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ORDINANCE NO. 732-95
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
cited as the Hawthorn Woods Community Telecommunications Ordinance.
SECTION 2. DEFINITIONS. For the purposes of this Ordinance, the
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.
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
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.
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,
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.
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.
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
nondiscriminatory 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.
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,
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
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.
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
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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.
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, 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
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) years 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)
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
this Ordinance shall be subject to and controlled by all of the proiions 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.
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
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
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 May 10,
1995.
/s/ [ILLEGIBLE]
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Village President Pro-Term
ATTEST:
/s/ [ILLEGIBLE]
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Village Clerk
PASSED: April 10, 1995
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APPROVED: April 10, 1995
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