Exhibit 10.1.7
ORDINANCE NO. 73295
AN ORDINANCE GRANTING TO CABLE TV FUND 15-A, LTD. , ITS SUBSIDIARIES,
AFFILIATES, LESSEES, SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE FOR
A PERIOD OF FIFTEEN (15) YEARS TO USE THE HIGHWAYS, STREETS, ALLEYS,
BRIDGES, RIVERS AND OTHER PUBLIC PLACES OF HAWTHORN WOODS, ILLINOIS, FOR
THE PURPOSE OF CONSTRUCTING, INSTALLING, MAINTAINING AND OPERATING A
COMMUNITY ANTENNA TELECOMMUNICATIONS SYSTEM, INCLUDING ALL NECESSARY
APPURTENANCES, AND PRESCRIBING CERTAIN TERMS AND CONDITIONS UNDER WHICH
SAID COMPANY IS TO OPERATE.
BE IT ORDAINED by the President and Board of Trustees of the Village
of Hawthorn Woods, Illinois:
Section 1. SHORT TITLE. This ordinance shall be known and may be
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cited as the Hawthorn Woods Community Telecommunications Ordinance.
Section 2. DEFINITIONS. For the purposes of this Ordinance, the
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following terms shall have the meanings given herein:
2.01 "CATV System" means a combination of Facilities constructed in
whole or in part in, on, under or over and highway, street, alley,
bridge, river or other public place which is operated to perform for
hire the service of receiving and amplifying telecommunication
signals and redistributing such signals by wire, cable or other means
to members of the public who subscribe to such services.
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2.02 "Village" means the Village of Hawthorn Woods, Illinois.
2.03 "Facilities" means the lines, wires, poles, equipment, cables,
underground conduits, conductors, fixtures and all appurtenances
thereto which are necessary for the construction, installation,
maintenance and operation in the Village of the CATV System herein
authorized.
2.04 "Gross Operating Revenue" means the revenues derived by the
Company from all services generated by the CATV System Facilities, or
from the use of the CATV System Facilities, including, but not
limited to, , advertising revenue, charges to Subscribers for Basic
Cable, Premium Programming, FM Services, installation charges, and
any and all revenue received from any source whatsoever for use of
the CATV System Facilities.
2.05 "Operator" means Cable TV Fund 15-A, Ltd., a Colorado limited
partnership, with its principal place of business at 9697 E. Mineral
Avenue, Englewood, Colorado 80112, , its subsidiaries, affiliates,
lessees, successors and assigns.
2.06 "Person" means any person, firm, partnership, corporation,
company or organization of any kind.
2.07 "Subscriber" means a person who for a charge receives services
distributed by the CATV System.
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2.08 "Utility" means any public utility which facilities are
located within the Village.
When not inconsistent with the context, words used in the present tense include
the future, words in the plural number include the singular number, words in the
singular number include the plural number, words used in the masculine gender
include the feminine gender and words used in the feminine gender include the
masculine gender.
Section 3. GRANT OF AUTHORITY.
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3.01 The Operator is hereby granted by the Village the non-
exclusive franchise to construct, install, maintain and operate a
CATV System in, upon, along, across, above, over and under, the
highways, streets, alleys, bridges, rivers, and other public places,
and all extensions thereof and additions thereto, in the Village. The
franchise herein granted shall extend to any area annexed to the
Village, and the Operator shall be bound by the same rules and
regulations as to such area as are otherwise provided herein.
3.02 The franchise granted to the Operator by this Ordinance shall
also include the right and privilege to construct, install, maintain
and operate any Facilities on or in the facilities of any Quasi
Public Utility located in the Village.
Section 4. CONSTRUCTION APPROVAL BY VILLAGE. Except for individual
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service drops, the Operator shall not construct, install, maintain or operate
any Facility without the prior approval (which shall not be unreasonably
withheld) of the Village. Such approval shall be in the form of a permit issued
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by the Village, upon approval of layout maps showing the location of the
Facility to be constructed, installed, maintained or operated. The Village
shall have the right to inspect, at reasonable intervals, the construction,
installation, maintenance and operation of the CATV System by the Operator to
insure the proper compliance with the terms of this Ordinance.
Such inspections, whether made or not, shall not operate to relieve
the Operator of any responsibility, obligations, or liability assumed under this
franchise.
Section 5. CONDITIONS OF STREET OCCUPANCY AND SYSTEM CONSTRUCTION.
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5.01 All Facilities shall be located so as to avoid unreasonable
interference with the proper use of highways, streets, alleys,
bridges, rivers, and other public places of the Village, to avoid
unreasonable interference with the rights or reasonable convenience
of property owners who adjoin any of said highways, streets, alleys,
bridges, rivers and other public places and to avoid unreasonable
interference with normal use of said highways, streets, alleys,
bridges, rivers or other public places by Utilities.
5.02 In case of any disturbance by the Operator of pavement,
sidewalks, driveways, or other surfaces owned by the Village, the
Operator shall, at its own expense and in a reasonable manner
approved by the Village, replace and restore such areas so disturbed,
in as good condition as before said work of the Operator was
commenced, and shall maintain, if required, the restoration in a good
condition approved by the Village for one year.
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5.03 In the event that at any time during the term of this
franchise, the Village shall lawfully elect to alter or change the
grade of any highway, street alley, bridge, river or other public
place of the Village, the Operator, upon reasonable notice by the
Village, shall (except to the extent that the Operator's Facilities
are located on private property) remove and relocate its Facilities
at its own expense.
5.04 The Operator shall, at the request of the Village, temporarily
raise or lower its wires to permit the moving of buildings. This work
shall be at the expense of the Person owning the building, and the
Operator shall be given at least forty-eight (48) hours prior written
notice of such request.
5.05 When necessary for the construction, installation, maintenance
or operation of its Facilities, Operator is hereby authorized to trim
trees located on public property. Such trimming shall be done in a
reasonable and workmanlike manner under the supervision of properly
designated Village personnel and shall be done at the Operator's sole
expense. Operator shall be responsible for the removal of all
trimmings at the Operator's sole expense. Any restoration work
necessary under this provision shall be done in conformance with
Section 5.02 and shall be at Operator's sole expense. Other than
minor trimming of trees, the Village and Operator shall meet to
review and determine the appropriateness of any removal or trimming.
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5.06 The Village shall have the right to attach transmitting and
receiving equipment to any tower erected by the Operator, provided,
however, that the attaching of such equipment does not interfere with
the operation of the CATV System.
5.07 The Operator shall be responsible for securing any rights-of-way,
easements, permits or agreements from any other Persons that may be
needed by the Operator for any reason under this franchise.
Section 6. SERVICE PROTECTION. The CATV System shall be constructed,
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installed, maintained and operated so as to avoid interference with the
reception of signals from standard television broadcast stations or the
reception of signals transmitted by any communications service authorized by any
Federal agency.
Section 7. PERFORMANCE BY OPERATOR.
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7.01 The Operator shall, provide service requested by Subscribers
residing in the dwelling units within the Village boundaries at
the time of the effective date of this franchise, excluding for any
and all purposes at any time during the term of this franchise,
dwelling units in any and all areas having a population of less than
twenty-five (25) dwelling units per cable mile. The Operator shall
establish and maintain in close proximity to the Village limits of
Hawthorn Woods a studio for local programming, consisting of at least
one view finder color video camera, switcher fader controls,
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audio system, lighting system, film chain, one video tape recorder
and multiplexing unit. All equipment shall be remotely controlled
from a master control unit. This facility shall be available on a
time sharing basis to the Village, its agencies, public service
organizations, and schools lying wholly or partly within the Village.
Currently, the Village and its residents may use the studios located
in either Libertyville or Vernon Hills. These facilities are
available on a first come, first served basis. In addition, Operator
shall provide and maintain in close proximity to the said Village
limits a business office and agent for the purpose of receiving
inquiries, requests, and complaints concerning all aspects of the
establishment, construction, maintenance, and operation of the
system, and the payment of Subscriber's service charge. The office
shall have a listed telephone and shall be open during reasonable
business hours. The Operator shall respond as soon as possible to
Subscriber's complaints or requests for service in connection with
repairs, maintenance, malfunctions of system facilities, and in no
event shall such response time exceed twenty-four (24) hours from the
receipt of the complaint.
7.02 At the request of the Village, the Operator shall provide limited and
expanded basic service (at no charge other than the direct charge, if
any, which the Operator pays a Utility in connection with the
provision of such service under an agreement of the type contemplated
by Section 3 hereof) to all municipal buildings, police and fire
stations, public park buildings, public libraries, and public and
private schools within the Village, provided, however, that the
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Operator shall not be required to provide service to any such
building which is located in any area having a population of less
than twenty five (25) dwelling units per cable mile. The Operator's
obligation under this Subsection shall be limited to providing one
drop in each such building except that Operator agrees to provide two
(2) drops to the Village Hall. The Village shall be allowed to make
such use of the drop into its municipal buildings as it shall deem
desirable.
7.03 The CATV System shall carry those television broadcast signals of
every television broadcast station which are required to be carried
pursuant to the applicable rules and regulations of the Federal
Communications Commission.
7.04 The CATV System shall maintain and test its Facilities
pursuant to the applicable rules and regulations of the Federal
Communications Commission.
Section 8. RATE SCHEDULES.
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8.01 The initial rates charged to its Subscribers by Operator shall be as
set forth in Schedule A attached hereto and by reference made a part
hereof, and Operator shall maintain its rates in conformance with FCC
regulations and the Cable Communications Policy Act of 1984, as
amended by the Cable Television Consumer Protection Act of 1992.
Nothing herein shall prevent the Village from exercising its rate
making authority as authorized under federal
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law. Further, the Village may at any time exercise rate-making
authority for the limited basic service, known currently under FCC
regulations as the Broadcast Basic Tier, so long as such rate-making
authority is not preempted under state or federal law.
8.02 The rates for all programming and services shall be non-
discriminatory provided that nothing contained herein shall be deemed
to prohibit reasonable promotional rates which may, from time to
time, be less than standard rates imposed.
8.03 Charges shall abate pro rata in the event that service to a
Subscriber is interrupted for more than twenty-four (24) hours for
any reason whatsoever.
Section 9. SYSTEM STANDARDS.
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9.01 The CATV System shall have a single trunk (54) channel
capacity; shall have a broad band signal, shall provide for or shall
be capable of receiving and transmitting all VHF, UHF and FM signals;
shall carry all available local television stations as required by
the FCC; and shall carry at least one channel for the following
purposes:
(A) Municipal Access
(B) Educational Access
(C) Public Access
9.02 The Operator shall establish and construct the CATV System in
accordance with the standards of the art of cable communications
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and in accordance with the standards of code of conduct with respect
to businesses in size and type like that of the Operator.
9.03 The Operator, through the CATV System, shall provide effective
and efficient service in accordance with the rules and regulations of
all governmental units and agencies having regulatory and licensing
authority in connection with the system.
9.04 The Operator shall cause to be delivered to the Subscribers
home signals that meet FCC technical standards.
9.05 The Operator shall not interrupt all or part of the services
of the system except under emergency circumstances or circumstances
beyond the Operator's control. Interruption of services on the system
for routine maintenance shall, to the extent possible, be confined to
the hours of 2:00 a.m. to 7:00 a.m. and not otherwise.
9.06 The Operator shall establish, construct, operate and maintain
the CATV System, including system facilities, so as to at all times
meet FCC technical standards, including without limitation
specifications for frequency levels, channel frequency response,
terminal isolation and radiation.
9.07 The Operator shall establish, construct, operate and maintain
the CATV System in accordance with all applicable national, state and
local building and safety codes. In the absence of any otherwise
applicable building and safety code, the Operator shall establish,
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construct, operate and maintain the system in accordance with the
most recent edition of the National Electrical Code.
9.08 The CATV System shall be designed, established, constructed,
operated and maintained for a 24-hour a day continuous operation.
9.09 The CATV System shall produce for receipt on Subscriber's receivers,
which are in good working order, either monochrome or color pictures
(providing the receiver is color capable) that are free from any
significant interference, distortion, or ghosting which would cause
any material degradation of video or audio quality.
9.10 The CATV System shall be capable of providing emergency override
alerts whereby the Village or other governmental units or agencies
designated by the Village may be able to issue a bulletin on all
channels simultaneously.
9.11 In connection with the CATV System, the Operator shall only
employ personnel with necessary and sufficient skills and experience
or training as such shall relate to their respective jobs and
positions.
9.12 The cable drop connection to the subscriber's building will be
installed in a manner similar to the telephone connection for the
same building. The desires of the subscriber as to point of entry
shall be observed wherever practicable. Cable runs in building
interiors will be installed as unobtrusively as possible.
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9.13 (a) The Operator shall be required to submit a report on cable
technology to the Village during the sixth year of the Franchise
term. This report shall describe developments in cable technology,
and whether the Operator plans to incorporate those technological
developments into the System. In addition, the report shall describe
how, to the Operator's knowledge, other cable companies have
incorporated or are planning to incorporate the technological
developments into their Systems and their estimated timetable for
doing so.
(b) Based on this report, the Village may determine that the System
or Franchise requirements should be updated, changed, revised, or
that additional services should be provided, but only if it would be
economically feasible to do so. Economic feasibility shall be
determined by the Village and Operator in good faith following an
evaluation of Operator's financial condition, economic waste, if any,
that would occur should the changes be made, the length of term
remaining on the Franchise, and the rate of return on the Operator's
investment (both prior investment and proposed future investment) in
the community. Upon the mutual consent of the Village and Operator,
this Agreement shall be amended to incorporate the determinations
made as a result of this process.
Section 10. PAYMENTS TO VILLAGE.
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10.01 The Operator shall pay to the Village for the privilege of operating
a CATV System under this franchise an amount equal to five percent
(5%) of the Gross Operating Revenues.
10.02 The Village reserves the right to increase or decrease the franchise
fee provided in Section 10.01 in compliance with applicable law. In
the event the Village determines that the franchise fee percentage
should be increased or decreased, it shall do so only after public
hearing has been held before the Village Board to consider the
question. The Village shall provide the Operator with ninety (90)
days prior written notice of such hearing. The notice shall contain
the following information:
(A) Date of hearing;
(B) Place of hearing, and
(C) Proposed increase or decrease in
franchise fee percentage.
At the hearing the Operator shall be allowed to present any testimony
or evidence to the Village Board as to its position on increase or
decrease. In addition, the Village Board shall hear the testimony of
any subscribers as to their opinion or opinions concerning the
proposed increase or decrease. After all such testimony and evidence
has been heard and adduced, the Village Board by majority vote shall
determine whether such franchise fee increase or decrease shall take
place and the Operator shall be given written notice as to such
increase or decrease. The Operator may on the effective date of any
such increase of decrease, increase
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or decrease its monthly charges for CATV System services by the
amount of such increase or decrease.
10.03 In the event that the Operator agrees to pay a franchise fee
for any franchise granted after the date hereof by any other
municipality within fifty (50) miles of the village of Hawthorn
Woods, which said fee is in excess of the amounts set forth in
Subsection 10.01, the franchise fee payable hereunder shall at the
option of the Village, be increased to a like amount.
10.04 The Operator may on the effective date of any increase in such fee,
pursuant to the provisions of Subsections 10.01, 10.02 or 10.03,
increase its monthly charges for CATV System services by the amount
of such increase.
10.05 All payments of such franchise fee shall be made quarterly within
thirty (30) days following the 31st of March, the 30th of June, the
30th of September and the 31st of December of each year. Payments
shall commence within thirty (30) days from the end of the quarter in
which the Operator begins to provide service to its Subscribers in
the Village.
Section 11. RECORDS AND REPORTS. On or before March 1 of each year,
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commencing with the year following the year in which the Operator begins to
provide service to its Subscribers in the Village, the Operator shall submit to
the Village a summary report showing Gross Operating Revenue received by the
Operator from the operation of the CATV System within the
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Village during the preceding year. The Village or their authorized
representative shall have the right to inspect the operations within the Village
during regular business hours and upon first giving reasonable notice.
Section 12. LIST OF SUBSCRIBERS - CONFIDENTIALITY. Other than
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affiliates of Operator, Operator shall not, without consent of the Village,
knowingly release or disclose its list of subscribers residing within the
Village to any other person or corporation.
Section 13. COMPANY LIABILITY INSURANCE.
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13.01 It is expressly understood and agreed by and between the Operator and
the Village that the Operator shall save the Village, its officials
and employees harmless from all loss, including attorneys fees,
sustained by the Village, its officials and employees on account of
any claim, suit, judgment, execution or demand whatsoever arising out
of the construction, installation, maintenance and operation of the
CATV System by the Operator and Operator shall, if necessary, provide
for the Village's defense, to the extent it is necessary, to meet the
requirements of this Section. The Operator shall obtain liability
insurance coverage, including product liability, naming the Village,
its officials and employees as additional named insureds, to protect
the Village, its officials and employees against any such claims,
suits, judgments, executions, or demands to the following extent:
Bodily Injury Property Damage
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$1,000,000 per person $1,000,000 per accident
$1,000,000 per accident
13.02 There shall be filed in the office of the Village Clerk a Certificate
of Insurance, naming the Village as an additional named insured under
the liability insurance required by this Ordinance. The insurance
company providing and writing such insurance coverage and Certificate
of Insurance shall carry a "Class XV" financial size category rating
in the then current edition of Best's Insurance Guide.
13.03 The Village, its officials and employees shall not be liable for any
damage occurring to the property of the Operator caused by officials
or employees of the Village in performance of their duties, excepting
such damage occurring to the property of the Operator caused by the
sole negligence of the officials or employees of the Village. The
Village, its officials and employees shall not be held liable for the
interruption of service by actions of the Village.
Section 14. Defaults.
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14.01 Requirement for Surety Bond.
Prior to the commencement of any construction pursuant to the
provisions of this Ordinance, the Operator shall file with the
Village, and shall maintain during the construction of and for a
period of one year after completion of the facilities to be provided
under this Ordinance, a surety bond from a company authorized to
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do business in the State of Illinois, in the amount of $25,000, or at
the option of the Village a letter of credit, conditioned upon the
Operator fulfilling and performing in connection with each provision,
term and condition of this Ordinance, and that in case of any breach
the Village shall be entitled to recover from said bond or letter of
credit the amount of any damages, and all costs incurred by the
Village resulting from the failure of the Operator to well and
faithfully observe and perform under any and all the undertakings,
terms and conditions of this Ordinance.
14.02 In the event the Operator should violate any of the material terms of
this Ordinance, the terms of any permit granted under the rules of
this Ordinance or any rules and regulations that subsequently may be
lawfully adopted by the Village, the Village may immediately give the
Operator written notice to correct such violation.
14.03 In the event the Operator does not make such correction within sixty
(60) days from the receipt of such written notice, the Village may
make such correction itself and charge the cost of the same to the
Operator, provided, however, that in the event the Operator cannot
reasonably make such correction within such sixty (60) day period,
the Operator shall receive an additional period of time as agreed
upon by and between the Operator and the Village to make such
correction.
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14.04 The Operator shall not be deemed nor declared to be in default under
any of the conditions, provisions, requirements or limitations of
this Ordinance in any case in which the performance of any such
condition, provision, requirement or limitation by the Operator is
prevented by reason of strikes, injunctions or any other cause,
including acts of God, any lawsuit or administrative agency
proceedings, reasonably beyond the control of the Operator. In the
event that the Operator's performance is prevented by any such cause,
the time for performance shall be extended by the period during which
such cause was in effect.
14.05 In the event of the bankruptcy or receivership of the Operator, all
rights and privileges herein given to the Operator shall at the
option of the Village be forfeited and terminated.
Section 15. SALE, ASSIGNMENT OR TRANSFER. The Operator shall not sell,
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assign or transfer its CATV System, nor transfer any rights or privileges
granted under this franchise without the approval of the Village unless the
transferee is an affiliated or subsidiary company of the Operator. Any sale,
assignment or transfer of the CATV System shall not be effective until the
transferee has filed in the office of the Village Clerk an instrument, duly
executed and acknowledged, acknowledging the fact of such sale, assignment or
transfer, accepting the terms and conditions of the franchise, and agreeing to
perform all the obligations thereunder and fully complying with all bonding and
insurance requirements herein contained.
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Section 16. TERM OF FRANCHISE. The franchise granted and authorized
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by this Ordinance shall remain in full force and effect for a primary term of
fifteen (15) years from its effective date. The Operator at the end of said
primary term shall have an option to renew said franchise for an additional term
of fifteen (15) year upon reasonable terms to be negotiated by the Village and
the Operator for such additional term.
Section 17. FINAL TERMINATION OF THE FRANCHISE. Within sixty (60)
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days of the termination of the franchise, or any renewal thereof, except for
underground cable, the Operator shall remove its Facilities from all property of
the Village and all space reserved for the Village's use on property belonging
to others. If not removed within such sixty (60) day period, the Village shall
have the right to remove or have its contractors remove such Facilities where
such removal is necessary and practical at the risk, cost and expense of the
Operator and with liability therefor.
Section 18. COMPLIANCE WITH LAWS. The franchise herein granted by
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this Ordinance shall be subject to and controlled by all of the provisions of
the laws of the State of Illinois and of the United States, and State and
Federal regulations, now existing or hereafter enacted, and all permits required
in connection therewith shall be obtained by the Operator at its own expense.
Section 19. CONFLICTING ORDINANCES.
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19.01 Where the provision of any prior ordinance or any portion
thereof is in conflict herewith, the terms of this Ordinance shall
apply.
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19.02 Any subsequent Ordinance lawfully adopted by the Village shall
not specifically or directly affect the rights and privileges granted
by this franchise.
Section 20. SEPARABILITY. In the event any Section or part of this
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Ordinance shall be held invalid, such invalidity shall not affect the remaining
Sections or portions of this Ordinance.
Section 21. EFFECTIVE DATE. The franchise granted by this Ordinance
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shall, if accepted by the Operator within thirty (30) days after the final
passage of this Ordinance, be in full force and effect on or after
____________, 199_.
/s/
__________________________________
Village President
ATTEST:
/s/
__________________________________
Village Clerk
PASSED: April 10, 1995
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APPROVED: April 10, 1995
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