1
STATE OF ILLINOIS )
COUNTY OF CHAMPAIGN ) SS.
VILLAGE OF TOLONO )
ORDINANCE NO. 94 - 8
AN ORDINANCE GRANTING TO CABLE TV
FUND 14-A, LTD. PERMISSION TO CONSTRUCT,
OPERATE AND MAINTAIN A COMMUNITY ANTENNA
TELEVISION SYSTEM UPON, ALONG, ACROSS, OVER,
AND UNDER THE STREETS AND PUBLIC RIGHTS OF
WAY OF THE VILLAGE OF TOLONO, ILLINOIS
---------------------------------
WHEREAS, the Village desires to make available to its residents a
community antenna television system subject to certain terms and conditions the
Mayor and Board of Trustees believe to be necessary and appropriate; and
WHEREAS, Cable TV Fund 14-A,-Ltd., a Colorado limited partnership
doing business as Jones Intercable, Inc., desires to continue to construct,
install and maintain a community antenna television system within the
jurisdictional limits of the Village of Tolono, Illinois; now, therefore
BE IT ORDAINED by the Mayor and Board of Trustees of the Village of
Tolono, Illinois that the following Ordinance is adopted and approved in Board
assembled:
1. Definitions:
a. "Basic Service" means those audio and visual signals
carried on the service tier of the CATV System which includes local off-air
television signals and public, educational, or governmental channels. Basic
Service shall not include any other tier of service or any premium or
pay-per-view channels or services.
b. "Cable Act" means the Cable Communications Policy Act of
1984, P.L. 98-549, 47 U.S.C. 521 Supp., as it may be amended or superseded,
including the Cable Television Consumer Protection and Competition Act of 1992,
P.L. 102-385.
c. "Village" means the Village of Tolono, Illinois.
d. "Community Antenna Television System" ("CATV System") means
a system of antennas, cables, wires, lines, towers, microwaves, waveguides,
laser beams or any
-1-
2
other conductors, converters, equipment or facilities designed, constructed, or
operated for the purpose of producing, receiving, amplifying, modifying and
distributing audio, video, and other forms of communication or electronic
signals to and from residential and business subscribers and locations within
the jurisdictional limits of the Village.
e. "Board" means the governing body of the Village.
f. "Franchise" means the authorization granted hereunder of a
franchise, privilege, permit, license or otherwise to construct, operate and
maintain a CATV System within the jurisdictional limits of the Village.
g. "Grantee" means Cable TV Fund 14-A, Ltd., a Colorado
limited partnership, and its permitted successors and assigns.
h. "Gross Receipts" means any and all compensation received by
Grantee from subscribers to the CATV System who are located within the
jurisdictional limits of the Village. In computing said sum, however, franchise
fees shall not be included and any sales, service, rent, occupational or other
excise tax or fee shall not be included to the extent such taxes or fees are
charged separately in addition to the regular monthly service charge and are
remitted by Grantee to the taxing authority.
i. "Streets and dedicated easements" means the public streets,
avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks,
parkways, waterways; alleys, all other public rights-of-way and easements, and
the public grounds, places or water within the Village.
j. "Subscriber" means a purchaser of any service delivered
over the CATV System.
2. Granting of Franchise. The Village hereby grants to Grantee a
nonexclusive Franchise for the use of the streets and dedicated easements
within the Village for the Construction, operation and maintenance of the CATV
System, upon the terms and conditions set forth herein.
3. Term. The Franchise shall be for a term of ten (10) years,
commencing on the effective date of this Ordinance. Subsequent renewals shall
be pursuant to the renewal provisions of the Cable Act as it shall provide.
4. Use of the Streets and Dedicated Easements.
a. Grantee shall have the right to use the streets and
dedicated easements of the Village for the construction, operation and
maintenance of the CATV System.
b. Grantee, at its own cost, shall have the right pursuant to
the provisions of this Ordinance to construct, erect, suspend, install, renew,
maintain and otherwise own and
-2-
3
operate throughout the streets and dedicated easements of the Village, as now
laid out or dedicated and all extensions thereof and additions thereto in the
Village, the CATV System, either separately or in conjunction with any public
utility operating within the Village. The Franchise shall further include the
right, privilege, easement and authority to construct, erect, suspend, install,
lay, renew, repair, maintain and operate such poles, wires, cables, underground
conduits, manholes, ducts, trenches, fixtures, appliances and appurtenances for
the purpose of distribution to inhabitants within the jurisdictional limits of
the Village. Without limiting the generality of the foregoing, the Franchise
shall and does hereby include the right to repair, replace and enlarge and
extend the CATV System, provided that Grantee shall utilize the facilities of
utilities whenever practicable. The Grantee shall notify the Village of any
planned construction projects, other than routine cable installation, and
furnish the Village with a summary of the planned construction, including maps
and drawings.
c. Grantee may, at no cost to the Village, erect, install and
maintain on any part of the CATV System such reasonable devices to apprise or
warn persons using the streets and dedicated easements of the Village of the
existence of such CATV System. Upon at least sixty (60) days' prior notice from
the Village, Grantee agrees to relocate the CATV System at its own expense in
the event that the Village or other public entities should improve or widen
streets.
d. Grantee shall have the right to remove, trim, cut and keep
clear of the CATV System, the trees in and along the streets and dedicated
easements of the Village, provided that in the exercise of such right, the
Grantee shall not cut, remove, trim or otherwise injure such trees to any
greater extent than is necessary for the installation, maintenance and use of
the CATV System; provided, however, that the Grantee will notify the Village of
planned tree trimming prior to beginning such trimming. The Grantee must have
the approval of the Village before it removes any tree.
e. Grantee in the exercise of any right granted to it by the
Franchise shall, at no cost to the Village, promptly repair or replace any
facility or service of the Village which Grantee damages, including but not
limited to any street or dedicated easement or sewer, electric facility, water
main, fire alarm, police communication or traffic control.
f. Within thirty (30) days after the effective date of this
Ordinance, Grantee shall provide to the Village a performance bond to gurantee
the Grantee's faithful performance of its obligations under this Agreement.
This performance bond shall be in a principal sum of Twenty-Five Thousand
Dollars ($25,000).
-3-
4
5. Maintenance of the System,
a. Grantee shall at all times employ ordinary care in the
maintenance and operation of the CATV System so as not to endanger the life,
health or property of any citizen of the Village or the property of the
Village.
b. Grantee shall install and maintain the CATV System so as
not to interfere with the equipment of any utility of the Village or any other
entity lawfully and rightfully using the streets and dedicated easements of the
Village.
c. The CATV System shall at all times be kept in good repair
and in a safe and acceptable condition.
d. All conductors, cables, towers, poles and other components
of the CATV System shall be located and constructed by Grantee so as to provide
minimum interference with access by adjoining property owners to the streets
and dedicated easements. No pole or other fixtures of Grantee placed in the
streets and dedicated easements shall interfere with the usual travel on such
public way.
e. The Village hereby expressly acknowledges and agrees that
Grantee will have the right allowed by law to regularly audit the improper
usage of "tapping on" the CATV System. The Village agrees to assist Grantee by
protecting Grantee's rights so far as allowed by law to audit its feeder lines
and connection lines to prevent improper usage of the CATV System.
6. Service.
a. Grantee shall provide to all residents within the current
Village limits of Tolono cable television service. Newly annexed area of the
Village shall be built out subject to a minimum density requirement of thirty
(30) homes per mile. The system as constructed will have the capacity to offer
up to thirty-six (36) channels.
b. Grantee shall provide Basis Service and on free outlet to
each of the following public facilities located within one hundred (100) feet
of existing service lines of the Grantee and within the jurisdictional limits
of the Village: Village Hall, Fire Department, Police Department, public
libraries, ESDA offices and public schools. No monthly service fee shall be
charged for any such outlet. Grantee shall provide Basic Service to new
construction hereafter for similar public facilities; provided they are within
one hundred (100) feet of the existing service lines of Grantee. The Village
reserves the right to provide service to public facilities outside of the
Village's jurisdictional limits at its own expense.
7. Franchise Fee.
a. Grantee shall pay to the Village, within forty-five (45)
days after each calendar quarter ends, an amount equal to five (5%) percent of
the Gross Receipts for such calendar quarter.
-4-
5
b. Each year during which the Franchise is in force, Grantee
shall file with the Village no later than ninety (90) days after the end of
each calendar quarter a financial statement showing total Gross Receipts
derived from the CATV System during such quarter. The Village shall have the
right, at its expense, to audit the books of the Grantee to ensure proper
payment of the fees payable hereunder.
8. Insurance/Indemnity.
a. From and after the effective date of this Ordinance,
Grantee shall maintain in full force and effect at all times for the full term
of the Franchise, at the expense of the Grantee, a comprehensive general
liability insurance policy, written by a company authorized to do business in
the State of Illinois, protecting against liability for loss or bodily injury
and property damage occasioned by the installation, removal, maintenance or
operation of the CATV System by Grantee in the following minimum amounts:
One Million Dollars ($1,000,000) for property damage in any
one occurrence.
One Million Dollars ($1,000,000) per person, One Million
Dollars ($1,000,000) per occurrence, for bodily injuries.
Worker's compensation coverage in accordance with Illinois law.
The Village shall be notified at lest thirty (30) days prior to the
expiration or cancellation of such insurance policy or policies.
b. Grantee hereby agrees to indemnify and hold the Village
harmless from claims or damages resulting from the actions of Grantee in
constructing, operating or maintaining the CATV System.
9. Pledge, Assignment of Assets.
a. Grantee may mortgage or pledge the Franchise for financing
purposes. Such mortgage or pledge should not operate to circumvent the
provision of subsection b of this section.
b. Grantee may not assign or transfer control of the Franchise
without first obtaining the expressed written consent of the Village Board,
which consent shall not be unreasonably withheld.
10. Cancellation and Expiration.
a. Unless earlier terminated in accordance with this
Ordinance, the Franchise shall expire ten (10) years after the effective date
of this Ordinance.
-5-
6
b. The Village shall have the right to cancel and terminate
the Franchise of Grantee fails to comply in any material respect with the
material and substantial provisions of this Ordinance. Cancellation shall be by
duly enacted ordinance repealing this Ordinance and terminating the Franchise,
adopted after compliance with the following procedures:
1. The Village Board shall notify Grantee in writing of the
alleged failure to comply and shall give Grantee thirty (30) days to correct
such failure, or to present facts to refute the alleged failure or persistent
failure to comply with this Ordinance.
2. At the end of said thirty (30) days, the Village Board
shall hold a public hearing to decide if sufficient grounds exist to repeal
this Ordinance and terminate the Franchise. Grantee may appear at said hearing
and present such testimony and evidence as it deems appropriate with respect to
the alleged failure to comply. After such hearing the Village Board may take
such action as it deems appropriate to enforce the terms and conditions of this
Ordinance, or it may repeal this Ordinance thereby terminating the Franchise,
and the decision of the Board shall be binding in all respects upon Grantee.,
c. In the event Grantee becomes insolvent or files for
bankruptcy, the Village Board, at its election, may terminate the agreement
upon written notice to Grantee.
d. Upon expiration or termination of the Franchise, Grantee
agrees to remove the CATV System from the streets and dedicated easements of
the Village.
11. Enforcement of Terms and Conditions.
Either the Village or Grantee may institute proceedings in a court of competent
jurisdiction to enforce the terms and conditions of this Ordinance, in which
event the prevailing party shall be permitted to recover from the adverse party
all reasonable attorneys' fees and costs necessitated by the bringing of such
action.
12. Notices. Miscellaneous.
a. Every notice served upon the Village shall be delivered or
sent by certified mail, return receipt requested, to:
Village Clerk
Village Hall P.O. Box 667
Village of Tolono, Illinois 61880
and every notice served upon Grantee shall be delivered or sent by certified
mail, return receipt requested, to:
Cable TV Fund 14-A, Ltd.
10th & Lawrence
P.O. Box 151
Gibson City, Illinois 60936
Attn: General Manager
-6-
7
Cable TV Fund 14-A, Ltd.
P.O. Box 3309
9697 East Mineral Avenue
Englewood, Colorado 80155-3309
Attn: Legal Department
b. All provisions of this Ordinance shall apply to the
respective parties, their successors and assigns.
c. The fights granted by this Ordinance are subject to all
franchises and permits heretofore granted by the Village Board of the Village
to other public utility or public service operations to use the streets and
dedicated easasements of the Village. This Ordinance and the Franchise granted
herein are not intended to abridge the exercise of the police power heretofore
or hereafter granted to the Village by the general assembly. The grant of the
Franchise is subject to all ordinances and resolutions of the Board as the same
now exist and the lawful exercise of any power granted to the Village by the
general assembly.
d. If any particular section of this Ordinance shall be held
invalid, the remaining provisions and their application shall not be affected
thereby.
13. Effective Date. This Ordinance shall take effect on the date
adopted by the Village Board.
14. Future Technology Review Of the System.
a. If requested by the Village, the Grantee shall make an
annual presentation to the Village Board regarding the state of technology of
the Cable TV System in the Village the Grantee shall further be required to
submit a formal report on cable technology to the Village during the fifth (5)
year of the Franchise term. This report shall describe developments in cable
technology, and whether the Grantee plans to incorporate those technological
developments into the System. In addition, the report shall describe how, to
the Grantee'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
Grantee in good faith following an evaluation of Grantee'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 Grantee's
investment
-7-
8
(both prior investment and proposed future investment) in the community. Upon
the mutual consent of the village and Grantee, this Agreement shall be amended
to incorporate the determinations made as a result of this process.
15. Boring Under Streetway, Grantee agrees that any installation
and/or repair of its system that requires disturbance of Village streets shall
be addressed by boring under the streets so as to not disturb the paving
surface and not to disturb the base of the street. No streets shall be "dug up"
or otherwise disturbed without the express permission of the Village Board
President or Village Board of Trustees.
Passed by the Village Board of the Village of Tolono,
Illinois, on the 20th day of September, 1994.
AYE: Leo Studer, Scott Hughes, Jim Snodqrass & Cecil McCormick
NAY: None
ABSENT: Roy Hanks & Jerry Harden
Approved by the Mayor of the Village of Tolono, Champaign County,
Illinois, this 20th day of September, 1994
______________________________________
Village Clerk of the Village of Tolono,
Champaign County, Illinois
Approved by the Mayor of the Village of Tolono, Champaign
County, Illinois, this 20th day of September, 1994.
/s/ CECIL A. MCCORMICK
Mayor of the Village of Tolono
Champaign County, Illinois
ATTEST:
/s/ JAMES R. BYERS
Village Clerk of the Village of Tolono
Champaign County, Illinois
(9587)
-8-