwise be provided in a franchise agreement.
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All cable systems, including those current cable systems upon
completion of an upgrade, shall meet the following criteria:
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(a)
The cable system as designed will deliver content applications
to include, but not limited to, stereo sound and other ancillary features.
(b)
A grantee shall construct a cable system with a forward bandwidth
of at least 750 MHz and a fiber optic backbone design with fiber to
the node architecture.
(c)
The cable system shall have two-way interactive capacity on
the subscriber network.
(d)
A grantee shall install equipment so that the headend is capable
of providing at least 80 NTSC video channels.
(e)
The cable system shall have the capacity for audio services.
(f)
A grantee shall provide backup power for the cable system (subscriber
and institutional networks), including, but not limited to, backup
power supplies capable of providing eight hours of power to the headend
and three hours of power to the cable system plant in the event of
an electrical outage, with additional backup capacity provided by
portable generators.
(g)
A grantee shall install electronic status monitoring equipment
at locations consistent with a grantee's engineering practices.
(B)
Services and continuous operation. A grantee shall design said cable
system with the capability to provide upstream channel and downstream
channel capacity. A grantee shall also operate and maintain said cable
system in a manner which will enable continuous twenty-four-hour operation
of all services as required herein.
(C)
Periodic testing and compliance with FCC standards.
(1)
A grantee shall construct and operate the cable system to comply
with the FCC technical standards contained in Part 76, Subpart K of
the Commission's rules and regulations, as updated and amended from
time to time.
(2)
A grantee shall perform all tests necessary to determine compliance
with the FCC technical standards. Tests shall include, at minimum,
proof-of-performance tests required by FCC Rule Section 76.601 and
such additional or repeat tests involving specified subscriber terminals
as may be required to determine compliance with the FCC technical
standards. A grantee shall test at no fewer than two test points within
the Village.
(3)
Written records of test results shall be maintained at a grantee's
local office and made available for inspection by the Village, upon
request.
(4)
The Village shall have the right to enforce the FCC technical
standards referenced herein.
(D)
Adherence to electrical and safety codes. The construction, installation,
activation, reactivation, and operation of any portion of a grantee's
signal origination or signal processing or signal distribution system
and equipment, including, but not limited to, the towers, antennas,
headend, studio, trunk and distribution system, drops, power supplies,
and fixed or portable equipment located on or off subscriber-occupied
property shall comply with all applicable requirements of each of
the following publications:
(1)
The National Electrical Code, as adopted and amended pursuant to Chapter 14, Article 6, of this Code;
(2)
The most current edition of the National Electrical Safety Code,
as published by the Institute of Electrical and Electronics Engineers
Inc.;
(3)
Bellcore Code of Pole Line Construction.
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The grantee shall at all times comply with all other appropriate
federal, state, and local regulations, and codes and other ordinances
of the Village.
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(E)
Signal blocking and parental lockout. Upon request of the subscriber, a grantee shall make available a parental control mechanism or device that permits the subscriber to lock out audible and visual reception of programming of the subscriber's choice. For purposes of the franchise agreement, a converter box which contains a programmable microprocessing chip that enables blocking or scrambling of cablecast signals, shall meet the requirements of this Section 13-2-13. Where the lockout device is incorporated into a set-top converter, a grantee may not charge a fee beyond the amount allowed under FCC rate regulations for the converter.
(F)
Auxiliary power. A grantee's cable system shall be equipped
with an electric generator which starts automatically in the event
of a power failure or other loss of conventional power to provide
electric service to the cable system headend and associated equipment.
A grantee shall provide electric generator power at the headend, and
battery backup power along cable trunk line amplifiers, or at optical
node sites for the purpose of continuation of service in the event
of repairs, maintenance, power interruptions or power outages. Said
battery backup power shall have operating capacity of at least three
hours during a period of electric service interruption. Electric generator
power shall have capacity to operate the headend for at least eight
hours during a period of electric service interruption.
(G)
Grounding of system equipment and service connections. All towers,
antennas, satellite receiving stations, and other exposed equipment,
including subscriber drops and power supplies of the grantee used
in the provision of cable service, shall be properly grounded in accordance
with the National Electrical Code and the National Electrical Safety
Code.
(H)
Emergency override. Unless provided for differently in a franchise
agreement:
(1)
The grantee shall configure the cable system to enable carriage
of audio emergency override cablecasting over all channels of the
cable system in accordance with FCC regulations. Said emergency override
capability shall be designed to allow the Village President or his
or her designee to activate the emergency override upon declaration
of a public emergency.
(2)
Upon requirement by the FCC to participate in the emergency
alert system, the grantee shall provide the following.
(a)
A channel alert system which provides subscribers with appropriate
audio and visual emergency warnings on all channels operated by the
grantee at any given time.
(b)
An emergency alert system (EAS) or its successor, in accordance
with all requirements of the FCC, including, but without limitation,
the requirement currently set forth in FCC regulations that cable
television systems transmit a visual EAS message on at least one channel
and that cable television systems also provide video interruption
and audio EAS message on all channels with the video further stating
which channel is carrying the visual message. In establishing its
EAS system, the grantee shall, in accordance with FCC or other applicable
regulations, cooperate with the Village on the use and operation by
the Village of the EAS.
(I)
Interference. A grantee shall not allow its cable or other operations
to interfere with television reception of subscribers or persons not
served by the grantee, nor shall the system interfere with, obstruct
or hinder in any manner the operation of the various utilities serving
the residents within the confines of the Village nor shall other utilities
interfere with the grantee's system.
(J)
Service interruptions. Unless otherwise provided for in a franchise
agreement, a grantee may interrupt service to cable subscribers when
necessary for the purposes of alteration, maintenance, repair or emergencies.
The grantee shall create such interruptions at such time as will reasonably
minimize inconvenience to its subscribers, and unless such interruption
is unforeseen and immediately necessary, it shall give at least 24
hours' notice thereof to the affected subscribers and the franchising
authority. The grantee shall notify subscribers in advance by means
of the public access or grantee origination channels of any large-scale
planned service interruptions as defined herein at least 24 hours
in advance of the planned interruption. A large-scale planned service
interruption shall mean an interruption of cable service under the
following conditions: (1) where a node topology has not been employed,
a service interruption affecting 25% or more of the cable system's
subscriber households; or (2) where a node topology has been employed
and activated, a service interruption affecting two or more of the
nodes located within the franchise area.
(K)
Antenna switch. The grantee, upon request of any subscriber, shall
install at a reasonable charge, a switching device so as to permit
a subscriber to continue to utilize his or her own television antenna
if he or she so chooses.
(L)
Repair service. The grantee shall establish a repair service capable
of identifying, locating and correcting major system malfunctions
in an expeditious manner. Said repair service shall be available on
a twenty-four-hour basis, seven days a week, to restore service of
the cable system to subscribers. The grantee shall keep and maintain
an inventory of maintenance and repair parts for the cable system.
The grantee shall maintain or otherwise have available a work force
of skilled technicians for cable system repair and maintenance. Upon
completion of a service call, installation, or installation-related
activity, the customer shall receive a notification of the service
call.
(A)
Authority for use of rights-of-way. For the purposes of operating
and maintaining a cable system within the franchise area, the grantee
may erect, install, construct, repair, replace, reconstruct, and retain
in, on, over, under, across and along the streets and public ways
within the franchise area, lines, cables, conduits, vaults, manholes,
amplifiers, appliances, pedestals, attachments and other property
and equipment as are necessary and appurtenant to the operation of
the cable system, provided that all applicable permits are applied
for and granted, all fees paid and all other Village codes and ordinances
otherwise complied with.
(B)
Compliance with construction standards. The grantee shall design,
engineer, construct, install, operate, and maintain its system in
a manner which follows construction standards as set forth below and
as may be required by any franchise agreement or any other applicable
federal, state or local ordinances or regulations. Construction, installation,
and maintenance of the cable system shall be performed by the grantee
in a workmanlike manner.
(1)
Standards and principles. All construction in the right-of-way
shall be consistent with applicable ordinances, codes, laws, rules
and regulations, and commonly recognized and accepted traffic-control
and construction principles, sound engineering judgment and, where
applicable, the principles and standards set forth in the following
Illinois Department of Transportation (IDOT) publications:
(a)
Standard Specifications for Road and Bridge Construction;
(b)
Supplemental Specifications and Recurring Special Provisions;
(c)
Highway Design Manual;
(d)
Highway Standards Manual;
(e)
Standard Specifications for Traffic Control Items;
(f)
Illinois Manual on Uniform Traffic Control Devices (92 Ill.
Adm. Code 545);
(g)
Flagger's Handbook; and
(h)
Work Site Protection Manual for Daylight Maintenance Operations.
(2)
Interpretation of Village standards and principles. If a discrepancy
exists between or among differing principles and standards required
by this Article 2, the Director of Public Works shall determine, in
the exercise of sound engineering judgment, which principles apply.
(C)
Permits required. No construction, upgrade, or relocation (excepting
routine maintenance and repair) of the cable system or its components
within the public ways of the Village shall be initiated without approval
by means of permit issued by the Village. In issuing such permit,
the Village may, at its option, impose such conditions, restrictions,
or regulations as are needed for protection of public property, private
property, buildings, structures, and public utilities, for maintaining
the safety of the public, and the unimpeded flow of traffic by pedestrians
and vehicles. Upon receipt of such permit, the grantee shall provide
the Village 14 days' notice prior to the start of construction;
however, such notice may be waived by the Village Manager or his or
her designee in the event that construction, upgrade, or relocation
of the cable system or its components is necessitated by emergency
conditions. The permittee shall promptly complete all construction
activities so as to minimize disruption of the public streets and
public ways and private property. All construction work authorized
by a permit within public streets or public ways, including restoration,
must be completed as soon as practicable, but in all circumstances
within 60 days after the date of issuance, except as may be approved
by the Director of Public Works, upon a showing by the permittee of
good cause therefor.
(D)
Right of Village to examine plans and inspect construction. Prior
to construction, upgrade, installation, or erection of towers, poles,
conduits, or fixtures, the grantee shall submit plans and maps detailing
proposed facility construction, upgrade, installation, or erection
to the Village for its examination. Upon approval by the Director
of Public Works, the grantee may proceed with implementation of its
proposed plans and activities. The Village shall not unreasonably
withhold such approval of the grantee's plans. Notwithstanding
such approval, all work and materials are subject to the Village's
inspection by its designated representative within a reasonable time
after completion of the work or segments thereof. The grantee shall
permit the Village to conduct inspections of construction or installation
being performed in accordance with this Article 2. If upon inspection
any work or materials fail to meet the specifications or any other
requirements of this Article 2 or a franchise agreement, the Village
may require said work to be corrected or said material to be replaced
at the grantee's expense.
(E)
Construction/reconstruction schedule.
(1)
Schedule included. Franchise applications shall include a schedule
for construction or, in the case of a franchise which is being considered
for renewal, a schedule for upgrade, including a timetable for commencement
or enhancement of cable services to subscribers. Said schedule shall
be incorporated into the franchise agreement and shall be enforceable
to the grantee under the provisions of this Article 2.
(2)
Preliminary drawings. Within three months after acceptance of
a new franchise, or an agreement between the grantee and the franchising
authority regarding a reconstruction of the cable system, the grantee
shall furnish the franchising authority with a copy of preliminary
engineering drawings and an operating construction schedule setting
forth target dates by area for construction activity. If substantial
changes become necessary, the grantee shall modify such drawings and
schedule to accurately reflect any substantial changes.
(3)
Reports. The grantee shall furnish the franchising authority
progress reports on construction or upgrade of the cable system at
such time and in such manner as reasonably determined by the Director
of Public Works.
(F)
Erection of poles.
(1)
Prior approval required. No franchise shall be deemed to expressly
or impliedly authorize the grantee to construct, relocate or install
poles within streets for the purpose of placing cables, lines, wires
or otherwise, without the prior approval of the Village. Such consent
shall be given upon such terms and conditions as the Village may prescribe
which shall include a requirement that the grantee perform, at its
sole expense, all tree trimming required to maintain the poles clear
of obstructions. Consent shall not be unreasonably withheld but shall
be subject to reasonable and necessary limitations to protect public
health, safety, and welfare.
(2)
Relocation. The franchising authority may require relocation
of such poles for any legitimate municipal purpose.
(G)
Location of existing facilities. A grantee proposing to construct
or reconstruct facilities in the Village shall contact JULIE and ascertain
the presence and location of existing aboveground and underground
facilities within the rights-of-way to be occupied by its proposed
facilities. The Village will make its permit records available to
a grantee for the purpose of identifying possible facilities. When
notified of an excavation or when requested by the Village or by JULIE,
a grantee shall locate and physically mark its underground facilities
within 48 hours, excluding weekends and holidays, in accordance with
the Illinois Underground Utility Facilities Damage Prevention Act,
220 ILCS 50/1 et seq.
(H)
Location of facilities. Where possible, cables and wires shall be
buried underground and within the same easement as electric and telephone
utility wiring. Cabling, amplifiers, and related appurtenances which
are connected overhead on utility poles shall be erected and maintained
in accordance with National Electrical Code and National Electrical
Safety Code requirements as referenced herein. The grantee shall follow
easement lines as indicated by appropriate drawings, maps, plats,
and plan documents. With respect to any cables, wires, and other like
facilities constructed and installed by the grantee aboveground, the
grantee shall, at its sole expense, reconstruct and reinstall cables,
wires or other facilities underground pursuant to any project under
which the cables, wires, or other facilities of all like utilities
are placed underground within an area.
(1)
Parallel facilities located within rights-of-way, public streets
or public ways.
(a)
Aboveground parallel facilities. An aboveground parallel facility
may be located within the right-of-way lines of a public street or
public way only if:
(i)
Lines are located as near as practicable to the
right-of-way line and as nearly parallel to the right-of-way line
as reasonable pole alignment will permit;
(ii)
Where pavement is curbed, poles are as remote
as practicable from the curb with a minimum distance of two feet (0.6
m) behind the face of the curb, where available;
(iii)
Where pavement is uncurbed, poles are as remote
from the pavement edge as practicable with a minimum distance of four
feet (1.2 m) outside the outer shoulder line of the roadway and are
not within the clear zone;
(iv)
No pole is located in the ditch line of a public
street or public way;
(v)
Any ground-mounted appurtenance is located within
one foot (0.3 m) of the right-of-way line or as near as possible to
the right-of-way line.
(2)
Underground parallel facilities. An underground parallel facility
may be located within the right-of-way lines of a public street or
public way only if:
(a)
The facility is located as near the right-of-way line as practicable
and not more than eight feet (2.4 m) from and parallel to the right-of-way
line;
(b)
A new facility may be located under the paved portion of a public
street or public way only if other locations are impracticable or
inconsistent with sound engineering judgment (e.g., a new cable may
be installed in an existing conduit without disrupting the pavement);
and
(c)
In the case of an underground communications line, the facility
shall be located as near the right-of-way line as practicable and
not more than five feet (1.5 m) from the right-of-way line, and any
aboveground appurtenance shall be located within one foot (0.3 m)
of the right-of-way line or as near as practicable.
(3)
Facilities crossing public street or public way.
(a)
Avoid future disruption. The construction and design of crossing
facilities installed between the ditch lines or curblines of Village
public street or public ways may require the incorporation of materials
and protections (such as encasement or additional cover) to avoid
settlement or future repairs to the roadbed resulting from the installation
of such crossing facilities.
(b)
Culverts, or drainage facilities. Crossing facilities shall
not be located in culverts, or drainage facilities.
(c)
Ninety-degree crossing required. Crossing facilities shall cross
at or as near to a ninety-degree angle to the center line as practicable.
(d)
Aboveground communication facility. An overhead communication
facility may cross a public street or public way only if:
(i)
It has a minimum vertical line clearance as required
by ICC's rules entitled, "Construction of Electric Power and
Communication Lines" (83 Ill. Adm. Code 305);
(ii)
Poles owned by a grantee are located within one
foot (0.3 m) of the right-of-way line of the public street or public
way and outside of the clear zone; and
(iii)
Overhead crossings at major intersections are
avoided.
(e)
Underground communication facility. An underground communication
facility may cross a public street or public way only if:
(4)
Freestanding facilities.
(5)
Appearance standards.
(a)
The Village may prohibit the installation of facilities in particular
locations in order to preserve visual quality.
(b)
A facility may be constructed only if its construction does
not require extensive removal or alteration of trees or terrain features
visible to the traveler or impair the aesthetic quality of the lands
being traversed.
(6)
Undergrounding and method of installation.
(a)
All installations shall be underground in those areas of the
Village where public utilities providing both telephone and electric
service are underground at the time of installation. In areas where
either telephone or electric utility facilities are aboveground at
the time of installation, the grantee may install its service aboveground,
provided that at such time as those facilities are required to be
placed underground by the Village or are placed underground pursuant
to the same terms and conditions of those other utility facilities,
the grantee shall likewise place its services underground without
additional cost to the Village or to the individual subscriber so
served within the Village. Where the grantee's existing cable
system facilities are placed underground, any reconstruction of such
facilities shall be underground as well.
(b)
Where not otherwise required to be placed underground by the
franchise agreement, the grantee's cable system facilities shall
be located underground at the request of the property owner, provided
that all reasonable costs over aerial location shall be borne by the
property owner making the request.
(c)
All wires, cables, amplifiers, node sites, and other property
shall be constructed and installed in an orderly and workmanlike manner.
All cables and wires shall be installed parallel to existing telephone
and electric wires wherever possible. Multiple cable configurations
shall be arranged in parallel and bundled together with proper lashing
or conduit, with due respect for engineering and safety considerations.
The grantee shall identify its cable system and cable drops by either
color code, stamping, engraving, or tagging so as to distinguish its
cables from those of other utilities and telecommunications providers
serving the franchise area. Aerial cable which is placed over public
streets or public ways shall be hung at the heights specified for
streets, sidewalks, parkways, and yards as specified by the National
Electrical Safety Code, and underground cable shall be buried at depths
in accordance with guidelines established by the National Electrical
Safety Code as referred to herein.
(d)
All underground work required by the franchising authority in
concert with other utilities will be done in a coordinated fashion.
The grantee will request joint meet conferences, including the Village,
for each project, bringing all utilities and the grantee's plant
from an aerial to an underground status. The grantee shall share both
map prints and locating information to help minimize any disturbance
to either the grantee and/or another entity's underground distribution
network. All work will be done in accordance with the Joint Utility
Locating Information for Excavators (JULIE) specifications and a record
of all locate and dig requests will be maintained by the grantee at
its principal offices. All underground construction will be done by
directional boring, except where safety or other conditions preclude
it or render it unnecessary.
(e)
In those areas of the franchise area where the Village Manager
finds that the public streets or public ways will not readily accommodate
further underground facilities, the Village Manager may require that
a grantee's conduits be oversized, duplicated, or placed in multiple
configurations to adequately provide for future use. In those areas
of the franchise area where the Village Manager finds that the public
streets or public ways will not accommodate further underground facilities,
the Village Manager may require that a grantee submit an alternate
routing plan through public streets and/or public ways which would
accommodate a grantee's proposed facilities, or if no alternate
routing plan is feasible, deny the request for use of the public streets
and public ways. The Village encourages the sharing of available conduit
space at reasonable rates among users of the public streets and public
ways.
(7)
Facility attachments to public way structures owned by the Village.
(a)
Facilities may be installed as attachments to public way structures
only where a grantee has demonstrated that all other means of accommodating
the facility are not practicable. Other means shall include, but are
not limited to, underground, underwater, independent poles, cable
supports and tower supports, all of which are completely separated
from the public way structure.
(b)
A grantee shall include in its request to accommodate a facility
installation on a public way structure information supporting the
impracticability of alternate routing. Approval or disapproval of
an application for facility attachment to a public way structure will
be based upon the following considerations:
(i)
The type, volume, pressure or voltage of the commodity
to be transmitted and an evaluation of the resulting risk to persons
and property in the event of damage to or failure of the facility;
(ii)
The type, length, value, and relative importance
of the public way structure;
(iii)
The alternative routings available to the grantee
and their comparative practicability;
(iv)
The proposed method of attachment;
(v)
The ability of the structure to bear the increased
load of the proposed facility;
(vi)
The degree of interference with bridge maintenance
and painting;
(vii)
The effect on the visual quality of the structure;
and
(viii)
The public benefit expected from the service
provided by the grantee as compared to the risk involved.
(I)
Construction methods and materials.
(1)
Boring required. Boring will be the only acceptable method of
construction on and under the Village right-of-way unless the grantee
can demonstrate to the Director of Public Works that boring as a method
of construction would cause the grantee undue hardship. Notwithstanding
the foregoing, access pits and auger pits may be constructed utilizing
the trench method of construction.
(2)
Pavement cut coordination.
(a)
Any grantee performing work or constructing facilities in Village
rights-of-way shall coordinate its construction program and all other
work in the Village rights-of-way with the Village's program
for reconstruction, resurfacing, and rebuilding of public streets
and public ways. A grantee shall meet with the Village Manager or
a designee at least twice per year to this end.
(b)
Any grantee performing work or constructing facilities shall
not cut or otherwise breach or damage the surface of any paved Village
right-of-way within 48 months after such pavement area has been redeveloped
unless such cut or breach is necessitated by a bona fide emergency
as determined by the Village Manager or his or her designee after
the parties meet and confer. Where a grantee performing work or constructing
facilities has excavated a trench in a paved area of a Village right-of-way,
it shall repair the paved surface by repaving from the curbline to
the first seam or center of road or as mandated by the Village.
(3)
Standards and requirements for particular types of construction
methods.
(a)
Boring or jacking.
(i)
Boring or jacking under rights-of-way shall be
accomplished from pits located at a minimum distance specified by
the Director of Public Works from the edge of the pavement. Pits for
boring or jacking shall be excavated no more than 48 hours in advance
of boring or jacking operations and backfilled within 48 hours after
boring or jacking operations are completed. While pits are open, they
shall be clearly marked and protected by barricades. Shoring shall
be designed, erected, supported, braced, and maintained so that it
will safely support all vertical and lateral loads that may be imposed
upon it during the boring or jacking operation. Pits must be covered
and secured by iron or steel plates when workers are not present.
(ii)
Wet boring or jetting shall not be permitted under
the roadway.
(iii)
Any facility located within the dripline of any
tree designated by the Village to be preserved shall be bored under
or around the root system.
(b)
Trenching. Trenching for facility installation, repair, or maintenance
on rights-of-way, if permitted by the Village, shall be done in accord
with the applicable portions of Section 603 of IDOT's Standard
Specifications for Road and Bridge Construction.
(i)
Length; special permission obtained. The length
of open trench shall be kept to the practicable minimum consistent
with requirements for pipeline testing. Only 1/2 of any intersection
may have an open trench at any time unless special permission is obtained
from the Director of Public Works.
(ii)
Excavated material. Open trench and windrowed excavated material shall be protected as required by Chapter 6 of the Illinois Manual on Uniform Traffic Control Devices. Where practicable, the excavated material shall be deposited between the roadway and the trench as added protection. Excavated material shall not be allowed to remain on the paved portion of the roadway. Where right-of-way width does not allow for windrowing excavated material off the paved portion of the roadway, excavated material shall be hauled to an off-road location.
(iii)
Dripline of trees. A grantee working in the public
way shall not trench within the dripline of any tree designated by
the Village to be preserved.
(c)
Backfilling.
(i)
Any pit, trench, or excavation created during the
installation of facilities shall be backfilled for its full width,
depth, and length using methods and materials in accordance with IDOT's
Standard Specifications for Road and Bridge Construction. When excavated
material is hauled away or is unsuitable for backfill, suitable granular
backfill shall be used.
(ii)
For a period of three years from the date construction
of a facility is completed, a grantee shall be responsible to remove
and restore any backfilled area that has settled due to construction
of the facility. If so ordered by the Director of Public Works, the
grantee, at its expense, shall remove any pavement and backfill material
to the top of the installed facility, place and properly compact new
backfill material, and restore new pavement, sidewalk, curbs, and
driveways to the proper grades, as determined by the Director of Public
Works.
(d)
Pavement cuts. Pavement cuts for facility installation or repair
shall be permitted on a public street or public way only if that portion
of the public street or public way is closed to traffic. If the Village
permits any cutting of the pavement the following requirements shall
apply:
(i)
Any excavation under pavements shall be backfilled
as soon as practicable with granular material of CA-6 or CA-10 gradation,
as designated by the Director of Public Works.
(ii)
Restoration of pavement, in kind, shall be accomplished
as soon as practicable, and temporary repair with bituminous mixture
shall be provided immediately. Any subsequent failure of either the
temporary repair or the restoration shall be rebuilt upon notification
by the Village.
(iii)
All saw cuts shall be full depth.
(e)
Encasement. Casing pipe shall be designed to withstand the load
of the public street or public way and any other superimposed loads.
The casing shall be continuous either by one-piece fabrication or
by welding or jointed installation approved by the Village.
(4)
Minimum cover of underground facilities. Where cabling is buried
under public streets or public ways, underground cable shall be buried
at depths of 36 inches for coaxial trunk, or 48 inches for fiber trunk,
and 24 inches for feeder cable, and for a subscriber drop, no less
than six inches when buried with a mechanical slit trencher or similar
device in accordance with guidelines established by the National Electrical
Code and National Electrical Safety Code as referred to herein.
(5)
Standards and requirements for communication lines.
(a)
Code compliance. Communications facilities within Village rights-of-way
shall be constructed, operated, and maintained in conformity with
the provisions of 83 Illinois Administrative Code 305 (formerly General
Order 160 of the Illinois Commerce Commission) entitled "Rules for
Construction of Electric Power and Communications Lines," the National
Electrical Code, and the National Electrical Safety Code.
(b)
Overhead pole facilities. Overhead communication facilities
shall use single pole construction and, where practicable, joint use
of poles shall be used. Utilities shall make every reasonable effort
to design the installation so guys and braces will not be needed.
Variances may be allowed if there is no feasible alternative and if
guy wires are equipped with guy guards for maximum visibility.
(c)
Underground facilities.
(i)
Cable may be installed by trenching or plowing,
provided that special consideration is given to boring in order to
minimize damage when crossing improved entrances and side roads.
(ii)
If a crossing is installed by boring or jacking,
encasement shall be provided between jacking or bore pits. Encasement
may be eliminated only if:
(iii)
Cable shall be grounded in accordance with the
National Electrical Safety Code.
(6)
Materials.
(a)
Material storage on right-of-way. All pipe, conduit, wire, poles,
crossarms, or other materials shall be distributed along the right-of-way
prior to and during installation in a manner to minimize hazards to
the public or an obstacle to right-of-way maintenance or damage to
the right-of-way and other property. If material is to be stored on
the right-of-way, prior approval must be obtained from the Village.
(b)
Hazardous materials. The plans submitted by the grantee to the
Village shall identify any hazardous materials that may be involved
in the construction of the new facilities or removal of any existing
facilities.
(J)
Operational restrictions.
(1)
Restrictions. Construction operations on rights-of-way may,
at the discretion of the Village, be required to be discontinued when
such operations would create imminent hazards to traffic or the public
health, safety, and welfare. Such operations may also be required
to be discontinued or restricted when conditions are such that construction
would result in extensive damage to the right-of-way or other property.
(2)
Waivers. These restrictions may be waived by the Director of
Public Works when emergency work is required to restore vital utility
services.
(3)
Hours of work. Unless addressing an emergency repair, no noise-generating
operations will be performed: prior to 7:00 a.m. nor after 6:00 p.m.
Monday through Friday; prior to 7:00 a.m. nor after 12:00 p.m. on
Saturdays and not at all on Sundays. A grantee shall use its best
efforts to avoid performing any noise-generating operations within
300 feet of houses of worship on religious holidays and Saturdays.
A grantee shall endeavor to coordinate its activities with all local
houses of worship to avoid any conflict. Any operations to be conducted
on private property shall be coordinated with the occupant or owner
of the property.
(K)
As-built drawings.
(1)
As-built drawings required. Each grantee shall provide four
sets of as-built maps of the cable system to the Village within 90
days after initial construction or upgrade of the cable system is
substantially completed.
(2)
Provided after completion. Within 60 days after completion of
any construction or work that results in any addition, extension,
or removal of the system within the public ways of the Village, each
grantee shall furnish the Village with two complete sets of as-built
drawings accurately depicting the location of all cables, wires, and
facilities constructed or relocated as part of such work, and submitted
in both a paper format and in an electronic format capable of inclusion
within the Village's geographic information systems.
(3)
Atlas information. As-built drawings submitted to the Village
will be used to create atlas information and will be documented into
an overall utilities atlas. If a grantee desires, it may provide a
set of as-built drawings that shall be public records, and a separate
set of detailed maps containing proprietary information that the Village
would agree to protect from public disclosure.
(L)
Contractor qualifications. Any contractor performing work for the
grantee with respect to construction, upgrade, installation, repair
or maintenance of the cable system shall be properly and currently
licensed under laws of the State of Illinois, and under ordinances
of the Village of Lincolnwood.
(M)
Movement of buildings or other structures. The grantee shall, upon
request by any person holding a building moving permit or other approval
by the Village, temporarily remove, raise or lower its wires to permit
the movement of buildings or other structures. The expense of such
removal, raising or lowering shall be paid by the person requesting
same, and the grantee shall be authorized to receive such payment
in advance. The grantee shall be given not less than 30 days'
written notice to arrange for such temporary wire changes.
(N)
Removal of vegetation; landscape restoration.
(1)
Permit required. Tree trimming shall not be considered a normal
maintenance operation, but shall require the application for, and
the issuance of, a permit pursuant to the applicable provisions of
this Code, in addition to any other permit required under this Article
2. A grantee shall not remove any tree, shrub, plant, or vegetation
on public property or encroaching on a public way without first receiving
such permit from the Village.
(2)
Permit applications. Applications for tree trimming permits
shall include assurance that the work will be accomplished by competent
workers with supervision who are experienced in accepted tree pruning
practices. Tree trimming permits shall designate an expiration date
three days after issuance, in the interest of assuring that the work
will be expeditiously accomplished.
(3)
Notification of Village. A grantee shall notify the Village
Arborist and the Director of Public Works prior to the initiation
of pruning cycles which will involve trees located on Village-owned
property for the purpose of maintaining safe line clearance. The notice
shall state the estimated time frame of the pruning cycle as well
as the planned locations in the Village where the work will be performed.
All pruning work shall be carried on in accordance with the accepted
arboricultural standards and any requirements imposed by a duly enacted
franchise agreement or other additional Village regulations or ordinances.
(4)
Notification of underground maintenance or installation. A grantee
shall also notify the Village Arborist and the Director of Public
Works prior to the installation or maintenance of underground facilities
that require a permit if such activity will occur within the dripline
of trees located on Village-owned property. In the case of severe
storms, natural disasters or other emergency situations, a grantee
may perform any required pruning or underground utility maintenance
necessitated by such situation. In such situations, the grantee, if
possible, will make a reasonable effort to notify the Village Arborist
and the Director of Public Works in advance of performing such work.
In the event that a grantee is unable to provide the required notice
in advance of performing such work, the grantee shall thereafter notify
the Village Arborist and the Director of Public Works of the work
performed as soon as possible.
(5)
Work at grantee's expense. Any such work shall be performed
at the grantee's expense and shall be subject to supervision
by the Village. Any cutting or removal of trees, shrubs, plants, or
vegetation on private property by the grantee shall not be performed
without first receiving the written permission of the property owner.
(6)
Subcontracting; prior approval. The grantee may contract for
trimming or pruning services with any person approved by the Village
prior to the rendering of said services. The grantee or any contractor
of the grantee is responsible for removing all cut branches, foliage
and vegetation debris from each individual work site upon completion
of the pruning or cutting.
(7)
Transplanting. Trees or shrubs to be transplanted shall be transplanted
in accordance with the Village's tree planting standards and
with the permission of the Village Arborist and the Director of Public
Works. Where construction encroaches within close proximity to trees
or shrubs, such trees or shrubs shall be guarded so as to avoid injury
to the trunk, crown, or root systems. Building materials, soils, or
other debris shall not be placed on municipal property within the
dripline of trees owned by the Village. Wherever possible, underground
structures and conduits shall be relocated outside of the tree or
shrub dripline. If the above criteria cannot be met, the facilities
in question shall be installed by auguring based on an evaluation
by the Village of distance based on the tree diameter measured 4 1/2
feet above the ground.
(8)
Restoration. All trees, landscaping, and grounds removed, damaged,
or disturbed as a result of the construction, installation, maintenance,
repair, or replacement of cable system facilities, whether such work
is done pursuant to a franchise, license, or permit, shall be replaced
or restored as nearly as practicable to the condition existing prior
to the performance of work. All restoration work within the public
ways shall be done in accordance with landscape plans approved by
the Director of Public Works.
(9)
Pruning practices. Poor pruning practices resulting in damaged
or misshapen trees shall be grounds for cancellation of the tree trimming
permit and for assessment of damages. The Village will require compensation
for trees extensively damaged and for trees removed without authorization.
The formula developed by the International Society of Arboriculture
will be used as a basis for determining the compensation for damaged
trees or unauthorized removal of trees. The Village may require the
removal and replacement of trees if trimming or radical pruning would
leave them in an unacceptable condition.
(10)
Chemicals prohibited. Spraying of any type of brush-killing
chemicals will not be permitted on Village rights-of-way unless the
grantee demonstrates to the satisfaction of the Director of Public
Works that such spraying is the only practicable method of vegetation
control.
(11)
Specimen trees. The Village may require that special measures
be taken to preserve specimen trees or trees of special significance.
The required measures may consist of higher poles, side arm extensions,
covered wire or other means.
(O)
Protection and restoration of private and public property.
(1)
Preservation of property required. The grantee shall preserve
and protect all property of public utility companies or the Village,
including pole lines, conduits, gas or water pipes and tile lines
which run over, through, or under any part of a public street or public
way, by complying with JULIE. The grantee or any other party damaging
JULIE-located utilities is responsible for full reimbursement for
any and all damage sustained by the damaged party to all JULIE-located
utilities which may be caused by the grantee's operations.
(2)
Precautionary measures. The grantee shall exercise all reasonable
precautionary measures during the progress of the work so as to warn
and protect residents and other persons and private property from
injury and damage. The grantee shall make all reasonable efforts to
cooperate with the public and those adjoining landowners during the
course of the work to minimize any disruption or inconvenience to
those persons and their property. The grantee shall ensure that all
landowners and occupants are able to enter and leave their homes and
property (including driveways and garages) at all reasonable times
and during nonconstruction hours.
(3)
Immediate restoration of utility service. In the event that
the grantee damages any utility service to or on private property,
the grantee shall take immediate action to notify the appropriate
utility to facilitate immediate repair of said damage and restore
utility service.
(4)
Restoration requirements. Upon completion of construction, upgrade,
installation, maintenance or repair of components of the cable system
on private property, the grantee shall be responsible for repairing
all damages or injury to property of any character that occurs during
the execution of any work if such damage results from any act, omission,
neglect, or misconduct by the grantee. The grantee shall restore said
property to a condition similar or equal to that existing before the
construction of the work within 10 days after the construction, upgrade,
installation, maintenance unless weather conditions or other pertinent
factors necessitate a longer time frame. Such restoration shall be
made in a workmanlike and professional manner.
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Where areas of grass have been disturbed, the grantee shall
replace said affected grassy areas with sod or seed, at the Village's
discretion, as soon as possible within 10 days after the construction,
upgrade, installation, maintenance unless weather conditions necessitate
a longer time frame. The grantee shall be responsible for the initial
maintenance of sod, including fertilization, and shall inform the
property owner, in writing, of the proper care of sod and the owner's
responsibility for ongoing maintenance of sod. In the event that the
grass dies before the end of the first season, the grantee shall replace
the grass at its expense.
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(5)
Disposition of cable home wiring. The grantee shall comply with
the provisions of Title 47, Section 76.802 et seq., of the United
States Code of Federal Regulations in the disposition of cable home
wiring.
(6)
Restoration of public streets, public ways, and other Village
property.
(a)
When a grantee, or any person acting on the grantee's behalf,
does any work in or affecting a public street, public way, or other
Village property, it shall, at its own expense, promptly remove any
obstructions therefrom, and restore such ways or property to as good
a condition as existed before the work was undertaken, unless otherwise
directed by the Village.
(b)
If weather or other conditions do not permit the complete restoration required by this Section 13-2-14, the grantee shall temporarily restore the affected public street(s), public way(s) or other property. Such temporary restoration shall be at the grantee's sole expense, and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(P)
Traffic control, street closings and occupancy.
(1)
Traffic control. A grantee or other person acting on its behalf,
shall use suitable barricades, flags, flaggers, lights, flares, and
other measures as required herein for the safety of all members of
the general public, and to prevent injury or damage to any person,
vehicle, or property by reason of such work in or affecting such public
street(s), public way(s), or other property.
(a)
Minimum requirements. The Village's minimum requirements
for traffic protection are contained in the Illinois Manual on Uniform
Traffic Control Devices and this Code.
(b)
Warning signs, protective devices, and flaggers. The grantee
is responsible for providing and installing warning signs, protective
devices and flaggers, when necessary, meeting all applicable federal,
state, and local requirements for protection of the public and the
grantee's workers when performing any work on the public rights-of-way.
(c)
Interference with traffic. All work shall be phased so that
there is minimum interference with pedestrian and vehicular traffic.
(d)
Notice when access is blocked. At least 48 hours prior to beginning
work that will partially or completely block access to any residence,
business or institution, the grantee shall notify the resident, business
or institution of the approximate beginning time and duration of such
work; provided, however, that in cases involving emergency repairs,
the grantee shall provide such notice as is practicable under the
circumstances.
(e)
Compliance. The grantee shall take immediate action to correct
any deficiencies in traffic protection requirements that are brought
to its attention by the Village.
(2)
Street closings and occupancy. No public street, including alleys,
shall be closed to the public by the grantee except as authorized
by the Village or its designated representative and in accordance
with the following procedures:
(a)
When the grantee deems it necessary to close a public street
to traffic, the grantee shall employ roadway closure or partial closure
practices, as delineated in the Illinois Manual on Uniform Traffic
Control Devices and the standards established by the Village.
(b)
In those cases where the grantee anticipates significant disruptions
to vehicular or pedestrian traffic, the grantee shall submit an alternative
traffic routing plan to the Village Manager no less than 10 working
days prior to the date upon which the grantee intends to begin work
in the affected public street(s) or public way(s). The grantee must
obtain the Village's consent prior to any roadway or sidewalk
closure or partial closure.
(c)
In emergency situations, the grantee will consult on an immediate
basis with the Village Manager, and the grantee is required to notify
the Village Manager of any emergency situation with the least possible
delay.
(3)
Patching and reinforcing of excavation. Where the grantee or
its contractors or subcontractors conduct an excavation in a public
street during the winter months, the grantee or its contractors or
subcontractors shall repair the public street by leveling the surface
of the public street with cold patch materials, and shall reasphalt
the public street at its earliest opportunity (not to exceed 10 business
days during the spring months when hot asphalt becomes available).
All excavations shall have coated one-inch by twelve-inch rebar doweled
into existing concrete slabs every 24 inches on all sides.
(Q)
Construction bonds.
(1)
Construction bond required. Upon grant of a franchise upon which
initial construction of a cable system is proposed, or in the event
of an upgrade or rebuild of the cable system, the grantee shall file
and maintain with the Village a construction bond in an amount so
specified in the franchise agreement.
(2)
Blanket bond. For any period of time other than upgrade of the
cable system, unless otherwise provided by a franchise agreement,
an annual blanket bond in the amount of $25,000 shall be filed and
maintained with the Village. Such blanket bond is to cover any excavation,
demolition, or cutting into by the grantee of any public street or
public way in the Village for that calendar year in such form as the
Village may determine.
(3)
Security fund. On the effective date of a franchise, a grantee
shall establish a permanent security fund with the Village in the
cash amount specified in the franchise agreement or by an irrevocable
letter of credit from a bank authorized to do business in Illinois,
corporate surety bond or other instrument which complies with the
requirements set forth in the ordinance and approved by the Village
Attorney, which approval shall not be unreasonably withheld. The security
fund shall be maintained at the sole expense of the grantee so long
as any part of the system is located within the public streets and
public ways of the Village. The fund shall serve as security for the
full and complete performance of the ordinance and the franchise agreement,
including payment of any costs, expenses, damages or loss the Village
pays or incurs because of any act or omission attributable to the
grantee that constitutes a violation, default or failure to comply
with the codes, ordinances, rules, regulations or permits of the Village,
and the payment of any liquidated damage amounts, penalties, judgment
fees or taxes due the Village.
(R)
Construction delays. At such time where the grantee is delayed in
completing the construction of the cable system and such delay is
beyond the physical or administrative control of the grantee, the
grantee shall notify the franchising authority of said delay no more
than five business days from the occurrence of the delay, and shall
indicate the cause or causes for the delay. Upon receipt of notification
by the grantee of the delay of service, the franchising authority
and the grantee shall agree to establish a date by which the delay
shall end and construction or service shall resume. In the event that
the delay continues beyond the control of the grantee, and extends
beyond the agreed-upon date, the franchising authority and the grantee
may agree to establish a new date for resumption of construction or
service. Delays in construction or service which extend beyond a final
date agreed upon by the grantee and the franchising authority shall
constitute a violation of the franchise.
(S)
No bid-rigging or bid-rotating. As a condition of award of a franchise
to a grantee if required by law, the grantee shall certify to the
Village that it is not barred from contracting with a unit of local
government as a result of a violation of either the Illinois law prohibiting
bid-rigging or bid-rotating.
(A)
Grantee's indemnification of Village. Except for Village negligence,
a grantee shall, at its sole expense, fully indemnify, defend, save
and hold harmless the Village of Lincolnwood, its corporate authorities,
officers, boards, commissions, employees and agents from any and all
third party injuries, claims, counterclaims, demands, suits, judgments,
execution liabilities, debt damages, or penalties (hereinafter referred
to as "claims") arising out of, resulting from or alleged to arise
out of or result from, the approval of the franchise agreement, the
granting of a franchise, or the construction, erection, installation,
operation, maintenance of, or other activity connected with, a grantee's
cable system, whether or not such acts or omissions are those of a
grantee, and whether or not any such act or omission is authorized,
allowed or prohibited by the franchise agreement or a grantee's
franchise. These damages shall include, but not be limited to, penalties
arising out of or alleged to arise out of any claim for damages for
a grantee's invasion of the right of privacy, defamation of any
person, firm or corporation, or copyright, trademark, trade name,
service mark or patent violations or infringements, or of any other
right of any person, firm or corporation, damages arising out of any
failure by a grantee to secure consents from the owners, authorized
distributors or licensees of programs to be delivered by a grantee's
cable system, and failures of a grantee to comply with provisions
of any statute, regulation, or ordinance of the United States, State
of Illinois, Cook County, or Village of Lincolnwood applicable to
a grantee in its business.
(B)
Grantee's obligation to pay expenses. A grantee shall pay and by its acceptance of a franchise shall be deemed to have specifically agreed that it will pay all reasonable expenses incurred by the Village in defending itself with regard to all claims mentioned in Section 13-2-15(A) of this Code that exceed insurance coverage limits set forth herein, including reasonable attorney fees. Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in defense of litigation as co-counsel through their own Village Attorney at their sole expense. Such participation shall not under any circumstances relieve a grantee from its duties of defense against liability of or of paying any judgment entered against such indemnified party.
(C)
Insurance provided. During the term of the franchise agreement, a grantee will maintain, in full force and effect insurance being of the kind and with the limits designated below. A grantee shall furnish to the Village insurance certificates evidencing coverage as stated above issued by an insurance company authorized to do business under the laws of the State of Illinois, accepted by the Village and carrying a best rating of B+ XIII or higher. Such policies shall provide that no cancellation or modification of the policies shall occur without at least 30 calendar days' prior written notice given to the Village. Any notices of the cancellation or material modification of policies shall be given in accordance with this Section 13-2-15(C).
(1)
Comprehensive general liability insurance: comprehensive general
liability insurance for property and bodily injury with a limit of
$5,000,000 and showing the Village as an additional insured.
(2)
Comprehensive automobile liability insurance: comprehensive
automobile liability insurance including employers nonownership and
hired car coverage, protecting against automobile claims whether on
or off the Village's premises with limits of not less than $1,000,000
per accident.
(3)
Workers' compensation insurance: workers' compensation
insurance with statutory limits of liability.
(4)
Excess liability/umbrella policy: an umbrella insurance policy
in an amount not less than $5,000,000.
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All insurance companies issuing policies required herein, shall
provide certificates of insurance certifying to the Village that such
policies have been issued and are in force and will remain not materially
changed, canceled or annulled except upon 30 days' prior written
notice to the other party. If the policy is written on a claims-made
basis, then the grantee shall purchase such additional insurance as
may be necessary to provide specified coverage to the Village for
a period not less than five years from the termination of the franchise
agreement. Certificates of insurance shall be provided within 30 days
after the effective date of the franchise agreement. A grantee shall
cause the Village, its Trustees, officials and employees, to be listed
as an additional insured on its commercial general liability insurance
and comprehensive automobile liability and excess liability insurance
policies. There shall be no additional charge for said insurance to
the Village. As an additional named insured, the Village reserves
the right to notify a grantee's insurance carrier of any claims
the Village may have against a grantee.
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The parties shall consult during the life of the franchise agreement
regarding an increase of the limits of insurance coverage as stated
herein, and where necessary, coverage limits may be increased upon
agreement of the parties.
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(D)
Thirty-day notice of cancellation, termination or expiration of policy.
All insurance certificates reflecting a grantee's policies, performance
bonds, security fund, if applicable, and performance bond and letter
of credit required by this Article 2 shall contain a provision requiring
at least 30 days' written notice to both the Village and the
grantee of any cancellation, termination, or other expiration and
shall provide that no such cancellation, termination or expiration
shall be effective prior to such notice.
(E)
Documents filed with Village Clerk. Each such current certificate,
bond and letter of credit shall be verified by the Village Manager
of the Village of Lincolnwood as to its compliance with the terms
herein, and copies of such documents or insurance certificates shall
be filed and maintained with the Village Clerk.
(F)
Documents in noncompliance. Should the Village Manager find a document
to be in noncompliance, then the Village Manager shall so notify a
grantee and the grantee shall be obligated to reasonably cure the
defect.
(G)
Self-insurance. A grantee may self-insure all or a portion of the insurance coverage and limit requirements required by Section 13-2-15(C) of this Code. If a grantee self-insures it is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insureds under Section 13-2-15(C) of this Code, or the requirements of Section 13-2-15(D) and (E) of this Code. If a grantee elects to self-insure, it shall provide to the Village evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit requirements required under Section 13-2-15(C) of this Code, such as evidence that a grantee is a private self insurer under the Workers' Compensation Act.
(H)
Subcontractors. If a grantee uses any subcontractors ("subcontractors")
to perform any work relating to the cable system, the grantee will
be responsible for supervision, quality control, payment and insurance
of and for all work performed by the subcontractors. The grantee will
ensure that all subcontractors are operating in compliance with all
applicable federal and state laws and local ordinances. Subcontractors
will be as specified in required permits if the work to be done requires
a permit.
(A)
Line extension to residences. Unless a franchise agreement provides
otherwise, a grantee must make cable service available to every occupied
dwelling unit within the franchise area.
(B)
Nonresidential service. Commercial establishments within the franchise
area shall be offered connection to the cable system at the cost of
time and materials.
(A)
Uniformity of rates. Rates for cable service and charges for equipment
necessary for the reception of cable service shall be uniform throughout
the franchise area in accordance with applicable law or regulation.
The grantee may establish different rates for tiers of programming,
and may establish a rate schedule appropriate to commercial enterprises
which differs from such rates provided to residential dwelling units.
The grantee may also establish separate rates for subscribers residing
in congregate dwelling units for which bulk billing rates may be established.
(B)
Nondiscrimination in application of rates and fees. The grantee shall
not, in its rates or charges, or in the availability of the services
or facilities of its cable system, or in any other respect, discriminate
against any persons or group of persons protected by applicable nondiscrimination
laws; provided, however, the grantee may offer promotional discounts
in order to attract or maintain subscribers, provided that such discounts
are offered on a nondiscriminatory basis to similar classes or types
of subscribers throughout the Village.
(C)
Filing of rate schedule with Village. A grantee shall file annually
with the Village a full, written schedule of all subscriber and user
rates and all other fees or charges. Said schedule shall be filed
no less than 30 days prior to the time such changes are announced
by the grantee in the levels of regulated rates, fees, or other charges.
Unless otherwise provided in a franchise agreement, the grantee shall
provide no less than 30 days' advance notice of any other rates,
fees, and other charges.
(D)
Refusal of service. The grantee may refuse to offer service to any
person because of due or owing accounts between such person and the
grantee.
(E)
Reservation of rights to regulate cable services.
(1)
The Village reserves the right to regulate rates for basic cable
service and equipment of the grantee as allowed by the FCC. The Village
shall notify the grantee of its intention to file a request for certification
with the FCC. Upon receipt of said certification, the Village shall
adopt by separate ordinance, in accordance with Title 47, Section
76.910 of the United States Code of Federal Regulations, such regulations
consistent with the FCC regulations governing the basic tier of cable
service. Where the grantee adjusts the number of channels provided
on the cable system to subscribers, the grantee shall, in accordance
with FCC regulations as now or hereafter amended, adjust its rates
to subscribers accordingly.
(2)
The Village shall, within 120 days after the effective date
of certification:
(a)
Exercise its rights to regulate basic cable rates, and provide
reasonable opportunity for consideration of the views of interested
parties; and
(b)
Notify the cable operator that the Village has been certified
to regulate basic cable rates; and
(c)
Adopt regulations as required by Title 47, Section 76.910(e)(1)
of the United States Code of Federal Regulations.
(d)
Notify the cable operator of the franchising authority's
intent to review appropriate books and records and to request same
for the purpose of verifying the grantee's proposed rates for
basic cable service and associated services and equipment.
(F)
Village's right to impose and collect taxes, fees or assessments.
(1)
The Village reserves the right to impose and collect a municipal
occupation tax on the grantee's business of transmitting messages
by means of radio magnetic waves, electricity or fiber optics as allowed
by 65 ILCS 5/8-11-2. Said occupation tax shall not exceed an amount
of 5% of the gross receipts of grantee's business operations
originating within the corporate limits of the Village.
(2)
The Village reserves the right to impose and collect user fees
or assessments consistent with state and federal law from the grantee.
Prior to the authorization of said user fee or assessment, the method
of collection and the payment of the collected user fee or assessment
shall be determined jointly between the Village and the grantee.
(G)
Rate discounts. The grantee may offer discounts in rates in accordance
with applicable law.
(A)
Categories of service to be provided. A grantee shall provide on
the cable system all over-the-air broadcast stations required to be
carried by federal law or FCC regulations. The grantee shall provide
a wide range and diversity of programming for subscribers residing
within the franchise area. Unless otherwise provided by a franchise
agreement, categories of programming comparable in quality, mix, and
level to be provided by the grantee to subscribers shall include,
but not be limited to, the following:
(1)
Local, regional, national, and international news programs.
(2)
Local, regional, and national sports and sporting events.
(3)
Local, regional, and national weather.
(4)
Educational programming.
(5)
Children's programming.
(6)
Music programming (including audio music services).
(7)
Public affairs programming.
(8)
Movies.
(9)
General entertainment programming.
(10)
Cultural programming.
(11)
Pay-per-view programming.
(12)
Financial and business-related programming.
(13)
Foreign language programming.
(14)
Broadcast stations.
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Where a broadcaster providing over-the-air broadcast service
to the grantee has not reached an agreement with the grantee for carriage
of the broadcaster's signal by the deadline established by the
FCC for consent to transmit said broadcaster's signal ("retransmission
consent"), the grantee shall not be obligated pursuant to this Article
2 to carry said signal until such agreement has been finalized.
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(B)
Obscene programming. The grantee shall comply with all applicable
laws concerning the cablecasting of obscene programming.
(C)
Allocation of channel space. Unless otherwise provided in a franchise
agreement, the grantee shall dedicate an amount of channel space on
its cable system at a minimum level of one analog channel for public
access programming, one analog channel for educational access programming,
use of which shall be dedicated in part for the use of Oakton Community
College, and dedicated in part for use by School District 74 and by
School District 219, and one analog channel for governmental access.
The grantee shall, where possible, cluster access programming channels
together. In no event shall the grantee place any access programming
channel on an expanded basic service, satellite service, or digital
service tier of programming without the express written consent of
the franchising authority.
(D)
Distribution of government produced programming. In the event that there is more than one cable operator providing cable services to the franchise area, the Village shall not be precluded from providing programming produced for its government access or educational access channels to any cable operator if such cable operator provides a separate, direct link to the point of origination. Where a grantee controls and supervises a public, educational or governmental access channel, the grantee shall be exempt from the requirements of this Section 13-2-18(D).
(E)
Content. The content of programs on public, educational and governmental access channels shall not be controlled by the grantee. Where the grantee controls and supervises a public access channel, the grantee shall be exempt from the requirements of this Section 13-2-18(E).
(A)
A grantee shall be subject to the following customer service standards:
(1)
Cable system office hours and telephone availability.
(a)
A grantee will maintain a local, toll-free or collect call telephone
access line which will be available to its subscribers 24 hours a
day, seven days a week.
(i)
Trained grantee representatives will be available
to respond to customer telephone inquiries during normal business
hours.
(ii)
After normal business hours, the access line may
be answered by a service or an automated response system, including
an answering machine. Inquiries received after normal business hours
must be responded to by a trained grantee representative on the next
business day.
(b)
Under normal operating conditions, telephone answer time by
a customer representative, including wait time, shall not exceed 30
seconds when the connection is made. If the call needs to be transferred,
transfer time shall not exceed 30 seconds. These standards shall be
met no less than 90% of the time under normal operating conditions,
measured on a quarterly basis.
(c)
The grantee will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear
failure to comply.
(d)
Under normal operating conditions, the customer will receive
a busy signal less than 3% of the time.
(e)
Customer service center and bill payment locations will be open
at least during normal business hours and will be conveniently located.
(2)
Installations, outages and service calls. Under normal operating
conditions, each of the following four standards will be met no less
than 95% of the time measured on a quarterly basis.
(a)
Standard installations will be performed within seven business
days after an order has been placed. Standard installations are those
that are located up to 125 feet from the existing distribution system.
(b)
Excluding conditions beyond the control of the grantee, the
grantee will begin working on service interruptions promptly and in
no event later than 24 hours after the interruption becomes known.
The grantee must begin actions to correct other service problems the
next business day after notification of the service problem.
(c)
The appointment window alternatives for installations, service
calls, and other installation activities will be either a specific
time or, at maximum, a four-hour time block during normal business
hours. A grantee may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.
(d)
A grantee may not cancel an appointment with a customer after
the close of business on the business day prior to the scheduled appointment.
(e)
If a grantee representative is running late for an appointment
with a customer and will not be able to keep the appointment as scheduled,
the customer will be contacted. The appointment will be rescheduled
as necessary, at a time which is convenient for the customer.
(3)
Communications between a grantee and subscribers.
(a)
Notification to subscribers. A grantee shall provide written
information on each of the following areas at the time of installation
of service, at least annually to all subscribers, and at any time
upon request.
(i)
Products and services offered;
(ii)
Prices and options for programming services and
conditions of subscription to programming and other services;
(iii)
Installation and service maintenance policies;
(iv)
Instructions on how to use the cable service;
(v)
Channel positions of programming carried on the
system; and
(vi)
Billing and complaint procedures, including the
address and telephone number of the franchise authority's cable
office.
(b)
Notice in writing; time limit. Customers will be notified of any changes in rates, programming services or channel positions as soon as possible in writing. Notice must be given to subscribers a minimum of 30 days in advance of such changes if the change is within the control of the cable operator. In addition, a grantee shall notify subscribers 30 days in advance of any significant changes in the other information required by Section 13-2-19(A)(3)(a) of this Code. Notwithstanding any other provision of Part 76 of the FCC Cable Television Regulations, a grantee shall not be required to provide prior notice of any rate change that is the result of a regulatory fee, franchise fee, or any other fee, tax, assessment, or charge of any kind imposed by any federal agency, state, or franchising authority on the transaction between a grantee and the subscriber.
(c)
Billing.
(i)
Bills will be clear, concise and understandable.
Bills must be fully itemized, with itemizations including, but not
limited to, basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
(ii)
In case of a billing dispute, a grantee must respond
to a written complaint from a subscriber within 30 days.
(e)
Credits. Credits for service will be issued no later than the
customer's next billing cycle following the determination that
a credit is warranted.
(4)
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
Definitions. As used in this section, the following terms shall
have the meanings indicated:
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Those service conditions which are within the control of
a grantee. Those conditions which are not within the control of a
grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe
or unusual weather conditions. Those conditions which are ordinarily
within the control of a grantee include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods, and maintenance or upgrade of the cable system.
(B)
Nothing in this Section 13-2-19 shall be construed to prevent or prohibit:
(1)
A franchising authority and a grantee from agreeing to customer
service requirements that exceed the FCC customer standards;
(2)
The franchising authority from enacting or enforcing any consumer
protection law, to the extent not specifically preempted herein; or
(3)
The establishment or enforcement of any state or municipal law
or regulation concerning customer service that imposes customer service
requirements that exceed, or address matters not addressed by, the
FCC customer standards.
(A)
Notification. The grantee shall provide advance written or other
notice to residents when performing scheduled system construction
in the public easements, utility easements or otherwise on the resident's
private property. Said notice may utilize door hangers, letters, bill
stuffers or personal communications from a grantee representative
to a resident. Further, the grantee shall use its best efforts to
notify residents when performing nonscheduled system construction,
including unanticipated work associated with a service call or service
interruption.
(B)
Identification of customer service representatives and technicians.
(1)
Identification of telephone representatives. Upon telephone
contact by a customer, customer service representatives of the grantee
shall identify themselves by first name. Technicians representing
the grantee or his or her contractors or subcontractors shall wear
a company uniform, or display upon request a company identification
badge.
(2)
Identification of service representatives. Technicians of the
grantee and its contractors or subcontractors shall identify vehicles
used for technical services with the name of the grantee or contractor
or subcontractor of the grantee. Where practicable, vehicles belonging
to the contractor or subcontractor shall also be identified with the
grantee's name located in a conspicuous place and manner. The
type of identification need not be of a permanent nature.
(C)
Refunds for termination of cable service. A grantee shall issue the
subscriber a refund for any amount due to the subscriber at the time
of the termination of cable service. The grantee shall refund the
subscriber in the form of a refund check. Refund checks shall be issued
promptly but no later than either the customer's next billing
cycle following resolution of the request, or 30 days, whichever is
earlier, or the return of the equipment supplied by the grantee if
service is terminated.
(D)
Equipment and service deposits. In the event that a grantee leases
accessory equipment for receiving cable service:
(1)
A grantee may assess a reasonable deposit for the acquisition
of cable service by a subscriber, and for the rental of converter
box, remote control, and related equipment necessary for the reception
or interdiction of cable service.
(2)
Upon the termination of cable service by the subscriber and
return of converter boxes, remote control units, and related equipment
in reasonable condition, deposits for said service and equipment shall
be returned to the subscriber within 30 days after the date that the
equipment supplied by the grantee is returned.
(E)
Installation of service.
(1)
Nonstandard installation. Where the grantee has received a request
for a nonstandard installation, which shall include, but not be limited
to, those installations which are located more than 125 feet from
the existing distribution system, or an installation that does not
meet general specifications of a standard installation as a result
of the requirements of the subscriber, the grantee shall provide said
nonstandard installation within 75 calendar days after the receipt
of the request unless circumstances beyond the control of the grantee
render such installation impossible within the 75 days provided herein.
(2)
Rights of entry and easements. The grantee shall secure any
necessary access authorization, and any necessary easements in accordance
with all applicable local and state laws and regulations.
(3)
Installation standards.
(a)
Unless otherwise provided by a franchise agreement, all underground
drops shall be buried a minimum of six inches by hand trench or 10
inches by mechanical slit trench.
(b)
A subscriber shall have the option to connect a standard drop
to the dwelling unit by either.
(c)
All temporary service drops, also known as "snow drops," shall
be buried between March and December, unless the grantee receives
permission from the Village to delay burial.
(d)
Weather permitting, the grantee shall bury all temporary drops
within 14 business days after placement.
(e)
Temporary drops will be buried by the grantee as expeditiously
as possible, and in no event will a drop which has been placed between
November 15 of the prior year and March 1 of the current year be left
unburied beyond May 1 of the same year.
(F)
Service disconnection or suspension.
(1)
Disconnection of service. A subscriber shall have the ability
to disconnect his or her service at any time at no charge. The grantee
shall cease charging for the subscriber's service on the date
that service is terminated.
(2)
If a grantee offers subscribers the ability to temporarily suspend
service, a subscriber may temporarily suspend service for a period
not to exceed 180 calendar days. Reinstatement of cable service by
the subscriber during such period shall not be considered an installation
by the grantee. The grantee may assess a reasonable service reinstatement
charge.
(G)
Investigation and complaint procedure for subscriber complaints.
(1)
The franchising authority shall have the authority to investigate
complaints tendered by subscribers upon notification to the franchising
authority either by telephone or in writing.
(2)
Where the franchising authority refers a complaint from a subscriber
to a grantee for resolution, a grantee shall investigate such complaint
within five working days from the date of a grantee's receipt
of such referral. A grantee's investigation shall include contact
to the subscriber where possible, and a response to the franchising
authority. At the discretion of the franchising authority, the referral
may be sent to the grantee in writing on a form to be provided by
the franchising authority. In that case, the resolution response shall
be provided on the franchising authority's form. Upon completion
of investigation of an unresolved subscriber complaint, the franchising
authority, in accordance with a franchise agreement, shall provide
to a grantee notice and an opportunity to cure any error, deficiency,
or violation of the franchise agreement or this Article 2 found in
the course of such investigation.
(3)
If a grantee's response to the complaint is not satisfactory
to the complainant, the complainant shall be referred to a grantee's
appropriate cable system management personnel for further assistance.
A grantee's management shall make a good faith effort to reach
resolution of the complaint. If a grantee's cable system management
cannot resolve the complaint, a grantee shall provide the name, address,
and telephone number of appropriate management staff at the next level
of operations.
(H)
Protection of privacy. The grantee shall comply with all applicable
laws, rules and regulations concerning consumer privacy, and shall
comply with federal laws concerning consumer privacy as expressed
in Section 631 et seq., of the Communications Policy Act of 1934,
as now or hereinafter amended, or by any successor provision.
(A)
Right to amend. The Village reserves the right to amend this Article
2 to incorporate customer service requirements or consumer protection
standards that exceed the standards set by the FCC, if such standards
are deemed to be more beneficial to the Village's residents.
(B)
Franchise subject to reserved power. Every franchise awarded pursuant to this Article 2 shall be subject to this reserved power to amend as stated in Section 13-2-21(A) of this Code, whether or not such franchise expressly conditioned such reserved power.
(C)
Notice. The Village shall provide the grantee with 90 days'
written notice of any such amendment, and an opportunity to enter
comments on such amendment. Said amendments shall be adopted by ordinance.
Unless otherwise provided for in a franchise agreement a grantee
shall provide the following:
(A)
Grantee to provide connections to specified public institutions.
A grantee shall provide subscriber cable connections to all schools,
government buildings, and public institutions as identified in the
franchise agreement.
(B)
Grantee to provide adequate outlets for school buildings. A grantee
shall provide an adequate number of cable system outlets to each school
building in a manner that will allow for cable television reception
in classrooms designated by each school, and for provision of reception
in nonpublic areas of each school as so designated by each school.
A grantee may charge each school for up to 50% of the actual cost
for labor and materials necessary for providing adequate cable system
wiring.
(C)
Grantee to provide adequate outlets for government buildings. A grantee
shall provide a number of cable system outlets as agreed to in the
franchise agreement at the Village Hall and other government buildings
designated by the Village in the franchise agreement. A grantee shall
provide all cable system connections free of charge; however, a grantee
may charge the Village for the labor and cost of materials of any
nonstandard installation as defined herein to any Village building.
(A)
Unlawful use of equipment, devices, computer hardware or software. It shall be unlawful for any person to install, attach, wire, program, or connect or to cause to be installed, attached, wired, programmed, or connected any equipment, device, or computer hardware or software which enables the use of cable television or data signals transmitted by the grantee without compensation to the grantee for said cable television or data signals. This Section 13-2-23 shall not prohibit the recording of programming or downloading of data as allowed under applicable state and federal law.
(B)
Reselling service prohibited. No person receiving within the franchise
area any cable service, program, or signal transmitted by any grantee
operating under a franchise issued by the franchising authority shall
resell such service, program, or signal without the expressed written
consent of the grantee.
A grantee shall comply with the requirements of this Article
2 and the franchise agreement at all times during the term of its
franchise. If the Village has reason to believe that a grantee has
committed a certain violation of this Article 2 or the franchise agreement,
the Village may act to remedy the violation.
(A)
Remedies retained. No provision of this Article 2 shall be deemed
to bar or otherwise limit the right of the Village to seek or obtain
judicial relief from a violation of any provision of the franchise
or any rule, regulation, requirement, or directive promulgated thereunder.
Neither the existence of other remedies identified in this Article
2 nor the exercise thereof shall be deemed to bar or otherwise limit
the right of the Village to recover monetary damages, except where
liquidated damages are otherwise prescribed, for such violation by
the grantee, or judicial enforcement of the grantee's obligations
by means of specific performance, injunction relief or mandate, or
any other remedy available contractually, at law or in equity.
(B)
Fine imposed. Unless otherwise provided, any person convicted of
violating any provision of this Article 2 or any rule or regulation
promulgated hereunder shall, upon conviction, be subject to a fine
in the amount set forth in the Annual Fee Resolution, plus costs for
each offense.[1] Each day of a continuing violation shall constitute a
separate and distinct offense.
(C)
Liquidated damages. By acceptance of the franchise, each grantee
shall agree that failure to comply with any time and performance requirements
as stipulated in this Article 2 and the franchise agreement will result
in damage to the Village that is not readily ascertainable. The applicable
franchise agreement shall include provisions for liquidated damages
to be paid by the grantee, in amounts set forth in the applicable
franchise agreement and chargeable to a security fund therein created.
(D)
Violation procedures.
(1)
Notice of violations. Written notice shall be given to a grantee
setting forth the nature of the violation and a reasonable period
of time for a grantee to correct the violation. Unless the Village
determines that the violation is of such a nature that a lesser period
of time is warranted for remedying the violation, a grantee shall
be given 30 days after receipt of such notice to remedy the violation.
(2)
Answer to notice of violations. Within 30 days, or such other
period of time specified by the Village in its notice to a grantee,
a grantee shall respond in writing to the Village:
(a)
That it contests the Village's notice of violation and
requests an opportunity to be heard as provided herein. A grantee
shall submit supporting documentation with its response to the notice.
(b)
That it contests the Village's notice of violation for
the reasons that the violation was beyond the reasonable control of
a grantee and requests an opportunity to be heard as provided herein.
A grantee shall submit supporting documentation with its response
to the notice.
(c)
That a grantee will remedy the violation within the time specified
by the Village in its notice to a grantee.
(d)
If a grantee contends that an extended period of time is reasonably
needed to remedy the violation, it shall submit a written request
for an extension, together with supporting documentation that a grantee
cannot reasonably remedy the violation within the time period specified
by the Village in its notice to a grantee. The Village shall not unreasonably
deny an extension of time to remedy the violation. If the Village
grants the extension, a grantee shall proceed to remedy the violation
within the extended time prescribed, provided that a grantee also
informs the Village on a regular basis of the steps being taken to
remedy the violation.
(3)
Hearing. The Village shall give a grantee not less than 14 days'
written notice of the date, time and place of the public hearing to
be held before the corporate authorities. At the public hearing, the
corporate authorities shall hear and determine the issues and render
its findings and its decision. If a hearing officer has been appointed
by the Village, the hearing officer shall hear the relevant evidence
and shall render a record of the administrative hearing and recommended
findings and decision to the corporate authorities.
(4)
Determination. If the grantee fails to submit a written response to the Village's notice of violation as provided in Section 13-2-24(D)(2) of this Code, or if a grantee fails to remedy the violation within the time period specified by the Village in its notice to a grantee, or any extensions thereto granted by the Village, or if the corporate authorities are persuaded after a hearing that a grantee has committed a violation as provided herein, the corporate authorities may, after giving a grantee an opportunity to be heard:
(A)
Compliance periods. Unless otherwise stated in this Article 2 or
in the franchise agreement, the grantee shall comply with the terms
and conditions of the ordinance or franchise agreement with respect
to compliance periods.
(B)
Designation of agent for notification. The grantee shall designate
a person within its management structure who shall have the authority
to receive and respond to notifications sent by the franchising authority
of franchise violations, subscriber complaints, or other concerns
relating to the franchise.
(C)
Grantee's continuing obligation. Subject to the provisions of
this Article 2, a grantee shall not be relieved of its obligations
to comply with any of the rules, regulations, requirements, or directives
as stated within this Article 2 or the franchise agreement by reason
of any failure of the Village or its officers, agents, or employees
to enforce prompt compliance, nor shall such be considered a waiver
thereof.
Nothing in this Article 2 or in any franchise agreement shall
be construed as an abrogation by the Village of any of its police
powers.
A grantee shall make its services available to any customer
within the franchise area who shall request such service, without
discrimination as to the terms, conditions, rates or charges for grantee's
services; provided, however, that nothing in this Article 2 shall
prohibit a grantee from making any reasonable classifications among
differently situated customers.
Throughout the term of a franchise, the grantee shall fully
comply with the equal employment opportunity requirements of the applicable
federal, state and local law, and, in particular, FCC rules and regulations
relating thereto. Upon request by the Village, the grantee shall furnish
the Village with a copy of the grantee's annual statistical report
filed with the FCC, along with proof of the grantee's annual
certification of compliance.
Any grantee holding a franchise on the effective date hereof,
or which is awarded a franchise under the conditions of this Article
2, shall be required to have in force a written policy regarding sexual
harassment which complies in all respects with the Illinois Human
Rights Act, 775 ILCS 5/2-105(A)(4).
A grantee shall comply with the standards of the Occupational
Safety and Health Administration, and safety standards established
by the Department of Labor of the State of Illinois in maintaining
its operational facilities, working conditions, and work procedures
utilized as a part of the construction, upgrade, installation, repair
and maintenance of the cable system. A grantee's equipment shall
bear all FCC and appropriate safety agency markings.
The grantee shall at all times comply with all applicable laws
and regulations of federal, state and local governments, or any administrative
agencies thereof.
The grantee shall have the authority to promulgate such rules,
regulations, terms, and conditions of its business as shall be reasonably
necessary to enable it to exercise its rights and perform its services
under this Article 2 and the rules of the FCC, and to assure uninterrupted
service to each and all of its subscribers. Such rules and regulations
shall not be deemed to have the force of law.
(A)
Effect of failure to require compliance. A grantee or other person
may not be excused from complying with any of the terms and conditions
of this Article 2 or a franchise agreement by any failure of the franchising
authority, upon one or more occasions, to require compliance or performance.
(B)
Waiver of requirements. The franchising authority may, on its own
motion or at the request of an applicant or grantee for good cause
shown, waive any requirement of this Article 2.
To the extent that the Local Governmental and Governmental Employees
Tort Immunity Act, 745 ILCS 10/1-101 et seq., as may be amended, and
any other laws immunize the Village and its officials, boards, commissions,
agents, or employees, a grantee shall have no recourse whatsoever
against the Village or its officials, boards, commissions, agents,
or employees for any loss, costs, expense, or damages arising out
of any provision or requirement of the ordinance or franchise agreement.
A grantee shall expressly acknowledge that upon accepting the right,
privilege and franchise granted pursuant to the ordinance, it does
so relying upon its own investigation and understanding of the power
and authority of the Village. By the acceptance of a franchise, a
grantee shall agree it will not at any time set up against the Village
in any claim or proceeding any provision, condition or term of the
ordinance or the franchise agreement as unreasonable, arbitrary or
void or that the Village had no power or authority to make such provision,
term or condition as part of or pursuant to the ordinance, except
as to those matters preempted by federal or state law.
Whenever any provision of this Article 2 or the franchise agreement
shall set forth any time for any act to be performed by a grantee,
such time shall be deemed to be of the essence.
Whenever a period of time is provided for in this Article 2
or the franchise agreement, for either the Village or the grantee
to do or perform any act or obligation, neither party shall be liable
for any delays due to war, riot, insurrection, rebellion, unavoidable
casualty or damage to personnel, materials, or equipment, fire, flood,
storm, earthquake, tornado, orders of a court of competent jurisdiction,
any act of nature, failure of a utility provider to provide pole attachments
on reasonable terms or conditions therefor, or any cause beyond the
control of said party. In such event, said time period shall be extended
for the amount of time said party is so delayed. An act or omission
shall not be deemed to be beyond a grantee's control if committed,
omitted, or caused by a corporation or other business entity which
holds a controlling interest in the grantee, whether directly or indirectly.
Further, the failure of a grantee to obtain financing, or to pay any
money due from it to any person, including the Village, for whatever
reason, shall not be an act or omission which is beyond the control
of the grantee.
Except as otherwise provided in a franchise agreement or herein,
pursuant to the Village's home rule authority under Article VII,
Section 6, of the Illinois Constitution, the Village may transfer
or delegate any right, power or duty of the Village, the franchising
authority, or any official of the Village, under the franchise agreement
by ordinance, resolution, or other appropriate action of the Village,
to an appropriate officer, employee, or department of the Village,
or any other legal authority, including any intergovernmental agency
created for the purpose of regulating the operation and development
of the cable system.
Nothing in this Article 2 shall be deemed or construed as a
waiver or release of any rights that the Village may have under applicable
laws or regulations.
