Editor's Note: The title of the Plan and Zone Commission
was updated to "Plan, Zoning and Development Commission" throughout
this chapter pursuant to Ord. No. 2018-67.
[Ord. 2000-26, 12-4-2000, § 1]
This article shall be known as the "Village of Elmwood Park
Cable Communications Ordinance."
[Ord. 2000-26, 12-4-2000, § 1]
This article may be cited as the "Elmwood Park Cable Television
Ordinance."
[Ord. 2000-26, 12-4-2000, § 1]
The purposes of this article are:
(a)
To establish franchise procedures and standards which encourage the
growth and development of cable systems within the Village of Elmwood
Park and which assure that cable systems are responsive to the needs
and interests of the local community;
(b)
To assure that the Village can continue to fairly and responsibly
protect the public health, safety and welfare;
(c)
To establish a local policy concerning cable communications;
(d)
To promote competition in cable television service;
(e)
To establish local authority with respect to the regulation of cable
systems to ensure that any cable operator will abide by all local
ordinances, rules and regulations;
(f)
To provide for the development of cable communications as a means
of communication for and between the citizens and the public institutions
of the Village of Elmwood Park;
(g)
To provide for the payment of franchise fees to the Village for the
use of the Village streets and public ways in the construction and
operation of a cable communications system, and to compensate the
Village, to the extent permitted by law, for costs both directly related
and incidental to the awarding of the cable television franchise;
(h)
To provide for remedies and to prescribe penalties for violations
of this article and for any and all franchise agreements granted hereunder;
(i)
To provide for consumer protection in regard to the construction
and operation of a cable system;
(j)
To provide for the regulation, where allowed, of rates and fees charged
by a franchisee under this article; and
(k)
To ensure that cable television subscribers receive high quality
cable communications service.
[Ord. 2000-26, 12-4-2000, § 1; Ord. 2001-12, 7-16-2001, § 1]
For the purpose of this article, the following terms, phrases,
words, and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the singular number include the
plural number, and words in the plural number include the singular
number. The words "shall" and "will" are mandatory and "may" is permissive.
Words not defined shall be given their common and ordinary meaning.
When used in relation to any person, means another person
who owns or controls, is owned or controlled by, or is under common
ownership or control with, such person.
A document submitted to the Village that accurately locates
the cable system facilities constructed or located within public ways
of the Village.
Maps showing the completed cable system facilities in the
franchise area.
Any service tier which includes the retransmission of local
television broadcast signals and the public, educational, and government
access channels.
The cable communications policy act of 1984, the cable television
consumer protection and competition act of 1992, and the telecommunications
act of 1996, as the same may be amended from time to time.
Any person or group of persons who:
Provides cable service over a cable system and directly, or
through one or more affiliates, owns a significant interest in such
cable system;
Otherwise controls or is responsible for, through any arrangement,
the management and operation of such a cable system; or
Operates an open video system or multichannel video system,
as defined in the cable act.
The one-way transmission to subscribers of video programming
or other programming services;
Subscriber interaction, if any which is required for the selection
or use of such video programming or other programming service; and
To the extent consistent with the cable act, the term cable
service shall include high speed internet access, and other data transfer
services.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the Village.
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by the federal communications
commission by regulation.
Any commercial building or establishment that is not a dwelling
unit.
The channel capacity designated for commercial use as defined
and required by federal law by persons unaffiliated with the cable
operator.
An electronic device which converts signals from one form
to another.
The President and Board of Trustees of the Village.
An individual employed by the franchisee to answer the telephone,
write service and installation orders, answer subscribers' questions,
receive and process payments, and perform other subscriber service
related activities.
The number of dwelling units that, when measured by a cable
plant mile, meets the numerical requirement established in this article
or the franchise agreement, so as to require the operator to provide
cable service.
The direction of signal transmission from the headend to
the subscriber terminals.
The coaxial or fiber cable that connects the feeder portion
of the distribution system to the subscriber's premises.
A single-family residential building or a unit in a multi-family
residential building.
A cable television channel, or channels, specifically designated
for noncommercial use by the local noncommercial educational institutions.
The present federal agency of that name as constituted by
the communications act of 1934, or any legally appointed or elected
successor.
The authorization, or grant issued by the Village which authorizes
the construction and operation of the cable system within the Village.
That separate contract by which the corporate authorities
grant the franchisee the right and franchise to operate a cable system
within the Village.
That portion of the Village for which a franchise is granted
under the authority of this article. Except as otherwise required
by applicable law, the franchise area shall be the corporate limits
of the Village including all territory thereafter annexed to the Village.
The fee that a franchisee is required to pay to the Village
pursuant to this article for the right, privilege and franchise to
construct, install, maintain and operate a cable communications system
within the streets and public ways of the Village for the purpose
of providing cable service to persons in the Village. The term franchise
fee does not include:
Any tax, fee, or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their services, but not including a tax, fee, or assessment
which is unduly discriminatory against cable operators or cable subscribers);
Capital costs which are required by the franchise to be incurred
by the cable operator for 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;
or
Any fee imposed under title 17, United States Code.
The natural person, partnership, domestic or foreign corporation,
association, joint venture, or organization of any kind granted a
franchise by the Village under this article and its lawful successors,
transferees or assignees.
That channel, or channels, set aside for the exclusive noncommercial
use of local government as determined by the Village.
All revenue received by a franchisee, or its affiliates,
derived directly or indirectly from and in connection with the operation
of the franchisee's cable system to provide cable service within
the Village, including, but not limited to, revenues, fees, receipts
or charges from or for: basic tier cable service; any tier of video
programming service other than basic service; any optional, premium,
per channel or per program service; high speed internet access service,
digital music service, any installation, disconnection, reconnection,
change in service or other customer service; rentals of converters,
remotes or other customer premises equipment; commercial leased channels
or channel access; advertising sales revenue, including a per subscriber
share of revenues received for advertising carried on one or more
cable systems in addition to the franchisee's cable system within
the Village; revenues from home shopping channels; the sales of programming
guides; and such other revenue sources as may now exist or hereafter
develop, provided that such revenues, fees, receipts or charges may
lawfully be included in the gross revenue base on which the Village
may calculate and collect franchise fees. Gross revenues shall not
include any amounts refunded to subscribers, any unpaid subscriber
or advertiser accounts and any sales tax, telecommunications tax,
utility message tax or other taxes imposed directly upon any subscriber
or user by the Village, the state or other governmental unit and collected
by the franchisee on behalf of and for remittance to the Village,
the state or other governmental unit. As used herein, "annual gross
revenues" shall mean gross revenues attributable to a twelve-month
accounting period, or portion thereof.
An agreement or promise to answer for the debt, default,
or miscarriage of another. Secondarily responsible for debt, default,
or miscarriage.
The control center of a cable 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, modulators, processors, and other related equipment.
The connection from system feeder cable to the subscriber's
converter or terminal and the provision of service.
A communications network comprised of frequencies (upstream)
that connect schools, and units of local government, etc., to the
cable system headend for transmission downstream to the subscriber
network and/or a closed nonpublic network. The I-Net may be constructed
of a separate trunk line or may be incorporated as a certain set of
frequencies on the subscriber trunk line.
The process whereby two or more cable systems are connected.
A channel which carries programming that is produced by the
operator or its designated agent, or a channel which carries programming
determined by the operator to reflect the needs, interests, and concerns
of the communities served.
Any individual, firm, corporation, companies, limited liability
companies, cooperative, association, trust, partnership, joint venture,
combination or other legally recognized entity.
A cable television channel specifically designated as a channel
available to the public for the production of noncommercial television
programming operating under rules established by the Village.
Any real property owned by the Village or any other governmental
unit that is not otherwise defined herein as a public way. A franchise
granted under this article does not authorize the use of any public
property by the franchisee.
The surface, the airspace above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, parkway, or other public
right-of-way now or hereafter held by the Village which shall entitle
the Village and the franchisee to the use thereof for the purpose
of installing and maintaining the franchisee's cable system,
but only to the extent of the Village's right, interest or authority
to grant a franchise to occupy and use such public way.
The channel capacity designated for public, educational or
governmental access programming.
The facilities and equipment utilized for the production
and playback of public, educational and government access programming.
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,
pursuant to Illinois state statutes, and which are located within
the franchise area.
Any person who elects to subscribe to, for any purpose, a
service provided and authorized by the franchisee by means of or in
connection with the cable system, and who pays the charges therefor.
Any transaction or series of transactions which, singularly
or collectively, result in the sale, assignment or transfer of all
or a majority of the assets of the franchisee, or the cable system,
or a change of 25% or more of the ownership or working control of
the franchisee, of the ownership or working control of the franchise,
or of the ownership or working control of affiliated entities having
ownership or working control of the franchisee, the franchise or cable
system. Franchise transfers require Village approval as provided in
this article. Transactions between affiliates of the franchisee are
not exempt from Village approval, except as specifically provided
in a franchise agreement between the Village and the franchisee.
A passive device used to block a channel or channels from
being received by a cable subscriber (negative trap), or used to remove
an interfering carrier from a channel that a subscriber wants to receive
(positive trap).
The main distribution lines leading from the headend of the
cable system to the various areas where feeder lines (cables) are
attached to distribute signals to the subscribers.
The direction of signal transmission from the subscriber
terminals to the headend.
The Village of Elmwood Park, Illinois.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
In the event that the Village shall grant to a franchisee a nonexclusive
franchise to construct, operate, maintain, and reconstruct a cable
communications system within the franchise area, or a renewal of an
existing franchise, the franchise or renewal shall constitute both
a right and an obligation to provide the services of a cable communications
system as required by the provisions of this article and the franchise
agreement. The franchise agreement shall include those provisions
of the franchisee's application for franchise or application
for renewal that are finally negotiated and accepted by the Village
and the franchisee.
(b)
Any franchise granted under the terms and conditions contained herein
shall be consistent with federal and state laws and regulations.
(c)
Any franchise granted is hereby made subject to the general provisions
of this article now in effect or hereafter made effective. Nothing
in the franchise shall be deemed to waive the requirements of the
Village regarding permits, fees to be paid or manner of construction.
(d)
The franchisee shall acknowledge that its rights under this article
and the franchise are subject to the police power of the Village to
adopt and enforce generally applicable ordinances necessary to the
health, safety and welfare of the public; and the franchisee shall
agree to comply with all generally applicable laws and ordinances
enacted by the Village pursuant to such power.
[Ord. 2000-26, 12-4-2000, § 1]
No person shall construct, install, maintain, or operate a cable
system within the Village, or within any public ways of the Village,
unless a franchise has first been obtained pursuant to this article,
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 franchisee in order to conduct such a business,
or to construct or install buildings, structures, facilities, or equipment
within the Village.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Any Franchise Granted Shall Be Nonexclusive. The Village may grant
any number of franchises subject to applicable federal and state law.
The Village may limit the number of franchises granted, based upon,
but not necessarily limited to, the requirements of applicable law
and specific local considerations such as:
(1)
The capacity of the public ways to accommodate multiple cables
in addition to the cables, conduits and pipes of the utility systems,
such as electrical power, telephone, gas and sewerage.
(2)
The disadvantages that may result from cable system competition,
such as the requirement for multiple pedestals on residents'
property, and the disruption arising from numerous excavations of
the rights of way.
(b)
In the event the Village grants an additional franchise to use and
occupy the public ways for the purpose of operating a cable system,
any additional franchise shall only be granted in compliance with
applicable state and federal law. Notwithstanding the foregoing, in
order to avoid the Village's receipt of redundant or outdated
equipment, to the extent that the franchisee previously granted such
a franchise has provided specific equipment in satisfaction of its
obligation to support public, educational or governmental programming,
the Village may require the subsequent franchisee to provide alternative
equipment, providing that the total financial commitment for said
equipment is equal to that provided by the previously granted franchise.
[Ord. 2000-26, 12-4-2000, § 1]
Except as otherwise required by applicable law, the franchise
area for any franchise granted by the Village shall be the corporate
limits of the Village including all territory thereafter annexed to
the Village.
[Ord. 2000-26, 12-4-2000, § 1]
The term of the franchise shall be as established in the franchise
agreement and shall take full effect and be in full force from and
after the effective date of the franchise agreement, and the same
shall continue in full force and effect for the term specified in
the franchise agreement unless otherwise extended, terminated or revoked
for cause as allowed pursuant to the provisions of this article.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The application for a cable television franchise must contain, at
a minimum, the following information:
(1)
A clear description of the identity of the applicant and its
affiliates including the applicant's and its affiliate's
legal name, address, telephone and telecopy numbers and e-mail addresses,
the names and residence and business addresses of all officers and
directors of the applicant and/or persons having an ownership interest
of 5% or greater;
(2)
A legal description and/or clear identification of the area
intended to be serviced by the applicant;
(3)
A detailed description of the physical facility proposed, including
channel capacity, technical design, performance characteristics, and
headend which shall include, but not be limited to, the following:
(A)
A detailed map indicating all areas proposed to be served including
identification of trunk line locations, and if requested, a computerized
map in a format compatible with the Village's computer software.
(B)
A statement or schedule setting forth all proposed classifications
of rates and charges to be made against subscribers and all rates
and charges as to each of said classifications, including installation
charges and cable service charges,
(C)
A detailed, informative, and referenced statement describing
the actual equipment and operational standards proposed by the applicant,
(D)
A copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber,
and
(E)
A detailed statement setting forth in its entirety any and all
agreements and undertakings, whether formal or informal, written,
oral, or implied, existing or proposed to exist between the applicant
and any person, firm or corporation which materially relate or pertain
to or depend upon the application and the granting of the franchise;
(4)
Detailed projected financial pro forma for a period of 10 years
showing projected number of subscribers, rates, all system revenues,
operating expenses, capital expenditures, depreciation schedules,
and income statements. All information is to be presented in the format
required by the Village;
(5)
Proof of financial support for the system construction as evidenced
by a letter from the lending institution and/or other financial entity;
(6)
A description of applicant's prior operational experience
including a list of other franchises held by the applicant identified
by state, city/Village and the date of franchise expiration;
(7)
A detailed description of the customer service and technical
support operations;
(8)
Representations that the general partner, any principal or partner,
or principal stockholder has never been convicted of a crime involving
moral turpitude, or presently under indictment charging such a crime;
the applicant and/or its parent corporation is not, nor has been,
a party to litigation, or cause of action, in any court of law or
proceeding by the securities and exchange commission, the FCC, or
any other governmental body, or administrative agency relevant to
the holding of any franchise agreement, or actions of the applicant
in any business endeavor; and
(9)
Any additional information that the Village deems relevant.
(b)
A fee of $20,000 for analysis of the application is required to accompany
the application for an initial franchise. A condition of any initial
franchise granted pursuant to this article shall be the franchisee's
agreement to reimburse the Village's out of pocket expenses in
connection with the initial franchise grant.
(c)
Upon receipt of a complete application for an initial franchise,
a public hearing shall be held at a time and date approved by the
corporate authorities. Within 90 days after the close of the public
hearing, the corporate authorities shall make a decision based upon
the technical, financial, and legal qualifications of the applicants,
the applicants' performance in other franchise areas and such
other information as the board deems relevant. No provision of this
article shall be deemed, or construed, as to require the corporate
authorities to grant a franchise.
(d)
Any grant of a franchise shall become effective through the execution
by the Village and the franchisee of a franchise agreement subject
to the terms and conditions of this article.
[Ord. 2000-26, 12-4-2000, § 1]
The Village may require a franchisee to provide a surety or
guaranty agreement which assures that the surety accepts liability
for the performance of the obligations of the franchisee upon the
franchisee's default.
[Ord. 2000-26, 12-4-2000, § 1]
In addition to those matters required to be included in the
franchise agreement by virtue of this article, the franchise agreement
shall contain such further conditions or provisions as may be included
in the franchisee's proposal and/or negotiated between the Village
and the franchisee, except that no such conditions or provisions shall
be such as to conflict with any provisions of this article or other
applicable law.
Each franchise agreement shall also contain the following express
representations by the franchisee that:
(a)
The franchisee has carefully read the terms and conditions of this
article and the franchise agreement and accepts all of such terms
and conditions and agrees to abide by the same.
(b)
The franchisee has carefully read the terms and conditions of this
article and expressly waives any claims that any provisions thereof
are unreasonable or arbitrary or void, except as to those provisions
which are preempted now or hereafter by superseding provisions of
federal or state law.
(c)
The franchisee has not been induced to accept the franchise by any
promise, oral or written, by or on behalf of the Village or by any
third person, regarding any term or condition of this article or the
franchise agreement not expressed therein.
(d)
No promise or inducement, oral or written, has been made by the franchisee
to any Village employee, agent or official regarding receipt of the
franchise.
(e)
Except as may be permitted by Section 2-8A of this Code, as amended, or by any federal or Illinois statute, rule or regulation, no officer or employee of the Village has solicited any gratuity, discount, entertainment, hospitality, loan, forbearance, or other tangible or intangible item having monetary value including, but not limited to, cash, food and drink, and honoraria for speaking engagements related to or attributable to the government employment or the official position of the employee or officer from the franchisee in violation of Section 2-8A of this Code, as amended.
(f)
Except as may be permitted by Section 2-8A of this Code, as amended, or by any federal or Illinois statute, rule or regulation, the franchisee has not given to any officer or employee of the Village any gratuity, discount, entertainment, hospitality, loan, forbearance, or other tangible or intangible item having monetary value including, but not limited to, cash, food and drink, and honoraria for speaking engagements related to or attributable to the government employment or the official position of the employee or officer in violation of Section 2-8A of this Code, as amended.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall pay to the Village a franchise fee in an amount
of 5% of the franchisee's annual gross revenues.
(b)
Payment of the franchise fee is in addition to and exclusive of any
and all authorized taxes, business license fees, permit fees, levies
or assessments previously in effect or subsequently adopted by the
Village so long as said taxes, fees, levies or assessments are of
general applicability.
(c)
To the extent permitted by applicable law or regulations, franchise
fees in excess of 5% may be enacted by appropriate amendment to this
article by the corporate authorities and collected by the Village
after 60 days' written notice to the franchisee.
(d)
Franchise fees are to be paid quarterly and not later than 60 days
following the last day of the quarter. The franchise fees are to be
mailed by certified mail, or may be hand delivered, to the Village
Manager's office.
(e)
Each franchise fee payment shall be accompanied by a verified financial
statement in a format as set forth in the franchise agreement that
clearly states the gross revenues for the quarter said payment is
rendered. The financial statement shall be signed by the franchisee's
controller, or other employee knowledgeable of the accuracy of the
figures used in the computation and the corresponding payment to the
Village.
(f)
Any franchise fee which remains unpaid in whole or in part after
the date specified in this article shall be delinquent and shall thereafter
accrue interest from and after the due date at the rate of 18% per
annum until paid in full.
(g)
The Village shall have the right to inspect the franchisee's
income records, worksheets, journals, financial statements, and other
such financial records as may be necessary and appropriate to verify
the accuracy of the franchise fee payments or other payments owed
to the Village. The Village may use its own personnel or may hire
an outside certified public accountant to conduct an audit or "Agreed
Upon Procedures" financial review to recompute and verify the franchise
fee payment and compliance with the financial terms of this article.
Any additional amounts due to the Village as a result of an audit
shall be paid with applicable interest within 30 days following written
notice to the franchisee. Said notice shall include a copy of the
audit report.
(h)
Upon termination of the franchise and/or at the expiration of the
term provided thereof, or otherwise, the franchisee shall continue
to make the quarterly statements and certifications as provided in
this section until such time as all payments due the Village under
this article have been paid and accounted for to the reasonable satisfaction
of the Village.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee's franchise shall not be assigned or transferred
without the prior written consent of the Village. As used in this
section, the terms assigned and transferred shall mean any transaction
or series of transactions defined as a transfer in this article.
(b)
No consent from the Village is required prior to the granting of
a security interest in any of the franchisee's assets by pledge,
mortgage or other hypothecation to secure an indebtedness.
(c)
The franchisee shall notify the Village in writing of any foreclosure
or any other judicial sale of the franchise or of a substantial part
of the assets of the franchisee or of the cable system. Such notification
shall be considered by the Village as notice of a franchise transfer
and the provisions of this section governing the application for Village
consent to the transfer shall apply.
(d)
The franchisee, and any proposed assignee or transferee of the franchise,
shall submit a written application to the Village containing or accompanied
by such information as is required in accordance with applicable law
and FCC regulations.
(e)
For the purpose of determining whether it shall consent to such franchise
transfer, the Village may inquire into the legal, financial, technical
and other qualifications of the prospective transferee or controlling
party to operate and maintain the system, to comply with all franchise
obligations for the remainder of the franchise term, and to promptly
cure any present or ongoing franchise violations or defaults. The
franchisee and the prospective transferee or controlling party shall
provide such information as reasonably requested by the Village in
connection with such inquiry.
(f)
The consent of the Village shall not be unreasonably delayed or denied.
As prescribed by the cable act (47 USC Section 537), the Village shall
be deemed to have consented to a proposed transfer if the Village
fails to render a final decision on the request for approval of the
proposed transfer within 120 days following the Village's receipt
of the written application for consent to the transfer, unless the
Village and the applicant agree in writing to extend the time for
the Village to review the application and to grant or deny its consent.
[Ord. 2000-26, 12-4-2000, § 1]
Franchise renewal shall be as prescribed by applicable law.
The Village and franchisee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise.
[Ord. 2000-26, 12-4-2000, § 1; Ord. 2001-12, 7-16-2001, § 2]
The franchisee shall, within 30 days after written demand therefor,
reimburse the Village for all reasonable and necessary costs and expenses
incurred by the Village in connection with any assignment or transfer
of the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
The Village shall have the right to purchase the system under
the conditions set forth in the cable act (47 USC Section 627), as
follows:
(a)
If a renewal of a franchise is denied and the Village acquires ownership
of the cable system or effects a transfer of ownership of a cable
system to another person, such acquisition or transfer shall be at
fair market value, determined on the basis of the cable system valued
as a going concern but with no value allocated to the franchise itself.
(b)
If a franchise is revoked for cause and the Village acquires ownership
of the cable system or effects a transfer of ownership of the cable
system to another person, such acquisition shall be at an equitable
price within the meaning of the cable act.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Subject to applicable federal and state law, the franchisee shall
continue to provide cable service for a reasonable period of time
not to exceed 24 months following the expiration of the term of the
franchise or the effective date of any revocation or termination of
the franchise.
(b)
In the event of a change of franchisee, or in the event a new operator
acquires the system, the franchisee shall cooperate with the Village,
new franchisee or operator in maintaining continuity of service to
all subscribers. During such period, the franchisee shall be entitled
to the revenues for any period during which it operates the system
and shall be entitled to reasonable costs for its services when it
no longer operates the system.
(c)
In the event the franchisee fails to operate the cable system for
72 consecutive hours without prior approval of the Village or without
just cause, the Village may, at its option, operate the cable system
or designate an operator until such time as the franchisee restores
cable services. If the Village is required to fulfill this obligation
for a franchisee, the franchisee shall reimburse the Village for all
reasonable costs or damages that are the result of the franchisee's
failure to perform.
(d)
During any period in which the franchisee continues to provide service as provided in Subsection (a) of this section, the franchisee is entitled to all revenues collected, less any franchise fees or other monies owed to the Village.
(e)
During any period of time in which the franchisee continues to provide
service as provided in subsection(a) of this section, the Village
will assist and use its best efforts to assist the franchisee in providing
a satisfactory basis for the franchisee to continue providing services
under the franchise agreement; provided, however, that the franchisee
is not required during any such period to provide or continue to provide
service if the revenues collected are less than the operating costs
incurred by the franchisee.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
In the event a franchise expires without right of renewal, is revoked,
or is otherwise terminated, the franchisee shall remove the tangible
assets of its system from the Village's rights of way within
one year unless the franchisee receives permission to abandon some
or all of its system or has received permission to transfer the system.
(b)
In removing its plant, structures and equipment, the franchisee shall
at its own expense restore and repair any property damaged during
the removal process and shall leave all streets and public ways in
as good condition as prevailed prior to the franchisee's removal
of its equipment and appliances, without affecting the electrical,
telephone or other cable wires or attachments. The Village shall inspect
and approve the condition of the streets and public ways after removal.
The liability, indemnity and insurance as provided herein, and the
security fund, shall continue in full force and effect during the
period of removal and until full compliance by the franchisee with
all the terms and conditions of this section.
(c)
In the event of a failure by the franchisee to complete any work
required by this section the Village may cause such work to be done
and the franchisee shall then reimburse the Village for the costs
thereof within 30 days after receipt of an itemized list of such cost,
or the Village may recover such costs through the security fund or
letter of credit provided by the franchisee.
[Ord. 2000-26, 12-4-2000, § 1]
The Village shall exercise appropriate regulatory authority
under the provisions of this article and applicable law. The Village
may, at its sole option, delegate some or all of its regulatory authority
under this article or the franchise agreement to a joint regulatory
agency, provided that only the corporate authorities may revoke a
franchise pursuant to this article.
[Ord. 2000-26, 12-4-2000, § 1]
The Village acting alone or acting jointly with other franchising
authorities, may exercise or delegate regulatory responsibility, including,
but not limited to, the following areas:
(a)
Administering and enforcing the provisions of the cable television
franchise(s).
(b)
Coordination of the operation of public, educational and government
access channels and facilities.
(c)
Providing technical, programming and operational support to public
agency users, such as government departments, schools and health care
institutions.
(d)
Establishing procedures and standards for use of channels dedicated
to PEG access use, if provided for in any franchise agreement.
(e)
Planning expansion and growth of public benefit cable services.
(f)
Analyzing the possibility of integrating cable communications with
other local, state or national telecommunications networks.
(g)
Formulating and recommending long range telecommunications policy.
[Ord. 2000-26, 12-4-2000, § 1]
At Village's sole option, upon 30 days' written notice
to the franchisee, the Village and the franchisee shall meet and/or
conduct public review of the performance and quality of service of
the system.
(a)
Topics for discussion and review may include, but shall not be limited
to, services provided, application of new technologies, system performance,
programming, developments in the law, and technical and economic feasibility
of system expansion or upgrading. Either the Village or the franchisee
may select additional topics for discussion.
(b)
Within 30 days after the conclusion of the review, the Village may
issue a report with respect to the adequacy of system performance
and quality of service. If inadequacies are found, the Village may
direct the franchisee to correct the inadequacies within a reasonable
period of time.
(c)
Failure of the franchisee, after due notice, to correct any inadequacies
found during the review may be a violation of a specific provision
of the franchise or this article. The Village may, at its sole discretion,
exercise any remedy within the scope of this article considered appropriate.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall establish rates for its service categories that
shall be applied fairly and uniformly to all subscribers in the franchise
area.
(b)
The franchisee shall maintain and file with the Village, a complete
schedule of subscriber rates including all fees and charges for services.
The franchisee shall notify the Village at least 30 days prior to
any change in rates.
(c)
The Village reserves the right to regulate rates as permitted by
state and federal law.
[Ord. 2000-26, 12-4-2000, § 1]
On the effective date of the franchise, the franchisee shall
establish a permanent security fund with the Village in the amount
of $50,000 in cash, an irrevocable letter of credit, corporate surety
bond or other instrument which complies with the requirements of this
article and is approved by the Village Attorney, which approval shall
not be unreasonably withheld. The security fund shall be maintained
at the sole expense of the franchisee so long as any part of the system
is located within the public ways of the Village.
(a)
The fund shall serve as security for the full and complete performance
of this article and the franchise agreement, including payment of
any costs, expenses, damages or loss the Village pays or incurs because
of any act or omission attributable to the franchisee that constitutes
a violation, default or failure to comply with the codes, ordinances,
rules, regulations or permits of the Village, and the payment of any
liquidated damage amounts, penalties, judgments, fees or taxes due
the Village.
(b)
In the case of any default or failure of the franchisee to pay any liquidated damages, penalties, judgments, fees or taxes due the Village in connection with the construction, operation or maintenance of the cable system and the provision of cable service within the Village pursuant to the franchise, the Village may assess the security fund pursuant to the applicable procedures set forth in Section 48A-50 of this article, or in the franchise agreement.
(c)
The franchisee shall promptly pay any undisputed liquidated damages,
penalties, judgments, fees or taxes due the Village. If the franchisee
fails to pay any undisputed amounts due the Village within 30 days
after written notice from the Village, the Village may withdraw the
amount stated in the notice from the security fund.
(d)
The franchisee shall replenish the security fund to its full amount
within 30 days after written notice from the Village that monies have
been withdrawn from the fund.
(e)
The rights reserved to the Village with respect to the security fund
are in addition to all other rights and remedies of the Village, whether
reserved by this article or authorized by law, and no action or proceeding
to exercise rights with respect to the security fund shall constitute
an election of remedies or a waiver of any other rights the Village
may have.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Prior to commencing any work within public ways of the Village that
exceeds $25,000 in value, the franchisee shall furnish the Village
with a construction bond written by a corporate surety authorized
to do business in Illinois, equal to 100% of the estimated cost of
the system, or portions of the system, to be constructed, modified,
repaired, or replaced within the public ways of the Village, or $100,000,
whichever is less. Such instrument shall be in a form acceptable to
the Village.
(b)
The construction security shall remain in force until 60 days after
substantial completion of the work, as determined by the Village Engineer,
including restoration of public ways and other public or private property
affected by the construction. After expiration of said sixty-day period,
the construction security shall be released and the instrument shall
be canceled.
(c)
The construction security shall guarantee:
(1)
Timely completion of construction;
(2)
Construction in compliance with applicable plans, permits, technical
codes and standards;
(3)
Proper location of the facilities in the public ways of the
Village as specified in plans approved by the Village; and
(4)
Restoration of the public ways and any other public property
affected by the construction within the public ways.
(d)
Notwithstanding the construction security provided by the franchisee,
the franchisee is responsible for completion of all construction work,
including restoration, in accordance with the permit and approved
plans for such work, and the material requirements of this article
and the franchise agreement. Any default or breach in performance
of such work shall be promptly cured by the franchisee.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
As a part of the indemnification provided by the provisions of this
article, but without limiting the same, the franchisee shall upon
award of the franchise and prior to commencement of construction of
the system, file with the Village Clerk, and at all times thereafter
maintain in full force and effect at its sole expense, evidence of
a policy or policies for the following:
(1)
Commercial General Liability Insurance. Comprehensive or commercial
general liability insurance, including, but not limited to, coverage
for bodily injury, personal injury, and property damage shall be maintained
at the sum(s) of $5,000,000 per occurrence and $10,000,000 aggregate.
(2)
Business Automobile Liability. Comprehensive automobile liability
including, but not limited to, nonownership and hired car coverage
as well as owned vehicles with coverage for bodily injury and property
damage, shall be maintained at the sum(s) of $3,000,000 per accident.
(3)
Property Loss. Fire insurance with coverage for extended perils
on the franchise property used by the franchisee in the conduct of
franchise operations in an amount adequate to enable the franchisee
to resume franchise operations following the occurrence of any risk
covered by this insurance.
(4)
Workers' Compensation Insurance. In such coverage, with
statutory limits as may be required by the state of Illinois.
(b)
The policy or policies shall specifically recognize and cover the
indemnification provisions of this article. The Village and its officers,
agents, and employees shall be named as an additional insured, and
the policy or policies shall contain cross liability endorsements.
Said insurance shall provide that the insurance provided by the franchisee
shall be primary and that any provision of any contract of insurance
or other risk protection benefit or self-insurance policy purchased
or in effect or enacted by the Village and any other insurance or
benefit shall be in excess thereof.
(c)
The insurer or insurers shall have "Best Insurance Rating" of at
least A-, VII or the highest rating attributable to insurance carriers
by a recognized rating agency and shall be authorized to write the
required insurance, and shall be approved by the state of Illinois.
(d)
The policy or policies of insurance shall be maintained by the franchisee
in full force and effect during the entire term of the franchise and
such other period of time during which the franchisee is operating
without a franchise or is engaged in the removal of the cable system.
All certificate(s) shall contain the following endorsement:
Should any of the above described policies be canceled before
the expiration date thereof, the issuing company will mail 30 day
prior written notice to the holder named on the certificate.
(e)
In the event of the cancellation of any insurance policy required
herein or upon the franchisee's failure to procure said insurance,
the Village shall have the right to terminate the franchise agreement
or, alternatively, to procure such insurance and charge the cost thereof
to the franchisee. Such costs may be paid from the security fund established
in this article or from the construction bond, or by any other means
deemed appropriate by the Village.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
As a condition of any franchise granted pursuant to this article,
the franchisee shall agree to the extent permitted by law, to defend,
indemnify and hold the Village and its officers, agents and employees
free and harmless from and against any and all claims, actions, suits,
damages, costs, expenses and liabilities, including the reasonable
fees and expenses of their attorneys, expert witnesses and consultants,
court costs and fines, which may be incurred by them, asserted against
them, or sought to be imposed upon them, individually, jointly or
severally, and which arise directly or indirectly out of or are connected
in any way with the grant of the franchise or the construction, installation,
maintenance, operation or condition of the franchisee's cable
system pursuant to a franchise granted hereunder except to the extent
those damages, claims, awards and judgments arise from the negligence
of the Village, its officers, agents and employees, including, but
not limited to:
(1)
Any negligent, tortious or wrongful act or omission of the franchisee,
and its officers, agents, employees, contractors or subcontractors
resulting in personal injury, bodily injury, sickness or death to
any person, or in loss or damage of any kind to the property of any
person including the franchisee and its officers, agents, employees,
licensees and invitees.
(2)
Any negligent, tortious or wrongful act or omission of the franchisee,
and its officers, agents, employees, contractors or subcontractors
resulting in damage to, loss of, destruction or unauthorized use of
any trademark, trade name, copyright, patent or other intangible property
rights of any person including libel, slander and invasion of privacy.
(3)
Loss or damage of any kind related to franchisee's failure
to comply with the provisions of this article, or of the franchise
agreement, or of any federal, state or local law or regulation applicable
to the franchisee or the cable system.
(b)
As a condition of any franchise granted pursuant to this article,
the franchisee shall assume for its officers, agents, employees, contractors
and subcontractors all risk of dangerous or hazardous conditions in,
on or about any public ways of the Village, except for latent conditions
actually caused by the wilful or negligent acts of the Village or
its employees.
(c)
The indemnity obligation of the franchisee shall not extend to injuries,
judgments or liabilities to the extent they arise out of the negligence
or wilful misconduct on the part of the Village, or its officers,
agents or employees while acting on behalf of the Village.
(d)
As a condition of any franchise granted pursuant to this article,
the franchisee shall agree that, except to the extent caused by the
gross negligence, malicious or intentional wrongful acts, or the wilful
misconduct of the Village, or its officers, agents or employees while
acting on behalf of the Village, the Village and its officers, agents
or employees shall not be liable to the franchisee for any claims
for damage to, or loss of, all or any part of franchisee's cable
system arising out of any public work, public improvement, alteration
of any municipal structure, change in the grade or line of any public
way of the Village, the elimination, discontinuing or closing of any
public way of the Village, or other exercise by the Village of its
lawful authority over the public ways.
(e)
As a condition of any franchise granted pursuant to this article,
the franchisee shall recognize the Village's right to exercise
its police powers over the public ways of the Village in case of fire,
disaster or other emergency as reasonably determined by the Village,
and agree that the Village shall not be liable to the franchisee for
any damage to the franchisee's cable system or other property
when such damage results from the exercise by the Village of its police
powers in order to protect the public in case of fire, disaster or
other emergency. When practicable, as determined by the Village, the
Village agrees to consult with the franchisee prior to the exercise
by the Village of such police power, where the exercise may affect
the franchisee's cable system and to permit the franchisee to
take necessary actions to protect the public and the franchisee's
cable system or other property.
[Ord. 2000-26, 12-4-2000, § 1]
The cable communications system shall be constructed in accordance
with the design, construction, and rebuild requirements contained
in the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee's system shall have an audio emergency override
system that can be activated by the Village. The override shall be
capable of providing an audio signal over all NTSC channels of the
franchisee's system. Additionally, the franchisee may in a franchise
agreement be required to provide an audio/video override. The Village
shall be solely responsible for the content of all transmissions over
the emergency override. The franchisee shall not be liable for any
claim or cause of action arising from the Village's transmission,
or failure to transmit, over the emergency override. The Village agrees
to indemnify and hold the franchisee harmless from any damages or
penalties arising out of the negligence of the Village, its employees
or agents in using such service.
[Ord. 2000-26, 12-4-2000, § 1; Ord. 2001-12,7-16-2001, § 3]
The franchisee shall design a cable system in such a manner
as to have the capability to pass by every single-family dwelling
unit and multiple-dwelling unit building, within the franchise area.
Service shall be provided to business locations under the terms and
conditions set forth in the franchise agreement. Cable system construction
and provision of service shall be nondiscriminatory, and the franchisee
shall not delay or defer service to any part of the franchise area
on the grounds of economic preference. The franchisee shall not deny
service, deny access, or otherwise discriminate against subscribers,
PEG access channel users, or general citizens on the basis of income,
race, color, religion, national origin, age, gender, marital status
or physical or mental disability of an individual or group in an area.
The franchisee shall comply at all times with the cable act and all
other applicable federal, state and local laws and regulations, and
all executive and administrative orders relating to nondiscrimination.
The entire operations of the franchisee shall be operated in a manner
consistent with the principle of fairness and no one shall be arbitrarily
excluded from its use. Service shall be provided to subscribers in
accordance with the schedules specified in the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall initially construct or rebuild the cable system
so that cable service from the newly constructed or rebuilt system
is extended and can be provided within a reasonable time to any dwelling
unit that exists within the franchise area.
(b)
After completion of initial construction or rebuild of a cable system,
the franchisee shall extend the system to and offer the services of
the system to potential subscribers within any area of the Village,
including subdivisions which are hereafter developed or annexed within
the corporate limits of the Village, where there are at least a total
of 20 residential dwelling units with occupancy permits per cable
plant mile. The franchisee shall design, construct and operate the
system in accordance with the schedules specified in the franchise
agreement.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee shall provide cablecasting facilities in accordance
with the requirements set forth in the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The cable system shall be designed in such a manner as to allow the
franchisee to interconnect with adjacent cable systems operated by
the franchisee or by the franchisee's parent company, affiliate,
or subsidiary. The franchisee shall interconnect between said systems,
which shall permit the sharing of programming on public, educational,
and government access channels, and for emergency purposes as set
forth in the franchise agreement.
(b)
Subject to the limitation of applicable federal and state law, the
Village may require the franchisee to participate in interconnecting
the cable television system to other cable systems as set forth in
the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
All companies shall, as part of any application for an initial or
renewed franchise, propose the design and construction of an institutional
network that shall connect school and local government unit buildings
and facilities designated by the Village and that meets the identified
needs of the Village for the purpose of transmitting two-way telecommunications
signals among the designated school and local government entities.
(b)
The institutional network shall be capable of carrying voice, full
motion video, audio, and data communications.
(c)
The franchisee shall design, construct, operate and maintain the
institutional network as provided in the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
For the initial build out or rebuild of the cable system upon renewal
of a franchise agreement, the franchisee shall comply with the requirements
of the system construction schedule contained in the franchise agreement.
(b)
Following the initial build out or rebuild of the cable system upon
renewal of a franchise agreement, the franchisee shall submit a written
construction schedule to the Village Engineer 10 working days before
commencing any work in or about the public ways. The franchisee shall
further notify the Village Engineer not less than two working days
in advance of any excavation or work in the public ways. The franchisee
shall promptly complete all construction activities so as to minimize
disruption of the Village ways and other public and private property.
All construction work authorized by a permit within the public ways,
including restoration, must be completed within 120 days of the date
of issuance.
(c)
The franchisee shall provide the Village with monthly reports of
all construction and system activation during the initial construction
or rebuild of the cable system. Reports shall identify the location
to which service is proposed, the time at which the construction will
be completed, the time for activation of the service line, the date
the area has been turned over to marketing, and other information
which will assist the Village in determining that the franchisee is
extending service to the entire franchise area. After initial construction
or rebuild of the cable system is completed, the franchisee shall
provide an annual report of system construction, if any. The franchisee
and the Village shall meet for periodic construction conferences.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall provide to the Village three sets of as built
maps and drawings of the cable system in document form, and one set
in electronic form, within 90 days after initial construction or rebuild
of the cable system is substantially completed.
(b)
Within 60 days after completion of any construction or work that
results in any addition, extension, rebuild or removal of the system
within the public ways of the Village, the franchisee shall furnish
the Village with three sets of as built maps and drawings in document
form, and one set in electronic form, accurately depicting the location
of all cables, wires, and facilities constructed or relocated as part
of such work.
(c)
The as built maps and drawings submitted in document form shall be
in a reproducible medium reasonably acceptable to the Village, and
shall be on sheets not to exceed 24 inches by 36 inches and drawn
at a scale of one inch to 20 feet.
(d)
The as built maps and drawings submitted in electronic form shall
use the state plane coordinate system, shall be in AutoCAD or other
format approved by the Village, and shall be on 3 1/2 inch floppy
disks or other electronic storage medium approved by the Village.
(e)
The as built maps and drawings submitted to the Village in electronic form will be used to create atlas information and will be documented into an overall utilities atlas. If the franchisee desires, it may provide separate sets of electronic form as built maps and drawings, one set for the Village's public records, and one set containing any proprietary information that the Village would agree to protect from public disclosure, as provided in Section 48A-46 of this article.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Village Codes and Permits. The franchisee shall comply with all applicable
Village construction codes, permit procedures and ordinances regulating
public ways. The Village shall be entitled to charge reasonable permit
and inspection fees to recover the special nonrecurring inspection
costs imposed by the construction or rebuild of the cable system.
Any fees or charges paid, so long as generally applicable to entities,
including, but not limited to, like users of the public right-of-way
and not discriminatory, shall be paid in addition to the franchise
fee.
(b)
Compliance with Safety Codes. All construction practices shall be
in accordance with all applicable sections of federal and state occupational
safety and health acts and any amendments thereto as well as all state
and local codes where applicable.
(c)
Compliance with Codes. All installation of electronic equipment shall
be of a permanent nature, durable and installed in accordance with
the provisions of the national electrical code, the national electrical
safety code, the Illinois commerce commission's rules for construction
of electric power and communication lines, and all applicable federal,
state and local codes.
(d)
Construction Standards and Requirements. All of the franchisee's
plant and equipment, including, but not limited to, the antenna site,
headend and distribution system, towers, house connections, structures,
poles, wires, cables, coaxial cables, fiber optic cables, fixtures
and appurtenances, shall be installed, located, erected, constructed,
rebuilt, replaced, removed, repaired, maintained, and operated in
accordance with good engineering practices, so as not to unnecessarily
hinder or obstruct pedestrian or vehicular traffic.
(1)
Initial Construction or System Rebuild Communications. During
the initial construction or rebuild of the cable system, the franchisee
shall provide advance written notice to residents when performing
construction in the public easements, utility easements or otherwise
on private property in the area in which they live, utilizing door
hangers, letters or bill stuffers.
(2)
Other Construction Communications. The franchisee shall provide
advance written or other notice to residents when performing scheduled
system construction in the public easements, utility easements or
otherwise on the resident's private property. Said notice may
utilize door hangers, letters, bill stuffers or personal communication
from a franchisee representative to a resident. Further, the franchisee
shall use its best efforts to notify residents when performing nonscheduled
system construction, including unanticipated work associated with
a service call or service interruption.
(e)
Safety, Nuisance Requirements. The franchisee shall at all times
employ ordinary care and shall install and maintain in use commonly
accepted methods and devices preventing failures and accidents which
are likely to cause damage, injury or nuisance to the public.
(f)
Personnel. The franchisee is responsible for all of its personnel,
including its contractors, agents, employees and subcontractors engaged
in system construction and maintenance.
(g)
General Duties. The franchisee shall, before commencing any construction
in the public ways, comply with all requirements of JULIE.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee shall construct, install, operate and maintain
its system in a manner consistent with all applicable laws, ordinances,
construction standards, governmental requirements, FCC technical standards,
and any detailed standards set forth in the franchise agreement. In
addition, the franchisee shall provide to the Village, upon request,
a written report of the results of the franchisee's periodic
proof of performance tests conducted pursuant to FCC and franchise
standards and guidelines.
(a)
Twenty Four Hour Operation. The system shall be designed and shall
be maintained to provide 24 hour continuous operation.
(b)
Uniform and Strong Signals. Subject to the FCC standards the system
shall produce, for reception on subscriber's receivers, which
are in good working order, a picture which is free from any significant
interference or distortion.
[Ord. 2000-26, 12-4-2000, § 1]
If there are recurring problems or complaints, the franchisee
will perform reasonable tests at the request of the Village, including
partial repeat tests, different test procedures, or tests involving
a specific subscriber's terminal, at the franchisee's expense.
The Village may require the franchisee to prepare a report to the
Village on the results of those tests, including a report identifying
any problem found and steps taken to correct the problem. The franchisee
will endeavor to arrange for such special tests so as to minimize
hardship or inconvenience to subscribers.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall utilize existing poles, conduits and other facilities
whenever practicable, and shall not construct or install new, different,
or additional poles, conduits, or other facilities on public property
until the written approval of the Village is first acquire any vested
interest in any location for any pole or wire holding structure, and
such poles conduits, or other facilities shall be temporarily or permanently
removed, relocated, changed or altered by the franchisee on the same
terms and conditions, if any, established by the Village for telephone
and electric utilities.
(b)
All installations shall be underground in those areas of the Village
where public utilities providing both telephone and electric service
are underground at the time of installation. In areas where either
telephone or electric utility facilities are aboveground at the time
of the installation, the franchisee may install its service aboveground,
provided that at such time as those facilities are required to be
placed underground by the Village, or are placed underground, the
franchisee shall likewise place its services underground on the same
terms and conditions, if any, established by the Village for telephone
and electric utilities. Where not otherwise required to be placed
underground, the franchisee's system shall be located underground
at the request of the adjacent property owners, provided that the
excess cost over aerial location shall be borne by the property owner
making the request. All cable passing under the roadways shall be
installed in conduit.
(c)
The franchisee shall notify the Village at least 10 days before commencement
of any construction in any streets within the Village. The Village
shall cooperate with the franchisee in granting any permits required,
providing such grant and subsequent construction by the franchisee
shall not unduly interfere with the use of such streets and that the
proposed construction shall be done in accordance with all applicable
provisions of this Code.
(d)
All transmission lines, equipment and structures shall be so installed
and located as to cause minimum interference with the use of the public
ways by the Village, by the general public or by persons authorized
to use or be present in or upon the public ways and with the rights
and reasonable convenience of property owners, and at all times shall
be kept and maintained in a safe, adequate and substantial condition
and in good order and repair. The franchisee shall at all times employ
ordinary 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. Suitable
barricades, flags, lights, flares, or other devices shall be used
at such times and places as are reasonably required for the safety
of all members of the public. Any poles or other fixtures placed in
any street or public way by the franchisee shall be placed in such
manner as not to interfere with the usual travel on such street or
public way.
(e)
The franchisee shall restore to the Village standards and specifications,
at its own expense and in a manner approved by the Village, any damage
or disturbance caused to any street, public way or to public property
as a result of its operations or construction on its behalf. The franchisee
shall guarantee and maintain such restoration for a period of one
year against defective materials or workmanship. The franchisee shall
restore any damage or disturbance to private property which may result
from operations or construction by it or on its behalf to the property's
preconstruction condition.
(f)
Whenever, in case of fire, disaster, or other emergency, it becomes
necessary in the judgment of the Village's officials to remove
or damage any of the franchisee's facilities, no charge shall
be made by the franchisee against the Village for restoration and
repair, unless such acts amount to malicious conduct by the Village.
(g)
The franchisee shall have the authority to trim trees on public ways
of the Village at its own expense as may be necessary to protect its
wires and facilities. Such work shall comply with the applicable requirements
of this Code and any other Village rules and regulations.
(h)
The franchisee, at its own expense, shall protect, support, temporarily
disconnect, relocate, or remove, any property of the franchisee when
in the opinion of the Village Manager, the same is required by reason
of traffic conditions, public safety, street vacation, street construction,
change or establishment of street grade, installation of sewers, drains,
water pipes, power lines, signal lines, transportation facilities,
tracks, or any other type of structure or improvement by governmental
agencies, whether acting in a governmental or a proprietary capacity.
(i)
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 48 hours' notice, the franchisee 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 by the permit holder, and the franchisee shall
have the authority to require payment in advance.
(j)
The franchisee shall make no paving cuts or curb cuts unless absolutely
necessary, and then only after written permission has been given by
the Village.
(k)
All cables passing under any roadway shall be installed in conduit,
unless the construction permit issued for such work contains an express
waiver of this requirement and approval of an alternative installation.
(l)
Unless directly and proximately caused by the wilful, intentional
or malicious acts by the Village, the Village shall not be liable
for any damage to or loss of any of franchisee's facilities within
the public ways of the Village as a result of or in connection with
any public works, public improvements, construction, excavation, grading,
filling, or work of any kind in the public ways by or on behalf of
the Village.
[Ord. 2000-26, 12-4-2000, § 1]
After service has been established by activating trunk and feeder
cables for any area meeting the density requirements as set forth
in the franchise agreement, the franchisee shall provide service to
any requesting potential dwelling unit subscriber within the area
within 30 days from the date of request, provided such subscriber
provides appropriate identification and pays any outstanding balance
due on previous accounts and any advance charges required for new
service.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee shall provide the broad categories of video programming
and other services in order to meet community needs, as specified
in the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee will provide at least one drop and one outlet at each
school building and local unit of government building as set forth
in the franchise agreement at no charge. The franchisee may charge
the school or local unit of government for the actual costs for internal
cable wiring within the school or local unit of government building
for the installation of the outlets in excess of the number agreed
to in the franchise agreement. Costs shall be for actual costs of
materials and the franchisee's labor. The franchisee shall work
with the school or local unit of government in determining the design
of the installation.
(b)
The franchisee shall provide such number of outlets to the institutional
network at each school and/or local unit of government buildings identified
by the Village, as provided in the franchise agreement or other applicable
agreement.
(c)
The franchisee shall provide such equipment for the cablecasting
of live and/or prerecorded programming from schools and local unit
of government buildings as set forth in the franchise agreement or
other applicable agreement.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall establish and provide dedicated access channels
for public, educational and government access. The number of such
channels shall be as set forth in the franchise agreement.
(b)
The franchisee shall be required to provide PEG access facilities
and equipment as specified in the franchise agreement.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee shall designate channel capacity for commercial
use as required by applicable law.
[Ord. 2000-26, 12-4-2000, § 1; Ord. 2001-12, 7-16-2001, § 4]
(a)
The franchisee shall maintain all books and records required for
regulation of rate by the appropriate governmental authority.
(b)
Upon written request, the Village may inspect the books, records,
maps and other documents in the control or possession of the franchisee
that directly pertain to the franchise when reasonably necessary:
1) to enforce this article or to assess compliance with the franchise;
2) to exercise any lawful regulatory power of the Village; or 3) as
may otherwise be necessary or appropriate in connection with any proceeding
the Village may or must conduct under applicable law with respect
to the franchisee's cable system. The franchisee shall produce
the requested books, records and maps at the franchisee's local
office in the Chicago metropolitan area not later than 30 days after
the request for production. Requests for extensions of time to respond
shall not be unreasonably denied. Records shall be exempt from inspection
pursuant to this section to the extent required by applicable laws
regarding subscriber privacy.
(c)
To the extent provided herein, trade secrets and proprietary, privileged
or confidential information obtained from or provided by the franchisee
that would cause competitive harm to the franchisee if disclosed will
not be publicly disclosed by the Village.
(d)
Any such information claimed to be so privileged, and that part of
any document claimed to contain such privileged information ("confidential
information"), shall be appropriately marked by the franchisee as
a trade secret, or as privileged, confidential or proprietary commercial
information, and shall be accompanied by a written request for nondisclosure
upon submission of the information to the Village. Nondisclosure requests
shall identify the portion of the materials claimed to be privileged
from disclosure and shall contain a plain statement of the reasons
for withholding the information from public inspection.
(e)
The Village shall protect the confidential information from disclosure to third parties with the same degree of care afforded to its own confidential and proprietary information. Information shall not be considered to be privileged, confidential or proprietary to the extent that: 1) it is or becomes publicly available other than through the Village; 2) it is required to be disclosed by a governmental or judicial order: 3) it is required to be disclosed by statute or other applicable law. Upon request, the Village shall enter into a written confidentiality agreement incorporating these conditions prior to inspection of any records claimed to be privileged from disclosure as provided in Subsection (c) of this section.
[Ord. 2000-26, 12-4-2000, § 1; Ord. 2001-12, 7-16-2001, § 5]
The franchisee shall provide reports in a form acceptable to
the Village related to cable services provided in the Village as the
Village may request from time to time, provided that such reports
or additional information relates to the scope of the Village's
regulatory authority.
[Ord. 2000-26, 12-4-2000, § 1]
Within 120 days after the close of the franchisee's fiscal
year, the franchisee shall submit a written annual report in a form
approved by the Village. Such report shall include, without limitation,
the following information:
(a)
A copy of the franchisee's annual report, if any, and its parent
company's annual report;
(b)
A list of the franchisee's officers, members of its board of
directors, and any general partners of the franchisee;
(c)
A list of stockholders or other equity investors holding 5% or more
of the voting interest in the franchisee and its parent company;
(d)
A list of residential areas in the franchisee's service area
where service is not available, and a schedule for providing service,
if applicable;
(e)
A verified annual financial statement which shall accurately present
the franchisee's annual gross revenues for the twelve-month period
and all franchise fee payments for the twelve-month period; and
(f)
Current subscriber manual or handbook and related materials, and
any rules and procedures published by the franchisee for I-Net users.
[Ord. 2000-26, 12-4-2000, § 1]
Upon request, the franchisee shall submit copies of any public
document issued by or filed with, any federal or state regulatory
agencies which are nonroutine in nature that will materially and directly
affect the franchisee's cable television operations within the
franchise area.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Franchise Agreement. The franchisee's failure to perform certain
obligations under this article or the franchise agreement, or its
failure to do so in a timely manner, may result in damage to the Village
that is difficult to determine. The franchise agreement may set forth
a liquidated sum or sums to be reasonably paid in light of the anticipated
loss caused by a breach or failure to perform and, in the event of
such breach or failure to perform, the franchisee shall pay such amounts
to the Village as liquidated damages.
(b)
Assessment of Liquidated Damages. Before assessing liquidated damages
against the franchisee, the Village shall give written notice to the
franchisee, and an opportunity to cure the breach or failure to perform
as provided in the franchise agreement. Unless different procedures
or time periods are prescribed in the franchise agreement, the procedures
and time periods for imposing liquidated damages shall be the same
as the procedures set forth herein for determining and remedying franchise
violations.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
General. The franchisee shall comply with the requirements of this
article and the franchise agreement at all times during the term of
its franchise.
(b)
Material Violations. If the Village has reason to believe that the
franchisee has committed a material violation of this article or the
franchise agreement, the Village may act to remedy the violation in
accordance with the procedures set forth below. A material violation
shall include:
(1)
Construction or operation in the Village or in the public ways
of the Village without a required permit, license or authorization.
(2)
Construction or operation at an unauthorized location.
(3)
Unauthorized franchise transfer.
(4)
Material misrepresentation by or on behalf of the franchisee
in any application to the Village or in any report or document required
to be filed with the Village.
(5)
Failure to construct, complete, relocate or remove all or any
part of the cable system as required by this article or the franchise
agreement.
(6)
Failure to provide the services, facilities or resources required
by this article or the franchise agreement.
(7)
Failure to pay taxes, franchise fees, costs or penalties when
and as due the Village.
(8)
Failure to file required documents, applications or reports,
including financial reports, with the Village.
(9)
Failure to deliver evidence of the franchisee's insurance coverage as specified in Section 48A-26 of this article.
(10)
Failure to file and maintain with the Village all required bonds.
(11)
Failure to establish and maintain the security fund required pursuant to Section 48A-24 of this article.
(12)
Failure to restore any amount withdrawn from the security fund within the time specified in Section 48A-24 of this article.
(13)
Failure to commence or complete construction within the time
specified in the franchise agreement hereof.
(14)
Systemic failure to comply with the customer service standards as required by Section 48A-55 of this article.
(15)
Failure to comply with the material provisions of this article.
(16)
Failure to comply with the material terms of the franchise agreement.
(c)
Notice of Material Violations. Written notice shall be given to the
franchisee setting forth the nature of the material violation and
a reasonable period of time for the franchisee to correct the violation.
Unless the Village determines that the violation is of such a nature
that a lesser period of time is warranted for remedying the violation,
the franchisee shall be given 30 days after receipt of such notice
to remedy the violation.
(d)
Answer to Notice of Violations. Within 30 days, or such other period
of time specified by the Village in its notice to the franchisee,
the franchisee shall respond in writing to the Village:
(1)
That it contests the Village's notice of violation and
requests an opportunity to be heard as provided herein. The franchisee
shall submit supporting documentation with its response to the notice.
(2)
That it contests the Village's notice of violation for
the reasons that the violation was beyond the reasonable control of
the franchisee and requests an opportunity to be heard as provided
herein. The franchisee shall submit supporting documentation with
its response to the notice.
(3)
That the franchisee will remedy the violation within the time
specified by the Village in its notice to the franchisee.
(4)
If the franchisee contends that an extended period of time is
reasonably needed to remedy the violation, it shall submit a written
request for an extension, together with supporting documentation that
the franchisee cannot reasonably remedy the violation within the time
period specified by the Village in its notice to the franchisee. The
Village shall not unreasonably deny an extension of time to remedy
the violation. If the Village grants the extension, the franchisee
shall proceed to remedy the violation within the extended time prescribed,
provided that the franchisee also informs the Village on a regular
basis of the steps being taken to remedy the violation.
(e)
Hearing. The Village shall give the franchisee not less than 14 days'
written notice of the date, time and place of the public hearing to
be held before the corporate authorities. At the public hearing, the
corporate authorities shall hear and determine the issues and render
its findings and its decision. If a hearing officer has been appointed
by the Village, the hearing officer shall hear the relevant evidence
and shall render a record of the administrative hearing and recommended
findings and decision to the corporate authorities.
(f)
Determination. If the franchisee fails to submit a written response to the Village's notice of violation as provided in Subsection (d) of this section, or if the franchisee fails to remedy the violation within the time period specified by the Village in its notice to the franchisee, or any extensions thereto granted by the Village, or if the corporate authorities are persuaded after a hearing that the franchisee has committed a material violation as provided herein, the corporate authorities may, after giving the franchisee an opportunity to be heard:
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Cause for Revocation and Termination. A franchise granted by the
Village pursuant to this article is subject to revocation in the event
of any substantial breach of the franchise agreement or default in
performance of the franchisee's performance of the franchise.
The following events, acts or omissions on the part of the franchisee
may be considered cause for revocation of the franchise and termination
of the franchise agreement:
(1)
Failure, after notice and an opportunity to cure, to comply
with the material provisions of this article.
(2)
Failure, after notice and an opportunity to cure, to comply
with the material terms of the franchise agreement.
(3)
Failure to cure material violations of this article or the franchise
agreement within a reasonable time after notice from the Village.
(4)
Material fraud or misrepresentation in obtaining the franchise.
(5)
Failure to pay taxes, franchise fees, costs or penalties when
and as due the Village after notice of the delinquency and an opportunity
to cure.
(6)
Wilful failure to maintain required insurance coverage after
notice of the failure and an opportunity to cure.
(7)
Failure to restore system wide service after 48 consecutive
hours of interrupted service, provided the franchisee's failure
to restore system wide service is not caused by circumstances or events
beyond the franchisee's reasonable control.
(8)
Insolvency or bankruptcy of the franchisee.
(b)
Notice of Substantial Breach. Written notice shall be given to the
franchisee setting forth:
(1)
The nature of the substantial breach or default by the franchisee;
(2)
A written demand that the franchisee correct the violation;
and
(3)
Notice that any failure to correct or remedy the substantial
breach or default within 30 days, or such other period of time as
may be stipulated in the franchise agreement, may be cause for revocation
of the franchise.
(c)
Answer to Notice of Breach. Within 30 days after the Village's
written notice to the franchisee, the franchisee shall respond in
writing to the Village, together with documentation in support of
its response:
(1)
That it contests the Village's notice of substantial breach
and requests an opportunity to be heard as provided herein.
(2)
That corrective action has been implemented by the franchisee
and the substantial beach or default has been cured.
(3)
That corrective action has been implemented by the franchisee
and is being actively and diligently pursued in accordance with a
written corrective action plan to be submitted to the Village.
(d)
Hearing. If requested by the franchisee, or if the Village is not
satisfied that sufficient corrective action is being actively and
expeditiously pursued by the franchisee to remedy the substantial
breach or default, the Village shall schedule a public hearing to
hear and determine the issues and to consider whether sufficient cause
exists to revoke the franchise. The Village shall give the franchisee
not less than 14 days' written notice specifying the Village's
intent to consider the revocation of the franchisee's franchise
pursuant to this article, and the date, time and place of the public
hearing to be held before the corporate authorities, or a hearing
officer appointed by the corporate authorities. If a hearing officer
has been designated, the hearing officer shall hear the relevant evidence
and shall render a record of the administrative hearing and recommended
findings and decision to the corporate authorities.
(e)
Determination. After hearing the relevant evidence or considering
the administrative record of the hearing, the corporate authorities
shall determine whether or not a substantial breach or default by
the franchisee has occurred, whether it has been cured or a satisfactory
corrective action plan has been submitted and is being actively and
diligently pursued, and whether cause exists to revoke the franchise.
The franchisee shall be given an opportunity to be heard in connection
with those issues. If the corporate authorities are persuaded that
a substantial breach or default has occurred, the corporate authorities
shall consider the nature, circumstances, extent and gravity of the
substantial breach or default, as reflected by the following factors,
in considering whether some lesser sanction or cure, if any, should
be imposed:
(f)
Ordinance. If the corporate authorities determine that cause exists
to revoke the franchise, it may by ordinance declare the franchisee's
franchise to be terminated and revoked, provided that the Village
may grant the franchisee an additional period of time to remedy the
substantial breach or default before such ordinance is fully effective.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Nothing in this article shall be construed as limiting any judicial
remedies that the Village may have, at law or in equity, for enforcement
of this article or of any franchise agreement entered into pursuant
to this article.
(b)
Any person convicted of a violation of any of the provisions of this
article shall be fined not less than $100 nor more than $750 for each
offense. A separate and distinct offense shall be deemed committed
each day on which a violation occurs or continues.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
The franchisee shall construct, install, maintain and operate its
cable television system so as to protect the privacy rights of each
subscriber and user in accordance with the cable act as amended and
the FCC rules and regulations promulgated thereunder.
(b)
No cable line, wire, amplifier, converter, or other piece of equipment
owned by the franchisee shall be installed by the franchisee in the
subscriber's premises, other than in appropriate easements, without
first securing any required consent. If a subscriber requests service,
permission to install upon subscriber's property shall be presumed.
[Ord. 2000-26, 12-4-2000, § 1]
All consumer protection and customer service standards shall
be as provided by the federal communications commission rules and
regulations, 47 CFR 76.309.
[Ord. 2000-26, 12-4-2000, § 1]
(a)
Eminent Domain. Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, the power of the Village to
acquire property through the exercise of the right of eminent domain,
at a fair and just value; and nothing herein contained shall be construed
to contract away or to modify or abridge, whether for a term or in
perpetuity, the Village's right of eminent domain.
(b)
Police Powers. The franchisee's rights are subject to the police
powers of the Village to adopt and enforce ordinances as the corporate
authorities may deem necessary for the protection of the health, safety
and welfare of the public. The franchisee shall comply with all generally
applicable laws and ordinances enacted pursuant to that power.
(c)
Other Legal Rights and Powers. In addition to any rights specifically
reserved to the Village by this article, the Village reserves to itself
every right and power which is required to be reserved by a provision
of this article or the franchise.
(d)
Right to Make Rules and Regulations. There is hereby reserved to
the Village the right to adopt rules and regulations as it shall find
necessary or appropriate to implement the terms and conditions of
this article; provided, however, that such rules and regulations are
within the scope of the obligations imposed by this article and franchise
agreements granted pursuant to this article, and do not conflict with
the provisions of applicable federal and state laws and regulations.
Before any such rules and regulations are adopted, the Village shall
give notice to the franchisee and afford the franchisee an opportunity
to be heard.
(e)
Variance. The Village reserves the right to grant variances from
the strict application of any provision of this article, except those
required by federal or state law, if the Village determines: 1) that
it is in the public interest to do so, and 2) that the strict enforcement
of such provision will impose an undue hardship on the franchisee.
To be effective, such variance shall be evidenced by writing signed
by a duly authorized representative of the Village. A variance of
any provision in one instance shall not be deemed a variance of such
provision in subsequent instances, nor shall it be deemed a variance
or waiver of any other provision of this article.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee shall not refuse to hire or employ, nor shall
it bar or discharge from employment, nor discriminate against any
person in compensation or in terms, conditions, or privileges of employment
because of age, race, creed, color, national origin, or sex. The franchisee
shall comply with the provisions of the cable act and Illinois law
relating to employment.
[Ord. 2000-26, 12-4-2000, § 1]
The franchisee shall not be relieved of its obligation to comply
with any of the provisions of this article or the franchise agreement
by reason of any failure of the Village to enforce prompt compliance.
[Ord. 2000-26, 12-4-2000, § 1]
If any section, subsection, sentence, clause, phrase, or provision
of this article is for any reason held invalid or unconstitutional
as conflicting with any federal, state or local law, rule or regulation
now or hereafter in effect by any federal or state court, or administrative
or governmental agency of competent jurisdiction, including, but not
limited to, the FCC, or is held by such court or agency to be modified
in any way to conform to the requirements of any such law, rule or
regulation, such provision shall be deemed a separate, distinct and
independent part of this article, and such holding shall not affect
the validity of the remaining parts of this article, which shall be
applied and construed as reasonably as possible in the absence of
the invalidated provision.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
The purpose of this article is to provide specific regulations
for the placement, construction and modification of personal wireless
telecommunications facilities. In order to accommodate the communication
needs of residents and businesses while protecting the public health,
safety, and general welfare of the community, the Village board finds
that these regulations are necessary in order to:
(a)
Facilitate the provision of wireless telecommunications services
to the residents and businesses of the Village;
(b)
Minimize adverse visual effects of towers through careful design
and siting standards;
(c)
Avoid potential damage to adjacent properties from tower failure
through structural standards and setback requirements; and
(d)
Maximize the use of existing and approved towers and buildings to
accommodate new wireless telecommunication antennas in order to reduce
the number of towers needed to serve the community.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2; Ord. 2015-37, 8-17-2015]
(a)
The provisions of this article are not intended and shall not be
interpreted to prohibit or have the effect of prohibiting the provision
of personal wireless services, nor shall the provisions of this article
be applied in such a manner as to unreasonably discriminate between
providers of functionally equivalent personal wireless services. To
the extent that any provision or provisions of this article are inconsistent
or in conflict with any provision of this Code, the provisions of
this article shall be deemed to control.
(b)
In the course of reviewing any request for any approval required
under this article made by an applicant to provide personal wireless
service or to install personal wireless service facilities, the Plan,
Zoning and Development Commission or the Board of Trustees, as the
case may be, shall act within a reasonable period of time after the
request is duly filed with the Village, taking into account the nature
and scope of the request, and any decision to deny such a request
shall be in writing and supported by substantial evidence contained
in a written record.
(c)
Should the application of this article have the effect of prohibiting
a person or entity from providing personal wireless service to all
or a portion of the Village, such provider may petition the Board
of Trustees for an amendment to this article in the manner provided
in Section 1411.10 of the zoning ordinance.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
The terms "personal wireless service" and "personal wireless
service facilities," as used in this article, shall be defined in
the same manner as in title 47, United States Code, Section 332(c)(7)(C),
as amended now or in the future. Generally, these terms refer to licensed
commercial wireless telecommunication services including cellular,
personal communication services (PCS), specialized mobile radio (SMR),
enhanced specialized mobile radio (ESMR), paging, and similar services
that are marketed to the general public.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
(a)
A public utility service use which satisfies the definition of personal
wireless service facility shall be considered a special use, whether
principal or accessory, where the personal wireless facility is located
in one of the following defined areas:
(1)
That portion of the COS-1 zoning district comprising the Oak
Park Country Club lying south of Fullerton Avenue, west of 78th Avenue
and north of Armitage Avenue (extended);
(2)
B-2 districts;
(3)
R-4 zoning district;
(4)
The MU-1 zoning district lying north of Grand, west of 76th
Avenue and south of Schubert.
(b)
The proposed facility in these areas shall not require a height variation
in the above referenced zoning districts if less than 90 feet in height
and if mounted on a freestanding antenna pole, or if the personal
wireless service facility is directly affixed to an existing building
and the height of the personal wireless service facility does not
exceed 15 feet above the roof of an existing building.
(c)
In all B-1, C-1, and R-3 districts, and the MU-1 districts not specifically listed in Subsection (a) of this section, a public utility service use which satisfies the definition of personal wireless service facility shall be considered a special use, whether principal or accessory, and shall require a height variation for that portion of the height of the personal wireless service facility in excess of the maximum height requirements of the applicable district.
(d)
In all R-1A, R-1, and R-2 residential districts, and the COS-1 districts not specifically referenced in Subsection (a) of this section, a public utility service use which satisfies the definition of personal wireless service facility shall be considered a special use, whether principal or accessory, and shall require a height variation for that portion of the height of the personal wireless service facility in excess of the maximum height requirements of the applicable district in all R-1A, R-1, R-2 and the COS-1 zoning districts not referenced in Subsection (a) of this section, provided that the facility satisfies the other requirements set forth in this section and is located only in the following locations:
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
(a)
The shared use of existing towers and antenna facilities shall be
preferred to the construction of new such facilities. The applicant
shall submit a report inventorying existing towers and antenna sites
within a reasonable distance from the proposed site outlining opportunities
for shared use as an alternative to the proposed use.
(b)
The applicant must demonstrate that the proposed tower or antenna
cannot be accommodated on an existing approved tower or facility due
to one or more of the following reasons:
(1)
Unwillingness of the owner to entertain the proposed facility.
(2)
The planned equipment would exceed the structural capacity of
existing and approved towers and facilities, considering existing
and planned use for those facilities.
(3)
The planned equipment would cause interference with other existing
or planned equipment, which cannot reasonably be prevented.
(4)
Existing or approved towers or facilities do not have space
on which proposed equipment can be placed so it can function effectively
and reasonably.
(5)
Other reasons make it impracticable to place the equipment proposed
by the applicant on existing and approved towers or facilities.
(6)
The proposed collocation of an existing tower or antenna site
would be, by virtue of the requirements in this article, considered
a prohibited use.
(c)
Approval of a proposed antenna to share an existing tower or facility
shall be contingent upon the applicant's agreement to pay all
costs of adapting an existing facility to a new shared use. These
costs can include structural reinforcement, preventing transmission
or receiver interference, additional site screening, and other changes
required to accommodate shared use.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2; Ord. 2015-37, 8-17-2015]
(a)
The personal wireless service facility otherwise shall conform to
all minimum setback and yard requirements of the zoning ordinance,
and shall also conform to all applicable federal laws and regulations
concerning its use and operation. No public utility service use which
satisfies the definition of personal wireless service facility shall
be permitted in any zoning district in the Village unless it complies
with all applicable federal laws and regulations concerning its use
and operation. In addition, no personal wireless facility shall be
located between the front lot line and the principal building on the
site.
(b)
In considering a request for approval of a special use or variations
to permit the installation of personal wireless service facilities
the Plan, Zoning and Development Commission or the Board of Trustees,
as the case may be, shall, in addition to other relevant standards
for approval, also give due consideration and weight to whether the
applicant has sought and been denied the opportunity to collocate
its personal wireless service facility on an existing antenna supporting
structure.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
Any personal wireless service facility installed and operating
prior to the enactment of this article which would be prohibited under
this article shall be considered to be a legal nonconforming use and/or
a legal nonconforming structure, as the case may be, and shall be
subject to the rules on nonconformities provided in Section 1410 of
the zoning ordinance.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
Proposed or modified towers and antennas shall meet the following
design requirements:
(a)
Commercial wireless telecommunication service towers shall be of
a monopole design unless the Village board determines that an alternate
design would better blend into the surrounding environment.
(b)
Towers and antennas shall be designed to blend into the surrounding
environment through the use of color or camouflaging architectural
treatment, where possible. A tower shall be painted a single, neutral
color and shall be well maintained at all times.
(c)
Towers shall not be illuminated by artificial means and shall not
display strobe lights unless such lights are specifically required
by a federal or state authority. When incorporated into the approved
design of the tower, light fixtures used to illuminate ball fields,
parking lots, or similar areas may be attached to the tower.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
Abandoned or unused towers or portions of towers shall be removed
as follows:
(a)
All abandoned or unused towers and associated facilities shall be
removed within 12 months of the cessation of operations at the site
unless a time extension is approved by the Village Manager. A copy
of the relevant portions of a signed lease which requires the applicant
to remove the tower and associated facilities upon cessation of operations
at the site shall be submitted at the time of application. In the
event that a tower is not removed within 12 months of the cessation
of operations at a site, the tower and associated facilities may be
removed by the Village and the costs of removal assessed against the
property.
(b)
Unused portions of towers above a manufactured connection shall be
removed within six months of the time of antenna relocation. The replacement
of portions of a tower previously removed requires the issuance of
a new special use permit.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
No new or existing telecommunications service shall interfere
with public safety telecommunications. All applications for new service
shall be accompanied by an intermodulation study which provides a
technical evaluation of existing and proposed transmissions and indicates
all potential interference problems. Before the introduction of new
service or changes in existing service, telecommunication providers
shall notify the Village at least 10 calendar days in advance of such
changes and allow the Village to monitor interference levels during
the testing process.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
In addition to the information required elsewhere in this Code,
development applications for a wireless telecommunication antenna
or tower shall include the following supplemental information:
(a)
A statement of the applicant's purpose and need.
(b)
Existing adjacent facilities, including existing and estimated capacities.
(c)
A site plan including tower and equipment elevations indicating how
visual impacts will be minimized.
(d)
Demonstration from a qualified and licensed professional engineer
that alternative locations are unavailable or impractical and that
the equipment cannot be mounted on an existing tower.
(e)
A report from a qualified and licensed professional engineer which:
(1)
Describes the tower height and design including a cross section
and elevation;
(2)
Documents the height above grade for all potential mounting
positions for collocated antennas and the minimum separation distances
between antennas;
(3)
Describes the tower's capacity, including the number and
type of antennas that it can accommodate;
(4)
Documents what steps the applicant will take to avoid interference
with established public safety telecommunications;
(5)
Includes an engineer's stamp and registration number;
(6)
Includes any other information necessary to evaluate the request.
(f)
For all commercial wireless telecommunication service towers and
facilities, a letter of intent committing the owner and his or her
successors to allow the shared use of the tower if an additional user
agrees in writing to meet reasonable terms and conditions for shared
use.
[Ord. 97-10, 6-2-1997; Ord. 2000-26, 12-4-2000, § 2]
The Village has determined that a uniform policy for reviewing
requests from wireless telecommunication providers to place wireless
telecommunication antennas and towers on Village owned property is
desirable.
(a)
Priority of Users. Priority for the use of Village owned land for
wireless telecommunication antennas and towers will be given to the
following entities in descending order:
(1)
Village of Elmwood Park;
(2)
Public safety agencies, including law enforcement, fire, and
ambulance services, which are not part of the Village and private
entities with a public safety agreement with the Village;
(3)
Other governmental agencies, for uses which are not related
to public safety; and
(4)
Entities providing licensed commercial wireless telecommunication
services including cellular, personal communication services (PCS),
specialized mobile radio (SMR), enhanced specialized mobile radio
(ESMR), paging, and similar services that are marketed to the general
public.
(b)
Minimum Requirements. The placement of wireless telecommunication
antennas or towers on Village owned property must comply with the
following requirements:
(1)
The antennas or tower will not interfere with the purpose for
which the Village owned property is intended.
(2)
The applicant obtains adequate liability insurance and commits
to a lease agreement which includes equitable compensation as determined
by the Village board for the use of public land and other necessary
provisions and safeguards.
(3)
The applicant will submit a letter of credit, performance bond,
or other security acceptable to the Village to cover the costs of
the antenna or tower removal.
(4)
The antenna or tower will not interfere with other users who
have a higher priority.
(5)
Upon reasonable notice, the antenna or tower may be required
to be removed at the user's expense.
(6)
The user must obtain all necessary land use approvals.
(c)
Village Owned Sites. Village owned sites, except for parks, are potentially
available for personal wireless commercial facilities, subject to
the above requirements.
(d)
Application Process. All applicants who wish to locate a wireless
telecommunication antenna or tower on Village owned property must
submit to the Village Manager a completed application and detailed
plan that complies with the submittal requirements of Section 1411.11
of the zoning ordinance regarding special uses along with other pertinent
information requested by the Village, and follows the procedures for
special uses.
(e)
Reservation of Right. The Village board reserves the right to deny,
for any reason, the use of any or all Village owned property by any
one or all applicants.
