[Adopted 1-19-1999 by Ord. No. 5108A (Art.
IV, Ch. III, Section III, of the 1993 Code)]
As used in this ordinance, the following terms
shall have the meanings indicated:
The Cable Communications Policy Act of 1984 (47 USC § 521
et seq.) and all amendments, including the Cable Competition and Consumer
Protection Act of 1992 [Pub. L. No. 103-385, 106 Stat. 1477 (1992)].
All subscriber services provided by the Grantee in one or
more service tiers, which includes the delivery of local broadcast
stations, and public, educational and government access channels.
Basic service does not include optional program and satellite service
tiers, a la carte services, per channel, per program, or auxiliary
services for which a separate charge is made. However, Grantee may
include other satellite signals on the basic service tier.
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 facility that serves only to retransmit the
television signals of one or more television broadcast stations;
A facility that serves subscribers without using
any public right-of-way;
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) to the extent such facility is used
in transmission of video programming directly to subscribers; or
Any facilities of any electric utility used
solely for operating its electric utility system.
The City of Crystal Lake, Illinois.
A signaling path provided by a cable communications system
to transmit signals of any type from a subscriber terminal to another
point in the cable communications system, as may be amended by the
FCC from time to time.
Actual working control or ownership of a system in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the ownership, directly
or indirectly, by any person or legal entity (except underwriters
during the period in which they are offering securities to the public)
of 25% or more of a cable system or the franchise under which the
system is operated. A change in the control or controlling interest
of a legal entity which has control or a controlling interest in a
Grantee shall constitute a change in the control or controlling interest
of the system under the same criteria. Control or controlling interest
as used herein may be held simultaneously by more than one person
or legal entity.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and by an appropriate channel selector also permits
a subscriber to view more than 12 channels delivered by the system
at designated converter dial locations.
Any building or part of a building that is used as a home
or residence.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
An initial authorization, or renewal thereof, issued by the
City, as the franchising authority, to a Grantee to construct or operate
a cable system.
A contractual agreement entered into between the City and
any Grantee hereunder that is enforceable by the City and by the Grantee,
and which sets forth the rights and obligations between the City and
the Grantee in connection with the franchise.
A person or legal entity to whom or to which a franchise
under this ordinance is granted by the City, along with the lawful
successors or assigns of such person or entity.
All revenue collected by the Grantee, arising from or attributable
to the provision of cable service by the Grantee within the City including,
but not limited to periodic fees charged subscribers for any basic,
optional, premium, per-channel or per-program service; franchise fees;
installation and reconnection fees; leased channel fees; converter
rentals and/or sales; program guide revenues; late or administrative
fees; upgrade, downgrade or other change-in-service fees; local advertising
revenues; revenues from home shopping and bank-at-home; revenues from
the sale, exchange, use or cable cast of any programming developed
on the system for community or institutional use; provided, however,
that this shall not include bad debt, or any taxes on services furnished
by the Grantee herein imposed directly upon any subscriber or user
by the state, local or other governmental unit and collected by the
Grantee on behalf of the governmental unit. "Bad debt" shall mean
uncollectible revenue.
All areas in the City having a density of at least 25 dwelling
units per street mile.
The connection of the system from feeder cable to a subscriber's
terminal.
Local and regional advertising revenues derived from the
sale of locally and regionally inserted advertising.
Is permissive.
As applied to the Grantee shall mean those hours during which
similar businesses in the City 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 that are within the control of the
Grantee. Those conditions that are not within the control of the 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 the 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.
Any natural person or any association, firm, partnership,
joint stock company, limited liability company, joint venture, corporation,
or other legally recognized entity, private or public, whether for-profit
or not-for-profit.
The loss of either picture or sound or both for a single
or multiple subscriber(s).
Is mandatory.
The surface of and all rights-of-way and the space above
and below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the City for the purpose of public
travel and shall include other easements or rights-of-way as shall
be now held or hereafter held by the City which shall, within their
proper use and meaning entitle the Grantee to the use thereof for
the purposes of installing poles, wires, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a cable
television system.
Any person(s), firm, Grantee, corporation or other legal
entity, or association lawfully receiving any service provided by
a Grantee pursuant to this ordinance.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted
with receipt thereof in a subscriber capacity.
Any Franchise granted by the City pursuant to
Illinois statutes (Chapter 24, Article 11, Division 42, Para. 11-42-11)
shall grant to the Grantee the right and privilege to erect, construct,
operate and maintain in, upon, along, across, above, over and under
the streets now in existence and as may be created or established
during the term of the franchise any poles, wires, cable, underground
conduits, manholes, and other television conductors and fixtures necessary
for the maintenance and operation of a cable system.
A.
Upon adoption of any franchise agreement and execution
thereof by the Grantee, the Grantee agrees to be bound by all the
terms and conditions contained herein.
B.
Any Grantee also agrees to provide all services specifically
set forth in its application and to provide cable television service
within the confines of the City ; and by its acceptance of the franchise,
the Grantee specifically grants and agrees that its application is
thereby incorporated by reference and made a part of the franchise.
Any franchise is for the legally incorporated
territorial limits of the City and for any area henceforth added thereto
during the term of the franchise.
Any franchise and the rights, privileges and
authority granted under this ordinance shall take effect and be in
force from and after final City approval thereof, as provided by law,
and shall continue in force and effect for a term of no longer than
15 years. Such acceptance and promise shall be in writing duly executed
and sworn to, by, or on behalf of the Grantee before a notary public
or other officer authorized by law to administer oaths. Such franchise
shall be nonexclusive and revocable.
A.
Current federal procedures and standards pursuant
to 47 U.S.C. § 546, shall govern the renewal of any franchise
awarded under this ordinance.
B.
In the event that any or all of the applicable provisions
of federal law are repealed or otherwise modified, Grantee and the
City shall conduct the renewal process pursuant to the procedures
as they exist upon the date of execution of this agreement. Any amendment
to such procedures shall be agreed upon by both parties.
A.
In accepting a franchise, the Grantee acknowledges
that its rights thereunder are subject to the police power of the
City to adopt and enforce general ordinances necessary to the safety
and welfare of the public; and it agrees to comply with all applicable
general laws and ordinances enacted by the City pursuant to such power.
B.
Any conflict between the provisions of a franchise
and any other current or future lawful exercise of the City's police
powers shall be resolved in favor of the latter.
No cable television system shall be allowed
to operate or to occupy or use the streets for system installation
and maintenance purposes without a franchise.
The City shall have the right to install and
maintain upon the poles of the Grantee at a charge equal to Grantee's
costs any wire or pole fixtures that do not unreasonably interfere
with the cable television system operations of the Grantee. The City
shall indemnify and hold harmless the Grantee from any claim that
might arise due to or as a result of the City's use.
Costs to be borne by a Grantee shall include
any requirements or charges incidental to the awarding or enforcing
of its initial franchise, but shall not be limited to: all costs of
publications of notices prior to any public meeting provided for pursuant
to this ordinance, and any costs not covered by application fees incurred
by the City in its study, preparation of proposal documents, evaluation
of all applications, and examination of the applicant's qualifications.
All notices from the Grantee to the City pursuant
to any franchise shall be to the City Clerk. The Grantee shall maintain
with the City, throughout the term of the franchise, an address for
service of notices by mail. The Grantee shall maintain a central office
to address any issues relating to operating under this Cable Television
Ordinance.
A.
Within 30 days after the award of an initial or renewal
franchise, the Grantee shall deposit with the City either an irrevocable
letter of credit from a financial institution, security deposit, or
a corporate guarantee in lieu of bond in the amount of $25,000. The
form and content of such letter of credit or security deposit shall
be approved by the City Attorney. These instruments shall be used
as security for the faithful performance of the Grantee of all provisions
of this ordinance, and as security for compliance with all orders,
permits and directions of any agency, commission, board, department,
division, or office of the City having jurisdiction over its acts
or defaults under this ordinance, and as security for the payment
by the Grantee of any claims, liens, and taxes due the City which
arise by reason of the construction, operation or maintenance of the
system.
B.
The letter of credit, security deposit or corporate guarantee in lieu of bond shall be maintained at the amount established in Subsection A for the entire term of the franchise, even if amounts have to be withdrawn pursuant to this ordinance.
C.
If the Grantee fails to pay to the City any amounts
owed under the franchise agreement that are not on appeal to a court
of proper jurisdiction within the time fixed herein, or fails after
30 days' notice to pay to the City any taxes due and unpaid; or fails
to repay the City within 30 days' notice any damages, costs or expenses
that the City is compelled to pay by reason of any act or default
of the Grantee in connection with the franchise, or fails, after seven
days notice by the City to comply with any provision of the franchise
that the City reasonably determines can be remedied by demand on the
letter of credit, security deposit or corporate guarantee in lieu
of bond, the City may immediately demand payment of the amount thereof,
with interest and any penalties, from the letter of credit, security
deposit or corporate guarantee in lieu of bond. Upon such demand for
payment, the City shall notify the Grantee of the amount and date
thereof.
D.
The rights reserved to the City with respect to the
letter of credit are in addition to all other rights of the City,
whether reserved by the franchise or authorized by law, and no action,
proceeding or exercise of a right with respect to such letter of credit
shall affect any other right the City may have.
E.
The letter of credit, security deposit or corporate
guarantee in lieu of bond shall contain an endorsement agreeing that
the letter of credit, security deposit or corporate guarantee in lieu
of bond may not be canceled by the surety nor the intention not to
renew be stated by the surety until 30 days after receipt by the City,
by registered mail, of a written notice of such intention to cancel
or not to renew.
F.
In the event the City receives a thirty-day notice
from a surety to cancel such letter of credit, security deposit or
corporate guarantee in lieu of bond, the City shall forward such notice
to Grantee via certified mail. Upon receipt of notice, Grantee shall
have 14 days to provide grantor a replacement letter of credit. This
section shall not apply if the City and Grantee agree that a letter
of credit, security deposit or corporate guarantee in lieu of bond
is no longer required or if the letter of credit, security deposit
or corporate guarantee in lieu of bond is, by agreement between the
City and Grantee, in the process of being reduced.
G.
The City may, at any time during the term of this
ordinance, waive the Grantee's requirement to maintain a letter of
credit, security deposit or corporate guarantee in lieu of bond. The
waiver of the requirement may be initiated by the City or may be requested
by the Grantee.
A.
Within 30 days after the award of an initial franchise
(excluding renewed franchises), the Grantee shall file with the City
a performance bond in the amount of not less than 50% of the costs
to install the system in favor of the City. This bond shall be maintained
throughout the construction period and until such time as determined
by the City, unless otherwise specified in the franchise agreement.
B.
If the Grantee fails to comply with any law, ordinance or resolution governing the franchise, or fails to observe, fulfill and perform each term and condition of the franchise, as it relates to the conditions relative to the construction of the system, including the franchise agreement that is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or losses suffered by the City, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorney's fees, including the City's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § A700-30.
C.
The City shall, upon completion of construction of
the service area, waive or reduce the requirement of the Grantee to
maintain the bond. However, the City may require a performance bond
to be posted by the Grantee for any construction subsequent to the
completion of the initial construction where the estimated cost of
the project exceeds $100,000. Such performance bond shall be in the
amount of 100% of the estimated restoration costs as estimated by
the City and upon such terms as determined by the City. This bond
shall be maintained throughout the construction period and until such
time as restoration is completed as determined by the City, unless
otherwise specified in the franchise agreement.
D.
The bond shall contain an endorsement stating that
the bond may not be canceled by the surety nor the intention not to
renew be stated by the surety until 30 days after receipt by the City,
by registered mail, a written notice of such intent to cancel and
not to renew.
E.
Upon receipt of a thirty-day notice, and following
a thirty-day period to cure, this shall be construed as default granting
the City the right to demand payment on the bond.
F.
The City, at any time during the term of this ordinance,
may waive Grantee's requirement to maintain a performance bond. The
waiver of the requirement can be initiated by the City or the Grantee.
A.
The Grantee shall maintain and by its acceptance of
the franchise specifically agrees that it will maintain throughout
the term of the franchise, liability insurance insuring the City and
the Grantee in the minimum amount of:
B.
The certificate of insurance obtained by the Grantee
in compliance with this section shall be filed and maintained with
the City during the term of the franchise. The Grantee shall immediately
advise the City Attorney of any litigation that may develop that would
affect this insurance.
C.
Neither the provisions of this section nor any damages
recovered by the City thereunder, shall be construed to or limit the
liability of the Grantee under any franchise issued hereunder.
D.
Such insurance policies provided for herein shall
name the Grantor, its officers, boards, commissions and employees
as additional insured, and shall be primary to any insurance carried
by the Grantor, and shall contain an endorsement stating that the
insurance policy may not be canceled by the surety nor the intention
not to renew be stated by the surety until 30 days after receipt by
the City, by registered mail, of written notice of such intention
to cancel or not to renew.
A.
Disclaimer of liability. In accordance with federal
and state law, the City shall not at any time be liable for injury
or damage occurring to any person or property from any cause whatsoever
arising out of the construction, maintenance, repair, use, operation,
condition or dismantling of the Grantee's cable television system
or due to the act or omission of any person or legal entity other
than the City or those persons or legal entities for which the City
is legally liable as a matter of law.
B.
Indemnification. In accordance with federal and state
law, Grantee shall, at its sole cost and expense, indemnify and hold
harmless the City, its respective officers, boards, departments, commissions
and employees (hereinafter referred to as "indemnitees") from and
against any and all claims including, without limitation, reasonable
fees and expenses of attorneys, expert witnesses and consultants.
C.
Assumption of risk.
(1)
The Grantee undertakes and assumes for its officers,
directors, agents, contractors and subcontractors and employees all
risk of dangerous conditions, if any, on or about any City-owned or
-controlled property, including public rights-of-way, and the Grantee
hereby agrees to indemnify and hold harmless the indemnitees against
and from any claim asserted or liability imposed upon the indemnitees
for personal injury or property damage to any person arising out of
the installation, operation, maintenance or condition of the cable
television system or the Grantee's failure to comply with any federal,
state or local law.
(2)
The City shall hold Grantee harmless for any damages
resulting from the negligence or misconduct of the Grantor or its
officials, boards, departments, commissions or employees including
utilizing any PEG access channels, equipment or facilities.
D.
Defense of indemnitees. In the event any action or
proceeding shall be brought against any or all of the indemnitees
by reason of any matter for which the indemnitees are indemnified
hereunder, the Grantee shall, upon notice from any of the indemnitees,
at the Grantee's sole cost and expense, defend the same.
E.
Notice, cooperation and expenses. The City shall give
the Grantee reasonably prompt notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by
the provisions of this section. No recovery by the City of any sum
under the letter of credit shall be any limitation upon the liability
of the Grantee to the City under the terms of this section, except
that any sum so received by the City shall be deducted from any recovery
which the City might have against the Grantee under the terms of this
section.
F.
Nonwaiver of statutory limits. Nothing in this ordinance
is intended to express or imply a waiver by the City of statutory
provisions, privileges or immunities of any kind or nature as set
forth in Illinois statutes, including the limits of liability of the
City.
A.
The Grantee shall not deny service, deny access, or
otherwise discriminate against subscribers, channel users, or general
citizens on the basis of race, color, religion, national origin, income,
sex, marital status, sexual preference or age. The Grantee shall comply
at all times with all other applicable federal and state laws.
B.
The Grantee shall strictly adhere to the equal employment
opportunity requirements of the Federal Communications Commission
and of state and local governments, and as amended from time to time.
C.
The Grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
The Grantee is required to make all services available
to all residential dwellings throughout the service area located in
areas having a density of at least 25 dwelling units per street mile.
The Grantee shall provide cable television service
throughout the entire franchise area pursuant to the provisions of
the franchise.
A.
New construction timetable.
(1)
Within two years from the date of the award of an
initial franchise, the Grantee must make cable television service
available to every dwelling unit within the initial service area.
(a)
The Grantee must make cable television service
available to at least 20% of the dwelling units within the initial
service area within six months from the date of the award of the franchise.
(b)
The Grantee must make cable television service
available to at least 50% of the dwelling units within the initial
service area within one year from the date of the award of the franchise.
(2)
The Grantee, in its application, may propose a timetable
of construction which will make cable television service available
in the initial service area sooner than the above minimum requirements,
in which case the said schedule will be made part of the franchise
agreement, and will be binding upon the Grantee.
(4)
In special circumstances the City may waive 100% completion
within the two-year time frame, provided substantial completion is
accomplished within the allotted time frame, substantial completion
to be not less than 95%. Justification for less than 100% must be
submitted subject to the approval of the City.
B.
Line extensions:
(1)
In areas of the franchise territory not included in
the initial service areas, a Grantee shall be required to extend its
system pursuant to the following requirements:
(a)
No customer shall be refused service arbitrarily.
Grantee is hereby authorized to extend the cable system as necessary
within the City. To expedite the process of extending the cable system
into a new subdivision, the City will forward to the Grantee an approved
plat of subdivision of each project. Subject to the density requirements,
the Grantee shall commence the design and construction process upon
receipt of the final plat of subdivision. Upon notification from the
City that the first home in the project has been approved for a building
permit, the Grantee shall have a maximum of three months, weather
permitting to complete the construction/activation process within
the applicable project phase.
(b)
The Grantee shall extend and make cable television
service available to every dwelling unit in all unserved, developing
areas having at least 25 dwelling units per street mile, as measured
from the existing system.
(c)
The Grantee shall extend and make cable television
service available to any isolated resident outside the initial service
area requesting connection at the standard connection charge, if the
connection to the isolated resident would require no more than a standard
one-hundred-fifty-foot drop line.
(2)
Early extension. In areas not meeting the requirements
for mandatory extension of service, the Grantee shall provide, upon
the request of a potential subscriber desiring service, an estimate
of the Grantee's costs required to extend service to the subscriber.
The Grantee shall then extend service upon request of the potential
subscriber. The Grantee may require advance payment of the cost of
the extension or assurance of payment satisfactory to the Grantee.
In the event the area reaches the density required for mandatory extension
within two years, such payments which exceed the standard installation
costs for said installation shall be refunded to the subscriber.
(3)
New development undergrounding. In cases of new construction
or property development where utilities are to be placed underground,
the developer or property owner shall give the Grantee reasonable
notice of such construction or development, and of the particular
date on which open trenching will be available for the Grantee's installation
of conduit, pedestals and/or vaults, and laterals. The Grantee shall
also provide specifications as needed for trenching. Costs of trenching
and easements required to bring service to the development shall be
borne by the developer or property owner; except that if the Grantee
fails to install its conduit, pedestals and/or vaults, and laterals
within five working days of the date the trenches are available, as
designated in the notice given by the developer or property owner,
then should the trenches be closed after the five day period, the
cost of new trenching is to be borne by the Grantee. Except for the
notice of the particular date on which trenching will be available
to the Grantee, any notice provided to the Grantee by the City of
a preliminary plat request shall satisfy the requirement of reasonable
notice if sent to the local general manager of the Grantee prior to
approval of the preliminary plat request.
C.
Special agreements. Nothing herein shall be construed to prevent the Grantee from serving areas within the legally incorporated boundaries of the City not covered under this section upon agreement with developers, property owners, residents, or businesses, provided that 5% of the gross revenues from those areas are paid to the City as franchise fees under § A700-44.
D.
A Grantee may propose a line extension policy that
will result in serving more residents of the City than as required
above.
A.
Compliance with construction and technical standards.
The Grantee shall construct, install, operate and maintain its system
in a manner consistent with all laws, ordinances, construction standards,
governmental requirements, and FCC technical standards. In addition,
the Grantee shall provide the City, upon request, a written report
of the results of the Grantee's annual proof of performance tests
conducted pursuant to Federal Communications Commission standards
and requirements.
B.
Additional specifications:
(1)
Construction, installation and maintenance of the
cable television system shall be performed in an orderly and workmanlike
manner. All cables and wires shall be installed, where possible, parallel
with electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(3)
In any event, the system shall not endanger or interfere
with the safety of persons or property in the franchise area or other
areas where the Grantee may have equipment located.
(4)
Any antenna structure used in the system shall comply
with construction, marking, and lighting of antenna structure, required
by the United States Department of Transportation.
(5)
All working facilities and conditions used during
construction, installation and maintenance of the cable television
system shall comply with the standards of the Occupational Safety
and Health Administration.
(6)
Radio frequency (RF) leakage shall be checked at reception
locations for emergency radio services to prove no interference signal
combinations are possible. Stray radiation shall be measured adjacent
to any proposed aeronautical navigation radio sites to prove no interference
to airborne navigational reception in the normal flight patterns.
FCC rules and regulations shall govern.
(7)
The Grantee shall maintain equipment capable of providing
standby power for head end, transportation and trunk amplifiers for
a minimum of two hours.
(8)
In all areas of the City where all cables, wires and
other like facilities of public utilities are placed underground,
the Grantee shall place its cables, wires and other like facilities
underground. When all public utilities relocate their facilities from
pole to underground, the cable operator must concurrently do so.
A.
Interference with persons and improvements. The Grantee's
system, poles, wires and appurtenances shall be located, erected and
maintained so that none of its facilities shall endanger or interfere
with the lives of persons or interfere with the rights or reasonable
health, safety or welfare of property owners who adjoin any of the
streets and public ways, or interfere with any improvements the City
may make, or hinder or obstruct the free use of the streets, alleys,
bridges, easements or public property.
B.
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing, the
Grantee shall, at its own cost and expense and in a manner approved
by the City, replace and restore all paving, sidewalk, driveway, landscaping,
or surface of any street or alley disturbed, in as good condition
as before the work was commenced and in accordance with standards
for such work set by the City. After 30 days' notice, if restoration
measures are not performed to the reasonable satisfaction of the City,
the City may undertake remedial restoration activities, such activities
to be performed at the Grantee's cost.
C.
Erection, removal and common uses of poles:
(1)
No poles or other wire-holding structures shall be
erected by the Grantee without prior approval of the City with regard
to location, height, types, and any other pertinent aspect. However,
no location of any pole or wire-holding structure of the Grantee shall
be a vested interest and such poles or structures shall be removed
or modified by the Grantee at its own expense whenever the City determines
that the public health, safety or welfare would be enhanced thereby.
(2)
Where poles or other wire-holding structures already
existing for use in serving the City are available for use by the
Grantee, but it does not make arrangements for such use, the City
may require the Grantee to use such poles and structures if it determines
that the public health, safety or welfare would be enhanced thereby
and the terms of the use available to the Grantee are just and reasonable.
(3)
Where the City desires to make use of the poles or
other wire-holding structures of the Grantee and the use will not
unduly interfere with the Grantee's operations, the City may require
the Grantee to permit such use for reasonable consideration and terms.
D.
Relocation of facilities. If at any time during the
period of the franchise the City shall lawfully elect to alter, or
change the grade of any street, alley or other public ways, the Grantee,
upon reasonable notice by the City; shall remove or relocate as necessary
its poles, wires, cables, underground conduits, manholes and other
fixtures at its own expense. If funds are generally made available
to users of the public rights-of-way for such relocation, the Grantee
shall be entitled to its pro rata share of such funds.
E.
Cooperation with building movers. The Grantee shall,
at the request of any person holding a building moving permit issued
by the City, temporarily raise or lower its wires to permit the moving
of buildings. Expenses of such temporary removal, raising or lowering
of wires shall be paid by the person making the request, and the Grantee
shall have the authority to require such payment in advance. The Grantee
shall be given at least 10 days advance notice to arrange for such
temporary wire changes.
F.
Tree trimming. The Grantee shall not remove any tree
or trim any portion of any tree within any public street as defined
herein without the prior consent of the City, except in an emergency
situation. The Grantee shall provide notice to any affected residents
at the same time that the Grantee applies to the City for consent
to perform tree trimming. Grantee shall be responsible, shall defend
and hold City harmless from any and all damages to any tree as a result
of Grantee's trimming, or to the property surrounding any tree, whether
such tree is trimmed or removed.
G.
Road cuts. The Grantee shall not use road cuts for
the laying of cable or wires without the prior approval of the City.
In the absence of such approval, the Grantee shall utilize auguring.
A.
The Grantee shall maintain all parts of the system
in good condition throughout the entire franchise period.
B.
Upon the reasonable request for service by any person
located within the franchise territory, the Grantee shall, within
15 days, furnish the requested service to such person within terms
of the line extension policy. A request for service shall be unreasonable
for the purpose of this subsection if no distribution line capable
of servicing that person's dwelling unit has been installed.
C.
Temporary service drops:
(1)
The Grantee shall put forth every effort to bury temporary
drops within 10 working days after placement. Any delays for any other
reason than listed will be communicated to the City. The following
delays will be found understandable and within the course of doing
business: weather, ground conditions, street bores, system redesign
requirements and any other unusual obstacle, such as obstructive landscaping
that is created by the customer.
(2)
The Grantee shall provide monthly reports to the City,
upon request, on the number of drops pending.
D.
The Grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest
time possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
E.
The 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 customers within the confines of the City, nor shall other utilities
interfere with the Grantee's system.
A.
Nothing in this ordinance shall be construed to prohibit
the enforcement of any federal, state or local law or regulation concerning
customer service or consumer protection that imposes customer service
standards or consumer protection requirements that exceed the customer
service standards set out in this ordinance or that address matters
not addressed in this ordinance.
B.
The Grantee shall maintain a local or toll-free telephone
access line which is available to its subscribers and shall have knowledgeable,
qualified representatives available to respond to customer telephone
inquiries regarding repairs 24 hours per day, seven days per week.
C.
Under normal operating conditions, telephone answer,
time including wait time and the time required to transfer the call,
shall not exceed 30 seconds. This standard shall be met no less than
90% of the time as measured on a quarterly basis.
D.
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the total time that the office
is open for business.
E.
A centrally located customer service center will be
open for walk-in customer transactions a minimum of eight hours per
day Monday through Friday, unless there is a need to modify those
hours because of the location or customers served. The Grantee and
City by mutual consent shall establish supplemental hours on weekdays
and weekends as fits the needs of the community.
F.
Under normal operating conditions, each of the following
standards will be met no less than 95% of the time as measured on
an annual basis.
(1)
Standard installations will be performed within seven
business days after an order has been placed. A standard installation
is one that is within 150 feet of the existing system.
(2)
Excluding those situations that are beyond its control,
the Grantee will respond to any service interruption promptly and
in no event later than 24 hours from the time of initial notification.
All other regular service requests will be responded to within 36
hours during the normal work week for that system. The appointment
window alternatives for installations, service calls and other installation
activities will be: "morning" or "afternoon"; not to exceed a four-hour
"window" during normal business hours for the system, or at a time
that is mutually acceptable. The Grantee shall schedule supplemental
hours during which appointments can be scheduled based on the needs
of the community. If at any time an installer or technician is running
late, an attempt to contact the customer will be made and the appointment
rescheduled as necessary at a time that is convenient to the customer.
G.
Subscriber credit for outages. Upon service interruption
of a subscriber's cable service, the following shall apply:
(1)
For service interruptions of more than four hours
and up to four days, the Grantee shall provide, at the subscriber's
request, a credit of 1/30th of one month's fees for affected services
for each twenty-four-hour period service is interrupted for four or
more hours for any subscriber, with the exception of subscribers disconnected
because of nonpayment or excessive signal leakage.
(2)
For interruptions of seven days or more in one month,
the Grantee shall provide, at the subscriber's request, a full month's
credit for affected services for all affected subscribers.
H.
The Grantee shall provide written information for
each of the following areas at the time of installation and at any
future time upon the request of the customer:
I.
Bills will be clear, concise and understandable, with
all charges for cable services itemized.
J.
Credits will be issued promptly, but no later than
the customer's next billing cycle following the resolution of the
request and the return of the equipment by the Grantee if service
has been terminated.
K.
The Grantee shall notify customers a minimum of 30
days in advance of any rate or channel change.
L.
The Grantee shall maintain and operate its cable system
in accordance with the rules and regulations incorporated herein or
as may be promulgated by Federal Communications Commission, the United
States Congress, or the State of Illinois.
M.
The Grantee shall keep a service log that indicates
the nature of each unresolved service complaint received in the last
24 months, the date and time each complaint was received, the disposition
of each complaint, and the time and date thereof. This log shall be
made available for periodic inspection by the City.
N.
The Grantee shall provide a copy of the FCC customer
service standards to every subscriber via a bill insert at least once
every calendar year, and shall also provide a copy of these customer
service standards to every new customer within 30 days of connection.
A.
It shall be the right of all subscribers to continue
receiving service as long as their financial and other obligations
to the Grantee are honored. If the Grantee elects to over build, rebuild,
modify or sell the system, or the City gives notice of intent to terminate
or fails to renew the franchise, the Grantee shall act so as to ensure
that all subscribers receive continuous, uninterrupted service regardless
of the circumstances in so far as technically possible.
B.
If there is a change of franchise, or if a new operator
acquires the system, the Grantee shall cooperate with the City, new
franchisee or new operator to maintain continuity of service to all
subscribers.
C.
If the Grantee fails to operate the system for seven
consecutive days without prior approval of the City or without just
cause, the City may, at its option, operate the system or designate
an operator until such time as the Grantee restores service under
conditions acceptable to the City or a permanent operator is selected.
If the City is required to fulfill this obligation for the Grantee,
the Grantee shall reimburse the City for all reasonable costs or damages
that are the result of the Grantee's failure to perform.
A.
The City Council or its designee has primary responsibility
for the continuing administration of the franchise and implementation
of complaint procedures.
B.
During the terms of the franchise and any renewal
thereof, the Grantee shall maintain a central office, designated by
the Grantee, for the purpose of receiving and resolving all complaints
regarding the quality of service, equipment malfunctions, and similar
matters. The office must be reachable by a local and/or toll-free
telephone call to receive complaints regarding quality of service,
equipment functions and similar matters. The Grantee will make good
faith efforts to arrange for one or more payment locations in a central
location where customers may pay bills or drop off equipment.
C.
As subscribers are connected or reconnected to the
system, the Grantee shall, by appropriate means, such as a card or
brochure, furnish information concerning the procedures for making
inquiries or complaints, including the name, address and local telephone
number of the employee or employees or agent to whom such inquiries
or complaints are to be addressed.
D.
When there have been similar complaints made, or where
there exists other evidence, which, in the judgment of the City, casts
doubt on the reliability or quality of cable service, the City shall
have the right and authority to require the Grantee to test, analyze
and report on the performance of the system. The Grantee shall fully
cooperate with the City in performing such testing and shall prepare
results and a report, if requested, within 30 days after notice. Such
report shall include the following information:
(1)
The nature of the complaint or problem that precipitated
the special tests;
(2)
The system component(s) tested;
(3)
The equipment used and procedures employed in testing;
(4)
The method, if any, in which such complaint or problem
was resolved;
(5)
Any other information pertinent to the tests and analysis
which may be required.
E.
The City may require that tests be supervised by an
independent professional engineer or equivalent of the City's choice
at the City's expense. The engineer shall be given records of special
tests and may forward to the City such records with a report interpreting
the results of the tests and recommending actions to be taken. Grantee
shall reimburse the City for the engineer's fees if the engineer determines
that the cable system fails to meet FCC signal quality standards on
more than 15% of the measurements taken.
F.
The City's rights under this section shall be limited
to requiring tests, analysis and reports covering specific subjects
and characteristics based on complaints or other evidence when and
under such circumstances as the City has reasonable grounds to believe
that the complaints or other evidence require that tests be performed
to protect the public against substandard cable service.
The Grantee shall have the authority to promulgate
such rules, regulations, terms and conditions governing the conduct
of its business as shall be reasonably necessary to enable the Grantee
to exercise its rights and perform its obligations under the franchise,
and to assure uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
A.
A Grantee shall pay to the City a franchise fee in
the amount designated in the franchise agreement. Unless otherwise
specified in the franchise agreement, such franchise fee shall be
5% of the Grantee's gross revenues.
B.
The franchise fee payment shall be in addition to
any other tax or payment owed to the City by the Grantee and shall
not be construed as payment in lieu of municipal property taxes or
other state, county or local taxes.
C.
The franchise fee and any other costs or penalties
assessed shall be payable quarterly on a calendar year basis to the
City within 45 days of the end of each quarter. The Grantee shall
also file a complete and accurate verified statement of all gross
revenues as previously defined within 45 days of the end of each quarter.
D.
The City shall have the right to inspect the Grantee's
income records and to audit and recompute any amounts determined to
be payable under this ordinance; provided, however, that such audit
shall take place within 60 months following the close of each of the
Grantee's fiscal years that is the subject of the audit. Any additional
amount due the City as a result of an audit shall be paid within 30
days following written notice to the Grantee by the City, which shall
include a copy of the audit report.
E.
If any franchise fee payment or amount owed to the
City, cost or penalty, is not made on or before the applicable dates
heretofore specified, interest shall be charged from such date at
an annual rate of 12% if the delinquent payment exceeds 3% annually.
A.
A franchise shall not be assigned or transferred,
either in whole or in part, or leased or sublet in any manner, nor
shall title thereto, either legal or equitable or any right, interest
or property therein, pass to or vest in any person without the prior
written consent of the City. The Grantee may, however, transfer or
assign the franchise to a wholly owned subsidiary of the Grantee and
such subsidiary may transfer or assign the franchise back to the Grantee
without such consent, providing that such assignment is without any
release of liability of the Grantee. Any proposed assignee must show
legal, technical and financial responsibility as determined by the
City and must agree to comply with all provisions of the franchise.
The City shall have 120 days to act upon any request for approval
of a sale or transfer submitted in writing that contains or is accompanied
by all such information as is required in accordance with FCC regulations
and by the City. The City shall be deemed to have consented to a proposed
transfer or assignment if its refusal to consent (including the reasons
therefor) is not communicated in writing to the Grantee within 120
days following receipt of written notice together with all necessary
information as to the effect of the proposed transfer or assignment
upon the public, unless the requesting party and the City agree to
an extension of time. The City shall not unreasonably withhold consent
to a proposed transfer.
B.
The Grantee shall promptly notify the City of any
actual or proposed change in, or transfer of, or acquisition by any
other party of, control of the Grantee. The word "control" as used
herein is not limited to major stockholders but includes actual working
control in whatever manner exercised. A rebuttable presumption that
a transfer of control has occurred shall arise upon the acquisition
or accumulation by any person or group of persons of 25% of the voting
shares of the Grantee. Every change, transfer or acquisition of control
of the Grantee shall make the franchise subject to cancellation unless
and until the City shall have consented thereto, which consent shall
not be unreasonably withheld. For the purpose of determining whether
it shall consent to such change, transfer or acquisition of control,
the City may inquire into the legal, technical, financial and other
qualifications of the prospective controlling party, and the Grantee
shall assist the City in such inquiry.
C.
The consent or approval of the City to any transfer
of the Grantee shall not constitute a waiver or release of the rights
of the City in and to the streets, and any transfer shall by its terms,
be expressly subordinate to the terms and conditions of the franchise.
D.
In the absence of extraordinary circumstances, the
City shall not be required to approve any transfer or assignment of
a new franchise prior to substantial completion of construction of
the proposed system.
E.
In no event shall a transfer of ownership or control
be approved without the successor(s) in interest agreeing in writing
to abide by the terms and conditions of the franchise agreement.
A.
The Grantee shall fully cooperate in making available
at reasonable times, and the City shall have the right to inspect
at the Grantee's office, upon reasonable notice and where reasonably
necessary for the enforcement of the franchise, books, records, maps,
plans and other like materials of the Grantee applicable to the cable
television system, at any time during normal business hours.
B.
Unless prohibited by law, rule or regulation, the
following records and/or reports are to be made available to the City
upon request, but no more frequently than on an annual basis if so
mutually agreed upon by the Grantee and the City:
(1)
A yearly review and resolution or progress report
submitted by the Grantee to the City;
(2)
Periodic preventive maintenance reports;
(3)
Copies of FCC Form 395-A (or successor form) or any
supplemental forms related to equal opportunity or fair contracting
policies;
(4)
Subscriber inquiry/complaint resolution data (but
not including names or addresses) and the right to review documentation
concerning these inquiries and/or complaints periodically;
(5)
Periodic construction update reports including, where
appropriate, the submission of strand maps.
Copies of all petitions, applications, communications
and reports submitted by the Grantee to the Federal Communications
Commission, to the Securities and Exchange Commission, or to any other
federal or state regulatory commission or agency having jurisdiction
in respect to any matters affecting cable television operations authorized
pursuant to the franchise or received from such agencies shall be
provided to the City upon request.
The Grantee shall file annually with the City
no later than 120 days after the end of the Grantee's fiscal year,
a copy of a gross revenues statement certified by an officer of the
Grantee.
At the expiration of the term for which the
franchise is granted or when any renewal is denied, or upon its termination
as provided herein, the Grantee shall forthwith, upon written notice
by the City, remove at its own expense all aerial portions of the
cable television system from all streets and public property within
the City within six months. If the Grantee fails to do so within six
months, the City may perform the work at the Grantee's expense. Upon
such notice of removal, a bond shall be furnished by the Grantee in
an amount sufficient to cover this expense.
A.
The cable television system shall have a minimum channel
capacity of 79 channels.
B.
Such system shall maintain a plant having the technical
capacity for two-way communications.
C.
The Grantee shall maintain the following:
(1)
At least one specially designated, noncommercial public
access channel.
(2)
At least one specially designated channel for use
by local education authorities.
(3)
At least one specially designated channel for local
governmental uses.
(4)
At least one specially designated channel for leased
access uses.
(5)
If required by the franchise agreement, an Institutional
Network (I-Net) of cable, optical, electrical or electronic equipment,
including cable television systems, used for the purpose of transmitting
two-way video signals interconnecting designated entities to be determined
by the City. The cost of such network will be borne by the City as
negotiated between the Grantee and the City. Such network may be provided
as needed by utilizing capacity on the system.
(6)
Provided, however, these uses may be combined on one or more channels until such time as additional channels become necessary in the opinion of the City. Studios and associated production equipment will be located in a mutually agreed upon site to meet the public's need for public access, education and local government channels as noted in Subsection C(1), (2) and (3). Financial and technical support and replacement and maintenance of equipment of this facility shall be separately incorporated into the franchise by agreement.
D.
The Grantee shall incorporate into its cable television
system the capacity to permit the City, in times of emergency, to
override by remote control the audio, video and/or text of all channels
simultaneously, which the Grantee may lawfully override. The Grantee
shall provide emergency broadcast capacity pursuant to FCC roles.
The Grantee shall cooperate with the City in the use and operation
of the emergency alert override system.
A.
In addition to the inherent powers of the City to
regulate and control any cable television franchise, and those powers
expressly reserved by the City, or agreed to and provided for herein,
the right and power is hereby reserved by the City to promulgate such
additional regulations as it shall find necessary in the exercise
of its lawful powers and furtherance of the terms and conditions of
the franchise; provided, however, that such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof
or applicable state and federal laws, roles and regulations and do
not appreciably increase the burdens or appreciably impair the rights
of the Grantee under the franchise agreement.
B.
The City may also adopt such regulations at the request
of Grantee upon application.
A.
The City and the Grantee may hold scheduled performance
evaluation sessions within 30 days of the third and sixth anniversary
dates of the Grantee's award or renewal of the franchise and as may
be required by federal and state law. All such evaluation sessions
shall be open to the public.
B.
Special evaluation sessions may be held at any time
during the term of the franchise at the request of the City or the
Grantee.
C.
All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation in accordance
with legal notice. Upon written request from the City, the Grantee
shall notify its subscribers of all evaluation sessions by announcements
on at least one channel of its system between the hours of 7:00 p.m.
and 9:00 p.m., for five consecutive days preceding each session.
D.
Topics which may be discussed at any scheduled or
special evaluation session may include, but are not limited to: service
rate structures; franchise fees; penalties; free or discounted services;
application of new technologies; system performance; services provided;
programming offered; customer complaints; privacy; amendments to this
ordinance; judicial and FCC rulings; line extension policies; and
Grantee or City rules. The City acknowledges that, pursuant to federal
law, it does not have jurisdiction nor enforcement rights over all
the standards and services mentioned above, including programming
and the application of all new technologies under a cable television
franchise. Nothing in this subsection shall be construed as requiring
the renegotiation of the cable franchise agreement.
E.
Members of the general public may add topics either
by working through the negotiating parties or by presenting a petition.
If such a petition bears the valid signatures of 50 or more residents
of the City, the proposed topic or topics shall be added to the list
of topics to be discussed at the evaluation session.
Pursuant to the Cable Television Consumer Protection
and Competition Act of 1992, if the City is currently certified to
regulate the basic service rates charged by Grantee, it may, under
these rules, require the Grantee to obtain approval from the City
for a rate increase for any change to the rates for basic service.
Should federal or state law permit further rate regulation beyond
basic service the City may, if certified, assume such rate regulation
and adopt appropriate procedures for such regulation.
A.
Pursuant to § A700-64, in addition to all other rights and powers retained by the City under this ordinance or otherwise, the City reserves the right to forfeit and terminate the franchise and all rights and privileges of the Grantee hereunder in the event of a substantial breach of its terms and conditions following the required thirty-day period to cure. A substantial breach by the Grantee shall include, but shall not be limited to the following:
(1)
Violation of any material provision of the franchise
or any material role, order, regulation or determination of the City
made pursuant to the franchise;
(2)
Attempt to evade any material provision of the franchise
or to practice any fraud or deceit upon the City or its subscribers
or customers;
(3)
Failure to begin or complete system construction or system extension as provided under § A700-37;
(4)
Failure to provide the services promised in the Grantee's initial application as incorporated herein by § A700-21;
(5)
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption
is obtained from the City; or
(6)
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.
The foregoing shall not constitute a major breach
if the violation occurs but is without fault of the Grantee or occurs
as a result of circumstances beyond its control. The Grantee shall
not be excused by mere economic hardship nor by misfeasance or malfeasance
of its directors, officers or employees.
C.
The City may make a written demand that the Grantee
comply with any such provision, role, order or determination under
or pursuant to the franchise. If the violation by the Grantee continues
for a period of 30 days following such written demand without written
proof that the corrective action has been taken or is being actively
and expeditiously pursued, the City may place the issue of termination
of the franchise before the City Council. The City shall cause to
be served upon the Grantee, at least 20 days prior to the date of
such meeting, a written notice of intent to request such termination
and the time and place of the meeting. Public notice shall be given
of the meeting and the issue(s) which the Council is to consider.
D.
The City Council shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine in
its discretion whether or not any violation by the Grantee has occurred.
E.
If the City Council determines that the violation
by the Grantee was the fault of the Grantee and within its control,
the Council may, by resolution declare that the franchise of the Grantee
shall be forfeited and terminated unless there is compliance within
such period as the Council may fix, such period to not be less than
30 days; provided, however, that no opportunity for compliance need
be granted for fraud or material misrepresentation.
F.
The issue of forfeiture and termination shall automatically
be placed upon the Council agenda at the expiration of the time set
by it for compliance. The Council may then terminate the franchise
forthwith upon finding that the Grantee has failed to achieve compliance
or it may further extend the period, at its discretion.
Upon the foreclosure or other judicial sale
of all or a substantial part of the system, or upon the termination
of any lease covering all or a substantial part of the system, the
Grantee shall notify the City of such fact, and such notification
shall be treated as a notification that a change in control of the
Grantee has taken place, and the provisions of the franchise governing
the consent of the City to such change in control of the Grantee shall
apply.
A.
Federal regulations as per 47 U.S.C. § 537 shall apply to approval of transfer issues and the right of acquisition by the City. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B below shall apply.
B.
Upon the expiration of the term of the franchise or
upon any other termination thereof as provided herein, the City at
its election and consistent with federal law shall have the right
to purchase and take over the system upon resolution by the City Council.
The City shall have the right to cancel a franchise
120 days after the appointment of a receiver or trustee to take over
and conduct the business of the Grantee, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
120 days, or unless:
A.
Within 120 days after his/her election or appointment,
such receiver or trustee shall have fully complied with all the provisions
of this ordinance and remedied all defaults thereunder; and
B.
Such receiver or trustee, within the 120 days, shall
have executed an agreement, duly approved by the court having jurisdiction
in the premises, whereby such receiver or trustee assumes and agrees
to be bound by each and every provision of this ordinance and the
franchise granted to the Grantee.
A.
Notwithstanding any other provisions of the franchise
to the contrary, the Grantee shall at all times comply with all laws
and regulations of the state and federal government or any administrative
agencies thereof; provided, however, if any such state or federal
law or regulation shall require the Grantee to perform any service,
or shall permit the Grantee to perform any service, or shall prohibit
the Grantee from performing any service, in conflict with the terms
of the franchise or of any law or regulation of the City, then as
soon as possible following knowledge thereof, the Grantee shall notify
the City of the point of conflict believed to exist between such regulation
or law and the laws or regulations of the City or the franchise.
B.
If the City determines that a material provision of
this ordinance is affected by any subsequent action of the state or
federal government, the City and the Grantee shall negotiate to modify
any of the provisions herein to such reasonable extent as may be necessary
to carry out the full intent and purpose of this ordinance.
C.
If any section, sentence, paragraph, term, or provision
hereof is determined to be illegal, invalid or unconstitutional by
any court of competent jurisdiction thereof, such determination shall
have no effect on the validity of any other section, sentence, paragraph,
term or provision hereof, all of which will remain in full force and
effect for the term of the franchise, or any renewal or renewals thereof.
A.
Interference with cable service prohibited. Neither
the owner of any multiple unit residential dwelling nor his agent
or representative shall interfere with the right of any tenant or
lawful resident thereof to receive cable television service, cable
installation or maintenance from a cable television Grantee regulated
by and lawfully operating under a valid and existing franchise issued
by the City.
B.
Penalties and charges to tenants for service prohibited.
Neither the owner or any multiple unit residential dwelling nor his
agent or representative shall penalize, charge or surcharge a tenant
or resident or forfeit or threaten to forfeit any right of such tenant
or resident, or discriminate in any way against such tenant or resident
who requests or receives cable television service from a Grantee operating
under a valid and existing cable television franchise issued by the
City.
C.
Reselling service prohibited. No person shall resell,
without the expressed, written consent of the Grantee, any cable service,
program or signal transmitted by a cable television Grantee under
a franchise issued by the City.
D.
Protection of property permitted. Nothing in this
ordinance shall prohibit a person from requiring that cable television
system facilities conform to laws and regulations and reasonable conditions
necessary to protect safety, functioning, appearance and value of
premises or the convenience and safety of persons or property.
A.
All bids received by the City from the applicants
for an initial franchise will become the sole property of the City.
B.
The City reserves the right to reject any and all
bids and waive informalities and/or technicalities where the best
interest of the City may be served.
C.
All questions regarding the meaning or intent of this
ordinance or application documents shall be submitted to the City
in writing. Replies will be issued by addenda mailed or delivered
to all parties recorded by the City as having received the application
documents. The City reserves the right to make extensions of time
for receiving bids as it deems necessary. Questions received less
than 14 days prior to the date for the opening of bids will not be
answered. Only replies to questions by written addenda will be binding.
All bids must contain an acknowledgment of receipt of all addenda.
D.
Bids must be sealed, and submitted at the time and
place indicated in the application documents for the public opening.
Bids may be modified at any time prior to the opening of the bids,
provided that any modifications must be duly executed in the manner
that the applicant's bid must be executed. No bid shall be opened
or inspected before the public opening.
E.
Before submitting a bid, each applicant must:
(1)
Examine this ordinance and the application documents
thoroughly;
(2)
Familiarize himself/herself with local conditions
that may in any manner affect performance under the franchise;
(3)
Familiarize himself/herself with federal, state and
local laws, ordinances, rules and regulations affecting performance
under the franchise; and
(4)
Carefully correlate the bid with the requirements
of this ordinance and the application documents.
F.
The City may make such investigations as it deems
necessary to determine the ability of an applicant to perform under
the franchise, and the applicant shall furnish to the City all such
information and data for this purpose as the City may request. The
City reserves the right to reject any bid if the evidence submitted
by, or investigation of, such applicant fails to satisfy the City
that such applicant is properly qualified to carry out the obligations
of the franchise and to complete the work contemplated therein. Conditional
bids will not be accepted.
G.
All bids received shall be placed in a secure depository
approved by the City and shall not be opened nor inspected prior to
the public opening.
A.
No initial franchise will be granted to any applicant
unless all requirements and demands of the City regarding financial,
contractual, shareholder and system disclosure have been met.
B.
Applicants, including all shareholders and parties
with any interest in the applicant, shall fully disclose all agreements
and undertakings, whether written or oral, or implied with any person,
firm, group, association or corporation with respect to the franchise
and the proposed cable television system. The Grantee of a franchise
shall disclose all other contracts to the City as the contracts are
made. This section shall include, but not be limited to, any agreements
between local applicants and national companies.
C.
Applicants, including all shareholders and parties
with any interest in the applicant, shall submit all requested information
as provided by the terms of this ordinance or the application documents,
which are incorporated herein by reference. The requested information
must be complete and verified as true by the applicant.
D.
Applicants, including all shareholders and parties
with any interest in the applicant, shall disclose the numbers of
shares of stock, and the holders thereof, and shall include the amount
of consideration for each share of stock and the nature of the consideration.
E.
Applicants, including all shareholders and parties
with any interest in the applicant, shall disclose any information
required by the application documents regarding other cable systems
in which they hold an interest of any nature, including, but not limited
to, the following:
(1)
Locations of all other franchises and the dates of
award for each location;
(2)
Estimated construction costs and estimated completion
dates for each system;
(3)
Estimated number of miles of construction and number
of miles completed in each system as of the date of this application;
and
(4)
Date for completion of construction as promised in
the application for each system.
F.
Applicants, including all shareholders and parties
with any interest in the applicant, shall disclose any information
required by the application documents regarding pending applications
for other cable systems, including, but not limited to, the following:
For the violation of any of the following provisions
of this ordinance, damages shall be chargeable to the letter of credit
or corporate guarantee in lieu of bond as follows, and the City may
determine the amount of the forfeiture for other violations that are
not specified in a sum not to exceed $175 for each violation, with
each day constituting a separate violation:
A.
Failure to furnish, maintain, or offer all cable services to any potential subscriber within the City pursuant to § A700-37 herein upon order of the City: $175 per day, per violation, for each day that such failure occurs or continues;
B.
Failure to obtain or file evidence of required insurance,
construction bond, performance bond, or other required financial security:
$175 per day, per violation, for each day such failure occurs or continues;
D.
Failure to comply with applicable construction, operation,
or maintenance standards: $175 per day, per violation;
E.
Failure to comply with a rate decision or refund order:
$250 per day, per violation, for each day such a violation occurs
or continues;
G.
Any other violations of a franchise agreement to be
determined by the Grantor in a public hearing but not specifically
noted in this section shall not exceed $175 per day, per violation.
A.
Whenever the City believes that the Grantee has violated
one or more terms, conditions or provisions of the franchise, and
wishes to impose penalties, a written notice shall be given to the
Grantee informing it of such alleged violation or liability. The written
notice shall describe in reasonable detail the specific violation
so as to afford the Grantee an opportunity to remedy the violation.
The Grantee shall have 30 days subsequent to receipt of the notice
in which to correct the violation before the City may impose penalties
unless the violation is of such a nature so as to require more than
30 days and the Grantee proceeds diligently within the 30 days to
correct the violation. In any case where the violation is not cured
within 30 days of notice from the City, or such other time as the
Grantee and the City may mutually agree to, the City may proceed to
impose liquidated damages.
B.
The Grantee may, within 10 days of receipt of notice
of damages, notify the City that there is a dispute as to whether
a violation or failure has, in fact, occurred, Such notice by the
Grantee to the City shall specify with particularity the matters disputed
by the Grantee and shall stay the running of the thirty-day cure period
pending Council decision as required below. The Council shall hear
the Grantee's dispute. Grantee must be given at least five business
days notice of the hearing. At the hearing, the Grantee shall be entitled
to the right to present evidence and the right to be represented by
counsel. After the hearing, the City shall provide Grantee a copy
of its action, along with supporting documents. In the event the City
upholds the finding of a violation, the Grantee shall have 15 days
subsequent, or such other time period as the Grantee and the City
mutually agree, to correct the violation.
C.
The rights reserved to the City under this section
are in addition to all other rights of the City whether reserved by
this ordinance or authorized by law or equity, and no action, proceeding
or exercise of a right with respect to penalties shall affect any
other right the City may have.
D.
Any person, firm or corporation violating provisions of this franchise for which another penalty is not provided shall be fined pursuant to Chapter 1, Article II, General Penalty, of the Code of Ordinances of the City of Crystal Lake for each offense. Each day that any person, firm or corporation is in violation of the provisions of this franchise shall be deemed a separate and distinct offense.
The Grantee shall not be held in default under,
or in noncompliance with, the provisions of the franchise, nor suffer
any enforcement or penalty relating to noncompliance or default including
termination, cancellation or revocation of the franchise, where such
noncompliance or alleged defaults occurred or were caused by strike,
riot, war, earthquake, flood, tidal wave, severe weather conditions
or other catastrophic act of nature, labor disputes, inability to
obtain necessary contract labor or materials, governmental, administrative
or judicial order or regulation or other event that is reasonably
beyond the Grantee's ability to anticipate and control and that makes
performance impossible.
