FRANCHISE AGREEMENT MADE AND ENTERED INTO THIS
3RD DAY OF JUNE, 1996 BY AND BETWEEN THE VILLAGE
OF ORLAND PARK, XXXX AND WILL COUNTIES, ILLINOIS,
AND CABLE TV FUND 12-A, LTD., A COLORADO LIMITED
PARTNERSHIP DOING BUSINESS AS XXXXX INTERCABLE, INC.
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WHEREAS, the Village of Orland Park has heretofore adopted Ordinance
No. 982, as amended, which generally provides for the granting of a
non-exclusive cable television franchise; and
WHEREAS, Cable TV Fund 12-A, Ltd., a Colorado limited partnership
doing business as Xxxxx Intercable, Inc. ("Xxxxx"), is the owner of a
non-exclusive franchise to provide cable television service to the residents of
Orland Park; and
WHEREAS, Xxxxx has asked the Village to grant a new non-exclusive
franchise on the terms and conditions set forth herein; and
WHEREAS, the Village has identified the future cable related needs
and interests of the community, and has reviewed the performance of Xxxxx under
the prior franchise, and after careful consideration, analysis and deliberation,
has determined that the technical ability, financial conditions, legal
qualifications and past performance of Xxxxx are adequate; and
WHEREAS, the Village has afforded the public adequate notice and
opportunity for comment on Xxxxx' proposal for the grant of a new franchise; and
WHEREAS, the President and Board of Trustees of the Village have
determined that, subject to the terms and conditions set forth herein, the grant
of a new non-exclusive franchise to Xxxxx, to supersede the prior franchise, is
consistent with the public interest; and
WHEREAS, Section 11-42-11 of the Illinois Municipal Code (65 ILCS
5/11-42-11) provides that municipalities "...may license, franchise and tax the
business of operating a community antenna television system..."; and
WHEREAS, Division 80 of Article 11 of the Illinois Municipal Code (65
ILCS 5/11-80-1 et seq.) grants to municipalities general powers over streets and
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public ways with respect to improvements in connection with a cable television
franchise; and
WHEREAS, the Village and Xxxxx have reached agreement on the terms
and conditions of the new franchise, as set forth herein;
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NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and conditions hereinafter set forth, the Village and Xxxxx
hereby agree as follows:
SECTION 1: TITLE
---------
This Village of Orland Park, Illinois, Cable Television Franchise
Agreement shall be known as and may be cited as the Franchise Agreement.
SECTION 2: DEFINITIONS
---------
For the purpose of this Agreement the following words, phrases and
their derivations shall have the meanings given herein. When not inconsistent
with the context, words used in present tense include the future; words in the
plural number include the singular number. The word "shall" is mandatory, and
"may" is permissive.
(a) "Channel" means a frequency in the electromagnetic spectrum
capable of carrying an audio-data or an audio-visual
television signal, as defined by FCC rules and regulations.
(b) "Company" means Cable TV Fund 12-A, Ltd., a Colorado
limited partnership.
(c) "Corporate Authorities" means the President and Board of
Trustees of the Village of Orland Park, Xxxx and Will
Counties, Illinois.
(d) "FCC" means the Federal Communications Commission,
established by the Communications Act of 1934, as amended,
and shall include any successor agency or other agency with
respect to the federal regulation and licensing in
connection with the subject matter of this Ordinance.
(e) "Franchise Area" means the corporate limits of the Village
of Orland Park, including all territory hereafter annexed
by the Village.
(f) "Gross Revenues" shall mean all amounts received, directly
or indirectly, by the Company from the operation or use of
the System in the Municipality, including but not limited
to revenue received from regular subscriber service fees,
premium programming fees, installation fees, reconnection
fees, subscriber revenues, revenues for security monitoring
services, leased channel fees, converter rentals, studio
rental, production equipment fees, workshop fees and
advertising revenues; provided,
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however, that Gross Revenues does not include revenue
derived from the sale of company assets (except that
revenue from retail sales shall be included in "Gross
Revenues"), any franchise fees imposed by this Ordinance
and collected by the Company from Subscribers, or any taxes
on services furnished by the Company herein imposed
directly upon any Subscriber by the state, local or other
governmental units and collected by the Company on behalf
of said governmental unit. With respect to nonSubscriber
revenues (e.g., studio rental revenue, leased access
revenue and advertising revenue), Gross Revenues shall
include only a pro-rated portion of such revenues, with
such pro-rated amount based on the ratio of number of
subscribers served by the Company who reside in the
Municipality and the total number of subscribers served by
the System who do not reside in the Municipality.
(g) "Grant" means the right, privilege and franchise provided
in Subsection (a) of Section 3 of this Franchise Agreement.
(h) "Municipality" means The Village of Orland Park, Xxxx and
Will Counties, Illinois.
(i) "Person" means any individual, firm, partnership, limited
partnership, association, corporation, company or
organization of any kind.
(j) "Potential Subscribers" means those Persons within the
Franchise Area who are not Subscribers.
(k) "Public Rights-of-Way" means all sidewalks, streets and
alleys in the Municipality which are dedicated to the
Municipality for street, highway, sidewalk, lighting,
drainage, utility or cable television purposes, and all
public ways and places contiguous thereto.
(l) "Subscriber" means any Person lawfully receiving service
from or using the System under the Grant pursuant to this
Franchise Agreement.
(m) "System" means the cable communications system owned by the
Company and used to serve the Municipality and composed of,
without limitation, antenna, cables, wires, lines, towers,
amplifiers, conductors, converters, equipment or facilities
designed, constructed or wired for the purpose of
providing: (i) one-way transmission to Subscribers of video
programming or other programming services, any Subscriber
interaction that is required for the selection of such
video programming or other programming services, and (ii)
any other lawful communications services.
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SECTION 3: GRANT OF FRANCHISE
---------
(a) The Municipality, to the full extent that it may do so, hereby
grants to the Company, in accordance with the terms, conditions and provisions
of this Franchise Agreement, the right, privilege and franchise within the
Franchise Area: to establish, construct, operate and maintain the System in,
upon, over and under the Public Rights-of-Way and within easements or other
rights to use property which are effective for the purposes of the Grant; to
extend the System to and offer the services of the System to all Potential
Subscribers; to acquire by lease, license, purchase or other right to use
equipment, facilities and improvements, and land constituting all or part of the
System; to connect Subscribers to the System; and to repair, replace, enlarge
and extend the System. All previous grants and franchises to the Company by the
Municipality are revoked and cancelled by the Municipality and the Company;
provided, however, that the Company shall remain liable for all outstanding
breaches and defaults of the Company (if any) under all such previous grants and
franchises.
(b) The term of the Grant is seven years from the date of this
Franchise Agreement.
(c) The Grant shall not be exclusive. The Municipality may make a
grant to any other Person on terms no less burdensome and no more favorable than
the terms of the Grant.
SECTION 4: EXTENSION OF SERVICE
---------
(a) The Company shall be required to extend the System to and to
offer the services of the System to Potential Subscribers where there are at
least a total of thirty-five (35) residential dwelling units and/or "occupied
commercial or industrial structures" per linear mile. Further, in the event that
a tract or tracts within the Franchise Area is undeveloped at the time of the
Grant, the Company shall, upon development of said tract or tracts, be required
to extend the System (subject to the foregoing density requirement) in
cooperation with public utilities servicing the tract or tracts.
(b) Notwithstanding the Grant, the Company shall obtain all necessary
federal, state and local government permits, licenses and other required
authorizations in connection with the establishment, construction, operation and
maintenance of the System.
(c) Where adverse terrain or other factors render extension of the
System and offer of services impractical or technically unfeasible, or creates
an economic hardship, the Corporate Authorities shall, upon petition of the
Company, either waive the extension of the System into such areas, or allow the
extension and offer of
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services on such special terms, conditions and provisions as are reasonable and
fair to the Municipality, the Company and Potential Subscribers in such areas.
SECTION 5: ACTIVITIES PROHIBITED
---------
The Company shall not allow the System to interfere with television
reception by Persons not served by the Company, nor shall the System interfere
with, obstruct or hinder in any manner, the operation of the various utilities
serving the residents of the Municipality.
SECTION 6: FRANCHISE FEE
---------
(a) The Company shall pay to the Municipality for the right,
privilege and franchise set forth in the Grant, an amount equal to five percent
(5%) of the Gross Revenues derived from the operation of the System in the
Municipality. Such franchise fee is to be payable quarterly within 45 days of
the end of each calendar quarter based on the Gross Revenues for such calendar
quarter. Each payment shall be accompanied by a statement certified by an
official or representative of the Company having the requisite knowledge to make
such a statement setting forth the Gross Revenues upon which the franchise fee
is based.
(b) Delinquent payments shall bear interest at the allowable legal
rate, with the minimum delinquency being a one (1) month interest charge.
(c) Within ninety (90) days of the end of each fiscal year of the
Company, the Company shall file with the Corporate Authorities an annual report
prepared in the normal course of business, the accuracy of which is verified by
a duly authorized officer of the corporation, showing the financial status of
the Company and the Gross Revenues of the Company for the report period.
SECTION 7: RECORDS
---------
(a) All financial records of the Company in connection with its
activities within the boundaries of the Municipality, shall be maintained in a
manner which permits, to the extent reasonably practicable, distinguishing
revenues earned within the Municipality from revenues earned by the Company in
other municipalities.
(b) The Municipality shall have the right, upon reasonable notice to
the Company and at reasonable times, hours, dates and frequencies, to inspect
all or any part of the Company's records and documents, planning records and
documents, and engineering records and documents of every kind in connection
with the Grant, the
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System and the Company's undertakings with respect to this Franchise Agreement.
(c) Upon the request of the Municipality, the Company shall file with
the Municipality a copy of applications or files submitted by the Company with
any governmental entity or agency having jurisdiction with respect to any matter
affecting the System or the Company's undertakings with respect to this
Franchise Agreement.
(d) At least thirty (30) days prior to any rebuild or upgrade of any
part of the System in the Public Rights-of-Way, the Company shall file with the
Municipality copies of maps, plats or other drawings which accurately show the
nature of the proposed construction or improvements.
(e) The Company shall, upon the request of the Municipality, make
available to the Municipality copies of all rules, regulations, terms and
conditions, excepting proprietary information, established or imposed by the
Company in connection with the establishment, construction, operation and
maintenance of the System.
SECTION 8: GENERAL OPERATIONAL STANDARDS
---------
(a) Use. All structures, wires, cables, equipment and facilities
---
erected or maintained by the Company within the Municipality shall be located so
as to cause minimum interference with the proper and intended use of the Public
Rights-of-Way and with the rights or reasonable convenience of the owners or
occupiers of property which adjoins any of such Public Rights-of-Way.
(b) Restoration. The surface of any Public Rights-of-Way disturbed by
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the Company in laying, constructing, maintaining, operating, using, extending,
removing, replacing or repairing its System shall be restored by the Company as
soon as possible after the completion of the work, at the Company's cost and
expense, to substantially the same condition as before the commencement of the
work. If there is an unreasonable delay by the Company in restoring and
maintaining the Public Rights-of-Way after such excavations or repairs have been
made, the Municipality shall have the right without further notice to restore or
repair the same and to require the Company to pay the reasonable cost of such
restoration or repair.
(c) Relocation. Whenever by reason of the construction, repair,
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maintenance, relocation, widening, raising or lowering of the grade of any
Public Rights-of-Way by the Municipality or by the location or manner of
construction, reconstruction, maintenance or repair of any public property,
structure or facility by the Municipality, it shall be deemed necessary by the
Municipality for the Company to move, relocate, change, alter or modify any of
its facilities or structures, such change, relocation, alteration or
modification shall be promptly made by the Company, at its cost and expense.
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(d) Temporary Removal of Wire for Building Moving. Upon written
---------------------------------------------
request of any person holding a building moving permit issued by the
Municipality, the Company shall remove, raise or lower its wires and cables
temporarily to permit the moving of houses, buildings or other structures. The
reasonable expense of such temporary removal, raising or lowering shall be paid
by the benefited person, and the Company may require such payment in advance,
the Company being without obligation to remove, raise or lower its wires and
cables until such payment shall have been made. The Company shall be given not
less than seventy-two (72) hours advance written notice to arrange for such
temporary wire and cable adjustments.
(e) Tree Trimming. Except when in conflict with a current or future
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Village ordinance, the Company shall have the authority, upon obtaining the
prior written consent of the Village Manager, to trim trees upon or overhanging
Public Rights-of-Way to the same extent that the Municipality has such
authority, in order to prevent the branches of such trees from coming into
contact with the System. When so directed by the Municipality, said trimming
shall be done under the supervision and direction of the Municipality or in
compliance with any policies or ordinances that the Municipality may have
regulating the trimming or removal of trees on or along Public Rights-of-Way.
(f) Safety Reg. Requirements. The Company shall put, keep and
------------------------
maintain all parts of the System in good and standard condition throughout the
entire period of the Grant. Construction, installation, and maintenance of the
System shall be performed in an orderly and workmanlike manner. All such work
shall be performed in substantial compliance with applicable FCC or other
federal, state, and local regulations. The System shall not unreasonably
endanger or interfere with the safety of Persons or property in the Franchise
Area.
SECTION 9: SYSTEM SPECIFICATIONS AND LOCAL PROGRAMMING
--------- REQUIREMENTS
(a) Channel Capacity. During the term of the Grant, the System
----------------
shall at all times have a minimum capacity of at least 54 Channels.
(b) Technological Developments. The Company shall continuously
--------------------------
monitor developments in cable technology. At the Municipality's request, at any
time during the fifth year of the term of the Grant, the Franchisee shall
prepare and deliver a report describing developments in cable technology and
whether and when the Company plans to incorporate such developments into System.
Based on this report, the Municipality may determine that the System or this
Franchise Agreement should be updated, changed, revised, or that additional
services should be provided, but only if such update, change, revision or
provision of additional services is economically feasible for the Company.
Economic feasibility shall be mutually determined by the
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Municipality and the Company in good faith following an evaluation of the
Company's financial condition, economic waste, if any, that would occur should
the changes be made, the remaining term of the Grant, and the rate of return on
the Company's investment (both prior investment and proposed future investment)
in the System. Upon the mutual consent of the Municipality and the Company, this
Franchise Agreement shall be amended to incorporate the determinations made as a
result of this process.
(c) Leased Access. The Company shall provide leased access channels
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on the System in accordance with applicable requirements of federal law and the
regulations of the FCC.
(d) No Obscenity. Within the limits of federal, state and local law,
------------
the Company shall not offer or permit the System to present obscene material.
(e) Emergency Alert System. In the event of an emergency or disaster,
----------------------
the Company shall, upon request of the Municipality, make available the System
for emergency use during the period of such emergency or disaster and shall use
its best efforts to provide such personnel as may be necessary to operate the
System under the circumstances. The Company shall be deemed to be in compliance
with the requirements of this subsection (e) so long as it is in compliance with
the regulations promulgated by the FCC relating to the Emergency Alert System
(47 C. F. R. Part 11), as amended from time to time.
(f) Local Studio. During the term of the Grant, the Company shall
------------
maintain its current studio within the Municipality for local programming. To
improve the quality of such programming, the Company shall purchase and install,
within 12 months of the effective date of this Franchise Agreement, a Sony UVW
Beta Editing System consisting of the following: UVW 1800 Edit Recorder, UVW
1600 Source Deck, UVW 100L Sony Betacom SP Camcorder, Xxxxxx 17 x 1/2" Hot Zoom
Lens and RM 450 Edit Controller. In addition, the Company shall purchase a Sony
UVW 1200 Player for system playback. Upon request, the local studio shall be
made available from time to time to the Municipality, its agencies, public
service organizations, local producers and schools lying wholly or partly within
the Municipality for production of community-related programming. The Company
shall establish and disseminate a procedure for reserving studio time and use of
the studio. Additionally, the Company shall hold training classes for interested
persons at least twice each calendar year, or more often if there are at least
eight interested people registered at any given time. The availability of the
training classes will be publicized on the Company's local origination channel.
(g) Local Origination Programming. During the term of the Grant, the
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Company shall maintain at least one Channel on the System for the carriage of
local origination programming. Local origination programming shall consist of
programming
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(i) produced or acquired by the Company and of local interest to the
Municipality and its residents, (ii) produced by residents of the Municipality,
subject to the Company's editorial control, and (iii) character generated
programming, which will include information and public notices submitted by the
Municipality. The Company shall make up to 25 hours per week of the local
origination channel's program schedule available for programming produced by
residents of the Municipality, at least 10 hours of which would be aired between
6:00 p.m. and 11:00 p.m.
(h) Production Internships.
----------------------
i) During the term of the Grant, the Company and its
affiliates serving communities in the south suburban area shall
sponsor an internship program for college students and qualified
residents who are pursuing degrees and/or careers in the
telecommunications industry. Between two and four internships per
trimester shall be offered to college students residing in the south
suburban area as part of this program, and the program shall be
conducted in substantially the same manner as the college internship
program offered in 1995.
ii) During the term of the Grant, the Company shall
establish and maintain a production internship program for high
school seniors. The Company shall offer two internships per school
semester. The program shall include the following elements:
- Eligibility: High school seniors, at least 16 years of
age and a resident of a community served by the System, with an
interest in a career in the telecommunications industry.
- Commitment: Five to ten hours weekly for the length of
the school semester. The Company shall work with the, high schools to
determine whether the internship would merit substantial credit for
the intern.
- Responsibilities: Shall be determined by the Company,
but may include training as a camera operator (studio and remote),
character generator operator, videotape editor, sports statistician,
audio operator, feature news writer or on-camera anchor or reporter.
- Benefits: The internships shall be paid minimum hourly
wages; however, in addition to possible school credit and practical
experience, the Company will assist interns in assembling a video
resume reel.
(i) Scholarship Program. During the term of the Grant, the Company
-------------------
shall establish and fund a scholarship program for graduating high school
students in the Municipality. The Company shall fund two $500 scholarships each
year to be
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awarded by the Municipality to two graduating high school students who have
plans to enroll in a four-year college program or similar media-related training
program and are interns with the Company. The Company shall work with the
Municipality to establish the scholarship application and selection process.
SECTION 10: CUSTOMER SERVICE
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(a) The Company shall establish, operate and maintain in the
Municipality 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
Subscribers' service charges. The office shall have a listed local telephone
number, and shall be open and sufficiently manned during reasonable business
hours. The Company shall have a local listed telephone number for service calls,
and such telephone service shall be available twenty-four (24) hours a day,
seven (7) days a week. Said number shall be made available to the Subscribers
and the general public.
(b) Customer Service. During the term of the Grant, the Company shall
----------------
provide customer service in concert with the standards established by the FCC
and set forth on Exhibit A to this Ordinance. To validate agreement with these
standards, the Company shall keep maintenance service records that will indicate
the nature of all service complaints, date and time the complaint was received,
the disposition of such complaints and the time and date thereof. These records
shall be available for inspection by the Municipality. The Company shall
maintain all service complaint records for a minimum period of three years.
SECTION 11: SUPERVISION OF THE COMPANY
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(a) Unless otherwise provided in this Franchise Agreement, or unless
the Corporate Authorities shall otherwise specify, all administrative actions
required to be taken or which shall or may be taken by the Municipality in
connection with the System, shall be taken by the Village President and Board of
Trustees.
(b) Unless specifically otherwise provided in this Franchise
Agreement, or unless the Corporate Authorities shall otherwise provide, all
filings with the Municipality required by this Ordinance shall be made with the
Village Manager.
SECTION 12: TELECOMMUNICATIONS COMMISSION
----------
A Telecommunications Commission (the "Commission") for the
Municipality shall be established by the Village.
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SECTION 13: LIABILITY, INSURANCE AND INDEMNITY
----------
(a) The Company hereby agrees to indemnify, defend and save whole and
harmless the Municipality and its officers and employees from liabilities and
related expenses (including reasonable attorneys' fees) of any kind which may
arise out of or from the establishment, construction, operation and maintenance
of the System, or the execution and implementation of this Franchise Agreement
and any related Ordinance. The Municipality shall notify the Company in the
event any person shall in any way notify the Municipality of any claim or demand
in connection with the System or this Franchise Agreement or any related
Ordinance, from which the Company may be subject to liability under this Section
or otherwise. The undertaking in connection with this subsection (a) includes
liability with respect to property damage, personal injury, invasions of the
right of privacy, defamation of any person, the violation or infringement of any
copyright, trademark, trade name, service xxxx or patent, or of any other right
of any person, and failure of the Company to comply with the provisions of any
federal, state or local statute, ordinance, rule or regulation applicable to the
Company in connection with this Franchise Agreement or any related Ordinance.
The obligations of the Company under this Section 13 shall survive the
termination of this Franchise Agreement regardless of the reason for or the
method of termination.
(b) The Company shall keep the System continuously insured against
such risks as are customarily insured against by businesses of like size and
type, including but not limited to:
i) Insurance to the extent of $2,000,000 per occurrence
against liability for bodily injury including death, and to the
extent of $500,000 per occurrence against liability for damage to
property, including loss of use occurring on, arising out of or in
any way related to the System.
ii) During any period of construction, adequate coverage to
meet liability under the Illinois Structural Work Act (prior to
repeal thereof).
iii) Worker's Compensation Insurance within statutory limits,
and Employer's Liability Insurance of not less than $500,000.
iv) Comprehensive Automobile Liability Insurance to the
extent of $2,000,000 per occurrence against liability for bodily
injury including death, and to the extent of $300,000 per occurrence
against liability for damage to property, including loss of use
occurring on, arising out of, or in any way related to the System.
This subsection (b) shall not be a limit on the Company's undertaking
provided
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in subsection (a) of this Section.
(c) The Company shall have the Municipality included as co-insured on
all insurance policies referred to in this Section. The Company shall file with
the Municipality, certificates of insurance for such policies. All such policies
shall provide that the issuing insurance company will not cancel them without at
least ten days prior notice to the Company and the Municipality. All such
policies shall be taken out and maintained with generally recognized,
responsible insurance companies.
SECTION 14: PERFORMANCE BOND
----------
Company shall, within thirty days subsequent to the effective date of
this Franchise Agreement, post a performance bond with the Municipality, written
by an approved corporation surety in the amount of $50,000, and in a form
satisfactory to the Municipality, guaranteeing the Company's continued operation
of the System within the Municipality for the period hereinbefore specified in
Section 3 of this Franchise Agreement. All damages which may be directly
occasioned by the failure of the Company to perform under this Franchise
Agreement or related Ordinance, shall be recoverable from the principals and
sureties of said bond by the Municipality.
If the Company shall be in violation of any provision of this
Franchise Agreement or any related Ordinance and not remedy such violation
within thirty days after having received written notice from the Municipality to
do so, then the Municipality, at its discretion, may declare a portion of the
bond equivalent to the amount of damages sustained by the Municipality which are
directly attributable to such breach forfeited, and Company shall thereupon by
required:
(1) To remedy the breach immediately; and
(2) Within thirty days of such forfeiture, replace the
forfeited portion of the bond.
Notwithstanding the foregoing, nothing contained in this subsection
shall serve to absolve the Company of any of its obligations under this
Franchise Agreement or any related Ordinance or the rules and regulations of the
FCC.
No recovery by the Municipality of any sum by reason of the bond
required hereunder shall be any limitation upon the liability of the Company to
the Municipality, except that any sum received by the Municipality by reason of
such bond shall be deducted from any recovery which the Municipality may have
against the Company.
The Company shall pay all premiums chargeable for the bond, and shall
keep the same in full force and effect at all times throughout the term of this
Franchise
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Agreement and during the removal of all poles, wires, cables, underground
conduits, manholes and other conductors, converters, equipment and fixtures
subsequent to the termination of this Franchise Agreement. The bond shall
contain a provision that it shall not be terminated or otherwise allowed to
expire prior to thirty days written notice given to the Board of Trustees of the
Municipality.
SECTION 15: PUBLIC BUILDINGS
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The Company shall provide, without installation charges or monthly
service fee, one basic converter and one installation for one line basic service
connection to the Village Hall, to all firehouses, public work buildings and any
other municipal buildings designated by the Board of Trustees; to all library
buildings, to all park district buildings, and to all public and parochial
elementary, secondary and college level schools located within the Municipality.
The Company shall make such connections at the location designated by the
Municipality for municipal buildings or by the other appropriate officer for
other public buildings. The public buildings so serviced shall be responsible
for all internal wiring from such energized connection source.
SECTION 16: COMPLIANCE WITH LOCAL, STATE AND FEDERAL
---------- JURISDICTION; NO WAIVER BY MUNICIPALITY FOR
FAILURE TO ENFORCE THIS AGREEMENT; JUDICIAL
REMEDIES
(a) The Company shall establish, construct, operate and maintain the
System, subject to the reasonable supervision of the Municipality, and in strict
compliance with all applicable laws, ordinances, rules and regulations.
(b) If at any time the powers of the Municipality, state or federal
government or any agency or official thereof in connection with the System are
duly transferred to or later reside in any other board, authority, agency or
official, such board, authority, agency or official shall have the power, rights
and duties previously vested, in addition to any other which they may acquire.
(c) Notwithstanding any other provisions of this Franchise Agreement
or any related Ordinance, the Company shall at all times comply with all state
and federal laws, rules and regulations, or any administrative agency thereof;
provided, however, if any such ordinance, law, rule or regulation shall require
the Company to perform any service or shall permit the Company to perform any
service in conflict with the provisions and terms of this Franchise Agreement or
any related Ordinance or of any law, rule or regulation, then as soon as
possible following knowledge thereof, the Company shall notify the Municipality
of the point of conflict believed to exist. If the Municipality determines that
a material provision of this Franchise Agreement or any
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related Ordinance is affected by such action, the parties shall have the right
to modify or amend any of the provisions to such reasonable extent as may be
necessary to carry out the full intent and purpose of this Franchise Agreement
and any related Ordinance.
(d) The Company or other parties shall not be excused from complying
with any of the terms or conditions of this Franchise Agreement or any related
Ordinance by any failure of the Municipality upon any one or more occasions to
insist upon or to seek compliance with any such terms or conditions.
(e) In addition to all remedies herein provided, the parties shall
have the right to apply to any court of competent jurisdiction to secure such
judicial relief as it shall deem proper.
SECTION 17: ACCEPTANCE
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(a) Except as expressly provided otherwise in this Franchise
Agreement, the Company shall have no recourse whatsoever against the
Municipality for any loss, cost or expense or damages arising out of the terms,
conditions and provisions or requirements of this Franchise Agreement or any
related Ordinance.
(b) The Company, by acceptance of the right, privilege and franchise
under this Franchise Agreement, acknowledges that it has not been induced to
enter into the franchise by any understanding or promise or other statement,
whether verbal or written by or on behalf of the Municipality concerning any
term or condition of this franchise not expressed herein.
(c) The Company agrees that it shall execute an acceptance of the
Grant made pursuant to the Ordinance in substantially the form that follows:
ACCEPTANCE OF XXX XXXXXXX XX XXXXXX XXXX, XXXXXXXX
CABLE TELEVISION FRANCHISE
Now this 3rd of June , 1996, the Company, having been advised by the
Village of Orland, Park, Illinois, that its Ordinance No. 2899 has been passed
by the President and Board of Trustees on the 3rd day of June 1996 (the
"Ordinance") to authorize the grant of a new franchise to the Company to
establish, construct, operate and maintain a cable television system within the
Village of Orland Park, Illinois, agrees to comply fully and in all respects
with the terms, conditions and provisions of the Franchise Agreement
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and any related Ordinance.
CABLE TV FUND 12-A, LTD.
By:
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Title:
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(SEAL)
Attest:
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Assistant Secretary
SECTION 18: ASSIGNMENT OR TRANSFER
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(a) The Company may not assign or transfer the its rights under this
Franchise Agreement without the prior written consent of the Municipality, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, the
Municipality's consent shall not be necessary (i) for the assignment or transfer
of the Company's rights under this Franchise Agreement to any affiliate of the
Company which has the same or greater technical ability, financial condition and
legal qualifications as the Company, or (ii) for the granting of a security
interest in, or the mortgage or pledge of, all of the Franchise's rights, powers
and privileges under this Ordinance to such lending institution or institutions
as may be designated by the Company.
(b) The consent or approval of the Municipality to any such
assignment, lease, transfer, sublease, pledge or mortgage shall not constitute a
waiver or release of the rights of the Municipality in and to Public
Rights-of-Way.
SECTION 19: REVOCATION OF FRANCHISE
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(a) In addition to all other rights, powers or remedies pertaining to
the Municipality in connection with this Franchise Agreement or otherwise, the
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Municipality reserves the right to terminate, cancel and revoke the franchise
and all rights and privileges of the Company under this Franchise Agreement in
the event the Company:
(i) Violates any material provision of this Franchise
Agreement or any rule, order or determination of the Municipality
made pursuant to this Franchise Agreement, except where such
violation, other than of subsection (ii) and (iii) below, is without
fault of the Company or through excusable neglect; or
(ii) Becomes insolvent, unable or unwilling to pay its debts,
or is adjudged bankrupt; or
(iii) Fails for a substantial time to provide cable television
service to Subscribers, except as a result of strikes, war, civil
commotion, Acts of God or other causes beyond the reasonable control
of the Company.
(b) The Municipality may make a written demand that the Company
comply with any such provision, rule, order or determination under or pursuant
to this Franchise Agreement. If the violation by the Company continues for a
period of thirty days following such written demand without written proof that
the corrective action has been taken or is being actively and expeditiously
pursued, the Municipality may consider the issue of terminating the Grant,
provided that the Municipality shall cause to be served upon the Company, at
least twenty day prior to the date the Municipality is to consider the issue of
termination, a written notice of intent to request such termination, and the
time and place of the meeting. Public notice shall be given of the meeting and
issue which the Municipality is to consider.
(c) The Corporate Authorities shall hear and consider the issue, and
shall hear any Person interested therein, and the Corporate Authorities shall
determine, in their discretion, whether or not any violation by the Company has
occurred.
(d) If the Corporate Authorities shall determine the violation by
the Company was the fault of Company and within its control, the Corporate
Authorities may, by resolution, declare that the Grant shall be terminated and
revoked unless there is compliance within such period at the Corporate
Authorities may fix; such period shall not be less than ten days, provided that
no opportunity for compliance need be granted for fraud or misrepresentation.
(e) Upon expiration of the time set for compliance by the Company in
subsection (d) and in the event that there has not been full and complete
compliance, the issue of revocation and termination shall be determined at the
first regular meeting of the Corporate Authorities following said expiration,
without further notice to the Company, and in accordance with Illinois law.
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SECTION 20: RENEWAL
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This Grant to the Company herein may be renewed on such terms and
conditions as the parties may agree, in accordance with and subject to the
renewal provisions of the Cable Communications Policy Act of 1984, as amended.
SECTION 21: REMOVAL OF CABLE; PURCHASE BY MUNICIPALITY
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Upon the termination or revocation of the franchise granted herein,
as provided herein, the Municipality shall have the option, to be exercised
within ten days thereof, of accepting ownership of the System's facilities by
paying to the Company the fair market value of the System, as determined from
appraisals by appraisers approved by the parties, or the option to require the
sale of such assets to a succeeding company on said terms.
Upon notice from the Municipality that it is not exercising either of
the aforesaid options the Company shall, at its own expense, remove all
designated portions of the System from all streets and public property within
the Municipality, and shall repair and restore the surface of all streets and
public property within the Municipality to the original condition, within a
reasonable period of time specified by the Municipality.
SECTION 22: EQUAL EMPLOYMENT OPPORTUNITY
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In carrying out the construction, operation, maintenance, service and
repair of the System, the Company shall not refuse to hire or employ, nor bar or
discharge from employment, nor discriminate against in compensation or in terms,
conditions or privileges of employment, any Person in violation of any statute
or the Constitution of either the United States or the State of Illinois.
SECTION 23: MUNICIPALITY ENGINEERING DEPARTMENT DUTIES AND
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AUTHORITY
Unless otherwise specifically stated in this Franchise Agreement or
any related Ordinance, it shall be the duty of the Municipality's Engineering
Department to assure, by inspection or otherwise, that the Company at all times
shall comply with the requirements of this Franchise Agreement in connection
with the construction, erection, operation, modification and maintenance of the
System within the Municipality.
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SECTION 24: RESERVATION OF RIGHTS
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(a) The right is hereby reserved to the Municipality to adopt and
enforce, in addition to the terms, conditions and provisions contained in this
Franchise Agreement and in other applicable ordinances, such additional
ordinances, rules and regulations as it shall find necessary in the exercise of
the police powers; provided that such ordinances, rules and regulations shall be
reasonable and not in material or substantial conflict with the rights herein
granted.
(b) In addition to the specific rights of inspection otherwise
provided for in this Franchise Agreement, the Municipality shall also have the
right to make such reasonable inspections as it shall find necessary to insure
compliance with the terms, provisions and conditions of this Franchise Agreement
and other relevant provisions of law.
SECTION 25: CONSTRUCTION
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Principles concerning the construction and interpretation of this
Franchise Agreement shall be as follows:
(a) If any provision of this Franchise Agreement or the application
thereof is for any reason held invalid, illegal, unconstitutional or
unenforceable, such holding shall not affect the remainder of this Franchise
Agreement to any extent, each provision of this Franchise Agreement being a
separate, distinct and independent part.
(b) Words in the present tense include the future.
(c) Words importing the singular number may extend to and include
plural; words importing the plural number may extend to and include the
singular; and words in masculine gender shall include female gender.
(d) The Company shall not be excused from complying with any of the
terms, conditions and provisions of this Franchise Agreement by any failure of
the Municipality upon any one or more occasions to insist upon or to seek
compliance with any such terms, conditions or provisions.
(e) The specification in this Section of principles to apply in the
construction and interpretation of this Franchise Agreement shall not be a
limitation as to others.
SECTION 26: NOTICES
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All notices herein provided for shall be sent prepaid, registered or
certified mail
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addressed to the parties as follows, or at such other address as the parties
shall designate in accordance with this Section:
To the Municipality:
Village of Orland Park
00000 X. Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Village Manager
To the Company:
Cable TV Fund 12-A, Ltd.
c/x Xxxxx Intercable, Inc
0000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxxxxx
XXXXXXX XX XXXXXX XXXX, CABLE TV FUND 12-A, LTD.
Xxxx and Will Counties, Illinois By: Xxxxx Intercable, Inc.
Its General Partner
By: /s/ [SIGNATURE APPEARS HERE] By: /s/ Xxxx X. Xxxxxx
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Village President
Title: Group Vice President/Operations
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Attest: Attest:
/s/ [SIGNATURE APPEARS HERE] /s/ Xxxxxxxxx X. XxXxx
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Village Clerk Assistant Secretary
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