CABLE TELEVISION FRANCHISE AGREEMENT
Village of Park Forest, Illinois
And
Cable TV Fund 12-A, Ltd.
d/b/a
Xxxxx Intercable, Inc.
August 26, 1996
Exhibit 10.1.10 to
Cable TV Fund 12-A
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TABLE OF CONTENTS
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SECTION SECTION TITLE PAGE
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1 DEFINITIONS 1
2 GRANT OF NON-EXCLUSIVE FRANCHISE 8
3 TERM OF AGREEMENT 8
4 ACCEPTANCE OF FRANCHISE 9
5 SERVICE AREA COVERED BY FRANCHISE AGREEMENT 12
6 RETRANSMISSION OF SIGNALS WITHIN A STRUCTURE 12
7 CABLE SYSTEM 12
8 CONSTRUCTION STANDARDS 15
9 INSTITUTIONAL NETWORK 18
10 CUSTOMER SERVICE 18
11 RATE REGULATION 18
12 FRANCHISE FEES 19
13 FRANCHISE FEE AUDITS OR AGREED-UPON
PROCEDURES 20
14 SECURITY FUND; PERFORMANCE BOND 20
15 DAMAGES AND DEFENSE 23
16 LIABILITY INSURANCE AND INDEMNIFICATION 23
17 LIQUIDATED DAMAGES 24
18 PROGRAMMING SERVICES 27
19 PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS 28
20 LEASED ACCESS CHANNELS 30
TABLE OF CONTENTS (CONTINUED)
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SECTION SECTION TITLE PAGE
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21 LOCAL ORIGINATION PROGRAMMING 30
22 SERVICES TO SCHOOLS AND GOVERNMENT BUILDINGS 32
23 EMERGENCY OVERRIDE 32
24 MODIFICATIONS TO COMMUNICATIONS AND CABLE
ACTS 33
25 REVOCATION 33
26 RIGHTS AND REMEDIES 34
27 RIGHTS AND POWERS RESERVED BY VILLAGE 34
28 SERVICE OF NOTICE 35
29 ORAL MODIFICATION 35
30 SEVERABILITY 36
31 ENTIRE CONTRACT 36
32 OBLIGATIONS TO CONTINUE THROUGHOUT TERM 36
33 FRANCHISE VALIDITY 36
34 HEADINGS 36
35 GOVERNING LAW 36
MAP OF CORPORATE LIMITS
VILLAGE OF PARK FOREST APPENDIX A
LISTING OF SCHOOLS, LOCAL INSTITUTIONS,
AND GOVERNMENT BUILDINGS TO BE PROVIDED
SUBSCRIBER NETWORK CABLE SERVICE IN
ACCORDANCE WITH THE PRIOR FRANCHISE
AGREEMENT APPENDIX B
SECTION 1: DEFINITIONS
----------------------
For the purposes of this Section, the following phrases, terms, words, and their
derivations shall have the meaning as stated herein. When not inconsistent with
the context, words in the present tense shall include the future, words
indicating a plural number shall include the singular number and words in the
singular number include the plural number. The word "shall" and "will" are
mandatory, and not directory. The word "may" is permissive. Words not defined
shall be given their common and ordinary meaning. Unless a section provides
otherwise, references to statutory enactments shall include any and all
amendments thereto and any successor provisions. All capitalized words defined
herein, and all other capitalized words utilized within this Agreement, shall
have the meaning ascribed to them in the Cable Act unless said terms are not
defined in the Cable Act, whereupon the definition shall be controlled by this
Agreement. For the purpose of this Franchise Agreement, the terms in the
Franchise Agreement shall prevail where there is a conflict between the
Ordinance and the Cable Act. Where the Franchise Agreement is silent, the terms
of the Ordinance and the Cable Act shall control.
ACT (also CABLE ACT): Shall mean the Communications Act of 1934, the Cable
Communications Policy Act of 1984, the Cable Consumer
Protection and Competition Act of 1992 (47 USC 521 et.
seq.) and the Telecommunications Act of 1996, as now or
hereinafter amended.
BASIC SERVICE: Shall consist of all signals carried in fulfillment of the
provisions of Sections 614 and 615 of the Communications
Act of 1934, as amended, any Public, Educational, and
Governmental Access programming required by the Franchise
of the Cable System to be provided to Subscribers, and any
signal of any television broadcast station that is
provided by the Cable Operator to any Subscriber, except a
signal which is secondarily transmitted by a satellite
carrier beyond the local service area of such station.
Basic Service may also include any additional video
programming signals or services provided by the Cable
Operator to the basic service tier.
BOARD OF TRUSTEES: Means the governing body of the Village or any successors
to the legislative powers of said body (also referred to
as BOARD).
1
CABLE OPERATOR: Any Person or Persons, including corporations,
partnerships, and joint ventures, who provide cable
programming services through means of a Cable System and
who own a significant interest in the Cable System, or any
Person or Persons, who manage, control, coordinate, or
direct the operations of a Cable System.
CABLE SERVICE: The one-way transmission to Subscribers of video
programming or other programming service, and Subscriber
interaction, if any, which is required for the selection
of such video programming or other programming service.
CABLE SYSTEM: The system of antennas, cables, wires, lines, towers,
waveguides, laser beams, satellite uplinks, microwave
links, or other conductors, converters, amplifiers,
Headend equipment, master controls, earth stations,
equipment and facilities, designed, wired, and constructed
for the purpose of producing, receiving, transmitting,
amplifying storing, processing, or distributing by coaxial
cable, fiberoptics, fiber distributed data interference
(FDDI), microwave, data, or other means, audio, video,
data, and other forms of electronic or electrical signals
within the Village other than those communication units
which are solely wired on private property. A Cable System
shall also mean a facility as described above which is
located within the corporate limits of the Village
regardless of the location of the headend feeding such
system is located within the corporate limits of the
Village.
CHANNEL: A band of frequencies which constitutes the standards
definition of a Channel by the National Television System
Committee (NTSC), which is capable of carrying audio,
video, voice, data, multimedia, and encrypted information
signals.
CONVERTER: A device which may be provided by the Cable Operator to
Subscribers for the purpose of changing the frequency of
midband, superband, or hyperband signals to a suitable
Channel or Channels which the television receiver is able
to deliver at designated dial locations.
DWELLING UNIT: Shall mean a single-family or multiple-family residential,
commercial or industrial place of occupancy.
2
EDUCATIONAL
ACCESS CHANNEL: Shall mean a Channel or Channels set aside and so
designated for the use of Schools and related educational
institutions, including facilities and equipment for the
use of such Channel, as specified by the Franchising
Authority.
FCC: Shall mean the Federal Communications Commission and any
legally constituted regulatory body, or agency, or
successor.
FRANCHISE: Shall mean the nonexclusive right and privilege granted
through the authority of a Franchise Agreement between the
Village and any Grantee hereunder which allows the Grantee
to own, operate, construct, reconstruct, dismantle, test,
use, and maintain a Cable System within the corporate
boundaries of the Village, or within specified areas of
the Village.
FRANCHISE AREA: The area within the corporate boundaries or jurisdiction
of the Village of Park Forest which is subject to the
terms and conditions granted under the Village's cable
television franchise.
FRANCHISE FEE: Shall include 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 on 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
Grantee for the establishment and operation of Public,
Educational, or Governmental Access facilities;
requirements or charges incidental to the awarding,
reviewing, enforcing, or transferring of the Franchise,
including payments for professional, legal, or technical
assistance, bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated
damages; any fee imposed under Title 17, U.S. Code.
FRANCHISING
AUTHORITY: Shall mean the Municipal Authority of the Village of Park
Forest, or its Mayor or his designee or any of its
designated municipal officers or staff having
responsibility over the supervision of the Village's cable
television franchise.
3
GOVERNMENTAL
ACCESS CHANNEL: Shall mean a Channel or Channels set aside and so
designated for the use of the Village of Park Forest,
including facilities and equipment for the use of such
Channel, as specified by the Franchising Authority.
GRANTEE: Shall mean Cable TV Fund 12-A, Ltd. doing business as
Xxxxx Intercable, or any Person(s), including
corporations, partnerships, associations, joint ventures,
or organizations of any type and its agents,
representatives, employees, subsidiaries, assignees,
transferees or lawful successors having any rights,
powers, privileges, duties, liabilities or obligations
under this Section and also includes all persons having or
claiming any title to or interest in the Cable System,
whether by reason of the Franchise itself directly or by
interest in a subsidiary, parent, or affiliate company,
association, or organization, or by any subcontract,
transfer, assignment, management agreement or operating
agreement, or an approved assignment or transfer resulting
from a foreclosure of a mortgage security agreement, or
whether otherwise arising or created.
GRANTOR: Xxx Xxxxxxx xx Xxxx Xxxxxx, Xxxxxxxx.
GROSS REVENUES: Shall mean all cash, credits, property of any kind or
nature or other consideration derived directly or
indirectly by a Grantee, its affiliates, subsidiaries,
transferees, assignees, or any other person in which the
Grantee has a financial interest, arising from or
attributable to the sale or exchange of cable services by
Grantee within the Village, including but not limited to,
monthly fees charged Subscribers for Basic Service,
monthly fees charged Subscribers for any optional Cable
Service; monthly fees charged Subscribers for any tier of
service other than Basic Service; Installation,
disconnection and re-connection fees; leased Channel fees;
fees, payments or other consideration received from
programmers; Converter rentals or sales; advertising
revenues; revenues from home shopping Channels; revenues
from the sale, exchange, or cablecast of any programming
developed on or for community service Channels or
institutional users of the Cable System. This sum shall be
the basis for computing the fee imposed pursuant to
Section 12.1(A)-(B) hereof.
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GROSS REVENUES
(continued): This sum shall not include any taxes on services furnished
by Grantee which are levied directly upon any Subscriber
or User by the State of Illinois, Xxxx and/or Will County,
the Village, or any other governmental unit which is
collected by Grantee on behalf of such governmental unit,
or revenue derived from a similar service that is
regulated exclusively at the state or federal level when
said service is a common carrier or utility service not
subject to regulation.
HEADEND: 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.
INSTALLATION: Shall mean the connection between Subscriber Drop cable to
Subscribers' terminals.
INTERACTIVE ON-
DEMAND SERVICES: A service providing video programming to Subscribers over
switched networks on an on-demand, point-to-point basis,
but does not include services providing video programming
prescheduled by the programming provider.
INTERACTIVE
SYSTEM: A two-way Cable System that provides a Subscriber with the
ability to enter commands or responses on an in-home
terminal and general responses or stimuli at a remote
location.
LEASED ACCESS
CHANNEL: A cable television Channel or Channels, including input
facilities and equipment, specifically designated for
public, non-profit, or private entity broadcasting which
is provided by means of a lease arrangement for cablecast
airtime between the Cable Operator and the Lessee. Shall
include without limitation all use pursuant to Section 612
of the Act (47 USC 532).
LOCAL ORIGINATION
CHANNEL: A Channel providing programs that are produced by the
Cable Operator rather than those received from television
broadcast stations or pay Channel distributors and other
than those produced on Public, Educational, and
Governmental Channels.
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MATERIAL BREACH: Any substantial deviation from the terms and conditions of
this Franchise, including, but not limited to, one or more
causes for revocation as described in the Franchise
Ordinance.
MODIFICATION
AGREEMENT: Shall mean any agreement of modification and amendment to
the Franchise Agreement entered into and between the
Grantee and the Village and made a part of the Franchise
Agreement.
ORDINANCE: Shall mean the Village of Park Forest Cable Communications
Ordinance, as may be amended from time to time.
PAY-PER-VIEW: A usage-based fee structure used for cable television
programming in which the Subscriber is charged a price for
individual programs requested.
PERSON: Shall mean any individual, firm, corporation, company,
partnership, association, joint venture, trust, or
organization of any kind and the lawful trustee,
successor, transferee, assignee, or personal
representative thereof.
PUBLIC ACCESS
CHANNEL: A cable television Channel or Channels specifically
designated as a non-commercial Public Access Channel
available on a first-come, non-discriminatory basis,
including facilities and equipment for such use. Shall
include without limitation all use pursuant to Sections
611 and 612 of the Act (47 USC 531, 47 USC 532).
PUBLIC STREET: Shall mean the surface and the space above and below the
surface of any public street, road, highway, lane, path,
alley, court, boulevard, drive, avenue, parkway, driveway,
or bridge, now or hereafter held by the Village which
shall entitle the Village and the Grantee to the use
thereof for the purpose of erecting, installing, and
maintaining the Grantee's Cable System.
PUBLIC WAY: Shall mean the surface and the space above and below any
conduit, tunnel, park, square, waterways, utility
easements, or other public right-of-way now or hereafter
held by the Village which shall entitle the Village and
the Grantee to the use thereof for the purpose of
erecting, installing, and maintaining the Grantee's Cable
System.
6
SCHOOLS: Any public or private elementary School, secondary
Schools, junior college, or university which conducts
classes or provides instruction services which has been
granted a certificate of recognition by the State of
Illinois.
SHALL AND MUST: Each is mandatory.
SUBSCRIBER: Shall mean any Person, firm, company, corporation, or
association who legally receives one or more of the
services provided by the Grantee's Cable System under the
schedule of charges filed with and approved by the
Village, and does not further distribute such services.
SUBSCRIBER DROP: A cable which connects the tap or coupler of a feeder
cable to Subscriber's premises and television set.
USER: A Person utilizing a Channel or Channels for purposes of
production and/or transmission of material, as contrasted
with receipt in a Subscriber capacity.
VERTICAL BLANKING
INTERVAL: The unused lines in each field of a television signal
(seen as a thick band when the television picture rolls
over, usually at the beginning of each field), that
instruct the television receiver to prepare for reception
of the next field. Some of these lines may be used for
teletext and captioning or maintain specialized test
signals.
VILLAGE: Means the Village of Park Forest, State of Illinois, its
officers and employees unless otherwise specifically
designated, and all the area within the territorial limits
of the Village, its future corporate boundaries and
including any area over which the Village exercises its
jurisdiction.
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SECTION 2: GRANT OF NON-EXCLUSIVE FRANCHISE
-------------------------------------------
Section 2.1: Grant of Operation
-------------------------------
The Village of Park Forest hereby grants to Grantee the non-exclusive right
and privilege to construct, erect, operate, and maintain in, upon, along,
across, over and under Public Ways, Public Streets and public places now
laid out or dedicated, and all extensions thereof and thereto, in the
Village, poles, wires, cables, underground conduits, manholes, and other
television conductors, and fixtures or appurtenances necessary for the
maintenance and operation of a Cable System for the interception,
production, sale, and distribution of audio, video, data, voice, and radio
signals.
Section 2.2: Right of Village to Grant Other Franchises
-------------------------------------------------------
Nothing in this Franchise Agreement shall affect the right of the
Franchising Authority to grant to any other Person a Franchise or right to
occupy and use the Public Streets, Public Ways or public places or any part
thereof for the erection, installation, construction, reconstruction,
operation, maintenance, dismantling, testing, or repair or use of their
Cable System within the Village of Park Forest.
Section 2.3: Limitations on Liability
-------------------------------------
The limitations on the liability of the Village or any official, member,
employee, or agent of the Village shall be governed by the provisions of
Section 635 (A) of the Cable Act (47 U.S.C. (S) 555a).
Section 2.4: Compliance With Franchise Ordinance
------------------------------------------------
Having fully examined all of the provisions of the Franchise Ordinance,
which is regulatory in nature, and not contractual, Grantee hereby accepts
the award of the non-exclusive Franchise and expressly promises and agrees
to comply in all respects with every provision of the Franchise Ordinance
as it now exists or is hereafter amended or supplemented in accordance with
legal authority, where the provisions are not inconsistent with nor
substantially alter the provisions of this Franchise Agreement.
SECTION 3: TERM OF AGREEMENT
----------------------------
Section 3.1: Effective Date
---------------------------
The Agreement and the Franchise granted hereunder shall become effective
upon execution, establishment, and delivery of the Security Fund and
certificates of insurance as hereinafter provided for in Sections 14 and 16
of this Agreement.
8
Section 3.2: Term of Agreement
------------------------------
The grant of this Franchise shall be for a term of three (3) years and one
(1) day beginning on August 30, 1996.
Section 3.3: Breach of Franchise
--------------------------------
The Franchise Agreement may be terminated for Material Breach of any term
or condition hereof or for violations of any material provision of this
Agreement, as provided for in Section 25 of this Agreement.
SECTION 4: ACCEPTANCE OF FRANCHISE
----------------------------------
Section 4.1: Binding Agreement of Terms and Conditions
------------------------------------------------------
The Village and Grantee agree to be bound by, and to timely and fully
perform and fulfill all of the terms, conditions, inducements, offers,
promises, provisions, and representations of this Franchise Agreement.
Anything contained herein to the contrary notwithstanding, all provisions
of this Agreement shall be binding upon the Grantee, its successors,
lessees, delegees, or assignees.
Section 4.2: Acceptance of Power and Authority of Village
---------------------------------------------------------
The Grantee expressly acknowledges that in accepting the Franchise it has
relied upon its own investigation and understanding of the power and
authority of the Village to grant this Franchise.
Section 4.3: Filing of Franchise Agreement
------------------------------------------
A fully executed copy of the Franchise Agreement shall be filed for record
in the Office of the Village Clerk within thirty (30) days after the same
is approved. The recorded copies of such acceptance shall be obtained and
preserved by the Village Clerk. If one or both of the aforementioned fully
executed copies of the Agreement are not filed or deposited as required,
the Agreement shall not take effect but shall be null and void until said
copy or copies are filed or deposited with the Franchising Authority and/or
the Village Clerk.
9
Section 4.4: Previous Rights Abandoned
--------------------------------------
This Franchise shall be in lieu of any and all other previous rights,
privileges, powers, immunities, and authorities owned, possessed,
controlled, or exercisable by the Grantee or any successor pertaining to
the construction, operation, or maintenance of a Cable System in the
Village. The acceptance of the Franchise shall operate, as between Grantee
and the Franchising Authority, as an abandonment of any and all such
rights, privileges, powers, immunities, and authorities within the Village.
Section 4.5: Regulatory Authority
---------------------------------
Grantee agrees that it is and shall be subject to the regulatory authority
of the Village as set forth in this Franchise Agreement and as the
Franchise Agreement may from time to time be supplemented or amended
pursuant to agreement of the parties and by applicable law.
Section 4.6: Transfers of Ownership
-----------------------------------
The transfer, delegation, or assignment of ownership of the Cable System
and Franchise shall be conducted in accordance with Section 9.1 et. seq. of
the Park Forest Cable Communications Ordinance. Such transfer, delegation,
or assignment of ownership shall not be granted without the prior written
consent of the Franchising Authority as expressed in the form of a
resolution by the Village Board. Such consent shall not be withheld by the
Village Board without showing of cause. The procedures for examination of a
transfer, delegation, or assignment of ownership shall be effective where
five (5) percent or more of the ownership of the Cable System is proposed
for transfer, delegation, or assignment to a Person or group of Persons as
defined herein, none of whom owned or controlled five (5) percent of more
of such right of control, singularly or collectively, on the effective date
of this Franchise.
Section 4.7: Compliance With Laws, Rules, and Regulations
---------------------------------------------------------
In the event any valid law, rule or regulation of any federal and state
governing authority or agency having jurisdiction, including but not
limited to, the Federal Communications Commission or its designated
successor, contravenes the provision of this Agreement subsequent to its
adoption; then the provisions hereof shall be superseded by any such valid
law, rule, regulation, to the extent that the provisions hereof are in
conflict and contrary to any such rule, law, or regulation.
10
Section 4.8: Fee for Professional Services Pertaining to Franchise
-------------------------------------------------------------------
Renewal or Transfer
-------------------
The Grantee shall provide to the Franchising Authority with the executed
acceptance of the renewed Franchise, a non-refundable fee of $28,570.32
shall be applied to solely defray costs incurred by the Franchising
Authority for professional services and staff time incurred through this
Franchise renewal process. In the event of a transfer, delegation, or
assignation of ownership, the Grantee shall pay for all costs incurred by
the Franchising Authority for professional services and staff time for the
Franchise transfer, delegation, or assignment process.
Section 4.9: Illegal or Wrongful Conduct; Inducements
-----------------------------------------------------
Grantee represents, warrants, and guarantees that neither it, nor its
representatives or agents have committed any illegal acts or engaged in any
wrongful or illicit conduct contrary to, or in violation of any federal,
state, or local law or regulation in connection with the obtaining of the
Franchise. The Grantee by acceptance of this Franchise acknowledges that it
has not been induced to enter into this Franchise by any understanding or
promise or other statement, whether verbal or written, by or on behalf of
the Village concerning any term or condition of this Franchise that is not
included in this Agreement.
Section 4.10: Further Representations of Grantee
------------------------------------------------
The Grantee further warrants and represents as follows:
A. That Grantee is a Colorado partnership authorized to do business in the
State of Illinois, in good standing and has full legal right and
authority to enter into and fully execute and perform the terms of this
Franchise Agreement;
B. That all corporate action required to authorize the acceptance of this
Franchise Agreement, and execution and delivery of this Franchise
Agreement and all other documents to be executed and/or delivered by
the Grantee pursuant to this Franchise Agreement, and to authorize the
performance by the Grantee of all its obligations under this Franchise
Agreement have been validly and duly acted on and are in force and
effect; and
C. That the Franchise Agreement and all other documents executed and/or
delivered by the Grantee have been duly accepted and executed; and
D. That the Grantee has the financial, legal, technical, and construction
capability to operate and maintain the Cable System pursuant to the
terms and conditions of this Franchise Agreement.
11
Section 4.11: Grantee's Authorized Agent
--------------------------------
For purposes of this Franchise Agreement, Grantee authorizes and appoints
the General Manager, Cable TV Fund 12-A. Ltd., d/b/a Xxxxx Intercable,
------------------------------------------------------------------
Inc., with offices located at 0000 Xxxx Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
----- ---------------------------------------------
60443, to act as its registered agent, and represents to the Franchising
-----
Authority that such agent is authorized to accept notice and service on its
behalf.
SECTION 5: SERVICE AREA COVERED BY FRANCHISE AGREEMENT
------------------------------------------------------
Section 5.1: Privilege to Operate Within Municipal Corporate Limits
-------------------------------------------------------------------
The Franchising Authority hereby extends to the Grantee the privilege of
operating the Cable System within the corporate limits of the Village as
now or in the future may exist as shown on the map found in Appendix A
SECTION 6: RETRANSMISSION OF SIGNALS WITHIN A STRUCTURE
-------------------------------------------------------
Installation or Subscriber use of Cable System service which involves the
retransmission of the signal or signals to multiple reception points within
a structure shall be negotiated between the Grantee and the owner of the
structure.
SECTION 7: CABLE SYSTEM
-----------------------
Section 7.1: Cable System Channel Capacity
------------------------------------------
A. Grantee shall continue to provide a dual-trunk system, with each trunk
capable of carrying fifty-four (54) NTSC uncompressed analog channels
of television width. The Cable System shall have the capacity to
originate programming at points other than the System's Headend. Where
technically feasible, Grantee may add an additional number of Channels
to the Cable System at any time during the life of this Franchise.
B. Grantee may begin to add Channels to the Cable System within the first
year after the Franchise Agreement is signed. Thereafter, the Grantee
shall meet with the Franchising Authority on an informal basis to
discuss planned Channel additions.
C. Grantee shall provide to all of its Subscribers all components of the
television signal (video and audio) including, but not limited to,
subcarriers and information in the Vertical Blanking Interval to the
extent that such subcarriers and other Vertical Blanking Interval data
are intended by the programmer or broadcaster for general reception
to the public without a fee.
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Section 7.2: Channel Capacity
-----------------------------
Grantee shall provide a system with Channel capacity and technical features that
it is providing as of the date of this Agreement.
Section 7.3: Force Majeure
--------------------------
No penalties of any kind shall be imposed against the Grantee for delays in
completing repair, maintenance, or construction of the Cable System when such
delays are caused by the following: war, riot, insurrection, rebellion, strike,
lockout, unavoidable casualty or damage to personnel, materials, or equipment,
fire, flood, storm, earthquake, tornado, orders of a court of competent
jurisdiction, any act of God, failure of a utility provider to provide pole
attachments on reasonable terms or conditions therefore, vendor caused equipment
delays, and any cause beyond the control of Grantee. In the case of a vendor
caused equipment delay, the burden of proof will be on the Grantee to show that
the delay was solely the fault of the vendor and that the vendor was an
established equipment provider at the time the order was placed.
Section 7.4: Continuous and Uninterrupted Service
-------------------------------------------------
During such times when the Cable System is undergoing maintenance or
construction, the Grantee shall conduct construction activities in such manner
that all Subscribers may reasonably receive continuous, uninterrupted service,
except in the case of an emergency. In the event that it is necessary for the
Grantee to interrupt Subscriber service for a period longer than three (3) hours
in any part of the Village, the Franchising Authority shall be notified prior to
the interruption. Any interrupted service shall be subject to the provisions of
this Franchise Agreement.
Section 7.5: Extension of Service
---------------------------------
Grantee shall make available the services of the Cable System to local
businesses. Where a building housing one or more businesses, or multiple
buildings housing businesses are not contiguous to residential Dwelling Units,
Grantee shall provide service to such building or buildings if they are located
one hundred twenty-five (125) feet or less from a terminating point along a
trunk, node, or feeder of the Cable System. If said building or buildings are
located more than one hundred twenty-five (125) feet from a terminating point
along a Cable System trunk, node, or feeder, Grantee may voluntarily provide
service to a business or businesses for an amount not to exceed the cost of
construction of said portion of the system.
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In the event that the Grantee should provide service to other businesses or
residential Dwelling Units extending from the system constructed for the initial
business unit or units, Grantee shall refund fifty (50) percent of the sum
charged to the initial business unit or units within six (6) months of the
initial provision of service to other businesses or residential Dwelling Units.
Section 7.6: Periodic System Testing
------------------------------------
A. Grantee shall comply with all Cable System testing regulations for video
and audio signal quality, and signal leakage as specified in Title 47,
Section 76, Subpart K of the Code of Federal Regulations. Grantee shall
maintain periodic testing throughout the life of the Franchise. In
conducting video and audio signal testing, Grantee shall follow testing
procedures set forth by the FCC.
B. The Franchising Authority may conduct additional tests of the Cable
System's technical specifications as a part of a Franchise evaluation, or
upon the reasonable notice to the Grantee, so long as such tests do not
unreasonably interfere with Grantee's operation of the Cable System. If a
material deficiency is found or material deficiencies are found in the
performance of the Cable System which result in the failure of the Cable
System to meet the minimum technical standards set forth by the FCC, or
which are in significant violation of the National Electrical Code (ANSI
70-1993/ANSI 70-1995) or the National Electrical Safety Code (ANSI C2-
1993/ANSI C2-1995), Grantee shall pay for the cost of such tests.
C. Where testing of the Cable System has been conducted by the Grantee and a
consultant selected by the Franchising Authority, and it is the opinion of
the Franchising Authority that such testing and assessment be conducted a
second time, such costs shall be borne by the Franchising Authority. If the
results of such repeated tests and assessments indicate that Grantee did
not follow proper testing procedures as prescribed by the FCC or the cable
industry, or indicated that faults uncovered by repeated tests and
assessments were caused by the Grantee, then the costs of such repeated
tests and consulting shall be borne by the Grantee.
D. Upon the Franchising Authority's determination based upon a reasonable
belief, the Franchising Authority may choose to engage a qualified
technical consultant to aid the Franchising Authority in conducting
oversight of the technical aspects of the Grantee's Cable System. The
Franchising Authority may obtain the services for the technical consultant
for a specific amount of time to be dedicated for said oversight and
expenses. Said costs and expenses shall be assumed by either the Grantee or
the Franchising Authority in the manner set forth in Section 7.6 (B) and
(C) hereinabove.
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Section 7.7: New Services and Technologies
------------------------------------------
This Agreement shall not restrain or prohibit Grantee from adding new Cable
Services and/or technologies to the Cable System as they become available.
Where Grantee contemplates addition of such services and/or technologies to
the Cable System, Grantee shall notify the Franchising Authority within
forty-five (45) calendar days of addition of such services and/or
technologies and provide a description of the proposed service(s) and/or
technology or technologies to be implemented.
SECTION 8: CONSTRUCTION STANDARDS
---------------------------------
Section 8.1: Adherence to Electrical and Safety Codes
-----------------------------------------------------
The construction, installation, activation, re-activation, and operation of
any portion of Grantee's signal origination or signal processing, or signal
distribution system and equipment, including, but not limited to the
towers, antennae, Headend, studio, trunk, and distribution system, drops,
and fixed or portable equipment located on or off Subscriber-occupied
property shall comply with all requirements of the applicable National
Electrical Code (currently ANSI 70-1993/ANSI 70-1995 and replaced by
subsequently promulgated editions), and the applicable National Electrical
Safety Code (Currently ANSI C2-1993/ANSI C2-1995 and replaced by
subsequently promulgated editions). Grantee shall at all times comply with
other applicable federal, state, and local regulations, codes, and other
ordinances of the Village.
Section 8.2: Overhead and Underground Installation
--------------------------------------------------
A. All cables and wires shall be installed parallel with existing
telephone and electric utility wires whenever possible. Where the
Grantee has erected or installed multiple wiring configurations on
utility poles, such configurations shall be in parallel arrangements
and be properly bundled and lashed in accordance with engineering
considerations and the applicable safety codes identified in Section
8.1. All installations shall be underground in those areas of the
Village where both telephone and electric utilities are underground at
the time of installation of the Cable System.
B. In areas where both telephone and electric utility facilities are
above ground at the time of the installation of the Cable System, the
Grantee may install its service above ground, provided, however, that
at such time as either facilities are placed underground by either
utility company, underground installations shall be made by the
Grantee in conformance with all applicable construction, electrical,
and safety codes. Grantee will bury cable underground when pole
clearance cannot be reasonably obtained.
15
Section 8.3: Grounding
----------------------
All towers, antennas, satellite receive stations, and other exposed equipment of
Grantee used in the provision of cable television service shall be properly
grounded. Grantee at its discretion may properly ground said equipment in such a
manner that exceeds normal engineering requirements, provided, however, that
such grounding is in compliance with the National Electrical Code as referenced
in Section 8.1 of this Agreement. Grantee shall also comply with grounding of
system equipment and service connections as required under Section 14.10 of the
Franchise Ordinance.
Section 8.4: Headend Facility
-----------------------------
Indoor Headend components shall be wired according to applicable National
Electrical Safety Code standards and shall be placed in a properly ventilated
and air-conditioned environment. Outdoor Headend components, including but not
limited to, towers, antennae, and satellite receive stations shall be properly
anchored and wired in accordance with NCTA Standards of Good Engineering
Practices (NCTA 008-0477 EIA Standard RS-222C, "Structural Standards for Steel
Towers and Antenna Supporting Structures") and shall be properly lighted in
accordance with the appropriate Federal Aviation Administration and Federal
Communications Commission rules and regulations as now or hereafter amended. The
Headend shall be equipped with a standby auxiliary power supply for the purpose
of maintaining operations during periods of outage, maintenance, or repair-
related downtime.
Section 8.5: Outage Prevention
------------------------------
Grantee shall take measures necessary to prevent Cable System service outages.
Such measures shall include auxiliary power sources at the Headend, installation
of surge protectors at each node and amplifier location or included within each
node site or amplifier unit throughout the system, and installation of stand-by
power supplies which shall have a capacity to provide power to the Cable System
for a period of at least three (3) hours in such event where technology of
outage prevention changes to the extent that a more efficient method of surge
protection becomes available, the Franchising Authority and Grantee shall agree
to a reconfiguration of surge protection devices and locations throughout the
system.
Section 8.6: Emergency Removal of Plant
---------------------------------------
If, at any time, in case of fire or other disaster within the Village, it shall
become necessary in the judgment of the Village to cut or move any of the wires,
cables, amplifiers, power supplies, appliances, or appurtenances of the Grantee,
Village shall not be liable for cutting or moving, provided, however, that
nothing herein shall be construed to preclude liability for willful and wanton
acts.
16
Section 8.7: Damage to Village Property
---------------------------------------
Where any damage is caused to any Village property during construction,
installation, or maintenance by Grantee, the Village shall give Grantee notice
to repair said property and provide no less than fifteen (15) calendar days to
cure such damage. The cost of such repairs including all service and materials
required by the Village will be billed to the Grantee. The charges shall be paid
within forty-five (45) days of the date of billing or the Village, at its
option, may withdraw the cost of such repairs from the Security Fund established
by Section 14 of this Agreement.
Section 8.8: Enforcement of Use of Rights-of-Way Public Streets and Public Ways
-------------------------------------------------------------------------------
Through its acceptance of this Agreement, Grantee agrees to comply with the
provisions of this Agreement, the Franchise Ordinance, and other applicable
ordinances, regulations, and codes of the Village regarding the installation,
maintenance, repair, excavation, and replacement of wires, cables, conduit,
pedestal boxes, and other appurtenance installed upon or beneath the Rights-of-
Way, Public Streets and Public Ways belonging to the Village. The Village shall
have the right to enforce the Franchise Agreement, Franchise Ordinance, and
other appropriate ordinances, regulations, and codes where the Village
reasonably believes that Grantee has committed a violation. This Section shall
not limit Village from providing to Grantee a notice and opportunity to cure the
violation when it is believed by the Village that a violation has occurred.
Section 8.9: Village's Right of Cable System Installation
---------------------------------------------------------
The Village reserves the right during the life of this Franchise to install and
maintain free of charge upon or in the poles and conduits of the Grantee any
wire and pole fixtures necessary for municipal subsystems on the condition that
such Installation and maintenance thereof does not interfere with the operation
of the Grantee.
Section 8.10: Failure to Perform
--------------------------------
In the case of a failure to perform within the provisions of this Section, the
Franchising Authority shall consider such failures to perform as Material
Breaches of the Franchise. The Franchising Authority shall provide Grantee with
reasonable notice and opportunity to cure such violations, however, if Grantee
fails to cure such violations after reasonable notice and opportunity have been
provided, the Franchising Authority may, at its option, consider Grantee to be
in default of the Franchise and initiate Franchise revocation proceedings as
described in Section 10.1 et. seq. of the Franchise Ordinance.
17
SECTION 9: INSTITUTIONAL NETWORK
--------------------------------
There shall be no Institutional Network (I-Net) requirement for the Grantee
beyond any I-Net services the Grantee is actually providing in the Village
as of the date of this Agreement.
SECTION 10: CUSTOMER SERVICE
----------------------------
Section 10.1: Local Office
--------------------------
Grantee shall maintain a local customer service office within the Village
staffed by skilled customer service representatives and service technicians
for the purpose of accepting payments, adjusting bills, responding to
repair, Installation, reconnection, disconnection, or other service calls,
distributing or receiving Converter boxes, remote control units, digital
stereo units, or other related equipment, and receiving complaints. Said
local office shall be open to the general public at least a minimum of
fifty-four (54) hours per week in accordance with Grantee's response to the
Village's Franchisee Performance Evaluation Survey dated December 1, 1993.
Of the office hours specified, there shall be a minimum of four hours on
Saturday between 9:00 AM and 5:00 PM, and at least one day per week in
which the office is open between 8:00 AM and 10:00 AM.
Section 10.2: Communications to Subscribers
-------------------------------------------
Grantee shall provide at the time of Installation, at least annually, when
there is a change to information provided Subscribers, and upon request by
a Subscriber, that information which is required to be provided under
Section 21.1 A-F of the Franchise Ordinance, along with the Grantee's
policies regarding disconnection and reconnection of service.
Section 10.3: Subscriber Privacy
--------------------------------
The Grantee shall comply with all applicable local and state laws, rules,
and regulations regarding the privacy of cable Subscribers, and shall fully
comply with federal laws concerning the privacy of cable Subscribers as
expressed in Section 631 et. seq. of the Communications Policy Act of 1934
as now or hereafter amended (47 CFR 551) or any successor provision.
SECTION 11: RATE REGULATION
---------------------------
Grantee shall recognize the right of the Village to exercise its authority
to regulate rates for basic cable services and associated equipment and
services necessary to provide basic cable service to Subscribers.
18
Grantee shall abide by all applicable laws, rules, regulations, and orders
with regard to rates and regulation thereof by the Village as promulgated
by the FCC and the Village. Village and Grantee agree that any amendment or
modification of rules with regard to rates and regulation now or hereafter
amended, shall apply to this Franchise Agreement.
SECTION 12: FRANCHISE FEES
--------------------------
Section 12.1: Franchise Fee Calculation
---------------------------------------
A. As part of the consideration supporting the award of this Franchise
Agreement and Village's permission to use the public Rights-of-Way,
Public Streets, Public Ways and lands of the Village, Grantee shall
pay to the Village on a quarterly basis, an amount equal to five (5)
percent per year of Grantee's annual Gross Revenue permitted by law.
Gross Revenue shall be defined as stated in Section 1.0 hereinabove.
To the extent permitted by law, and in accordance therewith, increases
in Franchise Fees may be levied by the Village after thirty (30) days
advance written notice is given to Grantee.
B. In the event that the maximum amount payable as Franchise Fees under
the law is increased to more than five (5) percent, the Franchising
Authority, may increase the percentage of Gross Revenues applicable to
the Franchise Fee payment. Such increase shall be implemented through
an amendment to the Franchise Ordinance, after official notice has
been provided to the Grantee and an opportunity for public comment as
may be required by state or federal law has been provided therefor.
C. The Franchise Fee payment shall include a statement identifying in
detail the sources and actual amounts of Gross Revenues received by
Grantee during the preceding quarter for which payment is made. Said
statement shall contain those items identified in Section 12.1 of the
Franchise Ordinance. Said payment shall be paid by the Grantee by the
30th day of the month following that quarter for which payment is
being made.
Section 12.2: Payment of Franchise Fee in the Event of Termination or
---------------------------------------------------------------------
Cancellation
------------
In the event Grantee continues operation of any part or all of the Cable
System beyond the cancellation or expiration of this Franchise Agreement,
Grantee shall pay to the Village the compensation as set forth hereinabove
at the rate in effect at the time of such cancellation or expiration, and
in the manner set forth in this Franchise Agreement, together with all
taxes it would have been required to pay had its operation been duly
authorized.
19
Section 12.3: Acceptance of Payment
-----------------------------------
The acceptance of any payment required hereunder by the Village shall not
be construed as an acknowledgement that the amount paid is the correct
amount due nor shall such acceptance of payment be construed as a release
of any claim which the Village may have for further or additional sums due
and payable.
SECTION 13: FRANCHISE FEE AUDITS OR AGREED-UPON PROCEDURES
----------------------------------------------------------
Section 13.1: Right of Franchising Authority to Inspect and Audit
-----------------------------------------------------------------
The Franchising Authority shall have the right to inspect and audit
Grantee's income records, worksheets; notes, journals, ledgers, and other
such appropriate and relevant financial records. The Franchising Authority
shall have the right of audit and to conduct agreed-upon procedures, and
shall have the right to require recomputation of any amounts determined to
be payable under this Section and Section 12 hereinabove.
Section 13.2: Payments of Amounts Due
-------------------------------------
Any additional amount due as a result of such inspection, audit or agreed-
upon procedures shall be paid within thirty (30) days with interest
calculated at the prime rate plus two (2) percent per annum as established
by the Bank of America, Chicago main branch 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.
SECTION 14: SECURITY FUND; PERFORMANCE BOND
-------------------------------------------
A. Defaults under the Franchise:
1. The Franchising Authority shall have the option to declare a
Material Breach of the Franchise when penalties or liquidated
damages exceed one thousand dollars ($1000.00) within a three (3)
month period, and invoke procedures to revoke the Franchise as
provided for in Section 10 of the Franchise Ordinance; or,
20
B. In accordance with the provisions of the Franchise Ordinance, the
Grantee shall, deposit with the Village not later than thirty (30)
days after the date of this Franchise Agreement the sum of ten
thousand dollars ($10,000.00) as a Security Fund for the faithful
performance by the Grantee of the Grantee's obligations under the
Franchise documents, and compliance with all orders and directions of
any officer of the Village having jurisdiction over the Grantee, and
the payment by the Grantee, and the payment of all claims, liens, or
taxes due the Village which arise by reason of the construction,
operation, maintenance, or repair of the Cable System. Failure to
timely make such initial deposit of the Security Fund with the Village
shall constitute a Material Breach of the Franchise Ordinance. The
Village shall deposit the security fund in an interest-bearing account
payable to the Village upon demand; but interest on the Security Fund
as accrued may be withdrawn and paid to the Grantee semi-annually upon
ten (10) calendar days written notice to the Village.
C. If the Grantee fails to observe any of its obligations under the
Franchise Ordinance or this Agreement, or any order or direction of a
Village officer having jurisdiction over the Grantee; or if the
Grantee fails to make timely payment to the Village of any amount due
pursuant to the Franchise Ordinance or Agreement; or fails to make
timely payment to the Village of any penalty or liquidated damage
amount due under the Franchise Ordinance or this Agreement; or fails
to make timely payment to the Village of any taxes due; or (except as
hereinbelow provided) fails to repay to the Village within ten (10)
days of written notification that such repayment is due, any damages,
costs or expenses which the Village shall be compelled to pay by
reason of any act or default of the Grantee in connection with the
Franchise; or fails, after thirty (30) days notice of such failure
from the Village, to comply with any provision of the Franchise
Ordinance or this Agreement which the Village reasonably determines
can be remedied by an expenditure from the Security Fund; the Village
may assess the Grantee, and the Grantee agrees to pay to the Village,
liquidated damages in accordance with the schedule set forth in
Section 17.1 et. seq. of this Agreement. The Village may withdraw the
amount of said liquidated damages from the Security Fund as
hereinafter provided.
D. The Village's assessment of any liquidated damages shall not
constitute a waiver by the Village of any other right or remedy it may
have under the Franchise Ordinance or this Agreement, or under
applicable law, including, without limitation, its right to recover
from the Grantee and its sureties such additional damages, losses,
costs, and expenses as may have been suffered or incurred by the
Village by reason of or arising out of such breach of the Franchise
Ordinance or this Agreement.
21
E. If at the time of a withdrawal from the Security Fund by the Village
the amount of the fund is insufficient to provide the total payment
toward which the withdrawal is directed, the balance of such payment
shall continue as an obligation of the Grantee to the Village, until
paid.
F. In the event that on August 26, 1997, there is no outstanding default
on the part of the Grantee, the balance remaining in the Security Fund
on August 27, 1997, shall be withdrawn and paid to the Grantee within
ninety (90) days.
G. No later than thirty (30) days after mailing of notification to the
Grantee by certified United States Mail, return receipt requested, of
a withdrawal from the Security Fund, the Grantee shall deliver to the
Village for deposit in the fund and amount equal to the amount so
withdrawn, such that the fund shall maintain a balance of ten thousand
dollars ($10,000.00) at all times. Failure to make timely delivery of
such amount to the Village shall constitute a Material Breach of the
Franchise; provided, however, that the Village shall take no action to
revoke or terminate the Grantee's Franchise where the Grantee has
requested a public hearing by the Village Board of Trustees to
determine, with respect to the action or omission of the Grantee upon
which the liquidated damages were based, that the Grantee was without
fault or that the Grantee's said action occurred as a result of
circumstances beyond the Grantee's control, such as war, civil
disturbance, natural catastrophe, or other acts of God. The Grantee
shall not be excused by mere economic hardship nor by misfeasance or
malfeasance of its directors, officers, agents, employees, or
contractors. If upon the conclusion of such public hearing the Village
Board of Trustees shall determine that the violation by the Grantee
was the fault of, or was within the control of the Grantee, the
Village shall so notify the Grantee in writing and may then take all
appropriate action, including revocation, to enforce the Grantee's
obligation under the Franchise; provided, however, that if the Grantee
shall commence, within thirty (30) days after written notice of the
Village's decision has been delivered to the Grantee, a judicial
proceeding in the Circuit Court of Xxxx County, Illinois for review of
such decision, the Village shall not revoke the Grantee's Franchise
prior to the entry of final judgment by the Circuit Court in the said
proceeding.
H. The rights reserved by the Village with respect to this Section are in
addition to all other rights of the Village whether reserved by the
Franchise Ordinance or this Agreement or authorized by law, and no
action, proceeding or exercise of a right with respect to this Section
shall affect any other rights the Village may have.
22
I. The Grantee's liability pursuant to the schedule of liquidated damages
set forth in Section 17.1 shall accrue from the date which the Village
specifies in a written notice of liquidated damages given to the
Grantee, unless the Grantee shall have cured its default prior to such
date on which the liquidated damages are to be assessed; provided,
however, that the Village shall not specify a date for liquidated
damages which is less than thirty (30) days after such notice is given
to the Grantee.
J. The Security Fund provided pursuant to this Franchise Agreement shall
become the property of the Village as liquidated damages, in the event
that this Franchise Agreement is terminated by reason of default of
the Grantee or revoked for cause. Grantee, however, shall be entitled
to return of such Security Fund or portion thereof as remains on
deposit at the expiration of the term of the Franchise, or upon
termination of the Franchise at an earlier date, provided that there
is then no outstanding default on the part of Grantee.
SECTION 15: DAMAGES AND DEFENSE
-------------------------------
Grantee shall hold harmless Village for all damages and penalties as a
result of Grantee's construction, reconstruction, upgrade, operation, and
maintenance of the Cable System. These damages and penalties shall include,
but not be limited to, damages arising out of copyright infringement,
defamation, and all other damages arising out of the construction,
operation, maintenance, reconstruction, or upgrade of the Cable System
authorized herein, whether or not any act or omission complained of is
authorized, allowed, or prohibited by the Franchise.
SECTION 16: LIABILITY INSURANCE AND INDEMNIFICATION
---------------------------------------------------
Grantee shall procure and maintain, throughout the term of this Franchise,
liability workers's compensation, and those types of insurance referred to
in Section 16.1 of the Franchise Ordinance, from an insurer licensed to do
business in the State of Illinois carrying a rating of B+ by Best's
Insurance Rating Services, and approved by the Village. Said insurance
shall insure Grantee and Village with regard to all damages mentioned in
Section 15 hereinabove and in Section 16.1 of the Franchise Ordinance, in
the minimum amounts of:
$ 2,000,000 for bodily injury or death to any one (1) person;
$ 2,000,000 for bodily injury or death resulting from any one (1)
occurrence;
$ 3,000,000 for umbrella liability coverage.
23
At the time of acceptance, Grantee shall furnish to Franchising Authority a
certificate naming the Village, its officers, agents, and employees as
additional insureds. Such certificate shall require that the Franchising
Authority be notified at least thirty (30) days in advance prior to any
expiration, and thirty (30) days in advance prior to any cancellation. All
premiums on policies required by this Franchise Agreement shall be at the
expense of the Grantee.
SECTION 17: LIQUIDATED DAMAGES
------------------------------
Section 17.1: Damage Amounts
----------------------------
By acceptance of a Franchise granted hereunder, the Grantee understands and
agrees that failure to comply with any time and performance requirements as
stipulated under the Ordinance or this Franchise will result in damage to
the Village, and that it may be impracticable to determine the actual
amount of such damage in the event of delay or nonperformance; therefore,
the Grantee agrees that it shall provide compliance with the Franchise and
pay to the Village the following amounts which shall be chargeable to the
Grantee:
A. For failure to make timely applications, registration or any other
filing with the appropriate Franchising Authority, governmental, or
utility authorities pursuant to this Franchise or the Cable
Communications Ordinance, the amount shall be two hundred dollars
($200.00) per day.
B. For failure to obtain a permit where construction, reconstruction, or
relocation of the Cable System or its components within the Public
Streets or Public Ways of the Village is undertaken, the amount shall
be fifty dollars ($50.00) per day.
C. For failure of the Grantee to comply with construction, operation, or
maintenance standards, the amount shall be five hundred dollars
($500.00) per day.
D. For failure to provide customer services as stated in Section 10 of
this Agreement or Section 20 of the Franchise Ordinance, the amount
shall be one hundred dollars ($100.00) per day.
E. For failure to test, analyze, and report on the performance of the
Cable System following a request by the Franchising Authority, the
amount shall be two hundred fifty dollars ($250.00) per day.
24
F. For failure to provide data, documents, reports, or information, or to
cooperate with the Franchising Authority during a performance review of the
Cable System or during a Franchise Fee audit or agreed-upon procedures
evaluation, the amount shall be two hundred fifty dollars ($250.00) per
day.
G. For failure to submit timely reports as required under this Agreement and
the Franchise Ordinance, the amount shall be fifty dollars ($50.00) per
report per day until such reports are received by the Franchising
Authority.
H. For failure to deposit with the Village the Security Fund pursuant to
Section 14 of the Franchise Agreement within thirty (30) days after notice
and opportunity to cure, the amount shall be five hundred dollars ($500.00)
per day until such deposit is deemed received by the Franchising Authority.
I. For failure to restore an amount withdrawn from the Security Fund within
the timeframe specified by Section 14 of the Franchise Agreement, the
amount shall be two hundred dollars ($200.00) per day until the Security
Fund is reimbursed.
J. For failure of the Cable System to perform pursuant to Section 23 of the
Franchise Agreement in the event of a public emergency or vital public
information situation, the amount shall be two hundred fifty dollars
($250.00) per occurrence.
K. For failure to provide cable service to areas annexed to the Village within
the timeframes established by this Agreement and after a period of an
opportunity to cure has been exhausted, the amount shall be two hundred
fifty dollars ($250.00) per day until all required cable services are made
available to the annexed area.
L. For failure to maintain a local office or to maintain records pursuant to
Section 10 of this Agreement, the amount shall be two hundred fifty dollars
($250.00) per day.
M. For failure to comply with the material provisions of this Agreement for
which an amount is not otherwise specifically provided pursuant to this
Section, the amount shall be one hundred dollars ($100.00) per day.
Section 17.2: Right to Reduce or Waive Damages
----------------------------------------------
The Franchising Authority retains the right, at its sole discretion, to reduce
or waive any of the above listed damage amounts where extenuating circumstances
or conditions beyond the control of the Grantee are found to exist.
25
Section 17.3: Other Remedies
----------------------------
Exclusive of the damages provided hereinabove, a violation of any material
provision of the Franchise Agreement shall be considered a separate violation
for which a separate remedy available contractually, at law or in equity may be
imposed.
Section 17.4: Procedure
-----------------------
Whenever the Franchising Authority finds that Grantee has violated one (1) or
more terms, conditions, or provisions of the Franchise Agreement or Ordinance, a
written notice shall be provided by the Franchising Authority to the Grantee
informing it of such violation. The written notice shall describe in reasonable
detail the specific violation so as to afford Grantee an opportunity to cure or
initiate curative action with respect to the violation. Grantee shall have such
time to cure or initiate curative action as is specified for the violation as is
stated in Section 25 A (1)-(5) of the Franchise Ordinance subsequent to receipt
of the notice before the Village may draw from the Security Fund. Grantee may
notify Franchising Authority within seven (7) calendar days of receipt of notice
that there is a dispute as to whether a violation or failure has, in fact,
occurred. Such notice shall stay the running of the seven (7) day period and
such notice shall specify with particularity the matters disputed by Grantee.
A. In the event that the Franchising Authority and Grantee are unable to
resolve the dispute, the matter shall be heard by the Regulatory Board at
the next regularly scheduled Cable Communications Commission meeting held
not less than ten (10) days after the filing of the dispute by Grantee. The
Franchising Authority shall notify the Grantee of the time and place of the
Cable Communications Commission hearing and provide the Grantee with an
opportunity to be heard.
B. If after hearing the dispute, the claim is upheld by the Cable
Communications Commission, the Cable Communications Commission shall
provide the Grantee with written findings of fact. Grantee shall have
fourteen (14) calendar days to comply with such findings of fact unless an
extension of time is mutually agreed upon by the Franchising Authority and
Grantee. In the event the Grantee seeks administrative or judicial relief
from such findings of fact, before a tribunal of competent jurisdiction,
such proceeding shall not stay compliance with the findings of fact, unless
ordered by the administrative or judicial tribunal. Absent a mutually
agreed upon extension of time or an administrative or judicial order
staying compliance with the findings of fact, at any time after said
fourteen (14) day period, the Village may draw against the Security Fund
all liquidated damages due.
26
SECTION 17.5: Time is of the Essence
------------------------------------
Whenever any provision of this Agreement shall set forth any time for any
act to be performed by Grantee, such time shall be deemed to be of the
essence and the Grantee's failure to perform within the time allotted
shall, in all cases, be sufficient grounds for the Franchising Authority to
invoke an appropriate remedy or penalty, including the possible revocation
of the Franchise Agreement.
SECTION 18: PROGRAMMING SERVICES
--------------------------------
Section 18.1: Required Cable Television Program Services
--------------------------------------------------------
Grantee shall provide the following cable services:
A. Over-the-Air Broadcast stations, which are in accordance with Title
47, Part 76, Section 76.63 of the of Federal Regulations pertaining to
FCC rules and regulations.
B. All Public, Educational, and Governmental Access Channels as required
under Section 18 of this Agreement.
C. Broadcast, satellite, and other cable programming services comparable
in quality, mix, and level to those being provided as of the date of
this Agreement.
D. All Local Origination programming produced by the Grantee pursuant to
the requirements as stated in Section 20 of this Agreement. Grantee
shall continue to provide a full color Local Origination/television
studio within the Village and one mobile unit for Local Origination
and access purposes. Grantee shall allow the Franchising Authority
access to the mobile van for purposes of providing Local Origination
programming. Grantee shall provide one full-time individual dedicated
to the production of Local Origination programming exclusively for the
Village of Park Forest. Full-Time shall be defined as an individual
who works no fewer than forty (40) hours per week.
E. Grantee may establish an "ala-carte" tier of program and cable network
offerings for specialized programming needs, including, but not
limited to, the programming needs of senior citizens.
F. Where Grantee seeks to develop program tiers which consist of cable
networks heretofore not cablecast to cable Subscribers, Grantee shall
comply with the regulations developed for "New Product Tiers" by the
FCC (47 CFR 76.987).
27
Section 18.2: Modifications
---------------------------
During the period in which this Agreement is in effect, the Grantee or the
Franchising Authority may obtain modifications of the requirements in the
Franchise Agreement in the following manner and in accordance with Section
625 of the Cable Communications Policy Act of 1984, as now or hereafter
amended:
A. Where the Grantee has requested that modifications made to the
Franchise be made on the basis of commercial impracticability, Grantee
shall adhere to the requirements set forth in Section 6.2 of the
Franchise Ordinance regarding commercial impracticability.
B. In the case of any requirement for services, if the Grantee
demonstrates that the mix' quality, and level of services required by
this Franchise Agreement at the time it was granted will be maintained
after modification.
C. Upon receipt of a request by the Grantee for modification of any
requirement for facilities, equipment, or services, the Franchising
Authority shall consider the request and grant or deny the request in
a public proceeding within one hundred twenty (120) days of receipt of
the request of modification.
D. Notwithstanding the aforementioned sections herein above, Grantee may,
upon thirty (30) days advance notice to the Franchising Authority,
rearrange, replace, or remove a particular service required by this
Agreement if: 1) the service is no longer available to the Grantee, or
2) the service is available only upon payment of a royalty required
under 17 CFR 801(b)(2). The Grantee must be able to document and
support the contention that the amount of the royalty constitutes an
amount substantially in excess of the amount of payment required on
the date of execution of this Franchise Agreement and the Grantee has
not been specifically compensated through a rate increase or other
adjustment.
E. The Village may prohibit award of any proposed modification to this
Agreement pertaining to provision of services relating to Public,
Educational, or Governmental Access.
SECTION 19: PUBLIC, EDUCATIONAL, AND GOVERNMENTAL ACCESS
--------------------------------------------------------
Section 19.1: Public Access Channel
-----------------------------------
A. Grantee shall continue to provide the same level of Public,
Educational, Governmental and local access Channel space that is
currently being provided for the transmission of this programming as
of the date of this Agreement.
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B. Grantee shall provide equipment training classes at least twice annually
for the life of the Franchise to residents of Park Forest for the purpose
of producing Public Access programming in accordance with its proposal of
February 14, 1996. Such training will be provided to Park Forest residents
at no charge.
C. Grantee shall designate a Training Coordinator to organize and develop
training programs for Public, Educational, and Governmental Access. The
Training Coordinator shall be a Park Forest employee in accordance with
Grantee's proposal of February 14, 1996.
D. On or before April 1 of each year, Grantee shall submit to the Village the
Grantee's records showing its required expenditures for Public Access
programming.
E. Grantee shall provide the Cable Communications Commission and the
Franchising Authority with records of Public Access programming on a
monthly basis. Such records shall include the following information:
1. The production number of the program and the date completed;
2. The title of the program and its length;
3. The number of shows;
4. An indication if the program was shown live or recorded;
5. The total number of hours for all programming;
6. The total number of production hours per producer, the names of
producers, and the total number of production hours overall;
7. A schedule of programming showing start times and titles from the
beginning of the month for which the report is generated;
8. A one-line description of special programs and sports programs
referenced on the program schedule in subsection G hereinabove, and;
9. A listing of Grantee's full-time and part-time staff who have worked
on the aforementioned programming, and the number of hours worked per
employee for the month divided into weeks.
Section 19.2: Educational/Governmental Access Channel
-----------------------------------------------------
Grantee shall continue to provide Educational and Governmental Channels that it
is providing as of the date of this Agreement.
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Section 19.3: Training of Municipal Personnel
---------------------------------------------
Grantee shall provide studio and equipment training classes for municipal
personnel at no cost to the Village or other governmental personnel, at
least annually in accordance with its proposal dated February 14, 1996.
Section 19.4: No Credit to Franchise Fees
-----------------------------------------
It is expressly understood and agreed that Grantee will not seek a credit
to its Franchise Fee obligation set forth in Section 12 of this Agreement
based on any expenses incurred pursuant to this Section.
SECTION 20: LEASED ACCESS CHANNELS
----------------------------------
Grantee may set aside an amount of uncompressed analog Channel space of no
less than one (1) uncompressed analog Channel to be available for lease by
the public, businesses, or other organizations. Grantee shall not utilize
such Channel space for purposes of data transmission or telephony. Grantee
agrees to comply with all provisions of Section 612 of the Cable
Communications Policy Act of 1984, as now or hereafter amended, regarding
leased Channels.
SECTION 21: LOCAL ORIGINATION PROGRAMMING
-----------------------------------------
Section 21.1: Studio and Mobile Facilities
------------------------------------------
Grantee shall continue to provide studio facilities for Local Origination
programming which are available for live and/or taped programming. Said
studio facility shall contain a minimum of three tripod-mounted chip
cameras, three portable camera units, three camera switchers, an editing
bay, sound mixing, recording, and playback decks, a personal computer-based
character generator, a lighting grid and tripod-mounted portable lighting
equipment. Grantee shall also continue to provide a mobile studio van which
shall be capable of providing at least one camera switcher, an editing
deck, a sound mixer, recording and playback decks, and portable lighting
and cabling.
Section 21.2: Staffing and Programming Levels
---------------------------------------------
A. Grantee shall continue to provide no fewer than three (3) hours of new
Local Origination programming per week which is exclusive to Park
Forest. Programming exclusive to Park Forest shall be defined as that
programming which has one or more of the following attributes:
1. A program whose subject which is physically located or who
resides within the boundaries of the Village of Park Forest;
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2. A program which is taped at an institution located within the
Village of Park Forest, including, but not limited to, Village
Hall, Freedom Hall, the Village Health Department, the Public
Library, police and fire facilities, any Recreation and Parks
Department facility, any School, any business, or any church,
synagogue, or other religious institution located within Park
Forest;
3. A sporting event featuring a sports team or teams that are based
in Park Forest, or which includes a preponderance of players who
are residents of Park Forest. If the programming involves sports
contests featuring area Schools, at least one School must include
within its service boundaries all or part of the Village of
Park Forest.
Said three (3) hours of programming shall not be comprised solely of
sporting events as referred to in subsection A (3) of this Section.
B. Grantee shall provide the equivalent of three (3) full-time employees
assigned to produce Local Origination and Public, Educational, and
Governmental access programming for Park Forest. In accordance with
its proposal of February 14, 1996, Grantee shall commit two full-time
and two part-time employees dedicated to Local Origination and Public,
Educational, and Governmental access programming exclusively serving
Park Forest as a means of providing the equivalent of three (3) full-
time employees. For the purposes of this Agreement, a full-time
employee shall be defined as an employee who works on programming
exclusive to Park Forest at least forty (40) hours per week. Full-time
equivalency of part-time personnel shall be defined as a minimum of
forty (40) combined hours worked by the two part-time personnel.
Section 21.3: Records
---------------------
Grantee shall provide the Franchising Authority and the Cable
Communications Commission with records of Local Origination programming
produced for the Village on a monthly basis. Such records shall contain the
following information:
A. The production number of the program and the date completed;
B. The title of the program and its length;
C. The number of shows;
D. An indication if the program was shown live or recorded;
E. The total number of hours for all programming;
F. The total number of production hours per producer, the names of
producers, and the total number of production hours overall;
G. A schedule of programming showing start times and titles from the
beginning of the month for which the report is generated;
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H. A one-line description of special programs and sports programs
referenced on the program schedule in subsection G hereinabove, and;
I. A listing of Grantee's full-time and part-time staff who have worked
on the aforementioned programming, and the number of hours worked per
employee for the month divided into weeks.
On or before April 1 of each year, the Grantee shall submit to the Village
the Grantee's records showing its expenditures for Local Origination
programming.
Section 21.4: Maintenance of Facilities and Equipment
-----------------------------------------------------
The Grantee shall, at its own expense, provide and maintain the Local
Origination facilities and equipment specified in the Park Forest Cable
Communications Ordinance and this Agreement.
SECTION 22: SERVICES TO SCHOOLS AND GOVERNMENT BUILDINGS
--------------------------------------------------------
The Grantee shall provide, at no charge, Subscriber cable connections to
all Schools, library facilities, local institutions and government
buildings as referenced in Grantee's proposal of February 14, 1996 and
identified in Appendix B. Services to be provided at no charge to the
aforementioned Schools, library facilities, local institutions and
government buildings shall include basic service as defined in Section 1.0
of this Agreement.
SECTION 23: EMERGENCY OVERRIDE
------------------------------
A. Grantee shall maintain appropriate equipment at its Headend facility
which is designed to override the video and audio portions of each
video cable Channel and substitute an audio emergency message which
may be used by the Village President of Park Forest or his authorized
designee. Said override equipment shall be used by the Village
President or his designee to broadcast alerts of civil emergency in
the event of fire, flood, tornadoes, or other similar severe weather,
or civil defense. Grantee shall configure the emergency override
equipment to accept remote activation by touch-tone telephone.
Said configuration shall include backup by a standby power facility.
Where necessary, Grantee and Village agree to work jointly in
incorporating the emergency alert notification into the Village's
disaster plan. Village shall hold Grantee harmless from any damage to
Persons or property by reason of use or failure of the emergency
override system.
B. Upon requirement by the FCC to participate in the Emergency Alert
System, Grantee shall provide notification to the Village within ten
(10) calendar days of receipt of such notification from the FCC, and
shall provide its procedures for emergency broadcast to the Village.
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C. Emergency override services shall be provided to public, private, and
parochial Schools, government buildings, and local institutions
connected to the Cable System as well as residential subscribers, at
no charge to said Schools, government buildings, or local
institutions.
D. Grantee shall continue to include testing of the Emergency Alert
System on a weekly basis at 10:00 AM every Tuesday.
SECTION 24: MODIFICATIONS TO COMMUNICATIONS AND CABLE ACTS
----------------------------------------------------------
In the event that the Telecommunications Act of 1996, the Communications
Act of 1934, the Cable Communications Policy Act of 1984, or the Cable
Television Consumer Protection and Competition Act of 1992 are modified or
amended in any manner that is mandatory, or the FCC modifies or alters any
of its regulations pertaining to cable television which may affect any
provision(s) of this Franchise Agreement, such provisions shall remain in
effect until the effective date of such modifications, amendments, or
alterations. The Franchising Authority and Grantee, upon notice that said
modifications, amendments, or alterations may affect any provision(s) of
this Agreement and prior to the effective date of said modifications,
amendments, or alterations, or as soon thereafter as practical, shall meet
in good faith to amend this Franchise Agreement accordingly.
SECTION 25: REVOCATION
----------------------
In addition to all other rights and powers retained by the Franchising
Authority under this Franchise Agreement, the Franchising Authority
reserves the right to revoke this Franchise Agreement and all rights and
privileges of the Grantee in the event of a breach of its terms and
conditions. In interpreting the Franchise Agreement, material provisions
shall include all labeled as such and all others, which under the facts and
circumstances indicated, constitute a significant portion of this Franchise
Agreement. A breach by Grantee shall include, but is not limited to, those
infractions so indicated in Section 10.1 of the Franchise Ordinance.
Nothing in this Agreement shall prohibit the Franchising Authority from
imposing sanctions or censures lesser than revocation for violations or
Material Breaches of this Franchise, including the shortening of the
Franchise term for substantial or repeated violations or Material Breaches.
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SECTION 26: RIGHTS AND REMEDIES
-------------------------------
A. All rights and remedies given to Village and Grantee by this Agreement
shall be in addition to and cumulative with any and all other rights
and remedies, existing or implied, now or hereafter available to
Village or Grantee, at law or in equity, and such rights and remedies
shall not be exclusive, but each and every right and remedy
specifically given by this Franchise Agreement may be exercised from
time to time and as often and in such order as may be deemed expedient
by Village or Grantee and the exercise of one or more rights or
remedies shall not be deemed a waiver of right to exercise at the same
time or thereafter any other right or remedy. No delay or omission of
Village or Grantee to exercise any right or remedy, nor any such delay
or omission shall be construed to be a waiver of or acquiescence of
any default.
B. In the event of a sale of the Cable System by Grantee, Village shall
retain the right of first refusal for the purpose of purchasing, at an
equitable price or fair market value of the Cable System as a going
concern, all the assets of the Grantee's operations within the
Village. The Village may exercise this right to purchase any portion
of the Cable System, including all books and records, private
easements and assignable contracts. Unless some later date is agreed
to by the Grantee, the Village shall exercise its right within one
hundred twenty (120) days from the date of notification of sale of the
Cable System by Grantee. Upon determination by the Village that it
intends to purchase the assets of Grantee's Cable System, the Village
shall notify the Grantee by Certified United States Mail of its desire
and intent to acquire the assets of the Cable System from the Grantee.
SECTION 27: RIGHTS AND POWERS RESERVED BY VILLAGE
-------------------------------------------------
A. Neither the granting of the Franchise nor any provision governing the
Franchise shall constitute a waiver or bar to the exercise of any
governmental right or power of the Village.
B. The Village shall have the right to intervene in any act or other
proceeding to which the Grantee is a party, in accordance with
applicable law or regulation. The Grantee specifically agrees by its
acceptance of the Franchise not to oppose such intervention by the
Village.
C. The Village reserves every right and power which is required to be
reserved or provided by an ordinance of the Village, and the Grantee
by its acceptance of this Franchise, agrees to be bound thereby and to
comply with any action or requirements of the Village in its exercise
of such rights and powers which have been or may be enacted or
established.
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SECTION 28: SERVICE OF NOTICE
-----------------------------
A. For purposes of this Franchise Agreement, Grantee authorizes and
appoints Xxxxx Intercable, Inc. with offices located at 0000 Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000 to act as its registered
agent and represents to the Franchising Authority that such agent is
authorized to accept notice and service on its behalf.
B. Grantee shall notify the Franchising Authority in writing, thirty (30)
days in advance, of any change in the registered agent or
representative(s) referenced hereinabove and provide information
regarding any change upon request by the Franchising Authority.
C. Any notice or service served upon Grantee's registered agent shall
also be provided to the Local and Regional Managers and
Operations/Legal representatives as specified below. All notices or
other written communications required to be provided to Franchising
Authority or Grantee under any provision of this Agreement, shall be
deemed served when delivered personally or addressed and mailed by
Certified United States Mail to the Franchising Authority or Grantee
at the following addresses:
Franchising Authority: Office of the Village Clerk
Village of Park Forest
000 Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Grantee: Cable TV Fund 12-A, LTD.
d/b/a
Xxxxx Intercable
General Manager
0000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Grantee: Xxxxx Intercable, Inc.
Vice-President
Cable TV Fund 12-A, LTD.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
SECTION 29: ORAL MODIFICATION
-----------------------------
This Franchise Agreement shall not be changed, modified, or amended in
whole or in part except in writing and signed by all of the parties.
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SECTION 30: SEVERABILITY
------------------------
If any provision of this Franchise Agreement or the particular application
thereof, shall be held invalid, the remaining provisions and their
application, shall not be affected.
SECTION 31: ENTIRE CONTACT
--------------------------
This Franchise Agreement constitutes the entire contract between the
parties and there are no other understandings, oral and written relating to
the subject hereof.
SECTION 32: OBLIGATIONS TO CONTINUE THROUGHOUT TERM
---------------------------------------------------
Unless otherwise specifically stated, all obligations under this Franchise
Agreement shall continue throughout the entire term or extension of this
Franchise Agreement.
SECTION 33: FRANCHISE VALIDITY
------------------------------
The Grantee agrees, by the acceptance of this Franchise, to accept the
validity of the terms and conditions of this Franchise and the Ordinance in
their entirety and that it will not, at any time, proceed against the
Franchising Authority in any claim or proceeding challenging any term as
unreasonable, arbitrary, or void, or that the Franchising Authority did not
have the authority to impose such term or condition.
SECTION 34: HEADINGS
--------------------
Section headings used in this Agreement are for convenience of reference
only and shall not affect the construction of this Franchise Agreement.
SECTION 35: GOVERNING LAW
-------------------------
This Franchise Agreement shall be governed insofar as applicable with the
laws of the State of Illinois, Circuit Courts of Xxxx and Will Counties.
Where federal jurisdiction applies, this Franchise Agreement shall be
governed by the applicable laws and agencies of the United States
Government, United States Circuit Court, Northeastern Division, Seventh
Circuit Court of Appeals.
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Accepted By:
CABLE TV FUND 00-X, XXX. XXXXXXX XX XXXX XXXXXX, XXXXXXXX
a Colorado limited partnership,
by: Xxxxx Intercable, Inc.
a Colorado corporation, as
its general partner
BY: /s/ Xxxx X. Xxxxxx BY: [SIGNATURE APPEARS HERE]
----------------------------------- -----------------------------------
TITLE: Group Vice President/Operations TITLE: Village President
-------------------------------- --------------------------------
ATTEST: /s/ Xxxxxxx X. Xxxxxxx ATTEST: [SIGNATURE APPEARS HERE]
------------------------------- -------------------------------
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