EXHIBIT 10.1.8
VILLAGE OF HAZELCREST
CABLE TELEVISION FRANCHISE AGREEMENT
This Agreement is made and executed by and between the Village of
Xxxxx Xxxxx, Xxxxxxxx (the "Village") and Cable TV Fund 15-A Ltd., doing
business as Xxxxx Intercable (the "Grantee").
WHEREAS, the President and Board of Trustees of the Village granted a non-
exclusive franchise to construct, own, operate and maintain a cable television
system within the Village (the "Cable System") pursuant to Ordinance No. 4-1982,
dated March 9, 1982, to Centel Cable Television Company of Illinois (the "Prior
Franchise"); and
WHEREAS, Ordinance No. 4-1982 was amended by Ordinance No. 11-1986 dated
May 13, 1986, and Ordinance No. 11-1986 was amended by Ordinance No. 22-1989;
and
WHEREAS, by Ordinance No. 23-1989, the President and the Board of Trustees
of the Village approved a transfer of the Franchise to Xxxxx Intercable, Inc., a
Colorado corporation, adopted by the Board of Trustees of the Village on
September 12, 1989; and
WHEREAS, by Ordinance No. 18-1990, the Village consented to the transfer of
the Prior Franchise and the Cable System to Cable TV Fund 15-A Ltd.; and
WHEREAS, the Grantee has asked the Village to renew the nonexclusive
franchise it holds to provide cable service in the Village; and
WHEREAS, the Village has reviewed Grantee's performance under the Prior
Franchise; has identified the future cable-related needs and interests of the
community; has considered the financial, technical, and legal qualifications of
Grantee; and has determined that Grantee's plans
1
for constructing and operating its Cable System in the Village meet the future
cable-related needs and interests of the community, and that Grantee has the
financial, technical, and legal qualifications to support Grantee's proposal;
and
WHEREAS, the Village has determined that, subject to the terms and
conditions set forth herein and the provisions of Xxxxx Crest Cable Television
Franchise Ordinance No. _________ ("Cable Ordinance"), the grant of a new
nonexclusive franchise to Grantee, to supersede the Prior Franchise, is
consistent with the public interest; and
WHEREAS, the Village and Grantee have reached agreement on the terms and
conditions of such a Franchise Agreement; and
WHEREAS, the Village intends to authorize Grantee's continued operation of
its Cable System following expiration of the Prior Franchise.
NOW THEREFORE, in consideration of the faithful performance and strict
observance by the Grantee of all the terms set forth herein and those provided
for in the Cable Ordinance, pursuant to which this Agreement is executed, and in
consideration of the grant to the Grantee of the Franchise by the Village, the
parties agree as follows:
SECTION 1. GRANT OF FRANCHISE
-----------------------------
A. The Village hereby grants to the Grantee a non-exclusive Franchise to
construct, operate, and maintain a Cable Communications System within the
public ways of the Village in accordance with the terms and conditions of
this Franchise Agreement and the Cable Ordinance. The Franchise shall
become effective on the date of acceptance by the Grantee in compliance
with this Agreement and with the Cable Ordinance ("Effective
2
Date"), for a period of ten (10) years. The Franchise shall expire ten (10)
years from the Effective Date of this Franchise Agreement.
B. Grantee hereby accepts the Franchise and agrees to abide by all the
provisions of this Agreement, the Cable Ordinance, and other relevant
regulations of the Village which are hereby incorporated by reference as
though set forth in full.
C. In the event of a conflict in the provisions of this Franchise Agreement
and the Cable Ordinance, or other relevant regulations of the Village, the
provisions of this Franchise Agreement shall control.
D. Grantee hereby agrees that it has negotiated this Franchise in good faith
and with due knowledge of its rights and responsibilities under relevant
local, state, and federal laws.
SECTION 2. INCREASED CHANNEL CAPACITY AND INCREASED TERM
--------------------------------------------------------
A. If Grantee, pursuant to Section 34 of the Ordinance, makes eighty-five (85)
channels available by no later than thirty-six (36) months from the
Effective Date of this Franchise, then the term of the Franchise shall be
extended for an additional ten years (10), for a total franchise term of
twenty (20) years.
B. If Grantee, pursuant to Section 34 of the Ordinance, makes eighty-five (85)
channels available by no later than forty-eight (48) months from the
Effective Date of this Franchise, then the term of the Franchise shall be
extended for an additional eight (8) years, for a total franchise term of
eighteen (18) years.
C. If Grantee, pursuant to Section 34 of the Ordinance, makes eighty-five (85)
channels available by no later than sixty (60) months from the Effective
Date of this Franchise,
3
then the term of the Franchise shall be extended for an additional five (5)
years, for a total franchise term of fifteen (15) years.
D. If the Grantee, pursuant to Section 34 of the Ordinance, makes eighty-five
channels available by no later than seventy-two (72) months from the
Effective Date of this Franchise, the term of this Franchise shall remain
at ten (10) years.
E. The Village reserves the right to have an independent engineer or
consultant audit the System to verify the completion of the changes made to
the Cable System.
F. Grantee shall have sixty (60) days to cure any failure to make increased
channel capacity available required in paragraphs A - D. In the event
Grantee cures such failure within this sixty (60) day period, Grantee's
term shall be increased, as if Grantee had met the deadline specified.
SECTION 3. REVOCATION
---------------------
This Franchise shall be subject to immediate revocation by the Village, and the
Grantee shall have no right to forfeiture and termination procedures of Section
38 of the Cable Ordinance, if the Grantee has not made the option to receive
eighty-five (85) channels available by the end of seventy-two (72) months from
the Effective Date of this Agreement.
SECTION 4. RETURN PATH
----------------------
Within one hundred and twenty (120) days from receipt of a request from the
Village, Grantee shall activate one return path from a location within the
Village, to be agreed to by Grantee and the Village, to Grantee's headend
location ("Return Path"). This Return Path shall allow the Village to
distribute video programming from this designated location over Grantee's
public,
4
educational, and governmental channel. Grantee shall pay for the full
construction costs for the Return Path in the event that it is economically
reasonable for Grantee to do so. Such economic reasonableness shall be
determined jointly between Grantee and the Village. In the event it is not
economically reasonable for the Grantee to construct the Return Path requested
by the Village, then Grantee and the Village agree to share the cost to
construct the Return Path in accordance with a formula to be negotiated by the
Village and the Grantee. Grantee shall be responsible for all maintenance costs
related to the Return Path. Grantee shall not be responsible for the provision
or maintenance of any end-user electronics to be used with the Return Path. The
Village agrees that all amounts paid by the Grantee for the construction of this
Return Path may be added to the price of basic cable service and collected from
Grantee's subscribers as "external costs," as such term is used in 47 C.F.R.
76.922, as it may from time to time be amended.
SECTION 5. PUBLIC, EDUCATIONAL AND GOVERNMENT ACCESS FACILITIES AND EQUIPMENT
-----------------------------------------------------------------------------
Grantee shall provide the Village with the public, educational and governmental
access equipment that is agreed to by the Village and Grantee pursuant to
separate agreement.
SECTION 6. INSTITUTIONAL NETWORK
--------------------------------
Grantee shall not be required to provide the Institutional Network provided for
in Section 34 of the Cable Ordinance.
SECTION 7. FRANCHISE FEES
-------------------------
Grantee shall not be required to include the franchise fee payments it receives
from cable subscribers as part of its gross revenue calculation, and thus pay on
these revenues as part of its franchise fee payment to the Village, until such
time as all appeals have been exhausted and a
5
court of competent jurisdiction issues a final decision that franchising
authorities can collect on these revenues from cable operators.
SECTION 8. REVISITATION
------------------------
It is recognized that technology is rapidly changing and that subsequent to its
initial increase in channel capacity further modifications may be desirable to
incorporate changed technology or services. The Village or Grantee may determine
that a change in the terms of the Franchise is required to meet the needs and
interests of the community, that the System or Franchise requirements should be
updated, changed, or revised, or that additional services should be provided. If
any such change is determined to be economically feasible, the parties will in
good faith review the terms of the proposed change and agree to any necessary
amendment to the Franchise. Any determination of economic feasibility under this
section shall include an evaluation of Grantee's financial condition; economic
waste, if any, that would occur should the terms of the Franchise be changed;
length of term remaining on the Franchise; and rate of return on incremental
investment in the community to be derived from the additional services in which
the community is interested.
SECTION 9. SEPARABILITY
------------------------
Should any portion of this Agreement be declared invalid by a court of competent
jurisdiction, such adjudication shall not affect the remaining sections or
provisions, which shall remain in full force and effect.
SECTION 10. ENTIRE AGREEMENT
----------------------------
6
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes any and all previous Agreements between the parties with
respect to the subject matter. This Franchise Agreement shall not be changed,
amended or supplemented except by an agreement in writing signed by both
parties. In the event of a conflict between this Franchise Agreement and the
Cable Ordinance or any other enabling ordinance, law or regulation in effect at
the time of this Agreement or thereafter, the terms and conditions of this
Franchise Agreement shall be controlling. If the Franchise Agreement is silent,
the Cable Ordinance and any applicable federal and state statutes shall govern.
The Village may from time to time amend the Cable Ordinance pursuant to its
lawful police powers; provided, however, such amendments do not serve to
appreciably impair the rights nor increase the obligations of the Grantee
pursuant to this Franchise.
SECTION 11. NO RECOURSE
-----------------------
A. Except for action seeking equitable relief, Grantee shall have no recourse
whatsoever against the Village for any loss, cost, expense or damage arising
out of any provisions or requirements of this Agreement or because of the
enforcement thereof by the Village, or for the failure of the Village to
have authority to grant all or part of the franchise.
B. Grantee expressly acknowledges that in accepting a Franchise it does so
relying on its own investigation and understanding of the power and
authority of the Village to grant the Franchise.
C. By accepting a Franchise, Grantee acknowledges that it has not been induced
to enter into the franchise by any understanding or promise or other
statement, whether verbal or
7
written, by or on behalf of the Village or by any other third person
concerning any term or condition of the Franchise not expressed herein.
SECTION 12. EFFECTIVE DATE/ACCEPTANCE BY GRANTEE
------------------------------------------------
The Grantee shall have thirty (30) days from the date of adoption of this
Franchise Agreement by the Village to accept this Franchise. Such acceptance by
Grantee shall be deemed the grant of this Franchise for all purposes, and the
Effective Date of the Franchise shall be the Effective Date. The Franchise shall
expire ten (10) years from the acceptance date. In the event acceptance does not
take place within thirty (30) days of adoption or such other time as the Village
might allow, this Franchise shall be null and void.
SECTION 13. NOTICE
------------------
Unless expressly or otherwise agreed between the parties, every notice or
response to be served upon the Grantor or Grantee shall be in writing, and shall
be deemed to have been duly given to the required party five (5) business days
after having been posted in a properly sealed and correctly addressed envelope
by certified or registered mail, postage prepaid, at a Post Office or branch
thereof regularly maintained by the U.S. Postal Service.
The notices or responses to the Village shall be addressed as follows:
Village of Xxxxx Crest
0000 Xxxx 000xx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Village Manager
The notices or responses to the Grantee shall be addressed as follows:
Xxxxx Intercable
0000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Manager
with a copy to:
Xxxxx Intercable, Inc.
0000 Xxxx Xxxxxxx Xxxxxx,
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Legal Department
8
IN WITNESS THEREOF, the parties have signed this Agreement on June 24, 1997,
-------
which shall be the effective date of this Agreement.
VILLAGE OF XXXXX CREST: CABLE TV FUND 15-A, LTD.
BY: Its General Partner
Xxxxx Intercable, Inc.
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ Xxxxxxxxx Xxxxxx
------------------------- --------------------
Title: President Title: Vice President
------------------------- --------------------
9
