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HomeMy WebLinkAboutORDINANCE - 2776 - 9/12/2000 - CABLE COMMUNICATIONS1 ORDINANCE NO. 2776 AN ORDINANCE RESCINDING ORDINANCE NO. 2541 ADOPTED MARCH 11, 1997 AND ADOPTING AN ORDINANCE TO ESTABLISH AN AMENDED CABLE COMMUNICATIONS ORDINANCE FOR THE VILLAGE OF ELK GROVE VILLAGE ILLINOIS WHEREAS, the Village of Elk Grove, Illinois is a legally organized municipality which has the power to regulate cable television within its boundaries through the means of a Franchise in accordance with 65 ILCS 5/11-42-11, the Cable Communications Policy Act of 1984 (P.L. 98-549) and the Cable Television Consumer Protection and Competition Act of 1992 (P.L. 102-835) as now or hereinafter amended, and the Telecommunications Act of 1996 (P.L. 104-104) and; WHEREAS, the Village of Elk Grove has served as a cable television franchisor since July, 1981, and; WHEREAS, through its cable television franchising powers, the Village of Elk Grove is committed to protecting its corporate interests as well as the interests of its citizens and cable television Subscribers, and; WHEREAS, in recognition of the changing technology, services, operations, legal environment, financial aspects and community needs and interests related to cable television and associated telecommunications, it is necessary for the Village of Elk Grove to revise its cable television franchise. NOW, THEREFORE BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF ELK GROVE, COOK AND DU PAGE COUNTIES, ILLINOIS: ARTICLE 1 SHORT TITLE AND PURPOSES OF THE ORDINANCE Section 1.1. SHORT TITLE This Ordinance shall be known as the Elk Grove Village Cable Communications Onlne. Section 1.2. PURPOSES The purposes of this Cable Communications Ordinance are to: A. Provide for the franchising and regulations of cable television systems and systems operated by multichannel video operators within Elk Grove Village (hereinafter "Village"). B. To enable the continuation and future development of municipal policies and procedures regarding cable television services and operations. C. To establish standards and procedures which support the immediate and future development of cable television systems and multichannel video systems within Elk Grove Village. D. Provide for the development of cable television as means to improve communication between and among the citizens and public institutions of the Village. E. To ensure that Franchise Grantees operating cable television systems and multichannel video systems are understanding of community needs and interests, and that the community is served by a Cable System or Multichannel Video System embodying the highest quality of cable television signal transmission possible. F. To protect the public welfare and public interest through the establishment of consumer protection provisions as they concern Cable System or Multichannel Video System construction, maintenance, and general operation. G. Provide for the payment of a fee and other valuable consideration to the Village for the use of Village's Public Streets and other Public Ways in the construction and operation of cable television and multichannel video systems, and to compensate the Village for costs associated therewith. H. Provide for the regulation by the Village of the rates and fees to be charged by any Grantee under this Ordinance. I. Provide remedies and prescribe penalties for violation of this Ordinance and the Franchises granted hereunder. Section 1.3. LEGISLATIVE AUTHORITY This Ordinance shall be governed by the Communications Act of 1934, as amended, the Cable Communication Policy Act of 1984, and the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 as now or hereinafter amended. This Ordinance shall also be governed by provisions of Illinois Compiled Statutes Chapter 65, Section 5/11-42-11 et. seq. as now or hereinafter may be amended. ARTICLE 2 DEFINITIONS Section 2.1. C1 For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are always mandatory and not merely 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 Ordinance 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 Ordinance. In the event of conflict between the Ordinance and the Cable Act, the Cable Act definition shall control. For the purpose of a Franchise Agreement granted subject to this Ordinance, 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 this Ordinance and the Cable Act shall control. ACT: Shall mean the Communications Act of 1934, the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 (47 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 Section 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 or Multichannel Video System to be provided to Subscribers, and any signal of any television broadcast station that is provided by the Cable Operator or Multichannel Video Provider 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 P programming signals or services provided by the Cable Operator or Multichannel Video Provider to the Basic Service tier. BOARD: Shall mean the President and Board of Trustees of Elk Grove Village. CABLE -BASED Shall consist of signals transmitting data, multimedia, or COMMUNICATIONS: voice which utilize or rely upon coaxial or fiber optic lines, headend equipment, amplifiers, satellite uplink or downlinks, microwave links, earth stations or other means of electronic transmission in order to send or receive signals to and from points within the corporate limits of the municipality. CABLE OPERATOR: Any Person or Persons, including corporations, partnerships, and joint ventures, who provide Cable 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 SYSTEM: Shall mean a system of antennas, cables, wires, lines, towers, waveguides, laser beams, satellite uplinks, microwave links, or other conductors, Converters, amplifiers, Headend equipment, master controls, node control sites, earth stations, and other equipment and facilities designed, wired, and constructed for the purpose of producing, receiving, transmitting, amplifying, storing, processing or distributing by coaxial cable, fiber optic cable, fiber distributed data interface (FDDI), microwave, Asynchronous Transfer Mode (ATM) or other means, audio, video, data, and other forms of electronic or electrical signals within the municipality. Such term shall not include any such facility that serves or will serve only Subscribers in one or more multiple unit dwellings under common ownership, control or management, and does not use municipal rights-of-way. CHANNEL: Shall mean a band of frequencies six (6) megahertz wide in the Electro -magnetic spectrum, or of a width to be specified in the future which constitutes the acceptable standard for the definition of a Channel which is capable of carrying either audio, video, voice, data, multimedia, and encrypted 5 information signals. CONVERTER: Shall mean an electronic device provided by the Cable Operator or Multichannel Video Provider 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. DEPRECIATED VALUE: Shall mean the value as shown on the Grantee's books and records of all the Cable System's or Multichannel Video System's tangible assets after depreciation which shall be calculated to the end of the Grantee's last fiscal year and which shall be based on a straight line depreciation method over the term of the Franchise with no salvage value remaining at the end of the term. Said value shall not include "good will" or any value that Grantee's books and records attribute to the Franchise. DOWNSTREAM A Channel which is transmitted in a direction from the CHANNEL: Headend to the Subscriber's television set. DWELLING UNIT: Shall mean a single-family or multiple -family residential place of occupancy. EDUCATIONAL Shall mean a non-commercial (as defined in the Cable Act) ACCESS CHANNEL: Channel or Channels set aside and so designated for the use of Schools and related educational institutions. FCC: Shall mean the Federal Communications Commission and any legally constituted regulatory body, or agency, or successor agency created by the United States Congress. FAIR MARKET VALUE: Shall mean the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation and sale multiples prevailing in the industry. FEES fN-LIEU OF Shall mean a payment of fees on the gross revenues of the FRANCHISE FEES: operator of an Open Video System for the provision of Cable Service imposed by a local Franchising Authority or other governmental entity, in lieu of the Franchise Fees permitted under Section 622 of the Communications Act. 11 FRANCHISE: Shall mean the non-exclusive rights 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 or Multichannel Video System along the Public Streets and Public Ways of the Village, or within specified areas in the Village, and is not intended to include any license or permit required for the privilege of transacting and carrying on a business within the Village as may be required by other laws or ordinances of the Village. FRANCHISE AREA: Shall mean that portion of the Village for which a Franchise is granted under the authority of this Ordinance. If not otherwise stated within the Franchise, the Franchise Area shall be the corporate limits of the Elk Grove Village including all territory thereafter annexed to the Village. 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 upon both utilities and Cable Operators or their services), but not including a tax, fee or assessment which is unduly discriminatory against the Grantee or cable Subscribers; capital costs which are required by the Franchise to be incurred by Grantee for the establishment and operation of Public, Educational, or Governmental Access facilities; requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; any fee imposed under Title 17, U.S. Code. FRANCHISING Shall mean the Corporate Authorities of Elk Grove AUTHORITY: Village, or its Village President or his or her designee, or any of its designated municipal officers or staff having responsibility over the supervision of the Village's cable television Franchise. GOVERNMENTAL Shall mean a non-commercial Channel or Channels set ACCESS CHANNEL: aside and so designated for the use of units of local government. GRANTEE: Shall mean the natural Person, partnership, domestic and foreign corporation, association, joint venture, or organization of any kind granted a Franchise by the Village under this Ordinance and its agents, employees, subsidiaries, lawful successor(s), transferee(s), or assignee(s). GRANTOR: The Village of Elk Grove, Illinois. 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 attributing from the sale or exchange of Cable Services by the Grantee within the municipality or in any way derived from the operation or use of all or part of a Cable System franchised pursuant to this Ordinance by the Grantee, its affiliates, subsidiaries, parents, and any person in which the Grantee has a financial interest including, but not limited to, monthly fees charged Subscribers for basic service, monthly fees charged to Subscribers for any optional service, monthly fees charged Subscribers for any tier of service other than basic service; Installation, disconnection, and re- connection fees; leased Channel fees; Converter, remote control and auxiliary game Channel equipment rental or sales; studio rental and all fees received from commercial production contracts solely from within the confines of the boundaries of the Regional Cable Group; advertising revenues; revenues from home shopping Channels; revenues from "infomercials", and financial or commercial services provided to Subscribers; revenue from regular Subscriber service fees, auxiliary service fees, and leased Channel fees. GROSS REVENUES: In accordance with 47 CFR 76.1511, the Gross Revenues of an operator of an Open Video System shall mean all Gross Revenues received by an Oren Video System operator or its affiliates, including all revenues received from Subscribers and all carriage revenues received from unaffiliated video programming providers. In addition. Gross Revenues includes any advertising revenues received by an Open Video System operator or its affiliates in connection with the provision of video programming, where such revenues are included in the calculation of the incumbent Cable Operator's cable Franchise Fee. Gross Revenues does not include revenues collected by unaffiliated video Programming providers, such as Subscriber or advertising revenues. Any Gross Revenues fee that the Open Video System operator or its affiliate collects from Subscribers or video programming providers shall be excluded from Gross Revenues. This sum shall be the basis for computing the fee imposed pursuant to Section 4.10 hereof This sum shall not include any taxes on services furnished by the Grantee herein imposed directly upon any Subscriber or User by the State of Illinois, Cook or DuPage County, municipal, or any other governmental unit and collected by the Grantee on behalf of said governmental unit. HEADEND: The control center of a Cable System or Multichannel Video 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. INTERACTIVESYSTEM: A two-way Cable System or Multichannel Video System that has the capability to provide a Subscriber with the ability to enter commands or responses on an in-home terminal and generate responses or stimuli at a remote location. INTERCONNECT: The connection of two or more Cable Systems and/or Multichannel Video Systems, or a Cable System and/or a Multichannel Video System and a communications company facility. LEASED ACCESS A cable television Channel or Channels, specifically CHANNEL: designed for broadcasting which is provided by means of a lease arrangement for cablecast airtime between the Cable Operator and the Lessee. Shall include without limitations all use pursuant to Section 612 of the Act (47 USC 532). LOCAL ORIGINATION A Channel providing programs that are produced or CHANNEL: acquired by the Cable Operator or Multichannel Video Provider which is under the control of the Cable Operator or Multichannel Video Provider. MULTICHANNEL Any system distributing video programming to Subscribers VIDEO PROVIDER: which may include an Open Video System certified pursuant to 47 USC 573 and 47 CFR 76.1502 by the FCC, and as defined herein, or a Satellite Master Antenna Television System, as defined by 65 ILCS 5/11-42-11(a), distributing video programming to Subscribers which use all or part of the public right-of-way owned by the Village in order to distribute such video programming to Subscribers, or which distributes such Programming over the lines of a common carrier which are located in all or part of the Village right-of- way ihg t-o_f- way (Also MULTICHANNEL VIDEO SYSTEM). MODIFICATION Shall mean any agreement of modification and amendment AGREEMENT: to the Franchise Agreement entered into and between the Grantee and the Village and made a part of the Franchise Agreement. NET PROFIT: Shall mean the amount remaining after deducting from Gross Revenues all of the actual, direct, and indirect expenses associated with operating the Cable System or Multichannel Video System, including the Franchise Fee, Fees in -lieu of Franchise Fees, interest, depreciation, and Federal or State income taxes. OPEN VIDEO SYSTEM: A facility consisting of a set of 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, provided that the FCC has certified that such system complies with 47 CFR 76.1502. ORDINANCE: Shall mean the Elk Grove Village Cable Communications Ordinance, as may be amended from time to time. PERSONS: Shall mean any people, firms, corporations, companies, partnerships, associations, joint ventures, trusts, or 10 organization of any kind and the lawful trustee, successor, transferee, assignee, or personal representative thereof. PUBLIC ACCESS A cable television Channel or Channels specifically CHANNEL: designated as a non-commercial Public Access Channel available on a first-come, non-discriminatory basis. Shall include without limitations all use pursuant to Sections 611 and 612 of the Act (47 USC 531, 47 USC 532). PUBLIC, EDUCATIONAL Those facilities necessary for the production and playback AND ACCESS of Public, Educational, and Access programming. Such FACILITIES: facilities shall include, but not be limited to, studio space, lighting, audio, camera, recording, playback, editing, cabling, and monitoring equipment, along with props and sets. PUBLIC STREET: Shall mean the surface, the air space above the surface, and the area below the surface of any public street, road, highway, lane, path, alley, sidewalk, boulevard, drive, 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 or Multichannel Video System. No reference herein, or in any Franchise, to the "public street" shall be deemed to be a representation or guarantee by the Village that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by the use of such terms, be deemed to gain only such rights to use property in the Village as the Village may have the undisputed right and power to give. PUBLIC WAY: Shall mean the surface, the air space above the surface, and the area below the surface of any conduit, tunnel, park, parkways, 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 or Multichannel Video System. No reference herein, or in any Franchise, to the "public way" shall be deemed to be a representation or guarantee by the Village that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by the use of such terms, be deemed to gain only such rights to use property in the Village as the Village may have the undisputed right and power to give. 11 SCHOOLS: Shall mean all public, and private, elementary and secondary schools, junior colleges, colleges, and universities which have been granted a certificate of recognition by the Illinois State Board of Education. SUBSCRIBER: Shall mean any Person who legally receives one or more of the services as may be provided by the Grantee's Cable System or Multichannel Video S,, ste and does not further distribute such service(s). SUBSCRIBER DROP: A cable which connects the tap or coupler of a feeder cable to the Subscriber's premises and television set. USER: Shall mean a Person or organization utilizing a system Channel or system equipment and facility for purposes of production and/or transmission of material, as contrasted with receipt thereof in a Subscriber capacity. UPSTREAM CHANNEL: A Channel which is transmitted in a direction from the Subscriber's television set to the Headend. VERTICAL BLANKING The unused lines in each field of a television signal (seen INTERVAL: 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: Shall mean Elk Grove Village, Illinois, and all the territory within its present and future corporate boundaries and including any area over which the Village exercises its jurisdiction. VILLAGE BOARD: Shall mean the corporate authorities of Elk Grove Village, Illinois. 12 ARTICLE 3 GRANT OF AUTHORITY Section 3.1. REQUIREMENTS OF A FRANCHISE No Person, firm, company, corporation, joint venture, partnership, trust, organization, or association of any kind shall construct, install, maintain or operate a Cable System or Multichannel Video System within Elk Grove Village or within any other public property of the Village unless a Franchise has first been granted pursuant to the provisions of this Ordinance, and unless such Franchise is in full force and effect. Such Franchise shall not take the place of any other license or permit which may be legally required of the Grantee in order to conduct such a business. Section 3.2 OBLIGATION TO PROVIDE SERVICES Upon issuance of a non-exclusive, revocable Franchise by the Village for construction, installation, maintenance, and operation of Cable System or Multichannel Video System within a designated Franchise Area, Grantee shall be obligated to provide the services of a Cable System or Multichannel Video S sy tem as required herein, and by the terms and conditions of the Franchise Agreement. Section 3.3. FRANCHISE APPLICATIONS The Village Board shall require the submission of applications for a Franchise under this Ordinance. Initial applications for a Franchise granted to a Cable Operator or a Multichannel Video Provider shall include at a minimum: A. A clear and precise description of the identity of the applicant, including, but not limited to, the name of the applicant, the address of the applicant, a description of the type of business entity which characterizes the applicant, a statement of those Persons who hold ownership of more than five percent (5%) of the stock of the business entity of the applicant, a description of the major activities of the business entity of the applicant, and an affidavit or other like document stating the compliance of the business entity with all applicable Federal, State and local laws applicable thereto. B. Plans and specifications relating to all aspects of the applicant's proposed Cable System or Multichannel Video System, as are applicable to the building and zoning laws of the Village. C. A map or maps of a scale of not less than one (1) inch equaling one thousand (1,000) feet showing the precise geographic area for which applicant seeks a Franchise 13 (Franchise Area). D. Projected financial proforma for system revenue, expenditures, debt servicing, and operation for a period of no less than ten (10) years, and evidence of financial responsibility in the form specified by this Ordinance. E. Written documentation of financial support, including letters of loan commitment from a financial institution for issuance of any loans, bonds, notes, or other related instruments to the applicant for the purpose of financing the costs of Cable System or Multichannel Video System construction or operation. F. A non-refundable application fee shall be paid to the Village in an amount determined by the Village Board by Resolution to cover the costs of initial application review as to form only, and which amount may be used by the Franchising Authority solely to offset direct expenses incurred in the evaluation and awarding of the Franchise sought by said application issues pursuant to this Ordinance. G. Detailed plans and specifications for the Cable System or Multichannel Video System which is proposed by the applicant showing the routing of trunk and feeder cables reflected by the maps provided pursuant to Section 3.3 (C), and as a schedule for Cable System or Multichannel Video System construction. H. A statement of applicant's technical service and repair capabilities within the Village, and customer service operations for the community. I. A listing of all franchises wholly or partially owned by the applicant or applicant's business entity within the State of Illinois or elsewhere upon request, and date of expiration for each such franchise. J. A statement by the applicant indicating if a franchise held by the applicant or applicant's business entity has been revoked or denied renewal. Such statement shall also include representations that the owners, partners, operating officers, principals, or principal stockholders owning more than five percent (5%) of the applicant's business entity have not been convicted of a crime, or have been placed under indictment for alleged illegal activities by any state investigative agency, including, but not limited to, the U.S. Department of Justice, Federal Communications Commission, Securities and Exchange Commission, or the Federal Trade Commission. K. Any information or facts requested by the Franchising Authority which are not included in the above subsections that are pertinent and appropriate to the evaluation and awarding of a cable television Franchise. 14 L. The application for a cable television Franchise shall be submitted to the Village or its designee, on a written application form famished by the Village and in accordance with the procedures and schedules to be established by the Village. ARTICLE 4 FRANCHISE CONDITIONS Section 4.1. FRANCHISE TERM AND NON -EXCLUSIVITY The term of any new Franchise, and all rights, privileges, obligations, and restrictions pertaining thereto shall be established in the Franchise Agreement between the Grantee and the Village, unless terminated sooner as hereinafter provided. Any Franchise granted by the Village pursuant to this Ordinance shall be non-exclusive. The Franchising Authority reserves the right to grant, at any time, additional Franchises to operate a cable television or other communications system for the purpose of providing cable television services to the citizens and residents of the Village. However, all subsequent Franchises should only be granted if the terms, conditions, and requirements of said subsequent Franchise relating to payments, facilities, equipment, and services provided satisfy the requirements as set forth in 65 ILCS 5/11-42-11, and as subsequently amended. Notwithstanding the applicability of said statute or, in the event of its repeal, in order for the Franchising Authority to maintain a competitively neutral environment and to maximize the benefits to all citizens/residents of the Village, any subsequent Franchise shall provide terms, conditions, and requirements relating to payments, facilities, equipment, and services provided substantially equivalent to the current Franchises. Due to the accelerated pace of technological advances in the communications industry, the Franchising Authority reserves the right to require additional terms or conditions with regard to payments, facilities, equipment, and services provided in order to compensate for technological advances, depreciation, and inflation factors. That in no event shall such additional requirements be utilized as to effectuate an economic penalty or benefit to any current or subsequent Grantee. Section 4.2. NOTICE TO THE GRANTEE Except as provided in Section 4.4 of this Article, and notwithstanding the procedure and conditions set forth in Section 4.6, the Village shall not take any final action involving the evaluation, modification, renewal, revocation, or termination of the Grantee's Franchise unless the Village has: A. Called a meeting for the purpose of taking such action as specified above; 15 B. Complied with the Public Notice provisions of the Illinois Open Meetings Act; (5 ILCS 120/1 et. seq.) C. Advised the Grantee in writing by either Certified United States Mail or delivery by hand, at least thirty (30) days prior to such meeting as to its time, place, and purpose; D. Published a notice at least once, ten (10) days before the meeting in a local newspaper of general circulation within the Village; and E. The Grantee and any other interested person are given an opportunity to be heard at such meeting. Section 4.3. FRANCHISE MODIFICATION AND EVALUATIONS A. Application Required. The Franchising Authority shall require Grantee to file a letter of application in such form as the Grantee deems appropriate, for modification of the Franchise Agreement. The Franchising Authority shall review such application for modification based on the terms and conditions set forth by Section 625 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision. The Franchising Authority may, based upon the findings of its review, approve Grantee's request for modification. B. Justification, Commercial Impracticability. The application for modification to the Franchise Agreement shall state Grantee's justifications for such proposed modifications. Grantee shall indicate within such justifications any projected technical, financial, and service impacts which such proposed modifications intend to remedy. Where Grantee has indicated commercial impracticability as a justification for modification, Grantee shall show any changes in conditions arising since the enactment of the Franchise Agreement, that such change in conditions was not foreseeable at the time of enactment of the Franchise Agreement, and that such change in conditions was beyond control of the Grantee. The burden of proof to justify a claim of commercial impracticability shall be borne by the Grantee. C. Modification of Public, Educational, and Governmental Access. The Village may prohibit award of any proposed modification to the Franchise pertaining to provision of services relating to Public, Educational, or Governmental Access Channels or programming. D. Reservations of rights of the Village: 1. The Village reserves the right, to request modifications to the Franchise 16 Agreement that the Village deems necessary to address the cable - related needs and interests of the community. 2. The Village reserves the right to renegotiate any term and condition of the Franchise before any final decision to approve the sale, transfer, delegation or assignment of the Franchise from the Grantee to a Person or group of Persons is approved by the Village in accordance with this Ordinance. E. Negotiations. Upon completion of review of the application for modification of the Franchise by the Franchising Authority, and the Franchising Authority has not made a final determination regarding the merit of the requested modifications, the Grantee may request negotiations with the Franchising Authority for modification of service requirements in accordance with Section 625 of the Cable Communications Policy Act of 1984, as now or hereinafter amended. Franchising Authority shall permit such negotiations to proceed only in such cases where the Grantee agrees to provide a mix, quality, and level of services which Grantee and the Franchising Authority believe are in the best interest of the Subscribers. Franchising Authority shall have one hundred twenty (120) calendar days to negotiate and approve such modifications unless Grantee and Franchising Authority agree to an extension of time. F. Procedures for Approval or Denial: Upon receipt of the request for modifications by the Grantee, the Franchising Authority shall indicate its decision to grant or deny Grantee's request for modifications within one hundred twenty (120) calendar days of its receipt of the modification request. Grantee and Franchising Authority may mutually agree to extend said one hundred twenty (120) day time period. The Franchising Authority shall state its decision for approval or denial or the request for modifications at a public meeting of the Village Board. 2. If the Franchising Authority denies the Grantee's request for modifications, the Grantee may commence an action for judicial review of the Franchising Authority's determination in accordance with the process set forth in Section 625 (b)(2) and (b)(3) of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision. G. Costs Incurred With Modification of Franchises: Upon the application, or notice, of a modification request by a Grantee, the Franchising Authority shall prepare an estimate of its costs to consider the modification. The costs may include, but not be limited to, reasonable fees 17 for any or all of the following professionals: an attorney, an accountant, an engineer, municipal staff, and other professionals with expertise or training relating to the modification. The Franchising Authority shall provide to the Grantee the estimate of fees and costs within forty-five (45) days of the Grantee's application or notice. The Grantee may appeal the Franchising Authority's estimate to the appropriate Village official to initiate the modification request based upon the estimated expenses, or withdraw the request. In no event shall the liability for actual costs and fees exceed the estimate by twenty-five percent (25%) and in no event shall the Grantee's liability for the payment of fees and expenses exceed fifty percent (50%) of the preceding year's Franchise Fee or Fee in -lieu of Franchise Fee payment. The fifty percent (50%) figure is intended as an agreed-upon cap to the expenses by the parties and not a claim against the Franchise Fee or Fee in - lieu of Franchise Fee by the Grantee. Should the Franchising Authority initiate a request for modification of the Franchise, each party shall bear their own costs and fees. Section 4.4. PERFORMANCE EVALUATION SESSIONS A. The Franchising Authority and the Grantee may evaluate performance of the Grantee for purposes of determining compliance with the Ordinance and Franchise Agreement, and to provide for consideration of technological, legal, regulatory, service, and other changes in cable television. The Franchising Authority and the Grantee may hold performance evaluation meetings within ninety (90) days of the third, fifth, seventh, and ninth anniversary dates of the award of the Franchise and as required by Federal and State law. All such evaluation meetings shall be open to the public. The Village shall be solely responsible for notifying the Grantee in writing at least sixty (60) days in advance of each of the specified performance evaluation meetings, and no notice to the Grantee pursuant to Section 4.2 of the Article shall be required. B. Special evaluation meetings may be held at any time during the term of the Franchise at the request of the Franchising Authority or the Grantee. C. All evaluation meetings shall be open to the public and announced in a newspaper of general circulation in accordance with the notice requirements of Section 4.2 above. No such newspaper notice shall be required as to any adjourned meetings. Grantee shall notify Subscribers of all evaluation meetings including any adjotmiad meetings by announcement on the highest use origination Channel on the system no less than three (3) times between the hours of 7 o'clock p.m. and 9 o'clock p.m. for five (5) consecutive days immediately preceding each meeting. Grantee shall also reasonably cooperate with the Franchising Authority in disseminating this information. W D. Topics which may be discussed at any scheduled or special evaluation session may include, but not limited to, service rate structures, Franchise Fees or Fees in -lieu of Franchise Fees, penalties, free and/or discounted services, applications of new technologies, repair and maintenance services, billing procedures, service provided by Customer Service Representatives, system performance, services provided, programming offered, programming desired by Subscribers, customer complaints, rights of privacy, above and below ground extension of cables and equipment, amendments to this Ordinance, modifications to the franchise, judicial and FCC rulings, line extension policies, and Grantee or Village rules. Franchising Authority shall provide Grantee with a listing of topics for discussion fourteen (14) days prior to the date of a scheduled evaluation session. E. During a review and evaluation by the Village, the Grantee shall fully cooperate with the Village and shall provide such information and documents as the Village may reasonably need to perform its review. F. If at any time during its review the Franchising Authority determines that reasonable evidence exists of inadequate performance of the Cable System or Multichannel Video System, it may require the Grantee to perform tests and analysis directed toward the suspected inadequacies, and to locate system deficiencies and specify remedies to correct such deficiencies. The Grantee shall fully cooperate with the Village in performing such testing and shall prepare results and a report is requested within thirty (30) days after notice. Such report shall include the following information: 1. A statement of the nature of the complaint, suspected deficiency or problem which precipitated the need for testing and assessment. 2. What system component or components were tested. The date, place, and time where such testing took place. The equipment used and procedures employed in testing. 5. The method, if any, in which complaints, deficiencies or problems were resolved. 6. Any additional information pertinent to said tests and analysis which may be required. The Franchising Authority may utilize an independent consultant with experience and knowledge of cable television systems engineering who has no affiliation with the Grantee, to observe Grantee in conducting tests and assessments of the Cable 19 System or Multichannel Video System. The consultant should sign all records of special tests which will confirm that the tests were performed in their presence and forward to the Village such records with a report interpreting the results of the tests and recommending actions to be taken which would remedy problems or deficiencies uncovered during the course of such testing and assessments. Where said testing determines that problems, deficiencies, or violations of the Franchise exist, Franchising Authority shall provide Grantee with notice of said problems, deficiencies, or Franchise violations and provide an appropriate time period for the Grantee to cure said problem, deficiency or violation. G. The Franchising Authority's rights under this section shall be limited to requiring tests, analysis, assessments and reports covering specific subjects and characteristics based on a sufficient number of complaints, suspected deficiencies or other evidence when and under such circumstances as the Franchising Authority has grounds to believe that the sufficient number of complaints, suspected deficiencies or other evidence require that tests be performed to protect Cable System or Multichannel Video System Subscribers against substandard Cable Service. H. The costs of conducting Franchise Performance Evaluation sessions shall be by the Grantor. Section 4.5. FRANCHISE RENEWAL A. Initiation of proceedings by Franchising Authority. The Franchising Authority may, at its discretion, commence renewal proceedings during the six (6) month period beginning with the thirty --sixth (36th) month before the expiration date of the Franchise. Should the Franchising Authority seek to initiate renewal proceedings, the Franchising Authority shall notify the Grantee in writing, with delivery by certified United States Mail, its desire to commence proceedings which affords the Franchising Authority the opportunity to identify future cable -related needs and interests, and to review the performance of the Grantee during the Franchise term. Said notification shall not be made any later than the end of the thirtieth (30th) month prior to the expiration date of the Franchise. Initiation of proceedings by Grantee. Unless a request for Franchise renewal proceedings is initiated by the Franchising Authority, the Grantee shall be responsible for providing notification, in writing, to the Franchising Authority, delivered by certified United States Mail, that it requests consideration of renewal of the Franchise. Such notification shall be sent no sooner than the beginning of the thirty-sixth (36th) month prior to the expiration date of the Franchise and not any later than the thirtieth (30th) month prior to the expiration date of the Franchise to preserve the Grantee's formal renewal rights under Section 626 of the Cable Communications Policy Act of 1984, as now or hereinafter amended. This Section 20 shall not prohibit the Grantee from requesting Franchise renewal before the beginning of the thirty-sixth (36th) month prior to the expiration date of the Franchise, nor shall this Section prohibit the Franchising Authority and Grantee from engaging in the informal renewal process. C. Application Fee for Renewal. The Grantee shall provide to the Franchising Authority with the request to initiate Franchise renewal proceedings, a non- refundable fee to be determined by the Village Board by Resolution which shall be applied by the Franchising Authority to solely defray costs incurred by the Franchising Authority in initiating renewal procedures as outlined by Section 626 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision. D. Review proceedings: 1. The Franchising Authority shall conduct a series of public meetings and hearings which shall address the following objectives: a. Determining the community's cable -related needs and interests. b. Assessing the performance of the Grantee under the Franchise during the then current Franchise term. 2. If the Grantee has formally requested consideration of renewal of the Franchise in accordance with the conditions established in Section 4.5 (B), such public meetings and hearings shall be commenced not later than six (6) months after such notice of request has been submitted to the Franchising Authority. 3. During the course of such meetings and hearings, the Franchising Authority shall receive comments and testimony from the public with regard to the performance of the Cable System or Multichannel Video System. At the completion of the proceedings, the Franchising Authority may determine whether or not the Grantee was in reasonable compliance with the requirements set forth in the Franchise Ordinance or Agreement. The Franchising Authority may also seek outside independent evaluations of the physical state of the Cable System or Multichannel Video System, and of the payment of Franchise Fees or Fees in -lieu of Franchise Fees in accordance with the terms and conditions of the Franchise Agreement, as a part of its overall assessment of the performance of the Grantee. 4. Upon completion of the public meetings and hearings which have been called by the Franchising Authority, the Franchising Authority may, at its option, request the Grantee to respond to a Request For Renewal Proposal (RFRP) 21 for renewal of the Cable System or Multichannel Video System Franchise by a specified date. Grantee shall cause the proposal to be delivered to the Franchising Authority by hand or by certified United States Mail or an overnight package delivery service with a number of copies of the proposal to be provided as set forth in the RFRP document. 5. The proposal submitted by the Grantee shall, to the extent allowed by Section 624 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or by any successor provision, provide such material as required by the Franchising Authority, including, but not limited to, improvements in the Cable System or Multichannel Video System, services to be provided, and technical specifications to be met. 6. The Franchising Authority shall, during the one hundred twenty (120) day period from the date of the official receipt of Grantee's complete proposal, determine whether the Franchise shall be renewed, or if a preliminary assessment shall be made which would deny Grantee's request for renewal of the Franchise. The Franchising Authority shall take into consideration the extent to which it believes the Grantee to be in substantial compliance with the terms and conditions of the existing Ordinance and Agreement, the degree to which the Grantee has addressed future cable -related community needs and interests for the future in its proposal, and the Grantee's financial and legal ability to provide the services, facilities, and equipment as set forth in the proposal. Based on its review during the one hundred twenty (120) day period, the Franchising Authority shall decide whether to renew the Grantee's Franchise and enter into negotiations with Grantee to determine terms and conditions for a new Franchise. 7. Should the Franchising Authority issue a preliminary assessment that the Franchise should not be renewed, the Franchising Authority shall commence an administrative proceeding, subject to the notice provisions set forth in Section 4.2 above. Such administrative proceeding shall be subject to the procedures and criteria as established by Section 626 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or by any successor provision. 8. Notwithstanding any other provision of this Section, a Grantee may submit a proposal for the renewal of a Franchise at any time, and the Franchising Authority may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time, including after proceedings pursuant to this Ordinance have commenced. Such proceedings may allow the Village President or a committee to be appointed by the Village President, or any other municipal officer, employee, or independent 22 contractor to negotiate the terms and conditions of a renewal Franchise Agreement with the Grantee. 9. The Village shall have the right to recoup from the Grantee or succeeding Grantee if other than the Grantee, hereunder, all direct expenses incurred pursuant to renewal of the Franchise whether or not the Franchise is renewed. Section 4.6. FRANCHISE REVOCATION PROCEDURE A. The Franchise may be revoked and all rights and privileges afforded to the Grantee herein and within the Franchise may be revoked in the event that the Grantee commits any or all of the following infractions: 1. Fails to complete construction or reconstruction of the Cable System or Multichannel Video System as specified by the Franchise. 2. Commits fraud in the operation of their Cable Service as provided in the Franchise Agreement or upon the Village. 3. Declares bankruptcy, has a receiver appointed for it, makes an assignment for the benefit of creditors or has its Cable System or Multichannel Video System sold under execution or other legal process or seized by creditors. 4. Selling or transferring ownership of the Cable System or Multichannel Video System to another Person or group of Persons without first complying with the approval process for such sale or transfer provided for in Section 4.12 hereof. 5. Repeated failure to pay Franchise Fees Fees in -lieu of Franchise Fees, or any other monies required for payment by the Grantee as a part of the terms and conditions of this Ordinance or Franchise. 6. The Grantee willfully continues to violate a material provision of the Ordinance or Franchise after written notice by the Village of said substantial violation of a material provision and refused to cure it within one hundred twenty (120) days, unless extended in writing by both parties. The Grantee abandons its Franchise. The Grantee shall be deemed to have abandoned its Franchise if it willfully refuses to operate the Cable System or Multichannel Video System as required by its Franchise, when there is no event beyond the Grantee's control that prevents the operation of the Cable System or Multichannel Video System, and where operation would not endanger the health or safety of the public or property. 23 B. In the event the Grantor believes that grounds for revocation exist or have existed, the Grantor may notify the Grantee in writing, setting forth the nature and facts of such noncompliance. If, within thirty (30) days following such written notification, the Grantee has not furnished reasonably satisfactory evidence that corrective action has been taken or is being actively and expeditiously pursued, or that the alleged violations did not occur, or that the alleged violations were beyond the Grantee's control, the matter shall be referred to the Village Board. C. Upon referral, the Village Board may, following notice and hearing of the grounds for revocation, and hearing pursuant to Section 4.2 of this Article, revoke a Franchise pursuant to this Section. D. A Grantee shall not be subject to the provisions of this Section for any act or omission wherein such act or omission was beyond the Grantee's control. An act or omission shall not be deemed to be beyond a Grantee's control if committed, omitted, or caused by a corporation or other business entity which holds a controlling interest in the Grantee whether held directly or indirectly. Further, the failure of a Grantee to obtain financing, or to pay any money due from it to any person, including the Village, for whatever reason, shall not be an act or omission which is "beyond the Grantee's control". E. In the event that a Franchise has been revoked by the Village Board, the Village Board shall have an option, to the extent then permitted by existing law, to purchase the tangible assets of the Grantee's Cable System or Multichannel Video System previously governed by the Franchise at their Depreciated Value as defined herein. The Village Board may exercise this option to purchase any portion of the Cable System or Multichannel Video System, including all books and records, private easements and assignable contracts. Unless some later date is agreed to by the Grantee and except as provided in Section 4.8 of this Article, such an option must be exercised within one (1) year from the date of revocation of the Franchise, or the entry of a final judgment by a court reviewing the question of the Village Board's revocation, or the entry of a final order upon appeal of same, whichever is later. Upon determination by the Village Board that it intends to purchase the assets of the Grantee's Cable System or Multichannel Video System, the Village Board shall notify the Grantee by Certified United States Mail of its desire and intent to acquire the assets of the Cable System or Multichannel Video System from the Grantee. F. In the event that a Franchise has been revoked by the Village Board, the Village Board shall, to the extent then permitted by existing State and Federal law, require sale of the Cable System or Multichannel Video System at the Fair Market Value determined on the basis of the Cable System or Multichannel Video System valued as a going concern but with no value allocated to the Franchise itself by Grantee to 24 a successor Person or group of Persons, who, upon approval of the Village Board under the provisions of Section 4.12 as stated hereinbelow, shall be granted a Franchise to operate a Cable System or Multichannel Video System within the Franchise Area. G. If, upon revocation of Grantee's Franchise, the Village Board does not elect to purchase the Cable System or Multichannel Video System, and no sale of the Cable System or Multichannel Video S,, ste is made to a successor Grantee, then the Village shall require that Grantee terminate and dismantle the Cable System or Multichannel Video System, including its wiring, equipment, Headend facilities, if located within the Village limits, and related appurtenances. Upon completion of termination and dismantling of the Cable System or Multichannel Video System, Grantee shall, upon direction of the Village, restore any property, public or private, to the condition in which it existed prior to erection or construction of the Cable System or Multichannel Video System, including any improvements made to such property subsequent to construction of the Cable System or Multichannel Video System. Restoring of Village property, including all Public Streets and Public Ways as defined herein, easements, parks, parkways, and other public lands, shall be in accordance with the directions and specifications of the Village and all applicable laws. Grantee shall restore said Public Streets, Public Ways and properties at its expense. H. The termination of a Grantee's rights under a Franchise shall in no way affect any other rights the Village may have under the Franchise or under any provisions of law or ordinance. I. If a Grantee arbitrarily and capriciously discontinues service to a substantial number of its Subscribers, the Grantee's Franchise may be revoked by a resolution of the Village Board under the procedures as stated hereinabove following notice to the Grantee and an opportunity to be heard. Notwithstanding the provisions of Section 4.2, notice to the Grantee under this section may be less than thirty (30) days. Provided further, the Village may seek appropriate judicial or other relief and/or may proceed to exercise its rights and powers as provided for herein. Section 4.7. PROVISION FOR ARBITRATION A. In the event the Village pursues the option to purchase Grantee's Cable System or Multichannel Video System in an instance other than revocation, and the fair market value cannot be agreed upon, said value shall be determined by a panel of arbitrators who are professional Cable System or Multichannel Video System valuators whose valuations have resulted in the sale of Cable System or Multichannel Video Systems, which panel may be requested by either the Village of the Grantee no sooner than ninety (90) days after notice that the Village desires to purchase the 25 system. The panel shall be composed of one arbitrator chosen by the Village, one arbitrator chosen by the Grantee, and a third arbitrator chosen by the first two. The expenses of the arbitration, including the fees of the arbitrators, shall be borne by the parties in such manner as the arbitrators provide in their decision. The determination of a majority of the arbitrators shall be binding on the parties only as to the value of the Cable System or Multichannel Video System. The arbitrators shall follow the rules and procedures of the American Arbitration Association except where in conflict with an express provision of this Ordinance. The arbitration hearing shall take place in Cook County as the Village shall determine unless otherwise agreed to by all parties in writing. B. Notwithstanding any other timetable imposed by this Ordinance, the Village shall, within ninety (90) days following notice to it of the decision of the arbitrators, either withdraw any notice it may have given of its intent or election to acquire the Grantee's system or shall affirmatively accept the decision of the arbitrators and affirm its election to purchase the system or assets. If the Village fails to accept the arbitrator's decision and affirm its election to purchase within the aforesaid ninety (90) day period, the rights of the Village to purchase shall expire. Section 4.8. TRANSFER OF OWNERSHIP TO GRANTOR In those circumstances wherein the Village shall have elected to purchase ownership of a Grantee's Cable System or Multichannel Video System or any of its assets, the Village shall, unless the Grantee shall agree to some other terms, pay the price of such assets to the Grantee within six (6) months following the date upon which the election to purchase becomes irrevocable and title to the system or assets shall pass to the Grantor upon such payment. Section 4.9. GRANTEE'S OBLIGATION AS TRUSTEE A. At all times from the expiration or revocation of a Franchise and until either 1) a Grantee transfers to the Village or other succeeding operator of the system all of its rights, title, and interest to all assets, real and personal, related to its cable television system, or 2) the Village's right to acquire or assign its rights to acquire any of the Grantee's assets expires without the Village having exercised such a right, whichever occurs first, the Grantee shall have a duty to such successor as a trustee holding such assets for the benefit of such success. The existing Grantee shall continue to provide Cable Service to its Subscribers in the same manner and with programming, customer service, and repair capabilities consistent with other operations of the Grantee as it provided prior to the change in status of the Franchise. The right of Grantee to operate the Cable System or Multichannel Video System in the event of revocation, expiration, or transfer of the Franchise shall be considered by the Franchising Authority to be granted on a day-to-day basis until: the transfer or sale M of the Franchise to a successor Grantee is completed and approved by the Village. The Grantee shall, at all times, operate the system in accordance with the terms of this Ordinance and the terns of the most recent previously existing Franchise. In the event the Grantee fails or refuses to operate the system as a Trustee, the Village shall have the option to name a successor Trustee or operate the system itself as a Trustee in accordance with the terms of this Ordinance and the terms of the Franchise. B. In the event of an expiration or revocation of a Franchise, this section shall not be construed to give a Grantee any vested or other Franchise right, but the right of the Grantee in such circumstances shall exist only on a day -today basis until the transfer is affected. C. As full compensation for its ownership interests during this interim period, the Grantee shall be entitled to receive the net profit, as defined herein, generated during the period between the expiration or revocation of the Franchise, as the case may be and the transfer of the Grantee's assets to the Village or a successor. Section 4.10. FRANCHISE FEE/FEES IN -LIEU OF FRANCHISE FEES A. The Grantee, in consideration of the privilege granted under the Franchise for the operation of a cable television system, and the expense of regulation incurred by the Village pursuant to the Franchise, shall pay to the Village as a Franchise Fee, or where a Multichannel Video Provider is operating an Open Video System, such fees shall be known as Fees in -lieu of Franchise Fees in accordance with Federal law. Franchise Fees or Fees in -lieu of Franchise Fees shall be an amount equal to the maximum percent per year of Grantee's annual Gross Revenue permitted by law. The maximum percent shall be determined annually on September 1 of each year. In the event of a change in the maximum percent to be paid, such change shall become effective on the succeeding January 1. Such amount shall be paid during the period of operation under the Franchise or such lesser amount as specified in the Franchise granted. B. Unless specified otherwise in a Franchise Agreement, the Grantee shall file with the Village, within thirty (30) days after the expiration of each month, a financial statement clearly showing the Gross Revenues received by Grantee during the preceding month, a written statement signed by the comptroller of the Grantee identifying in detail the sources and amounts of Gross Revenues received by Grantee during the preceding month for which payment is made and shall simultaneously tender payment of the monthly portion of the Franchise Fee or Fees in -lieu of Franchise Fees. Such sources and amounts shall include, but not be limited to, the following items: 27 1. Revenues from basic services 2. Revenues from expanded basic or satellite tier services 3. Revenues from Interactive, Pay -Per -View and Video -On -Demand services. 4. Revenue from Premium Channel services. 5. Revenue from Installations, disconnections, reconnections, trip charges, and other repair services. 6. Revenues from Converter boxes, remote control units, peripheral units used for game services or other video commercial services, and other related video equipment. 7. Revenues from advertising sources and published cable viewer guides. 8. Revenues from Home Shopping Channels. 9. Revenues from Leased Access Channels, studio and studio equipment rentals. 10. Credits for bad debts at such time as is feasible to show this information. 11. Credits for refunds at such time as is feasible to show this information. The Grantee shall also file, within one hundred twenty (120) days following the conclusion of the Grantee's fiscal year, an annual report prepared by the Grantee's Comptroller for the Cable System or Multichannel Video System acceptable to the Village, clearly showing the yearly total Gross Revenues. Said annual report is to be prepared at Grantee's expense according to generally accepted standards by the Financial Accounting Standards Board (FASB). Said annual report shall contain a listing of all of Grantee's directors, officers, and shareholders who own directly or indirectly, at least five percent (5%) of the stock in the corporation of which the Grantee is an entity if changed from the prior year. If the Grantee is held by a partnership, the annual report shall contain a list of partners who control a stake of at least five percent (5%) of the interest in the partnership. In the event that the Grantee is a publicly -traded stock company, the filing by the Grantee with the Franchising Authority of a copy of the annual report to stockholders shall constitute compliance with the provisions of this Section. C. The Village shall have the right to inspect and its independent auditor, if necessary, photocopy the Grantee's income records, worksheets, notes, journals, ledgers, and other such appropriate relevant financial records. The Franchising Authority shall have the right of audit and the right to require recomputation of any amounts determined to be payable under this Ordinance. The Grantee and the independent auditor of the Village may agree to enter into a confidentiality agreement limiting the release of information disclosed through the inspection, audit, and/or recomputation. W The Franchising Authority shall provide Grantee with no less than thirty (30) calendar days notice of the Franchising Authority's intent to conduct an inspection of Grantee's financial records. Grantee shall comply with the request of the Franchising Authority and make available all such records as are reasonably required at a location which the Franchising Authority has agreed to. In the event that certain necessary records or documents cannot be made available at the location agreed to by the Franchising Authority, Franchising Authority may, at its option, send its designee to the location where Grantee has stored such records. To the extent permitted by law, the Grantee may be required to pay for all reasonable travel expenses incurred by the Franchising Authority. Any additional amount due the Village as a result of the audit shall be paid within thirty (30) days following written notice to the Grantee by the Village which notice shall include a copy of the audit report or agreed-upon procedures report. The cost of said audit shall be borne by the Grantee if it is properly determined that the Grantee's annual payment due to the Village for the preceding year is increased thereby by more than five percent (5%). D. In the event that any franchise payment or recomputed amount is not made on or before the applicable dates heretofore specified, interest shall be charged from such due date at the monthly rate of four (4) percent over the prime rate at the Bank of America, Chicago Main Branch on the date upon which the Franchise payment was due. E. In the event the Franchise is terminated for any reason the Grantee shall file with the Franchising Authority, within thirty (30) days of the termination of service by the Grantee pursuant to the Franchise or this Ordinance, a financial statement clearly showing the Gross Revenues received by Grantee since the end of the previous month prior to the termination of the Franchise to the date upon which final transfer or sale of the Cable System or Multichannel Video S sl tem occurs within thirty (30) days of the final transfer or sale. Grantee shall submit such documentation with the final Franchise Fee or Fee in -lieu of Franchise Fee payment. Grantee shall not be responsible for payment of Franchise Fees or Fees in -lieu of Franchise Fees from the date upon which services provided by the Grantee have ceased. F. Nothing in this Franchise shall be construed to limit the liability of Grantee for all applicable Federal, State, and local taxes. Payment of the Franchise Fee or Fee in -lieu of Franchise Fee by Grantee to the Village shall not be considered in the nature of a tax or assessment, but shall be in addition to any and all taxes and other fees of general applicability which are now or hereinafter required to be paid by any law to the Village. 29 Section 4.11. LIABILITY AND INDEMNIFICATION A. The Grantee shall, at its sole expense, fully indemnify, defend, save and hold harmless Elk Grove Village, its corporate authorities, officers, boards, commissions, employees and agents harmless from any and all injuries, claims, counter -claims, demands, suits, judgments, execution liabilities, debt, damages, or penalties (hereinafter referred to as "claims") arising out of, resulting from or alleged to arise out of or result from, the passage of this Ordinance, the granting of a Franchise, or the construction, erection, installation, operation, maintenance of, or other activity connected with, the Grantee's Cable System or Multichannel Video System, whether or not such acts or omissions are those of the Grantee, and whether or not any such act or omission is authorized, allowed or prohibited by this Ordinance or the Grantee's Franchise. These damages shall include but not be limited to penalties arising out or alleged to arise out of any claim for damages for Grantee's invasion of the right of privacy, defamation of any Person, firm or corporation, or copyright, trademark, trade name, service mark or patent violations or infringements, or of any other right of any Person, firm or corporation, damages arising out of any failure by Grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the Grantee's Cable System or Multichannel Video System, and failures of Grantee to comply with provisions of any statute, regulation, or ordinance of the United States, State of Illinois, Cook or DuPage Counties, or Elk Grove Village applicable to Grantee in its business. B. The Grantee shall pay and by its acceptance of a Franchise shall be deemed to have specifically agreed that it will pay all expenses incurred by the Village in defending itself with regard to all claims mentioned in Subsection A above including reasonable attorney's fees. Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in defense of litigation as co -counsel through their own Village Attorney at their sole expense. Such participation shall not under any circumstances relieve Grantee from its duties of defense against liability of or of paying any judgment entered against such indemnified party. C. The Grantee shall obtain and maintain at its own expense, effective from the date of execution of the Franchise Agreement and thereafter maintain in full force and effect throughout the term of such Franchise and any extension thereof, an acceptable policy or policies of general comprehensive liability insurance and umbrella liability insurance, products/completed operations liability insurance, personal injury liability insurance, owners and contractors protected liability insurance, broad form property damage insurance, contractual liability insurance, automobile liability (owned, non - owned, and hired automobiles), workers compensation, and employers liability 30 acceptable to the Village. Said policy or policies shall name the Village as an additional insured, and in their capacity as such, Village's officers, agents, and employees. Grantee and said Village and officers shall also be named as additional insureds, and the policy or policies shall contain cross -liability endorsements. Policies of insurance, insuring the Village and the Grantee with regard to all claims mentioned in subsection A above in the minimum amounts of: 1. Five Million Dollars ($5,000,000.00) for bodily injury or death to any one person, within the limit of Ten Million Dollars ($10,000,000.00) for bodily injury or death resulting from any one accident. 2. Five Million Dollars ($5,000,000.00) for property damage, including damage to Village property, resulting from any one accident. 3. Two Million Dollars ($2,000,000.00) for all other types of liability resulting from any one occurrence. A copy of Certificates of Insurance identifying the policy or policies, coverages, and named insureds, and naming the Village as an additional insured shall be sent to the Village as provided for in the Franchise Agreement and a Certificate of Insurance shall be sent to the Village no later than ninety (90) days after the start of Grantee's succeeding policy year. All policies of insurance required hereunder must be underwritten by sureties qualified to do business in the State of Illinois and must be rated not lower than "B+" by Best's Insurance Rating Services. The Village shall retain the right to re-examine insurance policy coverage limits, and where necessary, after consultation with the Grantee, reasonably increase the coverage limits during the life of the Franchise Agreement or any extension thereto to insure compliance with any risk management program to which the Village belongs. D. Grantee shall maintain at its own expense, and by acceptance of a Franchise be deemed to have agreed that it will maintain on deposit with the Village, throughout the term of such Franchise, and any extension thereof, a Security Fund in the form of a cash escrow or a letter of credit from a financial institution in the amount of Twenty-five Thousand Dollars ($25,000.00) or such greater or lesser amount as may be specified in the Franchise Agreement. The form and content of such Security Fund escrow or letter of credit shall be approved by the Corporation Counsel. In particular, but without limitation, such escrow or letter of credit shall be drawn in the case of any default or failure of the Grantee to pay any fees, penalties, claims, liens or taxes due the Village under this Ordinance or the Franchise. Upon drawing on such escrow or letter of credit for any reason, the Village shall notify the Grantee. The Grantee shall, within three (3) days of the receipt of such notification, take all action required to restore the Security Fund escrow or letter of credit to its original, full amount. The rights reserved to the Village with respect to the Security Fund escrow or letter of credit are in addition to all other rights of the Village, whether reserved by this 31 Ordinance or the Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such Security Fund escrow or letter of credit shall affect any other right the Village may have. E. All insurance policies, bonds, Security Fund escrows or letters of credit required by this Section shall contain a provision requiring at least thirty (30) days written notice to both the Village and the Grantee of any cancellation, termination, or other expiration and shall provide that no such cancellation, termination or expiration shall be effective prior to such notice. Each such policy, bond, escrow and letter of credit must be approved by the Village Manager of Elk Grove Village and copies of such documents, along with written evidence of payment by the Grantee of required premiums or fees shall be filed and maintained with the Village Clerk. Notices of any renewal of any expiring policy or bond shall be filed with the Village Clerk at least sixty (60) days prior to the date of such expiration. F. If the Grantee proposes to secure a new insurance policy, bond or letter of credit (collectively, the "Instruments") instead of renewing an existing policy, bond or letter of credit, the Grantee shall, at least thirty (30) days prior to the expiration date of any such insurance policy, bond or letter of credit, submit to the Village Manager a copy of the proposed new Instrument for the Manager's review. Should the Manager find that the Instrument does not provide substantially the same indemnity or that it is procedurally defective, then the Manager shall so notify the Grantee and the Grantee shall be obligated to reasonably cure the defect. Where an existing Instrument reaches its expiration date, such proposed new Instrument shall become effective only upon the expiration date of such expiring Instrument if the Village Manager has approved the terms and coverage of said new Instrument which approval shall not be unreasonably withheld. The Grantee shall comply with all applicable provisions of this section as to any such Instrument. Section 4.12. TRANSFER OF FRANCHISE A. A Franchise granted under this Ordinance shall be a privilege to be held in trust by the Grantee. Except as provided for in Section 617 of the Cable Act (47 CFR 537), The Franchise or the Cable System or Multichannel Video System or control thereof, shall not be assigned, transferred, or sold in whole or in part without prior consent of the Village, expressed by resolution and then only on such conditions as may therein be prescribed. No such transfer, sale, or assignment shall be considered to have taken place should the Franchise or control thereof be affected by a transfer to another wholly owned subsidiary of a parent of a Grantee where no de facto change of ownership or control has taken place. Any sale, transfer or assignment not made 32 according to the procedures set forth in this Ordinance shall render the Franchise void. The sale, transfer or assignment in bulk of the major part of the tangible assets of the Grantee shall be considered an assignment and shall be subject to the provisions of this Section. In the absence of extraordinary circumstances, the Village shall not approve transfer, delegation, or assignment of ownership of the Cable System or Multichannel Video System prior to substantial completion of construction or reconstruction of the proposed Cable System or Multichannel Video System. B. No such sale, transfer, delegation, or assignment shall be approved unless the proposed buyer, transferee, delegee, or assignee is found by the Franchising Authority to possess the legal, financial, and technical capabilities and which may include experience reasonably deemed necessary by the Franchising Authority in order to hold a Cable System or Multichannel Video System Franchise. C. In the event of a proposed sale, transfer, delegation or assignment of ownership of more than fifteen percent (15%) of the ownership of the Cable System to a Person or group of Persons as defined herein, none of whom owned or controlled fifteen percent (15%) or more of such right of control, singularly or collectively, on the effective date of this Ordinance, Grantee shall, prior to such proposed sale, transfer, delegation, or assignment, file with the Franchising Authority, FCC Form 394 or its successor form. Franchising Authority and Grantee shall have one hundred twenty (120) calendar days from the date of the filing of the FCC 394 form to review said FCC 394 form unless Grantee and Franchising Authority agree to an extension of time. D. Upon notification by the Grantee of a proposed sale, transfer, delegation, or assignment of ownership of the Cable System or Multichannel Video System, the Franchising Authority shall have one hundred twenty (120) days from the date of receipt of such notice to act upon any request for approval of such sale, transfer, delegation or assignment that contains or is accompanied by such information as is required by the Franchising Authority in accordance with this Ordinance, and as required by the FCC in accordance with its regulations. If the Franchising Authority fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Franchising Authority agree to an extension of time. Such additional time for review shall be allowed upon agreement of a specific extension period by the Franchising Authority and the Grantee. In the event that there is a violation, finding, or proceeding pending against the Grantee, and such violation, finding, or pending proceeding is not concluded prior to the sale, transfer, or delegation, such responsibility for addressing such violations, findings, or proceedings shall inure to the buyer. The buyer shall be obligated for performance to no greater or lesser extent than the seller. 33 E. No such approval of any agreement to sell, transfer, delegate, or assign shall be granted by the Franchising Authority unless all monies accruing to the Village as of the date of sale, transfer, delegation or assignment, whether by way of fees, penalties, damages, or otherwise, have first been paid in full or is guaranteed to be paid out of the consideration received by the buyer, transferor, delegator, or assignor for such transaction. F. This Section shall not apply to any sale, transfer, delegation, or assignment to one or more purchasers, transferees, delegees, or assignees who are controlled by, controlling, or under common control with the seller, transferor, delegator, or assignor. This Section shall not apply to those proposed sales, transfers, delegations, or assignments of ownership of % GaHle gystet which are specifically exempted by the provisions of Section 617 of the Communications Act of 1934, as now or hereinafter amended, or its successor provision. G. The consent of the Village to any sale, transfer, lease, trust, mortgage, or other instrument of hypothecation shall not constitute a waiver or release of any of the rights of Elk Grove Village under this Ordinance and the Franchise. H. In the event that the Franchising Authority rejects the application for transfer of the Franchise to a proposed buyer, transferee, delegee, or assignee, the Grantee may sell, transfer, delegate, or assign its rights under the Franchise Agreement notwithstanding said rejection, except that the Grantee shall remain obligated to perform, cause the performance of or guarantee the performance of all obligations of the buyer, transferee, delegee, or assignee so identified. SECTION 4.13: NO DECREASE IN FRANCHISE FEES OR FEES IN -LIEU OF FRANCHISE FEES DURING TRANSFER After the filing of FCC Form 394 as provided for in Section 4.12, Grantee shall not decrease Gross Revenues obtained from the operation of the Cable System or Multichannel Video System. ARTICLE 5 RATES, FEES AND RECORDS Section 5.1. RATES AND FEES A. Uniformity of rates. Rates for Cable Service and charges for equipment necessary 34 for the reception of Cable Service shall be uniform throughout the Franchise Area except as otherwise specified in this Section. Grantee may establish different rates for tiers of programming, and may establish a rate schedule appropriate to commercial enterprises which differ from such rates provided to residential Dwelling Units. Grantee may also establish separate rates for Subscribers residing in congregate Dwelling Units. B. Non-discrimination in application of rates, fees, and services. The Grantee shall not discriminate against individuals in the assessment, levy, charge, imposition or collection of rates, fees, and the provision of Cable Service on the basis of race, creed, color, religion, national origin, gender, marital or veteran status, or disability. C. Filing of rate schedule with Village. Grantee shall file a full schedule of all Subscriber and User rates and all other fees or charges, including but not limited to, pay-per-view services, game Channel and other interactive service charges, leased access charges, published advertising rates, late fees, Installation fees, reconnection fees, hourly service charges, disconnect fees, additional outlet charges, name changes, VCR hookups, service upgrades, swaps of pay services, installation of A/B switches, cable guides, cable guide subscriptions, and burial of drop cables. Said schedule shall be filed at such time as changes are announced by Grantee in the levels of rates, fees, or other charges. D. Promotional campaigns. The Grantee may reduce, suspend, or waive Installation fees or rates for programming or other fees or services in a non-discriminatory manner subject to Subsection B hereinabove for the purpose of marketing Cable Services through promotional campaigns as a means of attracting new Subscribers or Users. & Refusal of service. Grantee may refuse to provide service to any Person because of due or owing accounts between such Person and the Grantee. F. Rates for devices serving disabled Subscribers. Rates for equipment or devices serving Subscribers experiencing visual or hearing impairment, or ambulatory impairment disabilities shall be charged in conformance with applicable state and federal laws. G. Reservation of rights to regulate Cable Services: Consistent with applicable law or regulation, the Franchising Authority reserves the right to regulate rates for basic cable service. Such equipment required for the reception of the basic tier of Cable Service by a Subscriber, including but not limited to the Hourly Service Charge. The Franchising Authority shall notify Grantee of its 35 intention to file a request for certification with the FCC. Upon receipt of said certification, the Village shall adopt by separate ordinance, in accordance with Title 47, Section 76.910 of the U.S. Code of Federal Regulations, such regulations consistent with the FCC regulations governing the basic tier of Cable Service. 2. The Franchising Authority shall, within one hundred twenty (120) days of the effective date of certification: a) exercise its rights to regulate basic cable rates, and provide reasonable opportunity for consideration of the views of interested parties and; b) notify the Cable Operator that the Franchising Authority has been certified to regulate basic cable rates, and; c) adopt regulations as required by Title 47, Section 76.910 (e)(1) of the U.S. Code of Federal Regulations. 3. The Franchising Authority may review the Grantee's schedule of rates, fees or charges upon submission of said fees, rates, and charges on proper forms provided by the FCC, on its own motion. The Franchising Authority shall submit its recommendations regarding the reasonableness and proper calculations of such fees, rates, and charges, to the Village Board. In accordance with the regulations of the FCC, the Village Board may reduce such rates, fees, or charges by order, or let stand the proposed fees, rates, or charges of the Grantee. Such reduction or approval of proposed rates shall be expressed by resolution adopted for the purpose, and no change in the Grantee's schedule of proposed basic rates, fees, or equipment charges shall be effective without the prior action of the Franchising Authority and the Village Board as expressed in said resolution. No such resolution shall be adopted without prior notice and opportunity for all interested parties to be heard, subject to the procedures set forth in this Ordinance. 4. For the purpose of determining the reasonableness of Grantee's fees, rates, or charges, all such information shall be made available to the Franchising Authority. 5. The Franchising Authority fully preserves all rights to order refunds and rollbacks as permitted under Title 47, Section 76.910 of the U.S. Code of Federal Regulations, as now or hereafter amended. 6. Grantee shall provide written notification to the Franchising Authority of any changes in applicable regulatory fees. ICrl 7. The Franchising Authority may file complaints on behalf of Subscribers who have provided written complaints to the Franchising Authority regarding the Cable Programming Services Tier to the FCC subject to the provisions of Title 47, Section 76.910, et. seq. of the U.S. Code of Federal Regulations as now or hereafter amended. The Franchising Authority may not file a complaint under this Section unless, within ninety (90) days after such rate increase becomes effective it receives Subscriber complaints. This Section shall not apply to Cable Programming Services provided after March 31, 1999. H. Village's reservation of right to impose and collect taxes, fees, or assessments. The Village shall reserve the right to impose and collect a municipal occupation tax on Grantee's business of transmitting messages by means of radio magnetic waves, electricity, or fiber optics as allowed by Chapter 65, Section 5, Paragraph 8-11-2 of the Illinois Compiled Statutes. Said occupation tax shall not exceed an amount of five percent (5%) of the gross receipts of Grantee's business operations originating within the corporate limits of the Village. The Village shall reserve the right to impose and collect User fees or assessments consistent with State and Federal law from the Grantee. Prior to the authorization of said User fee, or assessment, the method of collection and the payment of the collected User fee, or assessment shall be determined jointly between the Village and the Grantee. Rate discounts. The Grantee may offer discounts in rates to senior citizens and Persons who are economically disadvantaged in accordance with Section 623 (e)(1) of the Cable Television Consumer Protection and Competition Act of 1992, as now or hereinafter amended, or any successor provision, as referenced in Title 47, Section 543 of the U.S. Code of Federal Regulations. Section 5.2. BOOKS AND RECORDS A. Grantee shall 1) within thirty (30) days following the acceptance of a new or renewed Franchise, or 2) upon request thereafter, or 3) within thirty (30) days following the change in ownership of five percent (5%) or more of any class or series of the outstanding voting stock or other controlling interest of Grantee, furnish the Franchising Authority a list, showing the names and addresses of persons owning five percent (5%) or more of any class or series of the outstanding voting stock or 37 equivalent ownership interest of the Grantee, together with a roster of the Grantee's officers and directors (or equivalent management personnel) and their addresses. B. Grantee shall maintain all books and records of its operations pertaining to the operation of the Cable System or Multichannel Video Sy tem to the extent practicable and in a manner specific to the Franchise Area. Grantee shall not maintain its only records concerning the Cable System or Multichannel Video System within the Franchise Area in aggregate form which commingles such records with Cable Systems or Multichannel Video Systems in other communities to the extent that Grantee's records for the Franchise Area cannot be separately distinguished. All records pertaining to Subscribers, Cable System or Multichannel Video System operations, and finances of the Grantee shall be maintained in a local office, or in a regional office that is no more than one hundred (100) miles from the corporate offices of the Village. C. Where Grantee is unable to locate books and records specific to the Franchise Area at a location which is either within Elk Grove Village, or within the one hundred mile restriction, Grantee may locate such books and records at a remote location which is set forth by Grantee with the provision that in the event that the Franchising Authority, or its designee requests to inspect such records, Franchising Authority shall provide no less than seven (7) calendar days notice to Grantee to inspect such records. If it is found that the Franchising Authority reasonably believes that such inspection has identified an infraction, Grantee shall pay for all reasonable travel expenses incurred by all personnel of the Franchising Authority, or its designee. D. Grantee shall maintain records regarding certain aspects of its operations, including, but not limited to, Subscriber telephone calls and abandonment rates, complaints regarding delivery and reception of Cable Service which results in a record, Subscriber Installations and disconnections, partial and total system outages and their causes, Cumulative Leakage Index (CLI) testing records, Headend equipment proof - of -performance certificates and equipment testing results in accordance with FCC technical standards, notification of rate and fee increases, rules, regulations and conditions established for the construction, operation, administration, and maintenance of the Cable System or Multichannel Video System, and such accounting records to show the following in sufficient detail, consistent with generally accepted accounting principles: Total revenues, by service category. 2. Operating expenses, categorized by general and administrative expenses, technical expenses, and programming expenses, and overhead, where applicable. CM 3. Capital expenditures, to include capitalized interest and overhead as apportioned, where applicable, if any. 4. Depreciation expenses, by category. E. Records to be provided to the Franchising Authority: 1. Upon request by the Franchising Authority, Grantee shall provide Franchising Authority with a monthly summary of recorded complaints tendered to the Grantee. Such summary record shall include the number of recorded complaints received, an identification of the substance of the complaint, the method or methods by which the complaint was resolved, and the date of resolution. Grantee shall also provide the Franchising Authority with a monthly report on telephone statistics for all telephone lines serving the Franchise Area. Said reports shall contain the number of calls received per day, abandoned calls, the average or maximum time for which any calls were placed on hold, and the rate at which callers received a busy signal. 2. Grantee shall provide the Franchising Authority with a monthly summary of system outages. Said reports shall indicate the date upon which the outage occurred, the number of Subscribers affected, the duration and cause of the outage, and the date and time of resolution. 3. Grantee shall provide the Franchising Authority with an annual listing of all reports, petitions, applications and correspondence generated from its local office filed with the FCC which are not a part of Grantee's public inspection file, the United States Federal Trade Commission, or any other Federal agency which has jurisdiction over the Grantee's Cable System or Multichannel Video System. Such listing shall be filed with the Franchising Authority no later than thirty (30) days following the close of the calendar year. The Franchising Authority may request a copy of any documents referred hereto at such time that the Franchising Authority determines that such documents would be out of benefit to the Village's understanding of the operation of the Cable System or Multichannel Video System. 4. Grantee shall file annually with the Franchising Authority the following information: a. A current list of all Grantee's officers and directors. b. Two (2) copies of all types of Subscriber agreements. Copies of individual Subscriber's agreements are not to be filed with the Franchising Authority. M 5. The Franchising Authority and Grantee shall collect and disclose Subscriber information within the limitations established by Section 631 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or by any successor provision. F. The books and records of the Grantee's operation within the Village shall be made available to the Village during normal business hours, for inspection and audit by the Village within thirty (30) days after such request has been made. G. Unless otherwise specified by a Franchise Agreement, Grantee shall provide a monthly statement containing information regarding the aggregate number of Subscribers on each service tier, including an aggregate number for all premium Channels, with no single service individually identified, the rate charged for each tier, the number of total Subscribers, the total of newly connected Subscribers, and the total number of disconnected Subscribers. ARTICLE 6 SYSTEM OPERATIONS Section 6.1. FRANCHISE AREAS A. Every application shall designate a proposed Franchise Area and a proposed schedule for making service available through the Franchise Area. The boundaries and the schedule of the Franchise Area shall be subject to approval by the Village, and shall be incorporated into the Franchise Agreement. B. Grantee shall furnish to the Village a map of suitable scale indicating the Franchise Area to be served and showing all roads and public buildings within the Franchise Area. C. The areas of the Village for which application for Franchise will be accepted shall be specified by the Village; in the absence of such specification, applications shall be accepted for any area within the Village. Section 6.2. EXTENSION OF SERVICE 40 Following completion of construction within the Franchise Area, each Grantee shall extend its Cable System or Multichannel Video System and make Cable Service available beyond the Franchise Area as follows: A. Along streets or parts of streets beginning at the boundary of the Franchise Area or any line extension beyond the Franchise Area within one (1) year after any such street reaches a minimum density of twenty-five (25) dwelling units per street mile. The Grantee and the Franchising Authority may agree to a cost-sharing procedure for line extension within the Franchise Agreement. B. Wherever practicable with the installation of utility lines to developing areas having a planned minimum density of at least twenty-five (25) dwelling units per street mile, which lie contiguous to the boundary of the Priaiai5, SOFViee A Franchise Area or at the end of any line extensions beyond the Franchise Area. C. The Grantee, in its application, may propose a line extension policy which will result in serving more residents of the Village than as required above, in which case the Grantee's application will be incorporated by reference in the Franchise, and will be binding on the Grantee. Section 6.3. INDIVIDUAL SERVICE DROPS A. Grantee shall extend and make Cable Service available to any isolated residents within or without the Franchise Area requesting connection at the standard connection charge, if the connection to such resident would require no more than a standard one hundred twenty-five (125) foot aerial or buried drop line from a trunk or feeder cable required to be installed pursuant to Sections 6.1 or 6.2 of this Article. B. With respect to requests for connection requiring an aerial or buried drop line in excess of one hundred twenty-five (125) feet, Grantee shall extend and make available Cable Service to such residents at a connection charge not to exceed the actual installation costs incurred by the Grantee for the distance exceeding one hundred twenty-five (125) feet. Section 6.4. TECHNICAL REQUIREMENTS A. Channel capacity and activation. Grantee shall propose a Cable System or Multichannel Video System having a capacity, of at minimum, seven hundred fifty MegaHertz (750 MHz) or such greater capacity as may be specified in a Request For Proposal. B. Services and Continuous Operation. Grantee shall design said Cable System or Multichannel Video System with the capability to provide Upstream Channel and 41 Downstream Channel capacity. Grantee shall also operate and maintain said Cable System or Multichannel Video System in a manner which will enable continuous twenty-four (24) hour operation of all services as required herein. C. Pay -Per -View Services. The Grantee's Cable System or Multichannel Video System shall have the capacity to provide Pay -Per -View cable television services to eal3le Subscribers. D. FCC Technical Requirements: To the extent permitted by law, Grantee shall, at minimum, comply with the cable television technical standards as set forth by the FCC, effective July 1, 1992, as now or hereinafter amended, as contained in Title 47, Section 76, et. seq. of the U.S. Code of Federal Regulations. Nothing contained in this Ordinance shall prohibit Grantee from adopting technical standards which exceed those approved by the FCC. In the event that Grantee adopts any technical standards which exceeds those approved by the FCC, such standard(s) shall be incorporated into the Franchise Agreement. E. Adherence to electrical and safety codes. The construction, installation, activation, reactivation, 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 applicable requirements of each of the following publications: National Electrical Code, published by the National Fire Protection Association, (currently ANSI/NFPA 70-1995 and replaced by subsequently adopted editions); 2. National Electrical Safety Code, published by the Institute of Electrical and Electronics Engineers Inc. (Currently ANSI C2-1995 and replaced by subsequently adopted editions). Grantee shall at all times comply with all other appropriate Federal, State, and local regulations, and codes and other ordinances of the Village. F. Parental lock -out device. The Grantee's Cable System or Multichannel Video System shall include remote control and Converter box devices which have the capacity to lock out a single Channel or multiple Channels at the choice of the Subscriber. Grantee may impose a reasonable charge for parental lockout capacity or installation of such capacity on a remote control device or Converter box. For the purposes of this Section, a Converter box which contains a microprocessing chip which can be programmed by the Grantee or the Subscriber to block out a single 42 Channel or multiple Channels shall be considered a Parental Lock -Out Device. G. Auxiliary power. The Grantee's Cable System or Multichannel Video System shall be equipped with sources of auxiliary power at the Headend and along cable trunk line amplifiers, or at optical node sites for the purpose of continuation of service in the event of repairs, maintenance, power interruptions or power outages in accordance with Grantee's design. H. Grounding of system equipment and service connections. Grantee shall properly ground all cable wiring and service connections in accordance with the most current version of the National Electrical Safety Code and the National Electrical Code. Said grounding shall require the upgrading of existing grounding as required by the Code. Grantee shall also comply with any applicable local ordinance pertaining to the establishment of electrical grounding standards. I. Emergency override: Grantee shall configure the Cable System or Multichannel Video System to enable carriage of audio and video, if practicable, emergency override cablecasting over all Channels of the Cable System or Multichannel Video System in accordance with FCC regulations. Said emergency override capability shall be designed to allow the Village President of Elk Grove Village or his or her designee to activate the emergency override upon declaration of a public emergency. 2. Upon requirement by the FCC to participate in the Emergency Alert System, Grantee shall provide notification to the Village within thirty (30) calendar days of receipt of such notification from the FCC, and shall provide its procedures for emergency broadcast to the Village. The emergency override systems shall be provided to all eable Cable System or Multichannel Video System Subscribers. Interference with public safety transmissions. Grantee shall operate the Cable System or Multichannel Video System in a manner which will not create signal transmission interference with reception of radio signal communications transmitted by public safety units of Elk Grove Village, Cook or DuPage Counties, or the State of Illinois. K. System testing. To the extent permitted by law, Grantee shall comply with all Cable System or Multichannel Video System testing regulations as specified in Title 47, Section 76, Subpart K of the U.S. Code of Federal Regulations. 43 L. Service interruptions. The Grantee may interrupt service when necessary to cable Subscribers for the purposes of alteration, maintenance, repair, or emergencies. Grantee shall create such interruptions at such time as will reasonably minimize inconvenience to its Subscribers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to the affected Subscribers. M. New equipment. All equipment shall be new and unused and the total Cable System shall contain no factory rebuilt or refurbished components. This shall not be construed as a prohibition against the use of integration of existing telecommunication equipment and facilities when such facilities shall not materially degrade the performance standards for the Cable System or Multichannel Video System. N. Antenna switch/Removal of antenna. The Grantee, upon request of any Subscriber, may provide and install, at a reasonable charge, a switching device so as to permit a Subscriber to continue to utilize his own television antenna if he so chooses. Grantee shall not require the removal, or offer to remove or provide any inducements for removal of any potential or existing Subscriber's antenna as a condition of provision of service. O. Technical assistance. Upon the Franchising Authority's determination that the Cable System or Multichannel Video System is not meeting FCC technical standards, 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 or Multichannel Video 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 inspection. Section 6.5. CABLE PROGRAMMING A. Categories of service to be provided. Grantee shall provide on the Cable System all Over -the -Air broadcast stations required to be carried by Federal law or FCC regulations. Grantee shall provide a wide range and diversity of programming for Subscribers residing within the Franchise Area. Categories of programming comparable in quality, mix, and level to be provided by Grantee to Subscribers shall include, but not be limited to, 1. Local, national and international news programs 2. Local and national sports and sporting events 3. Local, regional, and national weather 4. Educational programming 44 5. Children's programming 6. Music programming 7. Public Affairs programming 8. Movies 9. General entertainment programming 10. Cultural programming 11. Pay -Per -View programming 12. Financial and business-related programming 13. Local Origination programming 14. Home shopping programming 15. Broadcast stations. B. Obscene or indecent programming. Grantee and all other Persons as defined herein using or making use of the Cable System or Multichannel Video System shall comply with all Federal, State, and local laws and regulations concerning the cablecasting of obscene or indecent programming. C. Public, Educational, and Governmental Programming - Applications and proposals. Applications for Franchise shall include proposals for the provision of Public, Educational, Government (PEG), and leased access Channels. D. Allocation of bandwidth space. Grantee shall dedicate an amount of uncompressed bandwidth on its Cable System or Multichannel Video System at a level of six (6) MegaHertz for each Public, Educational, and Governmental Access Channel. Said amount of dedicated uncompressed bandwidth shall be negotiated between the Franchising Authority and the Grantee and specified in the Grantee's proposal and the Franchise Agreement. Section 6.6. SERVICE TO PUBLIC FACILITIES As provided for in the Franchise Agreement: A. Grantee shall provide, without charge, Subscriber cable connections and service to each fire station, School, police station, public library, government building, and such other buildings used for governmental purposes as may be designated by the Franchising Authority. B. Grantee shall provide, at no charge, one (1) Cable System or Multichannel Video System drop and outlet to each public, private, and parochial School building in a manner that will allow for cable television reception in classrooms designated by each School, and for provision of reception in non-public areas of each School as so designated by each School. 45 If, upon request, a School desires installation of a number of outlets beyond the number initially installed, Grantee may charge each School for an amount up to the actual cost for labor and materials necessary for providing adequate Cable System or Multichannel Video System wiring. C. Grantee shall provide not less than one (1) Cable System or Multichannel Video System drop and outlet at the Village Hall, School buildings, government buildings, and public institutions designated by the Village in the Franchise Agreement. Grantee shall provide a Cable System or Multichannel Video S,, ste connection free of charge, however, Grantee may charge the Village for the labor and materials cost of any non-standard Installation as defined herein to any Village building. D. Grantee shall provide equipment for providing live cablecasting of programming from School buildings or government buildings, and other public institutions as specified in the Franchise Agreement. E. Furthermore, Grantee shall be permitted to recover, from any public building owner entitled to free service, the direct cost of installing, when requested to do so, concealed inside wiring, or a service outlet requiring more than one hundred twenty- five (125) feet of drop cable; provided, however, that the Grantee shall not charge for the provision of regular Subscriber service. Section 6.7. OPERATIONAL REQUIREMENTS AND RECORDS A. Grantee shall construct, operate and maintain the cable television system or Multichannel Video System in full compliance with the rules and regulations, including applicable Federal, State, or local laws and regulations, including the latest editions of the Elk Grove Village Electrical Code and the BOCA Basic Fire Prevention Code. The Cable System or Multichannel Video System and all its parts shall be subject to inspection by the Village. The Village hereby reserves the right to review Grantee's construction plans prior to the commencement of construction, upgrade, installation, or erection of towers, poles, conduits or fixtures related to the operation or maintenance of the Cable System or Multichannel Video System. Grantee shall submit plans and maps detailing proposed facility construction, upgrade, installation or erection to the Village Engineer for his examination. Upon approval by the Village Engineer, Grantee may proceed with implementation of its proposed plans and activities. The Village shall not unreasonably withhold approval of Grantee's plans. Notwithstanding such approval, the Village shall have the right to inspect all construction or installation work performed subject to the provisions of local laws and ordinances. The Village shall not, however, be required to make inspections or approve the Grantee's system and plans, and specifically disclaims such obligation, the Grantee 46 shall be solely responsible for taking all steps necessary to assure compliance with such laws and regulations and the safety of its system as installed. B. Copies of all correspondence, petitions, reports, applications and other documents filed by Grantee with Federal or State agencies having appropriate jurisdiction in matters affecting cable television operation or received from said agencies shall be furnished upon request to the Village by Grantee. C. In case of any emergency or disaster, the Grantee shall, upon request of the Village, make available its facilities to the Village without cost for emergency use during the emergency or disaster period. Section 6.8. TESTS AND PERFORMANCE MONITORING A. Not later than ninety (90) days after any new or substantially rebuilt portion of the system is made available for service to Subscribers, technical performance tests shall be conducted by the Grantee to demonstrate full compliance with the Technical Standards applicable pursuant to Sections 6.4 (D), (K), and (0) of this Article. Such tests shall be performed by or under the supervision of a qualified engineer or an engineer with proper training and experience. A copy of the report shall be submitted to the Franchising Authority describing test results, instrumentation, calibration and test procedures, and the qualifications of the engineer responsible for the tests. B. At any time after commencement of service to Subscribers, the Franchising Authority may require additional reasonable tests, including full or partial repeat tests, different test procedures, or tests involving a specific Subscriber's terminal, at the Grantee's expense to the extent such tests may be performed by the Grantee's employees utilizing its existing facilities and equipment; provided, however, that the Franchising Authority reserves the right to conduct its own tests upon reasonable notice to the Grantee. The Franchising Authority will endeavor to arrange its request for such special tests so as to minimize hardship or inconvenience to Grantee or to the Subscriber. Section 6.9. SERVICE. ADJUSTMENT AND COMPLAINT PROCEDURE A. 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, information concerning the following: 1. Products and services offered; 2. Prices for programming services and conditions of subscription to 47 programming and other services; 3. Installation and service maintenance policies; 4. Instructions on how to use the Cable Service; 5. Channel positions of programming carried on the system; 6. Billing and complaint procedures, including the address and telephone number of the Grantee and the Franchising Authority. B. Notification of changes in rates, programming or Channel positions. Grantee shall notify Subscribers of any increases in rates, changes in programming services, or Channel positions as soon as possible. Notice must be given to the Franchising Authority at a minimum of forty-five (45) days in advance and to Subscribers at a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. In addition, the Cable Operator or Multichannel Video Provider shall notify the Franchising Authority and Subscribers thirty (30) days in advance of any significant changes in the other information required in Section 6.9 (A). The Grantee may provide notice of rate, programming, or Channel position changes using any reasonable written means at its sole discretion. The Grantee shall not be required to provide prior notice of any rate change which is the result of a regulatory fee, Franchise Fee, Fee in -lieu of Franchise Fee or any other fee, tax, assessment, or charge of any kind imposed by any Federal agency, State, or Franchising Authority on the transaction between the Grantee and the Subscriber. C. Customer service facilities. Grantee shall maintain an office within the boundaries of the Village unless otherwise stated in the Franchise, with the capacity to accept payments, adjust bills, respond to repair, Installation, or other service calls, distribute or receive Converter boxes, remote control units, or other related equipment, and receive complaints. Said customer service facility shall be open to the general public at least a minimum of forty-four (44) hours per week. Of that time, there shall be a minimum of four hours on Saturday between 9:00 a.m. and 5:00 p.m., and at least one day per week in which the office is open between 8:00 a.m. and 10:00 a.m., and at least one day per week in which the office is open between 5:00 p.m. and 7:00 p.m. The customer service office shall be open and accessible to the public with adequate telephone service during the normal business hours. Grantee may, at its option, provide Subscribers with bill payment facilities through retail, financial, or other commercial institutions located within the boundaries of the Village. Grantee may, at its option, provide secured collection boxes for the receipt of bill payments. D. Telephone service. Grantee shall provide a listed local or toll-free telephone number available to Subscribers and employ an operator or maintain a telephone answering service twenty-four (24) hours per day, each day of the year, to receive Subscriber complaints and to dispatch assistance in the case of any emergency or major system malfunction affecting a number of Subscribers. Said telephone service shall be staffed by trained Customer Service Representatives (CSR) who shall be available HE to respond to customer telephone inquiries during Grantee's hours of business operation as determined by the provisions of Section 6.9 (C). 1. After the hours of Grantee's business operation, the telephone access line shall be answered either by, at Grantee's option, a service, automated response system, or its own CSR personnel. With the exception of requests for restoring Cable Service in the event of an outage, inquiries received after Grantee's hours of business shall be forwarded and responded to by a CSR of Grantee on the next business day after the call is received. Actions on outages or major malfunctions shall be initiated immediately upon receipt of notification. Corrective action shall be completed as promptly as practicable. 2. Grantee shall, under normal operating conditions, answer telephones staffed by CSRs, or through a service or automated response system, within thirty (30) seconds, including wait time, from when the connection is made. If the call needs to be transferred, transfer time shall not exceed ninety (90) seconds. These standards stated herein shall be met no less than ninety percent (90%) of the time as measured on a monthly basis under normal operating conditions. Grantee shall follow the definition for normal operating conditions as established by the FCC under the U.S. Code of Federal Regulations, Title 47, Section 76.309(c)(4)(ii). 3. Grantee shall, under normal operating conditions, assure that the customer obtain a busy signal no more than three percent (30/6) of the time as measured on a monthly basis. 4. Incoming telephone calls from Subscribers to the Grantee shall not exceed an abandonment rate of five percent (5%) as measured on a quarterly basis. E. Service and repair calls. Grantee shall establish a maintenance service capable of identifying, locating and correcting major system malfunctions in an expeditious manner except for circumstances beyond the Grantee's control, such as strikes, acts of God, wars, riots, and civil disturbances. Said maintenance service shall be available on a twenty-four (24) hour basis, seven (7) days a week to restore service of the Cable System or Multichannel Video System to Subscribers in the event of significant deficiencies or failure of the Cable System or Multichannel Video System. I. Grantee shall provide to Subscribers a listed local or toll-free telephone number for service and repair calls. The telephone number may be the same as that required by Section 6.9 (D). 49 2. Excluding conditions beyond the control of the Grantee, Grantee shall begin working on complaints, requests, and interruptions to Cable Service promptly, and in no event shall the response time for calls received subsequent to 12:00 P.M. exceed twenty-four (24) hours. The Grantee shall begin to correct other service problems within four (4) hours if received by 12:00 P.M. or not later than the next business day after notification of service problems is received after 12:00 P.M. 3. Grantee shall immediately initiate action for any outage affecting three (3) or more Subscribers who receive services from the same trunk or feeder line. Restoration of the Cable System or Multichannel Video System from a condition of outage shall be completed as promptly as is feasibly possible, but in no situation longer than twenty-four (24) hours after notice without the express authorization of the Franchising Authority. An outage affecting three (3) or more Subscribers in a multi -family Dwelling Unit served from the same Cable System or Multichannel Video S,, stem tap shall be corrected in the same manner as stated hereinabove. 5. For each repair, service, Installation, and Installation -related activity call, the Grantee shall establish either a specific time for an appointment with the customer, or specify at maximum, a four-hour time block during the Grantee's hours of operation. The Grantee may, at its discretion, schedule service calls and other Installation, or Installation -related activities outside of its usual hours of operations for the express convenience of the customer. 6. Grantee, or its agents or designees, shall not cancel an appointment with a customer after the close of business on the business day prior to the appointment. 7. Upon completion of the service call, Installation, or Installation -related activity, the customer shall receive a notification of the service call. The Grantee may either leave a notification attached to the front door of the customer's premises or send a report of the service call. Grantee may send this report by United States mail within fourteen (14) days of the service date if the customer is not present at the time of the service call. 8. A representative of the Grantee shall contact a customer in the event that a service repair technician or other representative of the Grantee is running late for an appointment and will be unable to keep the scheduled appointment time. Grantee or his representative shall reschedule the appointment, as necessary, at a time which is convenient to the customer. 50 9. The standards promulgated in Section 6.9 (E)(1)-(8) shall be met no less than ninety-five percent (95%) of the time measured on a quarterly basis. F. Credits for missed service appointments. Consistent with the cable television industry policy of on-time guarantees, the Grantee shall issue a credit equal to one day of service if the Grantee's technician is unable to make a scheduled service call appointment or is unable to complete a scheduled service call due to a late arrival. This Section shall not limit or prohibit Grantee from providing other credits or refunds for missed service appointments in excess of those described hereinabove as a part of its corporate policy or participation in a promotional activity which pertains to the provision of on-time service appointments. G. Identification of customer service representatives and technicians: 1. Upon telephone contact by a customer, customer service representatives of the Grantee shall identify themselves by name. Technicians representing the Grantee or his contractors or subcontractors shall wear a company identification badge prominently displayed on the outermost clothing of the technician, contractor, or subcontractor. 2. Technicians of the Grantee and his contractors or subcontractors shall identify vehicles used for technical service with the name of the Grantee or contractor or subcontractor of the Grantee. Vehicles belonging to the contractor or subcontractor shall also be identified with the Grantee's name. The type of identification need not be of a permanent nature. H. Billing practices. The Grantee shall famish each Subscriber at the time service is installed, written instructions that clearly set forth procedures for placing a service call, or requesting an adjustment. Said instructions shall also include the name, address and telephone number of the Franchising Authority and a reminder that the Subscriber can call or write the Franchising Authority for information regarding terms and conditions of the Grantee's Franchise if the Grantee fails to respond to the Subscriber's request for installation, service or adjustment within a reasonable period of time. 1. The Grantee shall send Subscribers a monthly statement indicating a date for payment due. 2. The Grantee shall send bills that are clear, concise, and understandable. Such bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional 51 charges, rebates, and credits. 3. All statements shall clearly indicate a date showing when the bill was sent, and shall clearly indicate a telephone number of the Grantee for billing inquiries and adjustments. 4. All statements shall clearly denote the dates of service for which the Subscriber is being billed. 5. The Grantee shall issue the Subscriber a credit for the loss of four (4) continuous hours of service. Credits shall be applied to the Subscriber's monthly bill. Loss of service shall include, but not be limited to, loss of cable audio or video service from the cable to the Subscriber's television set, Converter box failure or failure from similar devices which provide Cable Service to the Subscriber's television set. Credit adjustments shall be made no later than one (1) billing cycle following the determination that a credit is warranted. 6. The Grantee shall issue the Subscriber a refund, if any is due, upon termination of Cable Service and return of rental equipment for the reception of cable signals. The Grantee shall refund the Subscriber in the form of a refund check. Refund checks shall be issued promptly but no later than either the customer's next billing cycle following resolution of the request, or thirty (30) days, whichever is earlier, or the return of the equipment supplied by the Grantee if service is terminated. Past due billing statements or past due notices shall be delivered in the same manner and method as the Subscriber billing statement. The Grantee may, at its discretion, send past due notices more frequently to the Subscriber than the regular Subscriber statement. The Grantee shall be prohibited from engaging in negative option billing as so defined in Section 623 (f) of the Cable Consumer Protection and Competition Act of 1992 (47 CFR 543), as now or hereinafter amended, or by any successor provision. I. Equipment and service deposits: The Grantee may assess a reasonable deposit for the acquisition of Cable Service by a Subscriber, and for the rental of Converter box, remote control, and related equipment necessary for the reception or interdiction of Cable Service to the Subscriber's television set. Grantee shall receive no deposit, advance payment or penalty from any Subscriber or potential Subscriber for 52 services other than those which are specified in Section 5.1 (C) herein. 2. Upon termination of Cable Service by the Subscriber and return of Converter boxes, remote control units, and related equipment in reasonable condition, deposits for said service and equipment shall be returned to the Subscriber at the time when the equipment supplied by the Grantee is returned. 3. If the Subscriber has placed a deposit for Cable Services and related equipment in an amount exceeding one hundred dollars ($100.00), the Grantee shall place the deposit in an interest-bearing account and refund the deposit and interest upon termination of Cable Service and return of the equipment in reasonable operating condition. 4. Deposits for Installation of service shall be returned to the Subscriber within thirty (30) days of cancellation of service. 5. Grantee shall refund to any Subscriber of less than thirty (30) days and amount equal to the Installation and connection charge paid by such Subscriber in accordance with the then existing schedule of charges due to: a. Grantee's failure to render service to such Subscriber of a type and quality provided for herein; b. If service to a Subscriber is terminated by the Grantee without good cause; or C. If the Grantee ceases to operate the Cable System or Multichannel Video System authorized herein for any reason except for termination or expiration of the Franchise. Under the terms of this Section, the Grantee shall be required to refund the monthly charge on a prorated basis for interruption of service. J. Subscriber complaint procedure: 1. Upon receipt by the Grantee of a complaint by phone or in writing, the Grantee shall document said complaint and, where necessary, investigate or reply to the Subscriber's complaint within twenty-four (24) hours of receipt of said complaint. 2. If the Grantee's response to the complaint is not satisfactory to the 53 complainant, the complainant shall be referred to the Grantee's appropriate Cable System or Multichannel Video System management personnel for further assistance. Grantee's management shall make a good faith effort to reach resolution of the complaint in a manner satisfactory to the complainant within forty-eight (48) hours of referral of said complaint. If Grantee's Cable System or Multichannel Video System management cannot resolve the complaint to the satisfaction of the complainant, Grantee shall provide the name, address, and telephone number of appropriate management staff at the next level of operations, to include area, regional, or national offices. 3. Grantee shall respond in writing to written Subscriber complaints within fourteen (14) calendar days of receipt of said complaint. The Grantee shall make a good faith effort to resolve such complaints within a reasonable period of time, such period of time not to exceed forty-five (45) calendar days after receipt of such correspondence. 4. In the event a Subscriber does not obtain a satisfactory response or resolution to his complaint within the time period specified hereinabove, he may advise the Franchising Authority by telephone or in writing of his dissatisfaction. The Franchising Authority shall keep a documented record of all complaints. Complaints received by the Franchising Authority shall be forwarded to the Grantee. The Franchising Authority shall have authority to investigate any citizen, Subscriber or User complaint and to order corrective action of any error, deficiency, or violation of the Franchise Agreement or Ordinance found during the course of investigation as shall be appropriate. The Franchising Authority may require Grantee to establish rules and procedures regulating complaint resolution in the Franchise Agreement and require the Grantee to review and amend such procedures from time to time if necessary. K. Installation of service: Standard Installations will be performed within five (5) business days after an order has been placed. Standard Installations shall be those that are located up to one hundred twenty-five (125) feet from the existing Cable System or Multichannel Video System. 2. Where the Grantee has received a request for a non-standard Installation, which shall include, but not be limited to, those Installations which are located more than one hundred twenty-five (125) feet from the existing distribution system, or an Installation that does not meet the general 54 specifications of a standard Installation as a result of the requirements of the Subscriber, the Grantee shall provide said non-standard Installation within seventy-five (75) calendar days of the receipt of the request provided that the Grantee has applied for and received all necessary permits, approvals, and/or licenses prior to the scheduled date of Installation. Where Installation is to take place in a single-family or multi -family housing unit subdivision, commercial building, or condominium association building or common area, the Grantee shall be required to receive approval of construction plans for wiring of Subscriber Drop cable and rights of entry onto the premises prior to the start of Installation work. In the event that the Grantee must use an easement for transmission of Cable Service to a Subscriber on property owned by a condominium association, Grantee shall secure said easement in accordance with all applicable local and State laws and regulations. 4. Temporary Subscriber Drops shall be buried within fourteen (14) days from the date of Installation if the date of Installation falls between March 15 and December 1. If the date of Installation falls between December 1 and January 15, temporary Subscriber Drops shall be buried within Ninety (90) days. If the date of Installation falls between January 15 and March 15, temporary Subscriber Drops shall be buried within sixty (60) days. The Grantee may postpone the date of burial beyond the timeframes stated herein if permission is received by the Grantee from the Franchising Authority to postpone burial. L. Disconnection of service: A Subscriber shall have the ability to disconnect his service at any time at no charge. The Grantee shall disconnect the Subscriber's service within forty- eight (48) hours of notification to the Grantee of the request for disconnection. 2. A Subscriber shall not be disconnected if the status of his account is in dispute, and notice is given by the Subscriber to the Grantee in writing that the status of his account is in dispute, and the Grantee and the Subscriber are working to resolve the amount in dispute. If no resolution is reached within sixty (60) days, Grantee may disconnect the Subscriber. M. Promotional materials. Grantee shall file with the Franchising Authority a copy of all local, regional, statewide, or national promotions which it offers to Subscribers not later than the date of mailing to Subscribers. 55 Section 6.10. CONSTRUCTION STANDARDS A. Authority for use of Public Streets and Public Ways. For the purpose of operating and maintaining a Cable System or Multichannel Video System within the Franchise Area, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, across and along the Public Streets and Public Ways within such Village lines, cables, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the Cable System or Multichannel Video System, provided that all applicable permits are applied for and granted, all fees paid and all other municipal codes and ordinances otherwise complied with. No rights hereunder may be transferred by Grantee to any other entity other than the Grantee's contractors or subcontractors. B. Compliance with construction standards. Grantee shall design, engineer, construct, install, operate, and maintain its system in a manner which follows construction standards and technical standards as established by Federal, State, and local laws, ordinances, or regulations. Grantee shall adhere to any such construction or technical standards which were submitted as a part of the application for Franchise, and for Franchise Renewal. Construction, Installation, and maintenance of the Cable System or Multichannel Video System shall be performed by the Grantee in a workmanlike manner, in accordance with current construction, engineering, electrical and other related technical standards. C. Antennas and towers. Antenna supporting structures (towers) shall comply with the following regulations set forth and currently in effect: Rules and Regulations of the Federal Communications Commission pertaining to antennas and towers found in 47 CFR 76, et. seq. and 47 CFR 78 et. seq. 2. Obstruction Marking and Lighting, A 70/7460 -IE, Federal Aviation Administration. 3. Federal Communication Commission Rules, Part 17, Construction, Marking, and Lighting of Antenna Structures. 4. NCTA Standards of Good Engineering Practices, NCTA 008-0477, Electronics Industry Association Standard RS -222C, Structural Standards for 56 Steel Towers and Antenna Supporting Structures. Antenna supporting structures (towers) shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the State Aeronautics Board governing the erection and operation of supporting structures or television towers, and all other State or local codes or regulations. D. Erection of poles, conduits, or other wire -holding structures: The Franchise shall not relieve the Grantee of any obligation involved in obtaining pole, conduit, or other wire -holding structure use agreements from the gas, electric, and telephone companies, or others maintaining poles, conduits, or other wire -holding structures in the Public Streets and Public Ways of the Village, whenever the Grantee finds it necessary to make use of said poles, conduits or other wire -holdings structures. 2. Grantee shall utilize existing poles, conduits and other wire -holding structures or facilities whenever possible, and shall not construct or install any new, different or additional poles, conduits or other facilities whether on the Public Street or Public Way or on privately owned property within the Village until the written approval of the Village, and if necessary, of the property owner is obtained. Such approval shall not be unreasonably withheld by the Village but shall be subject to reasonable and necessary limitations to protect public health, safety, and welfare. Such approval shall be given upon such terms and conditions as the Village may prescribe which shall include a requirement that the Grantee perform, at its sole expense, all tree trimming required to maintain the poles clear of obstructions. No location of any pole, wire - holding structure or other facility of the Grantee shall be a vested interest and such poles, structures and facilities shall be removed, relocated or modified by the Grantee at its own expense whenever the Village or other governmental authority determines that the public convenience would be enhanced thereby. Nothing herein or in any Franchise shall be construed to entitle Grantee to the use of any property other than the Public Street or Public Way. 3. The Village shall be entitled to make use of the Grantee's poles, conduits, and other wire -holding structures so long as such use does not unreasonably interfere with Grantee's operations. 4. With respect to any poles, conduits, or wire -holding structures which Grantee 61FA is authorized to construct or install within Public Streets or Public Ways, a public utility serving the Village may, if denied the privilege of utilizing such poles, conduits, or wire -holding structures by the Grantee, apply for such permission to the Village. If the Village finds that such use would enhance the public convenience and would not unduly interfere with Grantee's operations, The Village may authorize such use subject to such terms and conditions as the Village deems appropriate. Such authorization shall include the condition that the public utility pay to Grantee any and all actual and necessary costs incurred in permitting such use. Subsections 1 and 2 shall not apply to any poles, conduits or wire -holding structures installed prior to the effective date of this Ordinance. 5. Facilities not to be hazardous or interfere. All transmission lines, wires, conduits, cable, and other equipment and structures shall be constructed, maintained, installed and located in compliance with all applicable local ordinances and so as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any Public Street or Public Way and at all times shall be kept and maintained in a safe, adequate, and substantial condition, and in good order and repair, consistent with the provisions of Paragraph B of this Section. The Grantee shall at all times employ reasonable care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. The Grantee shall not place poles, conduits, or other wire -holding structures where they will interfere with any gas, electric, or telephone fixtures, or with any hydrants or mains. All poles, conduits, or other wire -holding structures shall be placed in the right-of-way between the Public Street or Public Way and the property as specified by the Village. Suitable barricades, flags, lights, flares, or other devices shall be used at such time and places as are required by applicable Village ordinances and at such additional times and places as are reasonably required for the safety of the public. Any poles or other fixtures placed in any Public Street or Public Way by the Grantee shall be placed and maintained in such a manner as not to interfere with the usual travel or other existing or projected uses of such Public Street or Public Way. The Grantee shall at all times comply with any and all rules and regulations enacted or to be enacted by the Village with reference to construction activity in Public Streets or Public Ways. The Village reserves the right hereunder to inspect and examine at any reasonable time and upon reasonable notice the property used in whole, or in part by the Grantee. 6. Facilities removal as necessary and directed. Grantee shall remove, replace or modify at its own expense, the installation of any of its facilities as M reasonably necessary and when directed to do so by the Village. 7. Permits required. No construction, upgrade, or relocation of the Cable System or its components within the Public Streets or Public Ways of the Village shall be initiated without approval by means of a permit issued by the Village. In issuing such permit, the Village may, at its option, impose such conditions, restrictions, or regulations as are needed for protection of public property, private property, buildings, structures, and public utilities, for maintaining the safety of the public, and the unimpeded flow of traffic by pedestrians and vehicles. Upon receipt of such permit, Grantee shall provide the Village fourteen (14) days notice prior to the start of construction, however, such notice may be waived by the Village Manager in the event that construction, upgrade, or relocation of the Cable System or Multichannel Video System or its components is necessitated by emergency conditions. 8. Safety compliance. Grantee shall comply with the standards of the Occupational Health and Safety Act of 1970, as now or hereinafter amended or by any successor provisions, and standards established by the Illinois Department of Labor, or where applicable, by the Village in maintaining its operational facilities, working conditions, and work procedures utilized as a part of the construction, upgrade, installation, repair and maintenance of the Cable System or Multichannel Video System. 9. Contractor Qualifications: a. Any contractor performing work for Grantee with respect to any construction, upgrade, installation, repair or maintenance of the Cable System or Multichannel Video System shall be properly and currently licensed under laws of the State of Illinois, Cook or DuPage Counties, and under ordinances of Elk Grove Village. b. Grantee shall, where possible, give preference for employing local licensed contractors for construction, upgrade, installation, repair and maintenance of the Cable System or Multichannel Video System. 10. Undergrounding and method of installation. All installations shall be underground in those areas of the Village where public utilities providing both telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are above ground at the time of installation, the Grantee may install its service above ground, provided that at such time as those facilities are required to be placed underground by the Village or are placed underground, the Grantee shall likewise place its services underground without additional cost to the Village 59 or to the individual Subscriber so served within the Village. Where not otherwise required to be placed underground by this Ordinance, the Grantee's Cable System or Multichannel Video System facilities shall be located underground at the request of the adjacent property owner, provided that the excess cost over aerial location shall be bome by the property owner making the request. All wires, cables, amplifiers, node sites, and other property shall be constructed and installed in an orderly and workmanlike manner. All cables and wires shall be installed parallel with existing telephone and electric wires wherever possible. Multiple cable configurations shall be arranged in parallel and bundled together with proper lashing or conduit, with due respect for engineering and safety considerations. Aerial cable which is placed over Public Streets or Public Ways shall be hanged at a height and underground cable shall be buried at depths for trunk and feeder cable, and service drops in accordance with guidelines established by the National Electrical Safety Code as referred to herein. 11. Restoration of property: a. In the event of disturbance of any Public Street or Public Way, private property or improvement on either of them by the Grantee, it shall, at its own expense and in a manner approved by the Village or other appropriate governmental authority, and the owner, replace and restore such Public Street, Public Way, private property or improvement to its original condition in a workmanlike and professional manner. In the event the Grantee fails to perform such replacement or restoration, the Village or the owner shall have the right to restore said property at the sole expense of the Grantee. Demand for payment to the Village or owner for such replacement or restoration shall be immediate and in writing. All requests for replacement or restoring of such Public Streets, Public Ways or private property must be in writing to the Grantee. b. Where areas of grass have been disturbed, Grantee shall replace said affected grassy areas with sod as soon as is feasible. Grantee shall be responsible for the initial maintenance of the sod, including watering and fertilization, and shall inform the property owner, in writing, of the proper care of the sodding and the owner's responsibility for ongoing maintenance of the sod. In the event that the sodded grass dies before the end of the first season, Grantee shall replace the sodded grass at his expense. C. In the event that a Subscriber requests Grantee to remove cable home M wiring from a Subscriber's residence, Grantee shall pay for any damage caused by installation or removal of wiring, except that, Grantee shall not be responsible for repairing damage to exterior or interior was, floors, paneling or siding. Grantee shall comply with the provisions of 47 CFR 76.802 concerning the disposition of cable home wiring. 12. Protection of facilities. Nothing contained in this Section shall relieve any Person, company, or corporation from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing any work connected with grading, regrading, or changing the line of any Public Way or Public Street placed or with the construction of any sewer or water system. 13. Notice of Village improvements. The Village may give the Grantee reasonable notice of plans for improvements of Public Streets or Public Ways where paving or resurfacing of a permanent nature is involved. The notice shall contain the character and nature of the improvements, the streets upon which the improvements are to be made, the extent of the improvements, and the work schedule for the project. The notice may give Grantee sufficient time to make any additions, alterations, or repairs to its facilities as it deems necessary in advance of the actual commencement of the work so as to permit the Grantee to maintain continuity of service. 14. Emergency removal of plant. Whenever, in case of emergency, it becomes necessary in the judgment of the Village to remove or damage any of the Grantee's facilities, no charge shall be made by the Grantee against the Village for restoration or repair. 15. Alternate routing of plant. In the event continued use of a Public Street or Public Way is denied to the Grantee by the Village for any reason, Grantee will make every reasonable effort to provide service over alternate routes. 16. Moving of buildings or other structures. At the request of any Person holding a valid building -moving permit issued by the Village, or other appropriate governmental authority, and upon at least forty-eight (48) hours notice, Grantee shall temporarily raise, lower, or cut its wires as may be necessary to facilitate such move. The direct expense of such temporary changes, including standby time, shall be paid to the permit holder, and Grantee shall have the authority to require payment in advance. 17. Authority to trim trees. Grantee shall have the authority to trim trees upon 61 and overhanging Public Streets or Public Ways and other public places of the Village so as to prevent the branches of such trees from coming into contact with the wires and cables of the Grantee. All trimming is to be done under the supervision and direction of the Village after the explicit, prior written notification and approval of the Village at the expense of the Grantee. The Grantee may contract for such services, however, any firm or individual so retained shall receive Village approval prior to commencing such activity. 18. Removal of vegetation. Grantee shall not remove, cut or trim any tree, shrub, plant, or vegetation on public property without first obtaining specific written authorization from the Village. Any such work shall be done at Grantee's expense and shall be subject to the supervision and direction of the Village. Any cutting or removal of trees, shrubs, plants or vegetation on private property shall not be performed without first receiving the written permission of the property owner. Grantee shall be responsible for, shall indemnify, defend and hold harmless the Village, its officers, agents, and employees from and against any damages arising out of or resulting from the removal, trimming, mutilation, or of any injury to any tree or trees proximately caused by the Grantee or its officers, agents, employees, contractors, or subcontractors. 19. Construction Bond: a. Upon grant of a Franchise upon which initial construction of a Cable System or Multichannel Video System is proposed, Grantee shall file and maintain with the Village a construction bond in an amount and manner so specified in the Franchise Agreement. b. Upon grant of a Franchise upon which upgrade or reconstruction of the Cable System or Multichannel Video System is proposed, Grantee shall file and maintain with the Village a labor and material bond in an amount so specified in the Franchise Agreement in such form as the Village may determine. C. For any period of time other than construction or reconstruction of the Cable System or Multichannel Video System, an annual blanket bond in the amount of fifteen thousand dollars ($15,000.00) shall be filed and maintained with the Village. Such blanket bond is to cover any excavation, demolition, or cutting into by Grantee of any Public Street or Public Way in the Village for that calendar year in such M_ form as the Village may determine. Section 6.11. CONSTRUCTION SCHEDULE AND REPORTS A. Upon accepting the Franchise, Grantee shall, within sixty (60) days, file the documents required to obtain all necessary Federal, State, and local licenses, permits and authorizations required for the conduct of its business, and shall submit monthly reports to the Franchising Authority on progress in this respect until all such documents are in hand. Failure of the Grantee to pursue all necessary steps to secure the aforementioned authorizations with due diligence shall constitute a substantial violation of this Ordinance. B. Upgrading of facilities, equipment and service. Grantee shall upgrade its facilities, equipment and service as the demands of the Subscribers dictate so that the Cable System or Multichannel Video System is as advanced as the current state of technology with field proven equipment will allow. Changes in facilities and equipment involving a substantive upgrade of the Cable System or Multichannel Video System shall be subject to consideration and approval by the Franchising Authority. C. Construction/Upgrade schedule. Franchise applications shall include a schedule for construction or, in the case of a Franchise being considered for renewal, a schedule for upgrade, including a timetable for commencement or enhancement of Cable Services to Subscribers of the Cable System or Multichannel Video System, including a timetable for commencement of Cable Service to Subscribers. Said schedule shall be incorporated into the Franchise and shall be enforceable as to the Grantee under the provisions of this Ordinance. D. As -Built drawings required. Grantee shall provided the Franchising Authority with As -Built drawings as the system is constructed or upgraded no later than one hundred eighty (180) days from the acceptance of the Franchise. As a complement to said As - Built drawings, Grantee shall provide a map indicating the location of the Cable System or Multichannel Video System lines and equipment installed or in use throughout the Franchise Area on an official map issued by the Village Clerk's office. E. Each Grantee shall fill all requests for Cable Service, once facilities are in place consistent with the proposed schedule for service, within thirty (30) days after the date of each request. A record of all service requests shall be kept until the next scheduled performance evaluation session as described in Section 4.4 of this 63 Ordinance or for a longer period as determined by the Franchising Authority and shall be available for public inspection at the local office of the Grantee during regular office hours. F. The Grantee shall furnish the Franchising Authority a detailed construction schedule and map setting forth target dates by areas for commencement of service to Subscribers. The schedule and map shall be updated whenever substantial changes become necessary. G. Every three (3) months, after the start of construction, Grantee shall furnish the Village a report on progress of construction until complete. The report shall include a map that clearly defines the areas wherein regular Subscriber service is available. H. Construction delays. At such time where Grantee is delayed in completing the construction or reconstruction of the Cable System or Multichannel Video System, or in providing service to Dwelling Units, businesses, public buildings, institutions, Schools, or other properties, and such delay is beyond the physical or administrative control of the Grantee, Grantee shall notify the Franchising Authority of said delay within ten (10) calendar days from the occurrence of the delay, and shall indicate the cause or causes for the delay. Upon receipt of notification by the Grantee of the delay of service, the Franchising Authority and the Grantee shall agree to establish a date by which the delay shall end and construction, reconstruction, or service shall resume. In the event that the delay continues beyond the control of Grantee and extends beyond the agreed-upon date, the Franchising Authority and the Grantee may agree to establish a new date for resumption of construction, reconstruction or service. Delays in construction, reconstruction or service which extend beyond a final date agreed upon by Grantee and the Franchising Authority shall constitute a violation of the Franchise. 1. Failures of performance. In the case of a failure to perform within the material provisions of this Section or Section 6.8 hereinabove, the Franchising Authority shall consider such failures to perform as a material violation 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, Franchising Authority may, at its option, consider Grantee to be in default of Franchise and initiate Franchise revocation proceedings as described herein. Section 6.12. PROTECTION OF PRIVACY The Grantee shall comply with all applicable local and State laws, rules and regulations concerning consumer privacy, and shall fully comply with Federal laws concerning consumer privacy as expressed in Section 631 et. seq. of the Communications Policy Act of 64 1934, as now or hereinafter amended, or by any successor provision. Section 6.13. AREAWIDE INTERCONNECTION OF CABLE SYSTEM OR MULTICHANNEL VIDEO SYSTEMS A. Grantee, if ordered to do so by resolution of the Village, shall Interconnect Access Channels and/or Local Origination Channels of its Cable System or Multichannel Video System with all other Cable Systems or Multichannel Video Systems in adjacent areas. B. Upon receiving an order to Interconnect, the Grantee shall make a good faith effort to obtain agreements for sharing of Interconnection costs among all Interconnecting companies. The Village may extend the time to Interconnect or may rescind its order to Interconnect upon finding that the Grantee has made a good faith effort but has been unable to obtain a reasonable Interconnection agreement or that the cost of the Interconnection would cause an unreasonable increase in Subscriber rates. C. Each Grantee shall cooperate with any entity established for the purpose of regulating, financing or otherwise providing for the Interconnection of Cable Systems. D. The Village may require a Grantee to provide Local Origination equipment that is compatible with that used by other Cable System or Multichannel Video Systems within the adjacent area. E. Grantee shall make every reasonable effort to cooperate with cable television franchise holders in contiguous communities in order to provide Cable Service in areas outside the Grantee's Franchise Area. F. The Village shall make every reasonable effort to cooperate with the franchising authorities in contiguous communities, and with the Grantee, in order to provide cable television service in areas outside the Village. ARTICLE 7 GENERAL PROVISIONS Section 7.1. LIMITS ON GRANTEE'S RECOURSE A. Grantee shall have no recourse against the Village for any loss, expense or damage resulting from the terms and conditions of this Ordinance or the Franchise or because of the Village's grant or enforcement thereof, nor for the Village's failure to have the authority to grant the Franchise. The Grantee expressly agrees that upon its 65 acceptance of the Franchise it does so relying upon its own investigation and understanding of the power and authority of the Village to grant said Franchise. B. The Grantee, by accepting the Franchise, acknowledges that it has not been induced to accept same by any promise, verbal or written, by or on behalf of the Village or by any third person regarding any term or condition of this Ordinance or the Franchise not expressed therein. The Grantee further pledges that no promise or inducement, oral or written, has been made to any Village employee or official regarding receipt of the cable television Franchise other than as contained in the Franchise Agreement. C. The Grantee further acknowledges by acceptance of the Franchise that it has carefully read the terms and conditions of this Ordinance and the Franchise and accepts without reservation the obligations imposed by the terms and conditions thereof. D. The decision of the Village concerning Grantee's selection and awarding of the Franchise shall be final. E. The Grantee shall not apply for any waivers, exceptions, or declaratory rulings from the Federal Communications Commission or any other Federal or State regulatory agency without concurrent written notice to the Village. Section 7.2. COMPLIANCE WITH STATE AND FEDERAL LAW Grantor and Grantee shall, at all times, comply with all laws of the State and Federal government and the rules and regulations of any Federal or State administrative agency. Section 7.3. SPECIAL LICENSE Upon such conditions as the Village may deem necessary, and notwithstanding the provisions of Article 3 of this Ordinance, the Village may issue a license, easement, or other permit to anyone other than the Grantee to permit that Person to traverse any portion of the Village in order to provide service outside the Village. Such license or easement, absent a grant or a Franchise in accordance with this Ordinance, shall not authorize nor permit said Person to provide a cable television service of any nature to any home or place of business within the Village, nor to render any service or connect any Subscriber within the Village to Grantee's Cable System or Multichannel Video System. Section 7.4. FRANCHISE VALIDITY Any Franchise issued hereunder shall require acceptance of the validity of the terms and M. - conditions conditions of this Ordinance and the Franchise in their entirety and that it will not, at any time, proceed against the Franchising Authority in any claim or proceeding challenging any term or provision of this Ordinance or challenging the Franchise as unreasonable, arbitrary, or void, or alleging that the Franchising Authority did not have the authority to impose such term or condition. Section 7.5. FAILURE TO ENFORCE FRANCHISE The Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or the Franchise by any failure of the Village upon any one or more occasions, to insist upon the Grantee's performance or to seek Grantee's compliance with any one or more of such terms or conditions. Section 7.6. RIGHTS RESERVED TO THE GRANTORS A. The Village hereby expressly reserves the following rights, which shall not be deemed to be waived or abrogated by any Franchise granted pursuant to this Ordinance. To exercise its governmental powers, now or hereafter, to the full extent that such powers may be vested in or granted to the Village. 2. To adopt, in addition to the provisions contained herein, and in the Franchise, and in any existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of its police power for the general health, safety, and welfare of the community. 3. To renegotiate any sections of the Franchise granted pursuant to this Ordinance should such substantial section(s) of this Ordinance or Franchise be rendered void by the Federal Communications Commission, or by subsequent changes in applicable Federal or State laws. Section 7.7. EMPLOYMENT REQUIREMENT The Grantee shall not refuse to hire, nor discharge from employment, nor discriminate against any Person regarding compensation, terns, conditions or privileges of employment because of age, sex, race, color, creed or national origin, marital or veteran status, or disability. The Grantee shall take affirmative action to insure that employees are treated fairly and equally during employment, without regard to their age, sex, race, color, creed, marital or veteran status, or national origin or disability. The condition includes, but is not limited to, the following: recruitment advertising, employment interviews, employment, rates 67 of pay, upgrading, transfer, demotion, lay-off, and termination. The Grantee will comply with equal employment opportunity requirements as stated in Section 634 et. seq. of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or by any successor provision, and with applicable Illinois state statutes. Section 7.8. TIME IS OF THE ESSENCE OF THIS AGREEMENT Whenever this Ordinance or the Franchise Agreement sets forth any time for any act to be performed by the Grantee, such time shall be deemed of the essence and the Grantee's failure to perform within the time allotted shall, in all cases, be sufficient ground for the Franchising Authority to invoke an appropriate remedy or penalty available under the terms and conditions of this Ordinance and the Franchise, including the possible revocation of the Franchise. Section 7.9. ACCEPTANCE This Ordinance and the Franchise and their terms and conditions shall be accepted by the Grantee by written instrument filed with the Franchising Authority within thirty (30) days after the granting of the Franchise, unless said period is extended by the Franchising Authority at its sole discretion. In its acceptance, the Grantee shall declare that it has carefully read the terms and conditions of this Ordinance and the Franchise and accepts all of the terms and conditions imposed by this Ordinance and the Franchise and agrees to abide by same. Section 7.10. PROHIBITED ACTS A. Reselling service prohibited. No person receiving within the Franchise Area any Cable Service, program, or signal transmitted by any Grantee operating under a Franchise issued by the Franchising Authority, shall resell such service, program, or signal without the expressed written consent of Grantee. B. Unlawful use of equipment, devices, computer hardware and software. It shall be unlawful for any Person to install, attach, wire, program, or connect or to cause to be installed, attached, wired, programmed, or connected any device, or computer hardware or software which enables the use of cable television signals transmitted by the Grantee without compensation to the Grantee for said cable television signals. M] C. Removal or destruction prohibited. It shall be unlawful for any Person, firm, group, company, corporation, or governmental body or agency to willfully interfere, tamper, remove, obstruct, or damage any part, segment, or content of a Franchised Cable System or Multichannel Video System for any purpose whatsoever. This Section shall except those actions of the Village which are referred to in Section 6.10 (D)(14). D. Unless otherwise provided, any Person convicted of violating any provision of this Section of this Ordinance, or any rule or regulation promulgated hereunder, shall, upon conviction, be subject to a fine not to exceed five hundred dollars ($500.00) and costs for each offense in accordance with 65 ILCS 5/1-2-1. Each day of continuing violation shall constitute a separate and distinct offense. Section 7.11. FORCE MAJEURE Except as provided in Section 6.11 (H) hereof, whenever a period of time is provided for in this Ordinance or the Franchise Agreement, for either the Village or the Grantee to do or perform any act or obligation, neither party shall be liable for any delays due to war, riot, insurrection, rebellion, 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, or any cause beyond the control of said party. In such event, said time period shall be extended for the amount of time said party is so delayed. An act or omission shall not be deemed to be beyond a Grantee's control if committed, omitted, or caused by a corporation or other business entity which holds a controlling interest in the Grantee, whether directly or indirectly. Further, the failure of a Grantee to obtain financing shall not be an act or omission which is beyond the control of the Grantee. Section 7.12. LIQUIDATED DAMAGES A. By acceptance of the Franchise, the Grantee agrees that failure to comply with any time and performance requirement, as stipulated in this Ordinance and the Franchise Agreement, will result in damage to the Village, and that it would be impracticable to determine the actual amount of such damage in the event of delay or non- performance; therefore, the Franchise Agreement shall include a provision for liquidated damages to be paid by the Grantee, in amounts set forth in the Franchise Agreement and chargeable to the Security Fund created therein. 1W B. If the Village concludes that a Grantee is liable for Liquidated Damages pursuant to this Section, it shall issue to Grantee, by certified United States mail, a notice of intention to assess Liquidated Damages. The notice shall set forth the basis for the assessment and shall inform the Grantee that Liquidated Damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the Village Board and the Village Board shall send a written notice of appeal by Certified United States mail to the Grantee within fifteen (15) calendar days of the date on which the Franchising Authority sent the notice of intention to assess Liquidated Damages. Such notice of appeal shall contain a brief statement of Grantee's basis for appeal. The hearing on Grantee's behalf shall be within forty (40) calendar days of the date on which the Franchising Authority sent the notice of intention to assess Liquidated Damages penalties. Unless the Village Board indicates to the contrary, said Liquidated Damages shall be assessed beginning with the date on which the Franchising Authority sent the notice of intention to assess Liquidated Damages and continuing thereafter until such time as the violation ceases as determined by the Franchising Authority. Section 7.13. REMEDIES No provision of this Ordinance shall be deemed to bar or otherwise limit the right of the Franchising Authority to seek or obtain judicial relief for a violation of any provision of the Franchise or any rule, regulation, requirement, or directive promulgated thereunder except for those violations specifically remedied by the imposition and application of Liquidated Damages. Neither the existence of other remedies identified in this Ordinance nor the exercise thereof shall be deemed to bar or otherwise limit the right of the Franchising Authority to recover monetary damages, except where Liquidated Damages are prescribed, for such violation by the Grantee, or judicial enforcement of Grantee's obligations by means of specific performance, declaratory action, injunctive relief, or any additional remedy available at law or in equity. The Franchising Authority retains the right, at its sole discretion, to reduce or waive any of the damage amounts listed in the Franchise Agreement where extenuating circumstances exist or conditions beyond the control of the Grantee are found to exist. Such determination of the existence of extenuating circumstances shall be made after reasonable conference between the Franchising Authority and Grantee. Exclusive of the Liquidated Damages provided hereinabove, each violation of any other provision of the Franchise Agreement shall be considered a separate violation for which any remedy available at law or in equity may be imposed. 70 Section 7.14. GRANTEE MAY PROMULGATE RULES Grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable it to exercise its rights and perform its services under this Ordinance and the Rules of the FCC, and to assure uninterrupted service to each and all of its Subscribers. Such rules and regulations shall not be deemed to have the force of law. Such rules and regulations shall be filed with the Franchising Authority and shall not, unless the Franchising Authority consents in writing to an earlier effective date, take effect until thirty (30) days after such filing. Section 7.15. REPEAL Any Ordinance or part of Ordinance conflicting with the provisions of this Ordinance is hereby repealed so far as the same affects this Ordinance. Section 7.16. DELEGATION OF POWERS Any right, power or duty of the Village, the Franchising Authority, or any official of the Village, under this Ordinance may be transferred or delegated by ordinance, resolution, or other appropriate action of the Village, to an appropriate officer, employee, or department of the Village, or any other legal authority, including any intergovernmental agency created for the purpose of regulating the operation and development of the Cable System or Multichannel Video System. Section 7.17. SEVERABILITY If any section of this Ordinance or the Franchise, or any portion thereof, is held illegal, invalid or unconstitutional by any court of competent jurisdiction or administrative agency, such decision shall not affect the validity of the remaining portions hereof, except as otherwise provided for herein. It is the legislative intent of the Village that the Ordinance would have been adopted if such illegal provision had not been included or any illegal application had not been made. Section 7.18. EFFECTIVE DATE This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. 71 Section 7.19. PUBLICATION This Ordinance shall be printed and published in pamphlet form by order of the Village Board. AYES: Trustees: N. Czarnik, B. Dill, P. Feichter, S. Lissner, J. Petri, C. Prochno NAYS: None ABSENT: None Passed and approved this 12th day of September, 2000 aig B. Johnson Village President ATTEST: Ann I. Walsh Village Clerk PUBLISHED this 15th day of September , 2000 in pamphlet form.