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HomeMy WebLinkAboutRes 27-81 07/21/1981 RESOLUTION NO. 27-81 A RESOLUTION TO APPROVE AND AUTHORIZE THE I EXECüTION OF A FRANCHISE AGREEMENT BETWEEN I, ~~~. V~g~A;~E O~N~~~~A~~g~P~~; ~~~~*i~~N~;, II A CABLE COMMUNICATION SYSTEM . Ii IIWHEREAS, on June 2, 1981, this Village adopted Ordinance No. 3120 lito add to the Municipal Code of the Village of Mount Prospect !!a chapter entitled "Cable Communications Code" establishing i!provisions for the franchising and regulation of cable television !!systems within the Village of Mount Prospect; and "¡IWHEREAS, this Village did participate with other member munici- ¡¡palities in the Northwest Municipal Conference which body conduct d Ha comprehensive study and evaluation process with respect to the' ¡!field of cable television franchising and regulation; and ,IWHEREAS, as a result of such participation in the Northwest ¡IMUnicipal Conference and in the studies and eval uations conducted !;thereby, an Agreement enti tIed "Franchise Agreement" concerning lIa franchise .to be extended by the Village of Hount Prospect to !!CABLENET, INC. for the purpose of installing and operating a !Icable communication system wi thin this Village has been submi tted ~o.this Village for consideration and approval (a copy of which ~Franchise Agreement is attached hereto, labeled "Exhibit A", and II.rade a part of this Resolution by reference); and WHEREAS, said Franchise Agreement, and the terms, provisions, I~onditions, obligations and reservations contained therein, are !~n compliance with the provisions "of the Cable Communication Code !~s heretofore adopted by this Village; and I~EREAS, it is deemed to be in the 'best interests of this Village !that the said Franchise Agreement be entered into. H . ' ¡pow, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES ;OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS: ~ECTION ONE: The Franchise Agreement by and between the Village ¡þf Mount Prospect, Illinois and CABLENET, INC. granting a non-exclu- I~ive franchise for the Installation and operation of a cable Ibommunication system within this Village during a term of fifteen ~15) years commencing August 1, 1981, is hereby approved and. !kccepted. ~ECTIONTWO: The Mayor and the Village Clerk are hereby authorize land directed .to execute said Franchise Agreement, with the corpora e !beal attached thereto, on behalf of this Village, and to take all Ibther steps necessary to accomplish thè Franèhise "Grant provided ¡~or therein, upon full performance and compliance by the Franchise ~f allth~ conditions precedent to its right to install and operat. the cable communication system franchise. II I II ¡ 1 , ¡ ¡¡SECTION THREE: This Resolution shall be in full force and effec ¡¡upon its passage and approval in accordance with law, and the !¡Franchise Agreement approved herein shall take effect on August Ill' 198i. I¡(ASSED this 21 day of July , 1981. ¡¡AYES: Arthur Farley Floros Mìl1er Murauskis Wattenberg .1 '¡NAYS: II None ¡¡ABSENT: I~PPROVEb thi s 21st day of II I I None July 1981. t~ )"~ MAYOR If I II ¡I \1 I II II I I I I I ¡ -2- , , , n ¥ \J' , ~ ... " FRANCHISE AGREEMENT Table of Contents Franchise Agreement ................................... SECTION 1: Grant and Acceptance of Franchise......... SECTION 2: Definitions............................... SECTION 3: Commitments by Franchisee to Extrinsic l,latters................................. Rights Reserved by l1unicipality........... Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Territorial Extent of Franchise........... Line Extension Policy..................... Description of System Design.............. Technical Performance and Standards....... Areawide Interconnection of Cable Systems. Channel Allocation........................ Construction Schedule..................... Standards and Restrictions as to SECTION 4: SECTION 5: SECTION 6: SECTION 7: SECTION 8: SECTION 9: # SECTION 10: SECTION 11: SECTION 12: SECTION 13: SECTION 14: SECTION 15: SECTION 16: SECTION 17: SECTION 18: SECTION 19: SECTION 20: SECTION 21: SECTION 22: SECTION 23: SECTION 24: SECTION 25: SECTION 26: SECTION 27: SECTION 28: SECTION 29: SECTION 30: SECTION 31: SECTION 32: SECTION 33: Construction and Installation........... Services to Subscribers............... .... Access Channel Service................ .... Maintenance and Customer Service.. ........ Public Access Channel.................. ... Services to Municipality.................. Services to Educational and Other Page 1 2 2 - 3 3 - 5 5 - 6 6 7 7 8 8 9 - 12 12 12 13 - 16 16 - 17 17 18 19 - 20 20 - 21 Institutions............................ 21 - 26 Program and Production Assistance. ........ 26 Production Facilities..................... 27 - 28 Leased Channels..............""""""" 28 - 29 Franchise Fee............................. 29 Liability and Indemnification............. 30 Delegation of Powers................ ...... 30 Notices................................... 30 Fees Associated with Grant of Franchise... 30 - 31 Initial Construction not a Transfer of Franchise............................... 31 Franchise Renewal................. ........ 31 - 32 Franchise Revocation Procedure...... ...... 32 - 33 Time Essence of Agreement/Force Majeur. ... 34 Amendments................................ 34 - 36 Effective Date............................ 36 , , ¡~ ~ .., \ If ~ FRANCHISE AGREEMENT This Agreement is entered into by and between the Village of Mount Prospect, an Illinois Municipal Corporation, hereinafter referred to as, "Municipality" and Cablenet, Inc., hereinafter referred to as "Franchisee." In consideration of the faithful performance and strict observance by the Franchisee of all the terms, provisions, conditions, obligations and reservations hereinafter set forth or provided for herein, and also provided for in the Village of Mount Prospect's Cable Communication Code pursuant to which this agreement is executed, and in consideration of the grant to the Franchisee, by the Municipality of a cable communication system franchise, it is hereby agreed between the parties hereto as follows: - 1 - '" , , ¡' I,. r\ ¡! SECTION 1: GRANT AND ACCEPTANCE OF FRANCHISE The Municipality hereby grants to Franchisee a non- exclusive franchise and right to erect, install, construct, reconstruct, replace, remove, repair, maintain, operate in or upon, under, above, across and from the streets, avenues, highways, sidewalks, bridges, and other public ways, easements, and rights-of-ways as now existing and all extensions thereof, and additions thereto, in and belonging to the }funicipality, all necessary poles, wires, cable, coaxial cables, transformers, amplifiers, underground conduits, manholes and other television and/or radio conductors and fixtures for the sole purpose of the ownership, maintenance and operation in the Municipality of a cable communication system, all in strict accordance with the laws, ordinances and regulations of the United States of America, the State of Illinois, and the Municipality, as now existing or hereafter adopted or amended. Franchisee hereby accepts the franchise and warrants and represents that it has examined all of the provisions of the Village of Mount Prospect's Cable Communications Code, and this franchise, ,and it accepts and agrees to all the provisions contained therein. SECTION 2: DEFINITIONS Unless the context clearly indicates that a different meaning is intended, for the purposes of this Agreement all terms, phrases, words and their derivations shall have the meaning given them in Section 6.201 of the Cable Communications Code. The following additional words and phrases shall have the meanings ascribed to them as follows: IDownstreamChahnel" - means a channel thrôugh which an electronic or other signal, originated or converted at the headend or subheadends, may be transmitted or received at the location of the subscriber's or user's receiver. "Headend" - means electronic equipment including, but not limited to, antennae, pre-amplifiers, frequency converters, demodulators, modulators and related equipment used to amplify, filter and/or convert television signals for distribution over the cable communications system's channels, including antenna tower, satellite earth stations and any building housing any of the above equipment. - z - , , , " , '~ I " r'\ "Portapak" - means a small camera, which can be held held on the shoulder. This equipment has a built-in eye- level view finder and zoom lens with an associated portable video tape and battery pac. The equipment usually comes with a directional microphone mounted on the camera. Audio and visual adjustments are usually automatic. "System" - means the cable communication system constructed and òperated by Franchisee that serves the municipalities of Arlington Heights, Bartlett, Des Plaines, Hanover Park, Mount Prospect, Niles, Park Ridge, Prospect Heights, Schaumburg, Streamwood, and Wheeling. "Upstream Channel" - means a channel through which television signals emanating from a subscriber's or user's location and/or the location of any other facility except the main transmitting facility of the franchisee is transmitted via the cable communication system to the system headend or other appropriate point. SECTION 3: COMMITMENTS BY FRANCHISEE TO EXTRINSIC MATTERS The Franchisee hereby: (a) Accepts and agrees to all of the provisions of the Cable Communications Code, and the obligations imposed upon it thereby, to the same degree, and extent as if each and every such provision were repeated ,herein, and irrespective of whether any such provisions be so repeated. The Franchisee further accepts and agrees that, except to the extent they may conflict with this franchisè or be expressly modified herein, it hereby contractually binds itself, to the Municipality, as to all commitments heretofore made by it to the Municipality, the Northwest Municipal Conference and/or to any other Municipality which participated with the Municipality in the cable television franchising process, relating to construction and operation of i~s system, and the services to be rendered thereby, as recited in the following items, and which are hereby incorporated by reference into this Franchise Agreement: 1. Request for Proposal for Providing Cable Television Service in the Northwest Suburban area of Greater Metropolitan Chicago, July 5, 1979. - 3 - , , r'\ ( . . , ^, 10. ~ ! 2. Proposal for a Cable Telecommunicqtion Net- work for the Northwest Municipal Conference, October 1, 1979. 3. "Cablenet Update '81" 4. Letter from Walter Weckers, Vice President, Cablenet, to all Mayors, Trustees, Aldermen and Administrative Managers of the NWMC and the NWMC Executive Office, January 12, 1981. 5. Response and Amendments to the.Northwest Municipal Conference Cable Television Selection Council questionnaire, January 23, 1981. Letter from Walter Weckers, Vice President, Cablenet, to William Grams, correcting questionnaire, January 28, 1981. 6. Letter and attachments from Walter Weckers, Vice President, Cablenet, March 19, 1981. Also shown as Exhibit B. 7 . Letter and attachments from Walter Weckers, Vice President, Cablenet, to William Grams, April 6, 1981. 8. Letter and attachments from Avis Nopar, Community Programming Coordinator, Cablenet, to Northwest Municipal Conference Access Committee, April 27, 1981. 9. Report submitted by Cablenet, Inc., to NWMC on April 10, 1981 describing studio and mobile van equipment that will be purchased according to terms of the Franchise; plus general marketing procedures. Letter from Walter Weckers to William Grams dated June 10, 1981 regarding rates, definition of Portapak and prewiring of multiple dwelling units. - 4- ( , r.j In case of conflict or ambiguity between any of the preceding documents that provision which provides the greatest benefit to the Municipality in the opinion of the Mayor and Board of Trustees shall prevail. (b) Represents and warrants to the Municipality that it has examined all of the provisions of the Cable Communications Code and waives any claims that any provisions thereof are unreasonable, arbitrary, invalid or void. (c) Recognizes the right of the Municipality to make reasonable amendments to the Cable Communications Code; or Franchise Agreement as provided in Section 6.403 of the Code. It further recognizes and agrees that the Municipality shall in no way be bound to renew the franchise at the end of any franchise term. .:-- (d) Agrees to use its ~est efforts, at its expense, to actively and diligently conduct the prosecution of all applications to the FCC (or other governmental regulatory bodies) necessary to permit construction and commencement of its operations in accordance with ordinance #3120 and 'this Franchise Agreement, including but not limited to FCC approval of a franchise fee of 5% of gross revenues and any special licenses or permissions associated therewith. SECTION 4: RIGHTS RESERVED BY MUNICIPALITY In addition to the rights reserved to the Municipality in Section 6. 706 of the Cable Communicat:ions Code, the franchise is subject to the ,right of the Municipality, pursuant to the provisions of the Cable Communications Code, to: (a) To revoke the franchise for misuse, non-use, or the f~ilure to com~ly ~ith the provisions of the Cable Communications'Còde, or any other local, state or federal laws, or regulations. (b) to'require proper and adequate extensions of plant and service and maintenance thereof at the highest practicable standard of efficiency, and specifically to require extension of subscriber service to all of the Municipality ,qithin tHO (2) years of the effective date of the franchise. - 5 - , , " <,1 (c~') establish reasonable standards of ser~and quality OI products, and to prevent unjust discrimination in service or rates. (d) To require continuous and uninterrupted service to the public in accordance with the terms of the franchise throughout the entire peirod thereof. (e) To impose such other regulations as may be determined by the Municipality to be conducive to the safety, welfare and accommodation of the public. (f) To control and regulate the use of its streets, alleys, bridges, rights-of-way, and public places and the space above and beneath them. (g) To install and maintain without charge, its own equipment upon the Franchisee's poles upon the condition that said equipment does not unreasonably interfere with the operations of the Franchisee. (h) Through its appropriately designated representatives, to inspect all construction or installation work performed subject to the provisions of this Franchise Agreement and the Cable Communications Code and make such inspections as it shall find necessary to ensure compliance with the terms of the franchise, the Cable Communications Code, and other pertinent provisions of law. (i) At the expiration of the term for which this franchise is granted, or upon the revocation of the franchise as provided in the Cable Communications Code, to require the Franchisee to remove at its own expense any and all portions of the Cable Television System from the public ways within the Municipality should the franchise not be renewed and no successor Franchisee be named 9Y the Municipality. (j) To the extent permitted by law, to limit the length and frequency of commercials and the time devoted thereto in relationship to the total time devoted to programming. (k) To levy a tax upon subscribers, or upon the franchise operations, occupation, service or privileges provided herein, to the extent permitted by law. SECTION 5: TERM The term of this franchise shall be fifteen (15) years from the effective date of its execution, on condition that the bonds and policies of insurance required by the Cable Communications Code are properly executed and delivered, and all other terms and conditions are complied with; it shall continue unless sooner terminated or renewed as provided by the Cable Communications ~o~e~- ~b- , , " , , '" ~¡ SECTION TERRITORIAL EXTENT OF FRANCHISE The Franchisee is authorized to operate throughout the entire territory within the corporate limits of the Municipality, as the same now or in the future may exist. Pursuant to Section 6.601 of the Cable Communications Code, the Primary Service Area shall be the corporate boundaries of the Municipality as existing as of the effective date of this Franchise Agreement (Exhibit A). The Municipality specifically retains the right to award to other Franchisees the right to operate a cable system in the Municipality. SECTION 7: LINE EXTENSION POLICY In addition to the requirements of Section 6.602 of the Cable Communications Code, Franchisee extend its CATV System and make CATV Service available beyond the Primary Service Area (PSA) following completion of construction within the PSA, as follows: (a) Along streets or parts of streets beginning at the boundary of the PSA or at any trunk or feeder line extension beyond the PSA within one (1) year after such street reaches a minimum density of thirty (30) units per street mile in an area zoned for industrial or light industrial use, and, (b) Concurrently with the installation of utility lines to developing areas zoned for residential use having a planned minimum density of fifty (50) units per street mile, whether or not such areas lie cont~guous to the boundary of the PSA or at the end of any line extensions beyond the PSA. (c) Concurrently with the installation of utility lines to developing areas, zones for industrial or light industrial use, having a planned minimum density of thirty (30) units per street mile, which lie contiguous to the boundary of the PSA or at the end of any line extensions beyond the PSA. (d) Within one (1) year of the filing of a written request for service by not less than 50% of the potential subscribers and/or users located in an area of the Municipality which lies outside the PSA and which does not meet the minimum densities specified above. If the franchisee determines that a line extension is not economically feasible, then it may request the Village for relief from this provision. The Village mayor may not grant such relief, however, the request may not be unreasonably denied. - 7 - I. " , '. SECTIor~ DESCRIPTION OF SYSTEM DESIGN (a) The Franchisee's cable communication system shall consist of a Subscriber Network and an Institutional Network, hereinafter described, both of which shall conform in all respects with the performance and technical standards described in the Cable Communications Code and Section 9 below. (b) The system intended for municipality may be part of a joint system constructed and operated by Franchisee that serves the municipalities of Arlington Heights, Bartlett, Des Plaines, Hanover Park, Niles, Park Ridge, Prospect Heights, Schaumburg, Streamwood, Wheeling and other municipalities which are contiguous to the municipalities listed. Provided, however, that if the Franchisee constructs and operates a joint system, the design will provide for a self-contained bidirectional network in each municipality forming part of the system. The system will be programmed from a central point or points, but the configuration will accommodate the practical isolation of municipality, allowing for the distribution of unique programming to it. (c) The Subscriber Network shall be capable of carrying at least 120 channels, based on a minimum bandwidth of 5-440 MHz for each cable of the dual trunk, dual feed system, and shall be split with 112 channels downstream and 8 channels upstream. (d) The Institutional Network shall be a separate single trunk, single feed, cable communication system capable of carrying at least 64 channels based on a minimum bandwidth of 5-440 MHz, which shall be split into 32 downstream channels and 32 upstream channels. (e) Nothing herein shall be construed to prohibit the Franchisee from increasing the capability of the cable communication system or constructing the same in accord with more advanced technological standards than initially proposed by the Franchisee. SECTION 9: TECHNICAL PERFORMANCE AND STANDARDS All performance and technical standards governing construction, reconstruction, erection, installation, operation, testing, use, maintenance and dismantling of the cable communication system provided for herein shall be in accordance with all applicable FCC and other federal, state and local laws and regulations, provided, however, that if the FCC discontinues promulgation or enforcement of such technical specifications, such specifications shall remain in force and effect until Municipality exercises its right hereunder to amend this Agreement to require such standards as it shall deem necessary. g , . , , " ~ '" n SECTION 10: AREAWIDE INTERCONNECTION OF CABLE SYSTEMS Within three (3) years of the effective date of the Franchise Agreement: a. Franchisee shall be responsible for designing and activating an interconnection network capable of transmitting a minimum of twenty (20) standard NTSC TV channels simultaneously from its interconnect hub to the interconnect hub of any other cable television system serving'a population of 100,000 or greater in a municipality or municipalities contiguous to one or more municipalities in the System. Such responsibility shall include, but is not n~cessarily limited to, the following: 1) 2) Design and planning; Obtaining and maintaining in good standing all necessary licenses and permits; Provision of all channel switching and interface facilities required for incoming and outgoing transmissions at Franchisee's interconnect hub; and Payment of all capital costs, and operational and maintenance expenses associated herewith. 3) 4) b. The provisions of subsection a. above shall not be construed so as to preclude cooperative effort, joint ownership of facilities, or cost-sharing arrangements; provided, however, that each and every aspect of construction and operation of the interconnect shall be clearly designated in written agreement(s) between the cooperating parties, copies of which shall be filed with the Board or its designate for its approval, which shall not be unreasonably withheld. Franchisee shall attempt ,to reach agreement with all other affected cable system operators on frequency allocation for the minimum twenty (20) channels to be delivered to each interconnect hub. Should the parties fail to reach agreement, the Municipality shall, with the other municipalities in Franchisee's system, act as mediator between the cable operators. c. Franchisee shall provide the capability of receiving at its interconnect hub the twenty (20) channels transmitted from each other interconnect hub, described in paragraph (a) above, and for transmitting simultaneously at least twenty (20) channels from its interconnect hub to: - 9 - , , ~ , ' ~ . ~ n 1) All schools government buildings, and other, institutions designated by the Hunicipality; Appropriate access channels on the subscriber network; or Any combination of the foregoing, all within the Franchisee's cable communication system. 2) 3) d. Franchisee shall also provide the capability of transmitting at least one channel from each designated institution in its franchise area to its own interconnect hub. A sufficient number of independent transmission paths shall be transmitted to the interconnect hub from various combinations of designated institutions within its own franchise area. e. Channel switching at the interconnect hubs, both incoming and outgoing, shall be performed by the Franchisee at the request of the user desiring the interconnect. Franchisee shall develop and adopt operating rules, in cooperation with the other system operator, designed to provide for the use of the interconnection. Such operating rules shall be reviewed and approved by the Municipality and shall include, provisions relating to priority use, notice requirements for use and other rules deemed necessary for the optimum use of the interconnect capability. f. The Franchisee shall provide all VSB modulators or heterodyne signal processors required to complete the program transmission (not including cameras, tape recorders, monitors, or other program video sources from municipal, access and institutional facilities. The characteristics of the modulators or processors shall be subject to the approval of the Board and the grantees, with respect to overall performance in the system, not merely as components. g. Franchisee may provide additional interconnect facilities to adjacent or contiguous cable systems at its discretion. However, Franchisee shall enter into good faith negotiations with specified grantees outside the Conference to provide designated additional interconnection facilities when requested by the Board or its designate to do so. Negotiators shall attempt to reach agreement as to responsibility for technical planning, licensing, and cost sharing. If appropriate, the Board or its designate may agree to participate in the negotiations and/or in the sharing of costs. -10- ¡; "" , , .. , [ r, ~ /i/ h. The interconnect facilities required by this section shall be d~signed and operated to meet or exceed the following technical performance standards for signals tran"smitted from the most remote institution in the Franchisee's franchise area to the most remote subscriber terminal in the franchise area of an interconnected cable system. C/N C/CTB 43 dB (Per NCTA-008-0477) 53 dB Without phase-lock (Per NCTA-008-0477, with CW carriers) 45 dB With HRC or IRC phase-lock (Per NCTA- 008-0477, with CW carriers) > C/CTB i. Prior to commencing construction, Franchisee shall submit to the Board or its 'designate, for its approval, engineering statements, designs, maps, calculations, specifications, and other relevant engineering details with respect to the required interconnect facilities as follows: 1) 2) Location of the interconnect hub, address or geographic coordinates nearest minute). Proposed method of interconnect, e.g., whether cable or microwave. a) If microwave, the essential technical details including path length, ERP on the interconnect path, C/N ratio, C/CTB ratio, specific frequency assign- ments, and path 'reliability data. b) If cable, whether standard VSB/AM NTSC channels, or FMTV (if FM, what bandwidth per channel); the proposed routing and footage; the size cable, type repeaters, whether split band or dual cable, and the frequency bands proposed; calculations of C/N and C/CTB for the interconnect system, including technical data on which the calculations are based. A statement on whether phase-locked carrier frequencies are proposed, and if so, how it will be accomplished; whether the institu- tional modulators are phase-locked, and how; and what subjective improvement is realistically expected with a combination of phase-locked and non-locked carriers. by street (to the 3) -11- . c t .. " . " n 4) A showìfíg'ë"önieêrn:lngt1:1.è effect of cascading processors or modulators on frequency response and group delay, and the method ~f correcting, if necessary, or preventing distortions. A detailed explanation of how signals will be transmitted from the interconnect hub to homes and institutions in the same franchise area, and from said institutions to the 5) 6) associated interconnect hub. The explanation shall include calculations of C/N and C/CTB ratios, including the supporting technical data upon which the calculations were based. Such additional relevant information as the Board or its designate shall request. SECTION 11: CHANNEL ALLOCATION Franchisee shall make every reasonable effort to cooperate with cable television Franchisees in contiguous communities in arranging channel assignments for specific program offerings to be identical with the channel assignments of other franchise holders where program offerings are identical. SECTION 12: CONSTRUCTION SCHEDULE (a) Within twenty-four (24) months of the effective date of this Franchise Agreement, Franchisee shall construct and activate the cable television system and offer cable communications services to all residences or persons requesting such service within the Primary Service Area in accordance with Section 6.609 of the Cable CDmmunications Code. (b) Within twelve (12) months of the effective date of this Franchise Agreement, Franchisee shall install, activate and offer service from and along 22.74 miles, which represents 15% of the total number of street miles to be constructed within the Municipality, or 2,909 residences, which represents 15% of the total number of potential subscribers, whichever is greater. (c) Franchisee further agrees that any litigation instituted by a third party shall not suspend Franchisee's obligation to construct and install the cable television system in accordance with the construction time schedule unless otherwise ordered by a court of competent jurisdiction. ¡;"1~",, , , ." SECTION~~ C"""":O:\~;¿¡'3i':lè"¡""""""""'C , STANDARDS AND RESTRICTIONS AS TO CON~~TION AND INSTALLATION ' 1 (a) The Franchisee shall at all times during the term of the franchise be subject to the Village of Mount Prospect's Municipal Code, all ordinances, rules and regulations imposed by the Municipality which have been determined to be conducive to the health, safety, welfare and accommodation of the public. Permit and Inspection fees shall be collected in a manner consistent with Village policy unless otherwise indicated below: 1. Permit fees shall be paid in accordance with the Village code for any construction built by the Franchisee, including, but not limited to, new or remodeled structures, towers, and antennas. 2. Franchisee shall pay the cost of municipal inspections due to any street openings which may be required or any "out of pocket" expenses to the Village which result from a street opening by the Franchisee, provided, however, that street opening bonds, letters of credit or other form of insurance which may otherwise be required, shall be waived. 3. Permit fees for construction of the Franchisee's cable line shall be waived. The Grantor may charge the Franchisee for "out of pocket" expenses for inspectional services performed during construction of the cable system or for "out of pocket" expenses incurred during, inspection in response to complaints received by the Grantor about the system construction or work performed by the Franchisee for any individual subscriber drops or installations. The Grantor may charge the Franchisee for "out of pocket" expenses incurred for the review of preliminary or final engineering and specifications for the cable system. construction and engineering plans must be approved by the Grantor before the COIT~encement of construction on any part of the cable system. 4. plans All (b) No construction, reconstruction or relocation of the cable television system, or any part thereof, within the streets shall be commenced unless written permits have been obtained from the proper municipal officials. In àny permit issued, such officials may impose any condition, restruction or regulation as is necessary for the purpose of protecting any structures, in the streets and for the proper restoration of such streets and struc~B-~~~~,~nd for the protection of the public and the continuit~ófþedestrian and vehicular :,..,~13-;¡, :,.;t¡:",.""", , , ., , " , '. f\ traffic. Upon obtaining such permits or other written approval, the Franchisee shall give the appropriate municipal official written notice of proposed constructio~ at least twenty (20) days prior to construction. (c) Prior to the erection or installation of any towers, poles, guys, anchors, underground conduits, manholes or fixtures for use in connection with the installation, construction, maintenance or operation of the cable television system under this Franchise, the Franchisee shall first submit to the Village Engineer for approval a concise description of the facilities proposed to be erected or installed, including engineering drawings, if required, together with a map and plans indicating the proposed location of all such facilities. No erection or,installatioll of any tower, pole, guy, anchor, underground conduit, manhole, or fixture for use in a community antenna television system shall be commenced by any person until approval, therefore, has been received from the Village Engineer provided further, that such approval shall not be unreasonably withheld. Notwithstanding such approval, however, the Municipality shall have the right to inspect all construction or installation work performed subject to the provisions of this franchise and make such inspections as it shall find necessary to ensure compliance with terms of this franchise and other pertinent provisions of law. (d) Contractor Qualifications. Any contractor proposed for work of installation, maintenance, or repair of system equipment must be properly licensed under laws of the State of Illinois, and all local ordinances, and be thoroughly experienced in underground conduit and cable installation, in cable installation on poles, or in any other capacity for which retained. The contractor must be approved by the Municipality prior to completion of contractual agreements. (e) The Franchisee's system and associated equipment erected by the Franchisee within the Municipality shall be so located as to cause minimum interferences with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. No pole or other fixtures placed in any public ways by the Franchisee shall be placed in such a manner as to interfere with the usual travel on such public way. t1 1 /, > . ~ . .. , ~ n (f) No poles or other wire-holding structures shall be erected by the Franchisee without prior approval of the Village Engineer with regard to location, height, type and any other pertinent aspect. No location of any pole or wire-holding structure of the Franchisee shall be a vested interest and such poles or structures shall be removed or modified by the Franchisee at its own expense whenever the Municipality determines that the public convenience would be enhanced thereby. Franchisee shall utilize existing poles, conduits, or other wire-holding structures where at all possible. Where the Municipality or a public utility, serving the Municipality desires to make use of the Franchisee's poles, Franchisee shall make every effort to accommodate the needs of the Municipality if the Municipality determines that such use would enhance the public convenience and if such use would not unreasonably interfere with the cable television system operations of the Franchisee. (g) All installations shall be underground in those areas of the Municipality where public utilities providing both telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are aboveground at the time of installation, the Franchisee may install its service aboveground, provided that at such time as those facilities are required to be placed underground by the Municipality or are placed underground, the Grantee shall likewise place its services underground without additional cost to the Municipality or to the individual subscriber so served within the Municipality. Where not otherwise required to be placed underground by this ordinance, the Franchisee's system shall be located underground at the request of the qdjacent property owner, provided that the excess cost over aerial location shall be borne by the property owner making the request. All cable passing under the roadway shall be installed in conduit. (h) The Municipality does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructure. In public rights-of-way, where necessary, the location shall be verified by excavation. -15- , , .. ': n (i) Franchisee shall, at its cost and expense, and in a manner approved by the appropriate Municipal official repair, replace or restore any street, sidewalk, alley, public way or any other property disturbed or damaged or in any way injured by or on account of its activities in as good condition as before the work involving such disturbance was done and agrees to do so any time during a period of two years after the completion of any work contemplated under this Agreement or the Cable Communications Code. In the event Franchisee fails to perform the replacement of restoration in a manner approved by the Municipality or property owner, Municipality or owners shall have the right to do so at the sole cost and expense of the Franchisee. Upon written demand for reimbursement for the cost of replacement or restoration of damaged property, Franchisee shall promptly remit to the Municipality or property owners or the Municipality may draw upon the letter of credit required to be maintained by Franchisee pursuant to Section 6.4l2-E of the Cable Communications Code. (j) Franchisee shall not cut or trim any tree, shrub or vegetation on public property without first obtaining written authorization from the Municipality. All such trimming shall be performed in accordance with standard local horticultural practices. The Municipality reserves the option to have the Viilage employees perform the trimming, to require Franchisee to hire a competent professional to perform the work, or to allow Franchisee to perform the work under the supervision and direction of the Municipality. Any such work shall be performed at Grantee's expense. (k) The desire of the subscriber as to the point of entry into the residence shall be observed wherever possible. Runs in building interiors shall be as unobtrusive as possible. SECTION 14: SERVICES TO SUBSCRIBERS (a) Concurrently with the activation of the cable communications system in the Municipality pursuant to Section 12 of the Franchise Agreement, the Franchisee shall provide all services to subscribers as described in Exhibit B. -16- , , . ' \ ~ r\ (b) Concúrrently with the activation of the cable communications system in the Municipality pursuant to Section 12 of the Franchise Agreement, the Franchisee shall mail on a monthly basis a free program guide to all subscribers which shall include Regular Subscriber Services and Pay Services. Where programs have been given a rating or code designating suggested audiences, such rating, and the reason therefor, shall be included in the program description. (c) The Franchisee shall provide to each subscriber the converter equipment necessary for the receipt of all services to which they subscribe. Converters shall have the capability of allowing the subscriber to "lock out" audible and visual reception of programming on a minimum of 50 channels per cable. The Franchisee may collect at the time of installation, a deposit from subscribers, not to exceed $20.00, to ensure the protection and return of the converter equipment. At the termination of service, the subscriber shall receive a refund in full of his security deposits upon the return of the converter equipment in good condition to the Franchisee, normal wear is excepted. In the event the converter equipment is not returned to' the Franchisee or is not returned in good condition at the termination of service, the Franchisee may retain from the security deposit the actual cost of the converter equipment or the actual cost of repair. (d) Franchisee shall mail to each subscriber on a monthly basis an itemized bill clearly indicating each service for which payment is due. SECTION 15: ACCESS CHANNEL SERVICE Franchisee shall offer universal tier "Lifeline" service to all non-subscriber residents in the Municipality. This shall consist of a service outlet into their residence and which shall be capable of providing a minimum of six (6) video channels, including the local government access, one (1) public access, and the Community Local Origination channels. Franchisee shall not be required to provide a converter for the reception of this service if channel allocation is designed for the broadcast bandwidth available on the residents' television set. Installation charges for universal tier "Lifeline" service shall be as described in Exhibit B, and pursuant to the Cable Communications Code, no monthly subscription rate shall be charged. Activation and installation of this service shall be performed on the same construction schedule as for subscribers in the immediate area in the Municipality. ,"177 ,., . ' t." SECTIONn MAINTENANCE AND CUSTOMER SERVICE The Franchisee shall: (a) Maintain all wires, conduits, cables and other real and personal property and facilities comprising the cable television in good working condition. (b) At all times maintain a force of one or more agents or employees in sufficient numbers and of sufficient technical qualifications to safely, adequately and promptly repair any structural damages to system equipment which is located, in, over, under, or upon public streets, ways, or places; and to immediately secure the public safety in the vicinity thereof, prior to, and during the making of said repairs. (c) Operate the cable television system continuously, operating personnel available on call 24 hours per day a publicly listed telephone number to receive complaints requests for repairs or adjustments at any time. with with and (d) Render efficient service, locate and repair malfunctions promptly, and respond to subscriber service complaints within 24 hours after notice; except where extraordinary circumstances exist, as provided in the Cable Communications Code. (e) Maintain a log accurately showing the time, the duration, probable cause, and action taken on all failures or outages on the main distribution system and each and every subscriber complaint or request for repair received and the disposition thereof. Said log shall be available for inspection by the Municipality or the public at any time during normal business hours. (f) Maintain a customer service office in Arlington Heights, Des Plaines, Hanover Park, Mount Prospect, Park Ridge and Schaumburg. Subscribers may use any customer service office listed above for payment and adjustment of bills, complaints and requests for repair or other transactions. Each office shall maintain regular business hours which shall include, at a minimum, four and one-half days between Monday and Friday, and Saturday morning. (g) Furnish information, as subscribers are connected or reconnected to the cable television system, concerning the procedures for making inquiries or complaints. Such information shall include, at a minimum, the address, telephone number and hours of operation of the cable television company, and the title of the person ~? whom such inquiries and complaints are to be addressêd. , <" ": ",\ '. , , " ri SECTION 17: PUBLIC ACCESS CHANNEL (a) The Franchisee shall provide two public access channels for use by the public which public access channels shall be operated in accord with applicable rules and regulations of all Federal, State and local agencies having jurisdiction. The Franchisee shall provide studio and production facilities and personnel necessary for the use of the public access channels by the public as described in Section 20 and 21, infra. (b) The Franchisee shall adopt operating rules for the public access channels as provided in Section 6.604-B-3 of the Cable Communications Code which shall be filed with the Municipality prior to the activation of the channels which shall include the following minimum requirements: (1) The users of public access channels shall be responsible for obtaining appropriate authorization from the owners of intellectual property rights for their use in connection with public access productions. Franchisee shall assist users in obtaining such authorizations. Any user of the public access channel, equipment or facilities shall agree in writing to hold Franchisee and Village harmless from any and all liability or other injury including any reasonable costs of defending claims or litigation, arising from all public access use in connection with claims for failure to comply with any applicable laws; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations due third parties by Franchisèe; for any other injury or damage in law or equity, which claims result from the users' use of equipment and facilities. Franchisee shall be responsible for obtaining such waiver from all users of the public access channels and shall hold the Municipality harmless from any and all liability or other injury including reasonable costs of defending claims or litigation arising from the Franchisee's failure to obtain the waiver from all public access users. from any equipment facility. (2) Franchisee may require a reasonable deposit' public access channel user when said user removes belonging to Franchisee from any access studio Nothing herein shall be construed to limit the -1 - .. . , ' 1\ , " liability of a~y person removing such equipment fro~ such facilities or to relieve such person from liability for all damages if such equipment must be repaired or replaced due to damage, theft or abuse while bailed to such person. Franchisee has the exclusive authority to loan its equipment to any person. (3) Franchisee shall keep a public file available at its local office of all requests it receives for the use of public access channels and for the transmission of programming on public access channels, including the names and addresses of those making such requests. Such files shall be available for public inspection during normal business hours. The files shall be maintained by Franchisee until the earliest scheduled performance evaluation session provided for in the Cable Communications Code., (4) The public access channels shall be operated in a manner consistent with the principle of fairness and equal accessibility of facilities, equipment, studios and other services to all citizens, businesses, public interest groups or other entities having a legitimate use for the system and no one shall be arbitrarily excluded from its use. , The Municipality shall have the right to review all operating rules filed by Franchisee to ensure the protection of the public interest and the accessibility of the cable television system. SECTION 18: SERVICES TO THE MUNICIPALITY The Franchisee shall provide the following services to . the Municipality, concurrently with the activation of the cable communication system pursuant to Section 12 of the Franchise Agreement: (a) One service outlet activated for Basic Service on the Subscriber Network at the following Municipal facilities: Mount Prospect Village Hall 100 South Emerson; 60056 Mount Prospect Senior Citizens' Center 50 South Emerson; 60056 Public Safety Building 112 East Northwest Highway; 60056 Public Works Building 11 South Pine; 60056 Fire Station in 112 East Northwest Highway; 60056 Fire Station 11=2 1601 West Golf Road; 60056 Fire Station 1f3 2000 East Kensington; 60056 , , , I Franchis, waive all charges for insta latioL monthly subscription rates, provided however, that the Municipality shall assume the installation charges for any required internal wiring, at cost, and for any additional outlets, in excess of two television sets, requested by the Municipality. If the Municipality constructs or otherwise acquires any additional facilities during the term of the Franchise, whether located inside or outside of the Primary Service Area, such facility shall be provided with a service outlet according to the terms and conditions of this section and other applicable provisions of the Franchise Agreement and the Cable Communications Code. (b) A connection to the Institutional Network from all facilities listed in paragraph (a), above, and all additional facilities, to permit program origination from such facilities, at no charge to the Municipality. (c) One channel, designated as the local government channel, for the exclusive programming use of the Municipality. Such channel shall be available to subscribers as part of the universal tier/Lifeline Service or Basic Service package on the Subscriber Network. Franchisee shall provide an Alpha-Numeric character generator to program visual messages and announcements and a modulator to inject programming into the cable communication system from the Village Hall or other 10cationCs) as designated by the Municipality. Cd) Twelve video channels, six in a downstream direction, and six in an upstream direction, on the Institutional Network, for the exclusive use of the Municipality, at no charge. ' (e) The equipment required to automatically interrupt programming on all channels of the Subscriber Network by means of an audio message to present èmergency information by public and law enforcement officials of the Municipality. Such equipment shall be installed at the Village Hall or other designated location(s) at no charge for the equipment, installation or maintenance. (f) The services of its program and production staff to promote use of the local government channel. SECTION 19: SERVICES TO EDUCATIONAL AND OTHER INSTITUTIONS The Franchisee shall provide the following services to educational and other institutions, designated below, concurrently with the activation of the cable communication system pursuant to Section 12 of the Franchise Agreement: L.. .' , " .:' n (a) One service outlet activated for Basic Service on the Subscriber Network at the following facilities: District 59 - 2123 South Arlington Heights Road, Arlington Heights, Illinois 60005 - Dempster Junior High - Forest View Elementary - Frost School - Holmes Junior High - John Jay Elementary District 26 - 1900 East Kensington - Bond Elementary - Feehanville Elementary - Indian Grove Elementary - River Trails Junior High - Euclid School Road, Mount Prospect, IL 60C District 57 - 701 West Gregory, Mount Prospect, IL 60056 - Busse Elementary - Fairview Elementary - Lincoln Elementary - Lions Park Elementary - Westbrook Elementary District 214 - 799 Kensington Road, Mt. Prospect, IL 60056 - Prospect High School Mount Prospect Public Library - 10 South Emerson, Mt. Prospect, Illinois 60056 Mount Prospect Park District - 411 South Maple Street, Mount Prospect, Illinois 60056 River Trails Park Distr~ct - 1313 Burning Bush Lane, Mount Prospect, Illinois 60056 Franchisee shall waive all charges for installation and monthly subscription rates, provided however, that the facility shall assume the installation charges, for any required internal wiring, at cost, and for any additional outlets, in excess of two television sets, requested by the facility. If additional facilities are constructed or otherwise acquired during the term of the Franchise, whether located within or outside of -22- , . ., . ,P . ~ '".--' the Primary Service Area, such facility shall be provided with a service outlet;: accQrding to the termsnand conditions of this Section and other applicable provisions of the Franchise Agreement and the Cable Communications Code. (b) A connection to the Institutional Network from all facilities listed in paragraph (a), above, to permit program origination from such facilities, at no charge. (c) Access channels, as described below which shall be available for the exclusive programming use of the designated institutions, except as provided in paragraph (e) of this Section. Such channels shall be available on the Subscriber Network as part of the Basic Service package. Franchisee may arrange as necessary for the distribution of access channels throughout the municipalities of Arlington Heights, Des Plaines, Hanover Park, Mount Prospect, Park Ridge and Schaumburg to provide the minimum requirement of one channel per district as listed in subsections (1) through (8) below. (1) One channel for each elementary school district located in part or whole within the Municipality: District 59 - 2123 South Arlington Heights Road, Arlington Heights, Illinois 60005 - Dempster Junior High - Forest View High School - Frost School - Holmes Junior High - John Jay Elementary District 26 - 1900 East Kensington - Bond Elementary - Feehanville Elementary - Indian Grove Elementary - River Trails Junior High School Road, Mt. Prospect, IL,6005l District 57 - 701 West Gregory, Mt. Prospect, Illinois 60056 - Busse Elementary - Fairview Elementary - Lincoln Elementary - Lions Park Elementary - Westbrook Elementary -23- , . ., . , , ,'" ~ (2) One channel for each high school district located- in part or whole within the Hunicipality. District 214 - 799 Kensington Road, Mi. Prospect, Illinois 60056 - Prospect High School (3) One channel for the public library or library district serving the Municipality. Mount Prospect Public Library 10 South Emerson Street, Mount Prospect, 11 60056 (4) Municipality. One channel for the park district serving the Mt. Prospect Park District - 411 South Maple Street, Mt. Prospect, IL 60056 River Trails Park District 1313 Burning Bush Lane, Mt. Prospect, IL 60056 (5) One channel for the hospitals within the Franchisee's cable system. (6) One channel for Oakton Community College. (7) One channel for Harper College. (8) One channel for junior colleges, colleges and universities located within or without the Franchisee's cable communications system. (d) Reserved channels on the Institutional Network for the exclusive use of the institutions listed below: (1) Six channels, three upstream and three downstream, for the elementary school districts located wholly or partly within the Municipality. (2) Six channels, three upstream and three downstream, for the high school districts located wholly or partly within the Municipality. (3) Two channels, one upstream and one downstream, for the library or library district serving the Municipality. ') t. , , . "" Î\ \ ; '(4) Two charinêls, bhe upstream and one downstream, for the park districts serving the Municipality. (5) Six channels, three upstream and three downstream, for the junior colleges, colleges, and universities serving the area. These chall be the maximum number of reserved channels on the Institutional Network available to the designated users. If insufficient use of the channels is demonstrated, the Franchisee may, with the concurrence of the municipality, require the user to share time or give up channels, pursuant to paragraph (e) below. Franchisee shall not charge institutions for the use of the channels reserved for such user on the Institutional Network for a period of five (5) years from the effective date of the Franchise Agreement. At the expiration of the five year period, the Municipality may consider the necessity of imposing fees for use of the Institutional Network. (e) At such time as a dedicated channel on the Subscriber Network is programmed by an institutional user for a minimum of twelve (12) hours per day, Monday through Friday, for a period not less than six (6) months, the Franchisee shall, at the request of the institutional user, make additional channel time available for the use of that institutional user, up to system capacity. Such allocation shall be made available within nine (9) months of the request for additional time. When insufficient use of a channel on the Institutional or Subscriber Network is demonstrated by the Franchisee, the Franchisee may require the institutional user, to share channel time with other users or give up the channel entirely,. which decision may be subject to review by the Municipality 'or other designated Agency. (f) Designated users shall not sell, assign, transfer, lease or sub-lease, or otherwise transfer their interest in, or right to use, the designated channels described herein without the prior consent of the Municipality. (g) The Franchisee shall make available modulators to inject video programming into the cable communication system from the designated educational and other institutions. The Franchisee shall make its studios and remote cable casting equipment available for programming, and shall be responsible for the upkeep and maintenance of all such equipment used " '725- , ,;, </: . . . . . , . . . . . r'\ ,~. Î for programming by such institutions. The Franchisee shall assist in providing production, technical and administrative assistance to develop and produce all aspects of institutional programming. SECTION 20: PROGRM1 AND PRODUCTION ASSISTANCE Franchisee shall provide free consulting and training services on planning, productions, and program format for the use of public access, governmental, and institutional channels. (a) To provide such consultation and training assistance, the Franchisee shall employ a minimum of the following full- time personnel: Community.Programming Coordinator, Community Access Coordinator, Studio Supervisor/Producer, and Studio Technician. Staff shall be provided within two (2) years of the effective date of the Franchise Agreement. 1. A community programming coordinator shall be employed by the Franchisee to promote the general use of the public channels, community affairs, and other cable-casting channels and to advise such users on programming and production matters. 2. A community access coordinator shall be employed by the Franchisee at each local origination/access studio to facilitate the effective and efficient use of regional production studios and mobile equipment, and to provide program consulting and training services. 3. A studio supervisor/produc~r shall be employed by the Franchisee at each local origination/access studio to facilitate the effective and efficient use of regional production studios and mobile equipment, and to provide program consulting and training services. 4. A studio technician shall be employed by the Franchisee at each local origination/ access studio to provide technical and maintenance assistance as required at the regional production studio and for the mobile vans. .. , . f ': l\ (b) Franchisee sEall offer and conduct free workshops to provide community volunteers with appropriate production and equipment utilization skills. Successful cQmpletion of workshops, or demonstration of appropriate competency, shall be a prerequisite to using production facilities and mobile production equipment. 1. Workshops shall be held at each production studio not less than once every three months during the second, third and fourth year of the franchise term. Thereafter, Francisee may hold workshops as needed on an areawide basis but not less than once a year at each studio. Announcements of the date, time and place of said workshops' shall be made over the public access and community affairs channels no less than six times daily for a two week period prior to the workshop: Notice of the workshop shall also be published in the subscriber's program guide and a newspaper of general circulation in the Municipality. 2. Workshops shall be designed to develop the ability to produce a program utilizing the Franchisee's production studios or mobile van equipment. The major focus of the workshops shall be devoted to actual "hands-on" experience. 3. "Check-out" training shall be provided on an on-going basis to provide skills in utilization or portable (portapak) equipment. SECTION 21: PRODUCTION FACILITIES (a) Franchisee shall provide production studios in Arlington Heights, Des Plaines, Niles, Mount Prospect, Park Ridge and Schaumburg - either Bartlett, Hanover Park or Streamwood, final determination subject to approval of the three municipalities. All studios should be of comparable size and shall contain comparable equipment as proposed by Franchisee. Studios shall be available for use by all subscribers and users within the Franchisee's cable system. -27- . . . . < , . n (b) Semi-mobile facilities, as proposed by Franchisee, shall be located in-Prospect Heights and Wheeling. (c) Franchisee shall provide three (3) mooile color television vans, each containing comparable equipment as proposed by Franchisee, which shall be available to all subscribers and users of the Franchisee's cable system on a first-come, first-served basis. Notwithstanding the foregoing, vans shall be primarily located in the semi-mobile facilities in Prospect Heights and Wheeling and either Bartlett, Hanover Park, Schaumburg or Streamwood. (d) Franchisee shall provide seven (7) Portapak units which shall be available to all subscribers and users of the Franchisee's cable system on a first-come, first-served basis. Portapak units shall be located at the production studios provided by Franchisee. (e) Production equipment shall be maintained in proper working order. Back-up equipment shall be made available where "down-time" for a studio, van or associated equipment exceeds 24 hours. Users shall be notified of studio "dow-n- time" via the access and local origination channels. (f) Franchisee shall update production equipment during the franchise term to keep it reasonably current with the state-of-the-art technology in television and cable communications. Periodic reviews shall be conducted with the Municipality, or its designee, in order to assess the status of production equipment maintenance. These reviews may be held in conjunction with the performance evaluation sessions required by the Cable Communications Code. (g) All equipment and facilities shall be available and operational within two (2) years of the effective date of the Franchise Agreement. SECTION 22: LEASED CHANNELS Franchisee may lease portions of its bandwidth not specifically designated for other uses for leased services as follows: (a) Franchisee may limit the amount of time granted on any leased channel to any person. ~2$;z '." . . . . n (b) Franchisee shall set rates for the leasing of such channels and may classify lessees into various categories. Such rates and categories shall be on public file in the local office of Franchisee and shall be available for public inspection during normal business hours. A copy of said rates and categories shall also be filed with the Municipality. (c) Franchisee shall establish rules and regulations and conditions for the operation of such leased channels, which shall be included in any lease or other agreement entered into by Franchisee which shall include the following: (1) Operation of said channel shall not disrupt or otherwise cause objectional interference with any other channel of the cable television system. (2) In the event that such interference is unavoidable, the lessee shall immediately cease further operations until such interference is eliminated. Failure by the lessee to comply with the request of Franchisee to cease interference or operation, whichever is .applicable, shall result in the immediate termination of the lease or other agreement and any right of the lessee thereunder to use a leased channel. (3) No program, production or presentation shall be transmitted or permitted to be transmitted on any leased channel which violates any law regarding obscenity or lottery information. (4) Franchisee shall require all users to comply with all laws regarding obscenity on its leased channels. Franchisee may reserve the right to schedule programs on leased channels in consideration of the children in the viewing audience. (5) Any paid political announcement or program on a leased channel shall be designated as such and shall indicate the person paying for the same at the time said announcement or program is cablecast. Rates for all political announcements will be uniform and non-discriminatory. SECTION 23: FRANCHISE FEE In consideration of the privileges granted under the Cable Communications Code and the Franchise Agreement for the operation of a cable system within the municipality, the Franchisee shall pay to the Municipality five (5) percent of its annual gross revenues during the franchise term. -29- . , . .. , '. f\, SECTION 24: LIABILITY AND INDEMNIFICATION Pursuant to Section 6.6l2-D of the Cable Communications Code, Franchisee shall maintain at its own expense a faithful performance, license and franchise letter of credit running to the Municipality in the amount of Two Hundred Thousand Dollars ($200,000), which shall be subject to the requirements contained within the Cable Communications Code. SECTION 25: DELEGATION OF POWERS Municipality shall not be precluded from delegating any power or authority contained within the Cable Communications Code or this Franchise Agreement to any agency, employee or department within or outside the Municipality. SECTION 26: NOTICES All notices, payments, reports or other information required by the Cable Communications Code or this Franchise Agreement shall be sent prepaid registered or certified mail addressed to the parties as follows: To the Municipality: Village of Mount Prospect, 100 South Emerson Street Mount Prospect, Illinois 60056 To the Franchisee: Cablenet 410 East Northwest Highway Mount Prospect, Illinois 60056 SECTION 27: FEES ASSOCIATED WITH GRANT OF FRANCHISE (a) Pursuant to the requirements of Section 6.302 of the Cable Communications Code and in recognition of the direct expenses incurred by the Municipality in the development of the cable ordinance and the evaluation of the various franchise applicants, Franchisee shall, within thirty (30) days of the effective date of this Agreement pay to the, Municipality, the sum of $5,296.00 which shall be used to offset all direct expenses incurred by the Municipality in the cable franchising process. Such fee shall include, but not be limited to, office and clerical costs, legal expenses (including in-house counsel), and the cost of consultants retained by the Municipality. -30- ~ . . . '~ . , " . . , . n ~ (b) Within thirty (30) days of the effective date of this Agreement, Franchisee shall pay to the Northwest Municipal Conference an amount of money, not to exceed $2;500, which shall equal the Municipality's pro rata share of the expenses incurred by the NWMC on behalf of its member municipalities, in the cable franchising and evaluation progress. SECTION 28: INITIAL CONSTRUCTION NOT A TRANSFER OF FRANCHISE It is hereby understood that the 'mortgage, pledge or lease by the Franchisee of its assets or any part thereof to finance the construction of the cable communications system in accordance with the proposal submitted by Franchisee shall not be construed as a transfer of the franchise or any of the assets of Franchise~ under the provisions of Section 6.413 of the Cable Communications Code. SECTION 29: FRANCHISE RENEWAL (a) The Grantee shall be solely responsible for requesting the Village of Mount Prospect, in writing, to hold a special meeting, the purpose of which will be to review the Grantee's performance during the term of its franchise, to consider the adequacy of the franchise from the standpoint of the Village, the Grantee, and the Federal Communications Commission Rules for Cable Television, and to determine the advisability of renewing the Grantee's franchise. Unless the Village of Mount Prospect shall consent to some lesser notice, said request shall be made not less than twelve (12) months prior to the franchise expiration date. Upon receipt of said request, the Village of Mount Prospect shall adopt a resolution setting forth the time and place of the special meeting. If no request for renewal is made, the franchise shall expire according to its terms, provided, however, that the Village of Mount Prospect may extend the term of the franchise in six (6) months increments during the Franchise renewal process as provided for in this Section. (b) The Village of Mount Prospect shall hear any interested persons during said special meeting and shall determine whether or not the Grantee did reasonably comply with the terms and conditions imposed by the ordinance and this franchise. Notice of such meeting shall be given in accordance with Section 6.402 and Section 6.404-C of the Cable Communications Code. .,.31- '" . . . . ,'" " . H Î\ (c) If the Village of Mount Prospect determines that the Grantee has been in reasonable compliance with the terms and conditions imposed by this ordinance and the franchise, the Village of Mount Prospect may, by resolution, renew the Grantee's franchise, with any modifications it deems desirable, for a period of time not longer than fifteen (15) years. (d) Notwithstanding the fact that the Board may determine that the Grantee has been in reasonable compliance with the terms and conditions imposed by this Ordinance and the Franchise, the Board shall have the right not to renew the Franchise. If the Board does not renew the Franchise, the Board shall, to the extent then permitted by existing law, have the options to: Acquire at fair market value all the assets of the Grantee's operations within the Village; or require the sale at fair market value of all such assets to a succeeding Grantee; or require the removal of all such assets from the Village. Except as provided in Section 6.408, the Board's above stated options must be exercised within one (1) year from the date of the Franchise expiration, unless such period is extended with the consent of the Grantee. (e) The Village of Mount Prospect shall have the right to recoup from the Grantee all direct expenses incurred pursuant to renewal of the Franchise whether or not the Franchise is renewed. SECTION 30: FRANCHISE REVOCATION PROCEDURE (a) Whenever a Grantee shall refuse, neglect or wilfully fail to construct, operate or maintain its cable television system or to provide service to its subscribers in substantial accordance with the terms of the ordinance and this franchise or to comply with the conditïons of occupancy of any public way or to make required extensions of service, or shall in any other way substantially violate the terms and conditions of the ordinance, this Franchise or any applicable rule or regulation, or practices any fraud or deceit upon the Village of Mount Prospect or its subscribers, or fails to pay franchise -~') . . " . . . » .-' fees when due, or if a Grantee becomes insolvent, as adjudged by a court of competent jurisdiction, or is unwilling to pay its uncontested debts, or is adj udged bankrupt, ,or seeks relief under the bankruptcy laws, then the Franchise may be revoked. (b) In the event the Village of Mount Prospect or the Agency believes that grounds for revocation exist or have existed, the Village of Mount Prospect or Agency may notify a 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 Agency shall thereupon refer the matter to the Village of Mount Prospect. (c) Upon referral from the Agency or by its own motion, the Village of Mount Prospect may, following notice of the grounds for revocation and hearing pursuant to Section 2 of the Ordinance, revoke the Franchise pursuant to paragraph (a) of this Section. (d) In the event that a Franchise has been revoked <by the Village of Mount Prospect, the Village of Mount Prospect shall, to the extent then permitted by existing law, have the options to: Acquire, at the lesser of depreciated replacement value, or fair market value, excluding any value attributable to good will, all the assets of the Grantee's operations within the Village; or to require the sale, at the lesser of depreciated replacement value, or the fair market value, excluding any value attributable to good will, of all such assets of the Grantee's operations within the Village of Mount Prospect to a successor Grantee; or to require the removal of all such assets from the Village of Mount Prospect. Unless some later date is agreed to by the Grantee and except as provided in Section 6.408 of the Cable Communications Code, such option must be exercised within one (1) year from the date of the revocation of the Franchise, or the entry of the final judgement by a court reviewing the question of the revocation, or the entry of a final order upon appeal of same, whichever is later. (e) The termination of a Grantee's rights under a franchise shall in no way affect any other rights the Village of Mount Prospect may have under the Franchise or under any provision of law or ordinance. ." n . ..' . J~C' . - TIME ESSENCE OF AGREEMENT/FORCE MAJEUR SECTION 31: Whenever this Franchise 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 grounds for the Village of Mount Prospect to invoke the remedies available under the terms and conditions of this Franchise. Whenever a period of time is provided for in this Franchise 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; or any cause beyond the control of said party. And, in any 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 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 of Mount Prospect, for whatever reason, shall not be an act or omission which is "beyond the Grantee's control." SECTION 32: AMENDMENTS Ca) The Village of Mount Prospect may after notice and , hearing as required in Section 6.402 of the Cable Communications Code, adopt a resolution providing for reasonable and appropriate modifications or amendments in the Franchise Agreement of a nature that would not result in effectively terminating same, and further provided that the Village of Mount Prospect except as set forth in paragraphs Cc) and Cd) below, shall not make any modifications or amendments to the Cable Communications Code or this Franchise Agreement which would alter the provisions of either of Sections 6.405-D or 6.406-D of the Cable Communications Code or of either Sections 29 or 30 of this Franchise Agreement. -34- 1 (, II' . .- '" "I ",) . - n " (b) Throughout the term of this Franchise, Franchisee shall have an affirmative duty to notify the Village of Mount Prospect that it has been granted a cable television franchise by another municipality or franchising authority located within 100 miles of the Village of Mount Prospect. (c) Upon written notification to Franchisee by the Village of Mount Prospect, the Franchise granted herein shall be deemed automatically amended to include any of the following terms or conditions which have been granted to Franchisee by a municipality or other franchising authority described in paragraph (b) above: 1. franchise fee in excess of five (5%) percent of gross revenues; more favorable provisions relating to the option of the Village of }fount Prospect to acquire the assets of the Franchisee's cable system within the Municipality in the event of the revocation or expiration of the 2. 3. 4. Franchise; franchise term less than 15 years; rates for cable services which are lower than those proposed by Franchisee and approved by Municipality; Provided, however, that items #3 and #4 shall be automatically amended to the Franchise on condition that such term or condition has been granted to Franchisee within three (3) years of the effective date of this Franchise Agreement. (d) Further, the Village of Mount Prospect shall have the right to require the Franchisee to incorporate into its cable system, within a reasonable time, any term or condition which the Franchisee is offering to its subscribers within 100 miles of the Municipality. The Village of Mount Prospect may waive this requirement upon an affirmative demonstration by Franchisee that such service is: 1. 2. 3. being tested on a trial basis only; or not marketable within the Municipality; or not practical or feasible within the Village of Mount Prospect due to population sity or other relevant factors. -~~- , ". .t" .. I. -> ",.it a ", ... n The decision of the Village of Mount Prospect requiring the incorporation of a term or condition into the Franchise shall be governed by paragraph (a) above. SECTION 33: EFFECTIVE DATE The effective date of this Agreement shall be August 1, 1981. -36- '~ ~~ I- ... .' '" I': " ..J' ;0. .r' r'\ ~.¡ .. THE COMPANY HEREBY ACCEPTS CONDITIONS THEREOF. By: I E AND THE TERMS AND z ¡-"/ Iff ¡\ Attest: f1-'55/$1í1 Nj , Itl:s /~ Title Village of Mount Prospect (1Æ/~ / ~~ l1ayor Attest: ~~ .)f ~ By: 7- ;/"-87 . )( Date Clerk The following is the firm understanding and agreement between Agra Industries Limited of Saskatoon, Saskatchewan, Canada, and the Village of Mount Prospect: In consideration of the granting by the Village of Mount Prospect of a cable television franchise to Cablenet, Inc., dated 7- ) 't'... 8'1 ' in accordance with the Village Ordinance #3120, Agra Industries Limited undertakes to provide any funds which may be required to complete the construction of the system as described in the Franchise Agreement which are in addition to the financing already provided by Cablenet, Inc., Cybermedix Limited and its lenders. Further, Agra Industries Limited guarantees that Cablenet, Inc., shall not increase the rates charged to subscribers and users for cable communications services for a three (3) year period beginning as of the activation d the system in the Municipality. Per: Title Attest: Secretary of Mount Prosp~ct By Mayor:' C~A~)¡/ ~~ 7.,t1-t; X ~ ~ate Att~st: . , Y Clerk Accepted by the Village ,- - ----::-:::- /'