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(a) Following completion of the system upgrade/rebuild, the grantee shall make available to each of its subscribers who receive some or all of the services offered on the system, reception of at least three public, educational and government (PEG) access channels to be allocated among public, educational and government usage as determined by the grantor. The channels designated for access shall be provided by the grantee as a part of the basic cable service. The access channels shall be made available by the grantee for use by the Village and its citizens in accordance with the rules and procedures established by the Village or any lawfully designated person, group, organization or agency authorized by the Village for that purpose.
(b) To the extent that any access channel is not being used for the provision of non-commercial, public, educational or governmental access purposes, the grantee shall be permitted to use such channel(s) for the provision of other services, subject to any reasonable rules established by the Village regarding such use. The grantee's permitted use of any access channel made pursuant to this section shall cease within ninety days of the grantee's receipt of notice from the Village that such channel will again be used for public, educational or governmental access.
(c) Notwithstanding the above, the grantee may accommodate a request from the Village for additional access capacity made pursuant to Section 808.27(b) by combining more than one access use on a channel, provided that:
(1) It is technically and economically feasible for the grantee to do so;
(2) The scheduling needs of all users of the channel can be reasonably accommodated; and
(3) The access entity which requires use of the alternate channel must be able to access the alternate channel from the site where it normally originates playback of its programs and may not be required to transport tapes to a remote site for playback.
(d) However, the grantee shall provide an additional PEG channel for non-commercial public, educational or governmental broadcasts in the event that the three PEG channels provided under this section are then fully utilized. In no event shall the grantee be required to provide in excess of one additional access channel, and only after the cable system offers at least 150 channels. As used in this section, "fully utilized" means utilized for original, nonduplicative programming not less than eight hours per day, five days per week, for a period of ten consecutive weeks. The additional PEG channel provided under this section shall be reviewed annually by the grantee. Upon such annual review, the additional PEG channel will continue to be made available to the grantor to the extent that the PEG channels provided under this agreement (including the additional PEG channel(s)) are at least seventy percent fully utilized. To the extent that such capacity requirement is not met, the additional PEG channel shall be terminated, subject to reactivation at the request of the grantor upon demonstration by the grantor that the three original and any other additional PEG channels provided under this section are fully utilized, and to the annual review provided herein.
(e) The grantee shall provide free cable transmission facilities and free modulation equipment to introduce programming onto these transmission facilities by linking the below listed origination points with the head-end, or through hubs to the head-end, for distribution to all subscribers generally and for distribution to discrete audiences via scrambled signals and decoders at the origination points for such channels.
(f) The grantee is responsible for all head-end equipment essential to playback of programming for PEG access use in a location and under reasonable rules determined by the grantee. The grantee shall also be responsible for the operation and maintenance and all equipment necessary to perform those functions. The grantee shall also either provide a studio and equipment acceptable to the grantor for PEG access use or pay a fee in lieu of providing the same, equal to up to one percent of adjusted gross revenues (gross revenues above net of the franchise fee), as stated in the franchise agreement, to be placed by the grantor in a special fund for such PEG access purposes.
(g) The grantor shall be responsible for the operation of access facilities and equipment. In this regard, the grantor may delegate from time to time its responsibilities to others who then shall assume the responsibility of the grantor in accordance with the grantor's delegation. The grantor will develop reasonable rules regarding use of access facilities and equipment and determine the needs of the Village for public, educational and governmental access services. In this regard, the grantor shall regularly coordinate with grantee for the purpose of developing and maintaining reasonable access facilities.
(h) Costs of providing said facilities shall not be a credit against payment of the franchise fee imposed under the franchise agreement.
(Ord. 1997-39. Passed 4-9-97.)
(a) If the grantor believes that the grantee has failed to perform any obligation under the franchise agreement or this chapter or has failed to perform in a timely manner, the grantor may make written demand on the grantee that it remedy the alleged failure. The grantor may order the grantee to correct or remedy the failure or breach within the time and in the manner and on the terms and conditions that the grantor may establish. If the alleged failure is denied or not remedied to the reasonable satisfaction of the grantor, the grantor may follow any procedures set forth in the agreement.
(b) Penalties may be assessed by the grantor for purposes including, but not limited to, the following:
(1) Failure of the grantee to pay the grantor sums due under the terms of the franchise.
(2) Reimbursement of costs borne by the grantor to correct franchise violations not corrected by the grantee, after thirty days written notice.
(3) Monetary remedies, penalties or damages assessed against the grantee due to default or breach of franchise requirements.
(c) Upon written notice and agreement of the grantor and the grantee, an informal meeting may be held at any time to review any alleged failure.
(d) If the grantee fails to perform in a timely manner any material obligation required by this chapter or a franchise granted hereunder, following notice from the grantor and an opportunity to cure such nonperformance, the grantor may act to remedy such violation in accordance with the following procedures:
The grantor shall notify the grantee of any alleged material violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than ten days in the case of the failure of the grantee to pay any sum or other amount due the grantor under this chapter or the grantee's franchise and thirty days in all other cases. If the grantee fails either to correct the violation within the time prescribed, or to commence correction of the violation within the time prescribed and thereafter diligently pursue correction of such violation, the grantor shall then give written notice of not less than twenty days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred. At the public hearing, the Council shall hear and consider relevant evidence and thereafter render findings and its decision. In the event that the Council finds that a material violation exists and that the grantee has not corrected the same in a satisfactory manner, or has not diligently commenced correction of such violation after notice thereof from the grantor and is not diligently proceeding to fully remedy such violation, the Council may revoke the franchise or impose any other penalty permitted by the franchise agreement and any other legal or equitable remedy available under the franchise or applicable law.
(e) The grantor may assess against the grantee, after providing written notice to the grantee and allowing thirty days or such other period of time as is agreed upon by the grantee and the grantor to cure, monetary damages up to five hundred dollars ($500.00) per calendar day or per incident for material system upgrade or construction delays, and up to two hundred dollars ($200.00) per calendar day or per incident for any other material breaches, provided that all violations of a similar nature occurring at the same time shall be considered as one incident. The grantor may have recourse to the performance bond for payment of such damages, including the fifty dollar ($50.00) per day penalty for failure to respond to the grantor's request for information due the grantor within the time limits as specified in this chapter or the franchise agreement pursuant to Section 808.25(g), and the one hundred dollars ($100.00) or five hundred dollars ($500.00) per day amounts for failure to timely pay the franchise fee pursuant to Section 808.18(e), which shall not be subject to, but in addition to, the remedies set forth in this section. The assessment of any monetary damages shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise or applicable law, including its right to recover from the grantee any additional damages, losses, costs and expenses, including attorney's and/or consultant fees, that are incurred by the grantor by reason of the breach of the franchise agreement.
(f) In addition to revocation in accordance with other provisions of the franchise agreement, the grantor may revoke the franchise agreement and rescind all rights and privileges associated with the franchise agreement in the following circumstances, each of which represents a material breach of the franchise agreement:
(1) If the grantee fails to perform any of its material obligations under the franchise agreement or under any ordinances, documents or other terms and provisions entered into by and between the grantor and the grantee;
(2) If there is a pattern of noncompliance with the grantor's consumer service standards;
(3) If the grantee willfully and deliberately fails for more than twenty-four hours to provide continuous and uninterrupted cable service for the entire franchise area, not subject to force majeure, as set forth in Section 808.30;
(4) If the grantee practices any fraud or deceit upon the grantor or any subscriber; or
(5) If the grantee becomes insolvent or if there is an order for relief in favor of the grantee in a bankruptcy proceeding.
Written notice of intent to consider revocation under this subsection shall be served on the grantee at least thirty days prior to the date of revocation. The grantor shall hear any persons interested in the revocation and, within ninety days after the hearing, shall determine that the franchise is to be revoked and the performance bond forfeited or that the breach at issue is capable of being cured by the grantee. In the latter case, the grantor shall direct the grantee to take appropriate remedial action within the time, in the manner and under the terms and conditions that the grantor determines are reasonable under the circumstances.
(Ord. 1997-39. Passed 4-9-97.)
In the event that the grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise granted hereunder is prevented by a cause or event not within the grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this section, causes or events not within the control of the grantee shall include, without limitation, acts of God, strikes, sabotage, riots, civil disturbances, restraints imposed by order of a governmental agency or court, failure or loss of utilities, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires. In the event that any such delay in performance or failure to perform affects only part of the grantee's capacity to perform, the grantee shall perform to the maximum extent it is able to do so and shall take all steps within its power to correct such cause(s). In correcting such cause(s), the grantee shall take all reasonable steps to do so in as expeditious a manner as possible. The grantee shall notify the grantor in writing of the occurrence of an event covered by this section within five business days of the date upon which the grantee learns of its occurrence.
(Ord. 1997-39. Passed 4-9-97.)
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