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A. A grantee, in consideration of the privilege granted under the franchise for the operation of a cable system within the public ways of the city, the expense of regulation pursuant to the franchise incurred by the city and for other costs and considerations, shall pay to the city a franchise fee of not less than five percent of its annual gross revenues during the period of its operation under the franchise.
B. The grantee shall file with the city, within 30 days after the expiration of each of the grantee's fiscal quarters, a financial statement clearly showing the gross revenues received by grantee during the preceding quarter and shall simultaneously tender payment of the quarterly portion of the franchise fee. The grantee shall also file, upon request by the city, within 120 days following the conclusion of the grantee's fiscal year, an annual report prepared and audited by a certified public accountant acceptable to the city, clearly showing the yearly total gross revenues.
C. At any time during the term of a franchise, the city shall have the right, consistent with the provision of Section 4-280-190 to inspect a grantee's income records, the right of audit and the recomputation of any amounts determined to be payable under this chapter and the franchise. Any additional amount due the city as a result of the audit shall be paid within 30 days following written notice to the grantee by the city which notice shall include a copy of the audit report. The cost of said audit shall be borne by the grantee if it is properly determined that the grantee's annual payment due to the city for the proceeding year is increased thereby by more than five percent.
D. In the event that any franchise payment or recomputed amount is not made on or before the applicable dates heretofore specified, interest shall be charged from such due date at the rate of one percent per month.
E. No acceptance by the City of any franchise fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such franchise fee payment be construed as a release of any claim the city may have for additional sums payable.
F. The franchise fee payment is not a payment in lieu of any tax, fee, or other assessment, except as specifically required by applicable law. By way of example, and not limitation, permit fees and business license fees are not waived and remain applicable.
(Prior code § 113.1-17; Amend Coun. J. 3-27-85, p. 14767; 12-9-92, p. 25465; Amend Coun. J. 4-24-12, p. 23998, § 1)
Editor's note – Coun. J. 4-24-12, p. 23998, § 1, repealed former § 4-280-130, which pertained to arbitration provisions, and renumbered this section, which was formerly § 4-280-170.
A. Upon the granting of a franchise and within 30 days following the filing of the acceptance required under Section 4-280-470 hereof and at all times during the term of the franchise, including the time for removal of facilities or management as a trustee as provided for herein, a grantee shall obtain, pay all premiums for and file with the city comptroller written evidence of payment of premiums and executed duplicate copies of the following:
1. A commercial general liability policy for bodily injury, personal injury and property damage arising in any way from the franchise or the installation or operation of the grantee's cable system, or alleged to have been so caused or occurred, with a minimum liability of an amount as established in the franchise;
2. The franchise shall indemnify, defend and hold harmless the city, its officers, boards, commissions, agents and employees from and against all claims by any person whatsoever for property damage occasioned by the installation or operation of the grantee's cable system, or alleged to have occurred or been so caused, with a minimum liability of an amount as established in the franchise;
3. A performance bond running to the city with good and sufficient surety approved by the city comptroller in the amount specified in the franchise, conditioned upon the faithful performance and discharge of the obligations imposed by this chapter and the franchise awarded hereunder from the date thereof including, but not limited to, faithful compliance with the construction timetable proposed by a grantee in its application as incorporated into the franchise, unless appropriate extension is approved by the commission. The city's right to recover under the bond shall be in addition to any other rights retained by the city under this chapter and other applicable law. Any proceeds recovered under the bond may be used to reimburse the city for the loss of expected payments of the franchise fee and other valuable consideration given for the grant of the franchise and such additional expenses as may be incurred by the city as a result of grantee's failure to comply with the obligations imposed by this chapter and the franchise including, but not limited to, attorney's fees and costs of any action or proceeding, the cost of refranchising and the cost of removal or abandonment of any property, or other costs which may be in default.
B. The bond and all insurance policies called for herein shall be issued by companies licensed to do business in Illinois and shall be in a form satisfactory to the corporation counsel and shall require 30 days' written notice of any cancellation to the cable administrator, the corporation counsel, and the grantee. A grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for and file with the cable administrator (with a copy to the corporation counsel) written evidence of the issuance of replacement bond or policies within 30 days following receipt by the city or the grantee of any notice of cancellation.
C. With regard to a renewal franchise agreement applicable to a Grantee that has completed construction of its cable system, the bond required by this section may be conditioned on the resumption of construction or other circumstances that, in the reasonable judgment of the cable administrator, requires such additional security to adequately protect the city.
D. A grantee shall, at its sole cost and expense, indemnify and hold harmless the city, its officials, boards, commissions, consultants, agents and employees against any and all claims, suits, causes of action, proceedings and the resulting losses, costs, expenses, liabilities, damages, orders, judgments, or decrees, sustained by the City arising out of the acts, errors, or omissions of the grantee, its agents, independent contractors, or employees related to or in any way arising out of the award of franchise to the grantee and its installation and operation of the cable system under the franchise. These damages shall include, but not be limited to, penalties arising out of copyright infringements and damages arising out of the failure by grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's cable system whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise. Indemnified expenses shall include, but not be limited to, all out-of-pocket expenses, such as attorney fees and shall also include the reasonable value of any services rendered by the corporation counsel or his assistants or any consultants, agents and employees of the city.
(Prior code § 113.1-18; Amend Coun. J. 12-9-92, p. 25465; Amend Coun. J. 11-8-12, p. 38872, § 132; Amend Coun. J. 11-16-16, p. 37901, Art. II, § 19)
Editor's note – Coun. J. 4-24-12, p. 23998, § 1, repealed former § 4-280-140, which pertained to transfer of ownership to grantor, and renumbered this section, which was formerly § 4-280-180.
A. Within ten days after the award of a franchise, a grantee shall deposit with the city a letter of credit from a financial institution approved by the city comptroller in an amount as specified in the franchise. The form and content of such letter of credit shall be approved by the corporation counsel. The letter of credit shall be used to insure the faithful performance by the grantee of all provisions of the franchise and this chapter; and compliance with all orders, permits and directions of any agency, commission, board, department, division or office of the city having jurisdiction over its acts or defaults under the franchise or this chapter and the payment by the grantee of any penalties, claims, liens and taxes due the city or other governmental entities which arise by reason of the construction, operation or maintenance of the system.
B. If a grantee fails to pay to the city any compensation due the city within the time fixed herein; or, fails after ten days' notice to pay to the city any taxes due and unpaid; or fails to repay the city within ten days, any damages, costs or expenses which the city is compelled to pay by reason of any act or default of a grantee in connection with the franchise; or, fails after three days' notice of such failure by the grantee to comply with any provisions of the franchise or this chapter while the city reasonably determines can be remedied by demand on the letter of credit, the city may immediately request payment of the amount thereof, with the interest and any penalties, from the letter of credit. Upon such request for payment, the city shall notify the grantee of the amount and date thereof.
C. The letter of credit shall be maintained at the amount specified in the franchise during the entire term of the franchise. In the event that amounts are withdrawn pursuant to subsection A or B of this section, a grantee, if necessary, shall take any action required to maintain the letter of credit at said full amount within three days of the notification by the city of its withdrawal against the letter of credit.
D. The rights reserved to the city with respect to the letter of credit are in addition to all other rights of the city, whether reserved by the franchise or authorized by law and no action, proceeding or exercise of a right with respect to such letter of credit shall affect any other right the city may have.
E. The letter of credit shall contain the following endorsement:
It is hereby understood and agreed that the surety will not cancel or refuse to renew this letter of credit without giving to the City Comptroller written notice, by registered mail, of its intention to cancel or not to renew, at least thirty (30) days prior to such action.
(Prior code § 113.1-19; Amend Coun. J. 12-9-92, p. 25465; Amend Coun. J. 4-24-12, p. 23998, § 1)
Editor's note – Coun. J. 4-24-12, p. 23998, § 1, repealed former § 4-280-150, which pertained to grantor's right to assign, and renumbered this section, which was formerly § 4-280-190.
All remedies under this chapter and any franchise are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a grantee of its obligations to comply with its franchise. Remedies may be used singly or in combination; in addition the city may exercise any rights it has at law or equity. Recovery by the city any amounts under insurance, the performance bond, any security fund or letter of credit, or otherwise, does not limit a grantee's duty to indemnify the city in any way; nor shall such recovery relieve a grantee of its obligations under a franchise, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have.
(Added Coun. J. 4-18-12, p. 23998, § 1)
Editor's note – Coun. J. 4-24-12, p. 23998, § 1, repealed former § 4-280-160, which pertained to grantee's obligation as trustee.
A. A franchise granted under this chapter shall be a privilege to be held in personal trust by a grantee. It shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, sale and leaseback, merger, consolidation or otherwise or by forced or involuntary sale, without prior consent of the council expressed by resolution and then on only such conditions as may therein be prescribed. Any sale, transfer or assignment not made according to the procedures set forth in this chapter shall render the franchise void. The sale, transfer or assignment in bulk of the major part of the tangible assets of the grantee shall be considered an assignment and shall be subject to the provisions of this section.
B. Any sale, transfer or assignment authorized by the council shall be made by a bill of sale or similar document, an executed copy of which shall be filed with the city within 30 days after any such sale, transfer or assignment. The council shall not withhold its consent unreasonably; provided, however, the proposed assignee agrees to comply with all the provisions of this chapter and the franchise and reasonable amendments thereto and must be able to provide proof of legal, technical, financial and character qualifications as determined by the city. The proposed assignee must further agree that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous grantee unless the City, in its sole discretion, expressly waives this requirement in whole or in part.
C. No such consent shall be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness except when such hypothecation shall exceed 75 percent of the fair market value of the property used by the grantee in the operation of its cable system. Prior consent of the council, expressed by resolution, shall be required for such transfer and said consent shall not be withheld unreasonably.
D. Prior approval of the council shall be required where ownership or control of 20 percent or more of the right of control of a grantee is acquired during the term of the franchise in any transaction or series of transactions by a person or group of persons acting in concert, none of whom owned or controlled 20 percent or more of such right to control, singularly or collectively on the effective date of the franchise. By its acceptance of a franchise, a grantee specifically grants and agrees that any such acquisition occurring without prior approval of the council shall render the franchise void.
E. The consent of the council to any sale, transfer, lease, trust, mortgage or other instrument of hypothecation shall not constitute a waiver or release of any of the rights of the city under this chapter and the franchise whether arising before or after the date of the a transfer.
F. The grantee's application for approval submitted pursuant to this section shall be processed in accordance with procedures consistent with applicable federal law.
(Prior code § 113.1-20; Amend Coun. J. 12-9-92, p. 25465; Amend Coun. J. 4-24-12, p. 23998, § 1)
ARTICLE V. SUBSCRIBER AND USER FEES AND RECORDS (4-280-180 et seq.)
A. By accepting a franchise granted pursuant to the terms and conditions imposed by this chapter, a grantee agrees that the city shall have the authority and right to regulate grantee's cable service rates.
B. All charges to subscribers and users shall be consistent with a schedule of fees for all services offered as established by the grantee.
C. A grantee shall not, with regard to fees and any other conditions of service, within the entire franchise area, discriminate or grant any preference or advantage to any person; provided, however, that a grantee may establish different rates for different classes of subscribers or users, provided that the grantee not discriminate between subscribers or users of the same services. Nothing herein shall be deemed to prevent a grantee from offering promotional or bulk discount rates so long as such discounts are available in a uniform and consistent manner in accordance with existing law.
D. Grantee may, at its own discretion, in a nondiscriminatory manner, waive, reduce or suspend connection fees and/or monthly service fees for promotional purposes.
(Prior code § 113.1-21; Amend Coun. J. 2-15-84, p. 5159; 3-27-85, p. 14767; 12-9-92, p. 25465; Amend Coun. J. 4-24-12, p. 23998, § 1)
A. A grantee shall, (1) within 30 days following the acceptance of a franchise and (2) upon written request of the city, furnish the cable administrator a list, showing the names and addresses of persons owning three percent or more of the outstanding stock or equivalent ownership interest of the grantee. Such a list shall include a roster of the grantee's officers and directors (or equivalent managerial personnel) and their addresses.
B. A grantee shall maintain books and records of its operations within the city to show the total revenues, by cable service category in sufficient detail, consistent with generally accepted accounting principles.
C. A grantee shall maintain such books and records for the franchise area specified in the franchise separately from any other operations; provided, however, that any expenses or expenditures which apply to both the system in said franchise area and any other operations shall be reasonably allocated between all such operations, consistent with generally accepted accounting principles. Such books and records shall be retained, in any reasonable form, for a period of not less than 10 years. The city shall have the right to extend the retention period through the term of any renewed franchise.
D. The books and records of a grantee's operation within the city shall be made available in the city during normal business hours, for inspection and audit by the city within ten days after such request has been made.
E. Copies of a grantee's schedule of charges, contract or application forms for subscriber service, policy regarding the processing of subscriber complaints, delinquent subscriber disconnect and reconnect procedures and any other terms and conditions adopted as a grantee's policy in connection with its subscribers shall be filed with the cable administrator and shall be made available for inspection by the public in the grantee's local office.
(Prior code § 113.1-22; Amend Coun. J. 12-9-92, p. 25465; Amend Coun. J. 4-24-12, p. 23998, § 1)
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