HomeMy WebLinkAboutRESOLUTION - 41-09 - 7/14/2009 - CABLE TELEVISION FRANCHISE AGREEMENTRESOLUTION NO. 41-09
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE A CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE
VILLAGE OF ELK GROVE VILLAGE AND COMCAST OF ILLINOIS
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows:
Section 1: That the Mayor be and is hereby authorized to sign the attached documents
marked:
JULY 2009
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN
VILLAGE OF ELK GROVE VILLAGE
and
COMCAST OF ILLINOIS
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village
Clerk is authorized to attest said documents upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its
passage and approval according to law.
VOTE: AYES: 5 NAYS: 0 ABSENT: 1
PASSED this 14th day of July 2009.
APPROVED this 14th day of July 2009.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Ann I. Walsh, Village Clerk
By: Judith M. Keegan, Deputy Village Clerk
AgnntCableTV FranchiseComcast2009.
JULY 2009
(ABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN
VILLAGE of ELK GROVE VILLAGE
and
(OM(AST of ILLINOIS
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise Agreement") is
made between the Village of Elk Grove Village, Illinois (hereinafter, the "Village") and
Comcast of Illinois VI, LLC (hereinafter, "Grantee"), a wholly-owned indirect subsidiary
of Comcast Corporation, a publicly traded Pennsylvania corporation." on this 14th day of
July, 2009 (the "Effective Date").
The Village, having determined that the financial, legal, and technical abilities of the
Grantee are reasonably sufficient to provide the services, facilities, and equipment
necessary to meet the future cable -related needs of the community, desires to enter into
this Franchise Agreement with the Grantee for the construction, operation and
maintenance of a Cable System on the terms and conditions set forth herein.
This Agreement is entered into by and between the parties under the authority and shall
be governed by the Cable Communications Policy Act of 1984, as amended from time to
time, 47 U.S.C. §§ 521 et seg. (the "Cable Act").
SECTION 1 - Definition of Terms
For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and
abbreviations shall have the meanings ascribed to them in the Cable Act.
"Access Channel" means a channel position for Public, Educational and/or
Governmental access as defined herein.
"Public Access" is noncommercial use of an access channel by the public on a
first-come, first-served, nondiscriminatory basis. A Public Access Channel may
not be used to cablecast programs for profit, or for non-profit, political or
commercial fundraising in any fashion.
"Educational Access" is noncommercial use of an access channel by educational
institutions, such as public or private schools (but not "home schools"),
community colleges, and universities.
"Government Access" is noncommercial use of an access channel by the
Grantee for the purpose of providing local government information and
programming.
"Cable Act" or "Act" means the Cable Communications Policy Act of 1984, as amended.
by the Cable Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996, as the same may be amended from time to time.
"Cable Service" or "Service" means the one-way transmission to Subscribers of Video
Programming or other programming service and Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming
service.
"Cable System," or "System" means a facility consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment that is designed
to provide cable service which includes video programming and which is provided to
multiple Subscribers within a community.
"Channel" or "Cable Channel" means a portion of the electromagnetic frequency
spectrum which is used in a cable system and which is capable of delivering a television
channel as the term television channel is defined by the Federal Communications
Commission by regulation.
"Converter" means an electronic device, .which converts signal carriers from one form
to another.
"Customer" or "Subscriber" means a Person who lawfully receives and pays for Cable
Service with the Grantee's express permission and does not further distribute it.
"Dwelling Unit" means a single-family or multiple -family residential place . of
occupancy.
"FCC" means the Federal Communications Commission or successor governmental
entity thereto.
"Franchise" means the initial authorization, or renewal thereof (which has been granted
subject to Section 626 of the Cable Act [47 U.S.C. §§ 546)), issued by the Village,
whether such authorization is designated as a franchise, agreement, permit, license,
resolution, contract, certificate, ordinance or otherwise, which authorizes the construction
and operation of the Cable System.
"Franchise Agreement" or "Agreement" shall mean this non-exclusive Agreement and
any amendments or modifications hereto.
"Franchise Area" means the present legal boundaries of the Village as of the Effective
Date, and shall also include any additions thereto, by annexation or other legal means.
"Franchise Fee" shall include any tax, fee, or assessment of any kind imposed by the
Village or other government entity on the Grantee or a Cable Subscriber solely because
of their status as such. The term "Franchise Fee" does not include any tax, fee or
assessment of general applicability (including any such tax, fee, or assessment imposed
upon both utilities and Cable Operators or their services, but not including a tax, fee or
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assessment which is unduly discriminatory against the Grantee or Cable Subscribers);
capital costs which are required by the Franchise to be incurred by Grantee for the
establishment and operation of Public, Educational, or Governmental Access Facilities;
requirements or charges incidental to the awarding or enforcing of the Franchise,
including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, liquidated damages; or any fee imposed under Title 17, U.S.
Code.
"Grantee" means Comcast of Illinois VI, LLC or the lawful successor, transferee,
designee, or assignee thereof.
"Gross Revenue" means the Cable Service revenue received by the Grantee from the
operation of the Cable System in the Franchise Area to provide Cable Services,
calculated in accordance with generally accepted accounting principles. Cable Service
revenue includes but is not limited to, monthly fees charged Subscribers for basic Cable
Service; any expanded tiers of Cable Service; premium Services; Pay-per-view Service;
other optional Service; installation, reconnection, and change -in -Service fees; remote
control rental fees; revenues from sales of converters or other Cable System equipment;
advertising revenues; revenues from program guides; late fees; and revenue from home
shopping. Gross Revenue shall also include such other revenue sources directly related
to the provision of Cable Service as may now exist or hereafter develop from the
operation of the Cable System within the Village, provided that such revenues, fees,
receipts, or charges may lawfully be included in the Gross Revenue base for purposes of
computing the Village's permissible Franchise fee under the Cable Act, as amended from
time to time.
Gross Revenue shall not include refundable deposits, 'bad debt, investment income,
programming launch support payments, advertising sales commissions, nor any taxes,
fees (not including franchise fees) or assessments imposed or assessed by any
governmental authority.
The Village intends and desires to collect Franchise Fee revenue on the Franchise Fee as
well as all non -subscriber revenue pursuant to City of Dallas, Texas v. F.C.C., 118 F.3d
393 (5th 1997) and In re: Texas Coalition of Cities for Utility Issues v. F. CC, 324 F.3d
802 (5th 2003), respectively.
"Initial Franchise Service Area" means that portion of the Franchise Area served by the
Grantee's Cable System as of the Effective Date of this Franchise Agreement.
"Person" means any natural person or any association, firm, partnership, joint venture,
corporation, or other legally recognized entity, whether for-profit or not -for profit, but
shall not mean the Village.
"Right -of -Way" or "Rights -of -Way"- Any street, alley, other land or waterway
including the surface, the air space above the surface and the area below the surface,
dedicated or commonly used for pedestrian or vehicular traffic or other similar purposes,
including but not limited to, public, utility easements and other easements which have
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been dedicated for compatible uses, now or hereafter held by the Village in the Franchise
Area, in which the Village has the right and authority to authorize, regulate or permit the
location of facilities other than those of the Village. "Right-of-way" or "Rights-of-way"
shall not include any real or personal Village property that is not specifically described in
the previous two sentences and shall not include Village buildings, fixtures and other
structures or improvements, regardless of whether they are situated in the right-of-way.
"Village" means the Village of Elk Grove Village, Illinois or the lawful successor,
transferee, designee, or assignee thereof.
"Village Board" means the corporate authorities of the Village of Elk Grove Village,
Illinois.
"Village Manager" means the duly appointed Village Manager of the Village of Elk
Grove Village, or his or her designee.
SECTION 2 - Grant of. Authority
2.1. Grant of Franchise. The Village hereby grants to the Grantee a nonexclusive
Franchise authorizing the Grantee to construct and operate a Cable System in the Rights -
of -Way within the Franchise Area, and for that purpose to erect, install, construct, repair,
replace, reconstruct, maintain, or retain in any Right -of -Way such poles, wires, cables,
conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances,
attachments, and other related property or equipment as may be necessary or appurtenant
to the Cable System, and to provide such services over the Cable System as may be
lawfully allowed.
2.2. Term of Franchise. The term of this Franchise Agreement shall be ten (10) years
from and after the Effective Date unless the Franchise is renewed or is lawfully
terminated in accordance with the terms of this Franchise Agreement and/or applicable
law.
2.3. Renewal. Any renewal of this Franchise shall be governed by and comply with the
provisions of Section 626 of the Cable Act, as amended.
2.4. Reservation of Authority. Nothing in this Franchise Agreement shall: (i) abrogate
the right of the Village to perform any public works or public improvements of any
description, (ii) be construed as a waiver of any codes or ordinances of general
applicability promulgated by the Village, or (iii) be 'construed as a waiver or release of
the rights of the Village in and to the Rights -of -Ways.
2.5. Police Powers. The right is hereby reserved to the Village to adopt and enforce in
addition to the terms, conditions and provisions contained in this Agreement and in
otherwise existing applicable ordinances, such additional generally applicable ordinances,
rules and regulations as it shall find necessary in the exercise of its police powers for the
health, safety and welfare of the public.
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2.6. Competitive Equity.
2.6.1. In the event that the Village grants an additional Franchise to use and
occupy the Public Way for the purposes of operating a Cable System, the additional
Franchise shall only be granted in accordance with applicable federal, state and.local law,
including the Illinois Level Playing Field Statute, 65 ILCS 5/11-42-11.
2.6.2. In the event an application for a new cable television franchise or other
similar authorization is filed with the Village proposing to serve the Franchise Area, in
whole or in part, the Village shall inform the Grantee of the filing of said application.
SECTION 3 - Construction and Maintenance of the Cable System
3.1. Generally. Except as otherwise provided in this Agreement, all construction and
maintenance of the Cable System shall be in accordance with Title 8 or other such
applicable provisions of the Village Code of the Village of Elk Grove as may be amended
from time to time and/or Zoning Ordinance of the Village of Elk Grove as may be
amended from time to time.
3.2. Aerial and Underground Construction. At the time of Cable System construction, if
all of the transmission and distribution facilities of all of the respective public or
municipal utilities in any area -of the Franchise Area are underground, the Grantee shall
place its Cable Systems' transmission and distribution facilities underground, provided
that such underground locations are actually capable of accommodating the Grantee's
cable and other equipment without technical degradation of the Cable System's signal
quality. In any region(s) of the Franchise Area where the transmission or distribution
facilities of the respective public or municipal utilities are both aerial and underground,
the Grantee shall have the discretion to construct, operate, and maintain all of its
transmission and distribution facilities, or any part thereof, aerially or underground.
Nothing in this Section shall be construed to require the Grantee to place underground
any ground -mounted appurtenances such as customer taps, line extenders, system passive
devices, amplifiers, power supplies, pedestals, or other related equipment.
3.3. Undergrounding and Beautification Projects. In the event all users of the Public Way
relocate aerial facilities underground as part of an undergrounding or neighborhood
beautification project, Grantee shall participate in the planning for relocation of its aerial
facilities contemporaneously with other utilities. Grantee shall be entitled to
reimbursement of its relocation costs under this Section from public or private funds, or
payment in advance from private funds, allocated for the project to the same extent as
such funds are made available to other users of the Rights -of -Way, provided that any
utility's exercise of authority granted under its tariff to charge consumers for the cost of
the project shall not be considered to be public or private funds.
3.4. The Grantee shall not be required to relocate its facilities unless it has been afforded
at least thirty (30) calendar days notice of the necessity to relocate its facilities. Upon
adequate notice the Grantee shall provide a written estimate of the cost associated with
the work necessary to relocate its facilities.
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3.5. Emergency Removal of Plant. Whenever, in case of emergency, it becomes
necessary in the judgment of the Village in the exercise of its Police Powers for the
health, safety and welfare of the public, to remove or damage any of the Grantee's
facilities, no charge shall be made by the Grantee against the Village for restoration or
repair; provided the Village shall endeavor to notify the Grantee of the situation prior to
taking such action, if reasonably possible.
SECTION 4 - Service Obligations and Privacy Protections
4.1. Customer Service Obligations. Grantee and the Village acknowledge that the
customer service standards and customer privacy protections are set forth in the Cable
and Video Customer Protection Law, 220 ILCS 5/22-501 et seq. and Sections 3-20-8 of
the Village of Elk Grove Village Municipal Code (Customer Protection Law and
Customer Service and Privacy Protection Law). Enforcement of such standards and the
penalties for non-compliance with such standards shall be consistent with the Cable and
Video Customer Protection Law, 220 ILCS 5/22-501 et seq.
4.2. General Service Obligation. The Grantee shall make Cable Service available
beyond the Initial Franchise Service Area to every residential dwelling unit within the
Franchise Area where the minimum density is at least thirty (30) dwelling units per cable
plant mile measured from the existing Cable System's nearest technically feasible
connection point. Subject to the density requirement, Grantee shall offer Cable Service
to all new homes or previously unserved homes located within one hundred twenty-five
feet (125 feet) of the Grantee's distribution cable:
4.2.1. Extension of Service and System: The Grantee may elect to provide Cable
Service to areas not meeting the above density and distance standards. The Grantee may
impose an additional charge in excess of its regular installation charge for any service
installation requiring a drop in or line extension in excess of the above standards. Any
such additional charge shall be computed on a time plus materials basis to be calculated
on that portion of the installation that exceeds the standards set forth above.
4.2.2. Grantee shall. not deny access to its Cable Service within the Village
because of the income or minority status of the residents within the Village.
4.3. Service to School Buildings. Pursuant to 220 ILCS 5/22-501(f), the Grantee shall
provide complimentary basic Cable Service and a free standard installation at one outlet
to each State accredited K-12 public and private school, not including "home schools,"
located in the Franchise Area within one hundred twenty five feet (125) of the Grantee's
distribution cable.
4.4. Service to Governmental Facilities. Pursuant to 220 ILCS 5/.22-501(f), the Grantee
shall provide complimentary basic Cable Service and a free standard installation at one
outlet to each municipal building located. in the Franchise Area within one hundred
twenty five (125) feet of Grantee's distribution cable. "Municipal buildings" are those
buildings owned or leased by the Village for government administrative purposes, and
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shall not include buildings owned by Village but leased to third parties or buildings such
as storage facilities at which government employees are not regularly stationed.
4.5. Programming. The Grantee agrees to provide cable -programming services in the
following broad categories:
Children General Entertainment Family Oriented
Ethnic/Minority Sports Weather
Arts, Culture and Performing Arts News & Information Educational
4.6. New Developments. In cases of new construction or property development where
utilities are to be placed underground, the Village agrees to require the developer or
property owner to provide the Grantee written notice concurrent with notice to the other
utilities of such construction or development, and of the. particular date on which open
trenching will be available for the Grantee's installation of conduit, pedestals, and/or
vaults and laterals for the Cable System. The Grantee shall also provide specifications to
the developer or property owner as needed for trenching. Costs of trenching and
easements required to bring service to the development shall be borne by the developer or
property owner; except that if the Grantee fails to install its conduit, pedestals and/or
vaults and laterals for the Cable System during the period (not less than 10 days) when
the trenches are available, as designated in the notice given by the property owner or
developer to the Grantee, then any additional cost is to be borne by the Grantee.
4.7. Notice to Grantee. The Village shall notify, or require the developer or property
owner to notify, the Grantee of any and all planned developments in its Franchise Area or
those located in areas expected to be annexed. Such notices shall be provided at the time
of notice to all other utilities or like occupants of the Village's Rights -of -Way. Said
notice is to allow the Grantee sufficient foresight into the future demands on its design,
engineering, construction and capital resources. Should the Village fail to provide
advance notice of such developments the Grantee shall be allowed an adequate time to
prepare, plan and provide a detailed report as to the timeframe for it to construct its
facilities and provide the services required under this Franchise.
SECTION 5 - Oversight and Regulation by Village
5.1. Franchise Fees. The Grantee shall pay to the Village a Franchise Fee in an amount
equal to five percent (5%) of annual Gross Revenues received from the operation of the
Cable System to provide Cable Service in the Franchise Area; provided, however, that
Grantee shall not be compelled to pay any higher percentage rate for Franchise fees than
any other Person paying a video service provider fee or similar fee under state
authorization or otherwise providing similar service in the Franchise Area. The payment
of Franchise Fees shall be made on a quarterly basis and shall be due forty-five (45) days
after the close of each calendar quarter. - Each Franchise Fee payment shall be
accompanied by a report prepared by a representative of the Grantee showing the basis
for the computation of the Franchise Fees paid during that period. Any undisputed
Franchise Fee payment, which remains unpaid in whole or in part, after the date specified
herein, shall be delinquent. For any Franchise Fee payments, owed by Grantee in
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accordance with this Section which are not made on or before the due dates, Grantee shall
make such payments including interest at an annual rate of twelve percent (12%) or two
(2) percent over prime lending rates as quoted by JP Morgan Chase & Co. or its
successor, whichever is higher, computed daily from time due until paid. Any undisputed
overpayments made by Grantee to the Village shall be returned or credited upon
discovery of such overpayment and shall be payable within forty-five (45) days of the
receipt of written notice from Grantee.
5.1.1. Change in Amount. The Parties acknowledge that, at present, applicable federal
law limits the Village to collection of a maximum permissible Franchise Fee of five
percent (5%) of Gross Revenues. In the event that at any time during the duration of this
Franchise, the Village is authorized to collect an amount in excess of five percent (5%) of
Gross Revenues, then the Village may unilaterally amend this Agreement to increase the
required percentage to be paid by the Grantee to the Village up to the amount permitted
by the Cable Act, provided that: (i) such amendment is competitively neutral; (ii) the
Village conducts a public hearing on the proposed amendment; (iii) the Village approves
the amendment by ordinance; and (iv) the Village notifies Grantee at least ninety (90)
days prior to the effective date of such an amendment.
5.2. Villa eight of Inspection and Audit.
5.2.1. Upon reasonable prior written notice, during normal business hours at
Grantee's principal business office, the City shall have the right to inspect the Grantee's
financial records used to calculate the Village's franchise fees or PEG fees; provided,
however, that any such inspection shall take place within the time period specified in the
Village's generally applicable Taxpayer Rights and Responsibilities Ordinance, from the
date the City receives such payment, after which period any such payment shall be
considered final.
5.2.2. Upon the completion of an independent audit by the Village, the Village
shall provide to the Grantee a final report setting forth the Village's findings, in detail,
including any and all substantiating documentation. In the event of an alleged
underpayment, the Grantee shall have thirty (30) days from the receipt of the report to
provide the Village with a written response agreeing to or refuting the results of the audit,
including any substantiating documentation. Based on these reports and responses, the
parties shall agree upon a "Finally Settled Amount." For purposes of this Section, the
term "Finally Settled Amount(s)" shall mean the agreed upon underpayment, if any, to
the Village by the Grantee, or overpayment to the Village by the Grantee as the case may
be, as a result of any such audit. If the parties cannot agree on a "Final Settlement
Amount," the parties shall submit the dispute to a mutually agreed upon mediator within
sixty (60) days of reaching an impasse. In the event an agreement is not reached at
mediation, either party may bring an action to have the disputed amount determined by a
court of law.
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5.2.3. Any "Finally Settled Amount(s)" due to the Village as a result of such
audit shall be paid to the Village by the Grantee within thirty (30) days from the date the
parties agree upon the "Finally Settled Amount." Any overpayment by the Grantee to the
Village shall be credited against subsequent franchise fee payments by the Grantee to the
Village until such time as the overpayment is fully credited; or shall be paid by the
Village to the Grantee within thirty (30) days from the date the parties agree upon the
"Finally Settled Amount" in the event no subsequent franchise fee payments are due to
the Village. In the event Grantee or the Village does not pay the "Finally Settled
Amount" within thirty (30) days, Grantee or the Village shall be charged and shall pay, in
addition to the amount due, interest on the amount due equal to the prevailing prime rate
plus two hundred basis points of interest compounded daily from the due date for
payment of the "Finally Settled Amount."
5.3. Books and Records.
5.3.1. Access to Books and Records. Upon fourteen (14) days' notice to Grantee,
the Village or its designated independent representative shall have the right to examine
books and records reasonably related to Grantee's compliance with its obligations under
this Agreement, including the fees described in Sections 5.1 and 10.7 of this Agreement.
The Village shall have no right to examine any aspect of the books and records that does
not reasonably relate to Grantee's obligations under this Agreement.
5.3.2. Confidentiality and Proprietary Information. Notwithstanding anything to
the contrary set forth in this Agreement, the Grantee shall not be required to disclose
information which it reasonably deems to be proprietary or confidential in nature. The
Village agrees to treat any information disclosed by the Grantee as confidential and only
to disclose it to those employees, representatives, and agents of the Village that have a
need to know in order to enforce this Franchise Agreement and who agree to maintain the
confidentiality of all such information. For purposes of this Section, the terms
"proprietary or confidential" include, but are not limited to," information relating to the
Cable System design, customer lists, marketing plans, financial information unrelated to
the calculation of Franchise Fees or rates pursuant to FCC rules, or other information that
is reasonably determined by the Grantee to be competitively sensitive. Grantee may make
proprietary or confidential information available for inspection but not copying or
removal by the Village's representative. Village's representative will sign a reasonable
confidentiality agreement. In the event that the Village has in its possession and receives
a request under a state "sunshine," public records, or similar law for the disclosure of
information that the Grantee has designated as confidential, trade secret or proprietary,
the Village shall notify Grantee of such request and cooperate with Grantee in opposing
such request to the extent permitted by law and at Grantee's expense. Grantee shall
indemnify and defend the Village from and against any claims arising from the Village's
opposition to disclosure of any information Grantee designates as proprietary or
confidential.
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SECTION 6 — Transfer of Cable System or Franchise or Control of Grantee
6.1. Neither the Grantee nor any other Person may transfer the Cable System or the
Franchise without the prior written consent of the Village, which consent shall not be
unreasonably withheld or delayed. No transfer of control of the Grantee, defined as an
acquisition of fifty one percent (51%) or greater ownership interest in Grantee, shall take
place without the prior written consent of the Village, which consent shall not be
unreasonably withheld or delayed. No consent shall be required, however, for (i) a
transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or
interest of the Grantee in the Franchise or in the Cable System in order to secure
indebtedness, or (ii) a transfer to an entity directly or indirectly owned or controlled by
Comcast Corporation. Within thirty (30) days of receiving a request for consent, the
Village shall, in accordance with FCC rules and regulations, notify the Grantee in writing
of the additional information, if any, it requires to determine the legal, financial and
technical qualifications of the transferee or new controlling party. If the Village has not
taken final action on the Grantee's request for consent within one hundred twenty (120)
days after receiving such request, consent shall be deemed granted. As a condition to
granting of any consent, the Village may require the transferee to agree in writing to
assume the obligations of the Grantee under this Franchise Agreement.
6.2. Insolvency. Any transfer of control resulting from or after the appointment of a
receive or receivers or trustee or trustees, however denominated, designated to take over
and conduct the business of the Grantee, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership or trusteeship shall
have been vacated prior to the expiration of a one hundred twenty (120) day period, shall
be treated as a transfer of control pursuant to 47 U.S.C. Section 537 and require the
Village's consent thereto in the manner described in Section 6.1.
SECTION 7 — Insurance and Indemnity
7.1. Insurance. Throughout the term of this Franchise Agreement, the Grantee shall, at
its own cost and expense, maintain Comprehensive General Liability Insurance with the
Village named as an additional insured with primary coverage for any claim arising out
of the franchisee's operation and provide the Village certificates of insurance in
accordance with the Village's generally applicable Right of Way Ordinance.
7.2. Indemnification. The Grantee shall indemnify, defend and hold harmless the
Village, in accordance with the Village's generally applicable Right of Way Ordinance.
7.2.1. ' The Grantee shall not indemnify the Village for any liabilities, damages,
costs or expense resulting from the willful misconduct or negligence of the Village, its
officers, employees and agents.
7.2.2. Nothing herein shall be construed to limit the Grantee's duty to indemnify
the Village by reference to the insurance coverage described in this Agreement.
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SECTION 8 - System Description
8.1. Technical Standards. The Grantee shall comply with all applicable technical
standards of the FCC as published in 47 C.F.R., Part 76, Subpart K. Upon written
request, the Grantee shall provide the Village with proof of its continuing performance in
accordance with said specifications in order to determine compliance with the FCC
technical standards.
SECTION 9 - Enforcement of Franchise
9.1. Notice of Violation or Default. In the event the Village believes that the Grantee has
not complied with the material terms of the Franchise, it shall notify the Grantee in
writing with specific details regarding the exact nature of the alleged noncompliance or
default.
9.2. Grantee's Right to Cure or Respond. The Grantee shall have thirty (30) days from
the receipt of _the Village's written notice: (i) to respond to the Village, contesting the
assertion of noncompliance or default; or (ii) to cure such default; or (iii) in the event
that, by nature of the default, such default cannot be cured within the thirty (30) day
period, initiate reasonable steps to remedy such default and notify the Village of the steps
being taken and the projected date that the cure will be completed and request additional
time from the Village to complete the cure.
9.3. Enforcement. Subject to applicable federal and state law, in the event the Village
determines that the Grantee is in default of any material provision of the Franchise, the
Village may:
9.3.1. Seek specific performance of any provision that reasonably lends itself to
such remedy or seek other relief available at law, including declaratory or injunctive
relief, or
9.3.2. In the case of a substantial or frequent default of a material provision of the
Franchise, declare the Franchise Agreement to be revoked in accordance with the
following:
(i) The Village shall give written notice to the Grantee of its intent to
revoke the Franchise on the basis of a pattern of noncompliance by the Grantee. The
notice shall set forth with specificity the exact nature of the noncompliance. The Grantee
shall have ninety (90) days from the receipt of such notice to object in writing and to state
its reasons for such objection. In the event the Village has not received a response from
the Grantee or upon receipt of the response does not agree with the Grantee's proposed
remedy, it may then seek termination of the Franchise at a public hearing. The Village
shall cause to be served upon the Grantee, at least ten (10) days prior to such public
hearing, a written notice specifying the time and place of such hearing and stating its
intent to request termination of the Franchise.
(ii) At the designated hearing, the Village shall give the Grantee an
opportunity to state its position on the matter, present evidence and question witnesses,
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after which it shall determine whether or not the Franchise shall be terminated. The
public hearing shall be on the record and an audio/video recording -shall be made. A copy
of the recording shall be made available to the Grantee within ten (10) business days after
the hearing. The Grantee may, at its own expense, arrange for a written transcript of the
public hearing. The decision of the Village shall be in writing and shall be delivered to
the Grantee by certified mail. The Grantee may appeal such determination to any court
whose jurisdiction includes Cook County, Illinois.
9.4. Remedies Not Exclusive. In addition to the remedies set forth in this Section 9, the
Grantee acknowledges the Village's ability pursuant to Section 4.1 of this Franchise
Agreement to enforce the requirements and standards, and the penalties for non-
compliance with such standards, consistent with the Cable and Video Customer
Protection Law; and, pursuant to Section 3.1 of this Franchise Agreement.
Notwithstanding the foregoing, nothing in this Agreement shall be interpreted to permit
the Village to exercise such rights and remedies in a manner that permits duplicative
recovery from, or payments by, the Grantee. Such remedies may be exercise from time
to time and as often and in such order as may be deemed expedient by the Village.
SECTION 10 - Public, Educational and Governmental (PEG) Access
10.1. PEG Capacity. Grantee shall provide capacity, at no charge to the Village for the
Village's noncommercial public, educational and governmental ("PEG") access
programming through Grantee's Cable Service consistent with the requirements set forth
herein. As of the Effective Date of this Agreement, the Grantee provides three (3)
channels ("the PEG Channels") for utilization by the Village. Unless otherwise agreed to
by the Village and the Grantee, and consistent with applicable law, two (2) of the PEG
Channels may be offered on the Grantee's Basic Digital Tier of Service.
10.2. Initial Channel Assignment. As of the effective date of this Agreement, the PEG
channels described in Section 10.1 above have been assigned by the Grantee to channel
numbers 6, 18 and 19 on the basic service tier on the Grantee's Cable System.
10.3. Relocation. If during the term of this Franchise Agreement, the Grantee initiates a
channel line-up change that results in the relocation of PEG programming from channel
6, the Grantee, in addition to providing the Village with at least thirty (30) days' advance
.notice of the change, shall reimburse the Village for its reasonable and documented costs
of changes to "channel -marked items," such as logos, stationery, envelops and business
cards necessitated by such line-up change in an amount not to exceed one thousand
dollars ($1,000.00). Further, the Grantee agrees to cooperate with the Village to notify
subscribers of the channel relocation through reasonable promotional assistance (subject
to the Grantee's operational requirements applicable thereto) such as a message included
on billing statements or the inclusion of an insert in the Grantee's billing statements as
may be provided by the Village to the Grantee's billing services provider. The foregoing
shall not apply to changes that are beyond Grantee's control, such as a television station
under federal law requiring carriage on a channel currently used by a PEG channel.
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10.4. Comcast Access Facility Usage. To the extent the Grantee operates and maintains
public access studio facilities and equipment in the metropolitan Chicago area, Grantee
agrees that these facilities and equipment will be available to residents of the Village on a
first-come, non-discriminatory basis for the production of public access programming
consistent with the Grantee's public access rules and procedures. Nothing herein shall be
construed to require the Grantee to operate or maintain any public access studios or
equipment.
10.5. Enhancing PEG Access. The Grantee and the Village further agree to work in
cooperation to explore other economically and technically feasible means by which PEG
access utilization and programming can be delivered in a digital format.
10.6. Origination Point. At such time that the Village determines that it wants the
capacity to allow subscribers in the Village to receive PEG access programming which
may originate from Schools and/or Village facilities (other than those having a signal
point of origination at the time of the execution of this Agreement); or at such time that
the Village determines that it wants to establish or change a location from which PEG
programming is originated; or in the event the Village wants to upgrade the connection to
the Grantee from an existing signal point of origination, the Village will give the Grantee
written notice detailing the point of origination and the capability sought by the Village.
The Grantee agrees to submit a cost estimate to implement the Village's plan within a
reasonable period of time, but in no event longer than sixty (60) days from when Grantee
receives all necessary information regarding the work sought. After an agreement to
reimburse the Grantee for its expenditure, the Grantee will implement any necessary
system changes within a reasonable period of time, but in no event longer than sixty (60)
days.
10.7. PEG Access Funding.
10.7.1. At its sole discretion, the Village may designate PEG access projects,
including the origination point described in Section 10.6 above, to be funded by the
Village through pass through funds collected by the Grantee as follows. The Village
shall send written notice of the Village's desire for Grantee to collect as an external
charge a PEG Capital Fee of up to thirty-five cents ($0.35) per customer per month
charge to be passed on to each Subscriber pursuant Section 622(g)(2)(C) of the Cable Act
(47 U.S.C. §542(g)(2)(C)). The notice shall include a description of the intended
utilization of the PEG Capital Fee for PEG Access Channel facilities and/or equipment.
The Grantee shall collect the external charge over such period as is mutually agreed upon
by the Village and the Grantee, and shall make the PEG Capital Fee payments from such
sums at the same time and in the same manner as Franchise Fee payments. The payments
shall be expended only for costs associated with PEG access as permitted by applicable
law. Said PEG Capital Fee shall be imposed within one hundred twenty days (120) of the
Village's written request.
10.7.2. For any payments owed by Grantee in accordance with this Section 10.7
which are not made on or before the due dates, Grantee shall make such payments
including interest at an annual rate of two (2) percent over prime lending rates as quoted
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by Chase Bank U.S.A. or its successor, computed daily from time due until paid. Any
undisputed overpayments made by the Grantee to the Village shall be credited upon
discovery of such overpayment until such time when the full value of such credit has
been applied to the Franchise Fee liability otherwise accruing under this section.
10.7.3. Grantee and Village agree that the capital obligations set forth in this
Section are not "Franchise Fees" within the meaning of 47 U.S.C. § 542.
10.8. Rules and Procedures for Use of PEG Access Channels. The Village shall be
responsible for establishing and enforcing rules for the non-commercial use of public,
educational and governmental access channels and to promote the use and viewership of
the channels.
10.9. Editorial Control. Grantee shall not exercise any editorial control over any use of
PEG channels, nor shall Grantee or its Affiliates incur any criminal or civil liability
pursuant to the federal, state or local laws of libel, slander, obscenity, incitement,
invasions of privacy, false or misleading advertising, or other similar laws for any
programs carried on any PEG channel.
10.10. Allocation and Use of PEG Channel(s).
10.10.1. By Village. The PEG Channel(s) is (are), and shall be, operated by the
Village, and the Village may at any time allocate or reallocate the usage of the PEG
Channel(s) among and between different uses and users.
10.10.2. By Grantee. The Village shall adopt rules and procedures under which
the Grantee may use the PEG .Channel(s) for the provision of Video Programming if the
PEG Channel(s) are not being used for their respective purposes pursuant to Section
611(d) of the Cable Act, 47 U.S.C. §531.
10.11. PEG Signal Quality. Provided PEG signal feeds are delivered by the Village to
the designated signal input point without material degradation, the PEG channel delivery
system from the designated signal input point shall meet the same technical standards as
the remainder of the Cable System set forth in this Agreement.
10.12. Emergency Alerts. At all times during the term of this Franchise Agreement, the
Grantee shall provide and maintain an "Emergency Alert System" ("EAS") consistent
with applicable Federal law and regulation — including 47 C.F.R., Part 11 and the "State
of Illinois Emergency Alert System State Plan" — as may be amended from time to time.
The Village agrees to indemnify and hold the Grantee harmless from any damages or
penalties arising out of the. negligence of the Village, its employees or agents in using
such system.
SECTION 11 - Miscellaneous Provisions
11.1. Force Majeure. The Grantee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or
penalty relating to noncompliance or default (including termination, cancellation or
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revocation of the Franchise), where such noncompliance or alleged defaults occurred or
were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or
snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure
of utility service necessary to operate the Cable System, governmental, administrative or
judicial order or regulation or other event that is reasonably beyond the Grantee's ability
to anticipate or control. This provision also covers work delays caused by waiting for
utility providers to service or monitor their own utility poles on which the Grantee's cable
or equipment is attached, as well as unavailability of materials or qualified labor to
perform the work necessary.
11.2. Failure To Enforce Franchise. The Grantee shall not be excused from complying
with any of the terms and conditions of this Franchise by any failure of the Village upon
any one or more occasions, to insist upon the Grantee's performance or to seek Grantee's
compliance with any one or more of such terms or conditions.
11.3. Notice. All notices shall be in writing and shall be sufficiently given and served
upon the other party by hand delivery, first class mail, registered or certified, return
receipt requested, postage prepaid, or by reputable overnight courier service and
addressed as follows:
To the Village: To the Grantee:
Elk Grove Village Comcast
901 Wellington Ave 1500 McConnor Parkway
Elk Grove Village, IL 60007 Schaumburg Illinois 60173
ATTN: Village Manager ATTN: Director of Government Affairs
Either party may change its address and addressee for notice by notice to the other party
under this Section. Notice by hand delivery, and notice by overnight courier service shall
be deemed received when delivered, and notice by mail shall be deemed delivered three
days after placing in the United States Mail.
11.4. Entire Agreement. This Franchise Agreement embodies the entire understanding
and agreement of the Village and the Grantee with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, understandings, negotiations
and communications, whether written or oral, and there are no representations or
agreements among the parties except as specifically set forth herein. All ordinances or
parts of ordinances that are in conflict with or otherwise impose obligations different
from the provisions of this Franchise Agreement are superseded by this Franchise
Agreement.
11.5. Severability. If any section, subsection, sentence, clause, phrase, or other portion
of this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by
any court, agency, commission, legislative body, or other authority of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent portion.
Such declaration shall not affect the validity of the remaining portions hereof, which
other portions shall continue in full force and effect: If any material provision of this
Agreement is found to be unenforceable in a final judicial or administrative proceeding,
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either party may notify the other in writing that the Franchise has been materially altered
by the finding of unenforceability and elect to begin the franchise renewal process
provided by the Cable Act, 47 U.S.C. Section 546, with the franchise expiring thirty-six
(36) months from the date of service of the written notice.
11.6. Governing Law. This Franchise Agreement shall be deemed to be executed in the
State of Illinois, and shall be governed in all respects, including validity, interpretation
and effect, and construed in accordance with, the laws of the State of Illinois and/or
federal law, as applicable.
11.7. Modification. Except as provided in Section 5.1.1, no provision of this Franchise
Agreement shall be amended or otherwise modified, in whole or in part, except by an
instrument, in writing, duly executed by the Village and the Grantee, which amendment
shall be authorized on behalf of the Village through the adoption of an appropriate
resolution/ordinance by the Village, as required by applicable law.
11.8. No Third -Party Beneficiaries. Nothing in this Franchise Agreement is intended to
confer third -party beneficiary status on any person, individual, corporation or member of
the public to enforce the terms of this Franchise Agreement.
11.9. No Waiver of Rights. Nothing in this Franchise Agreement shall be construed as a
waiver of any rights, substantive or procedural, that the Village or Grantee may have
under federal or state law unless such waiver is expressly stated herein.
11.10. Validity of Franchise Agreement. The Parties acknowledge and agree on the
validity of the terms and conditions of this Franchise Agreement, in their entirety, and
that the Parties shall not, at any time, challenge any provision, term, or condition of this
Franchise Agreement as unreasonable, arbitrary, or void, or that the Parties had no power
or authority to make such provision, term, or condition as part of, or pursuant to this
Franchise Agreement, except as to those matters which are hereafter preempted by new
or amended federal or state law or judicial or administrative orders or decrees.
11.11. Validity of Law. Notwithstanding the provisions of Section 11. 10, this Franchise
Agreement shall not preclude Grantee from challenging the validity of the Cable and
Video Competition Law of 2007 (220 ILCS 5/21-100 et seq.) or the Cable and Video
Customer Protection Law (220 ILCS 5/22-501 et seq.).
11.12. Performance. The Village and the Grantee agree to be bound by, and to timely
and fully perform and fulfill all of the terms,. conditions, and representations of this
Franchise Agreement. All provisions of this Franchise Agreement shall be binding upon
the parties and their successors, lessees, delegees, or assignees, subject to the terms and
conditions set forth herein.
11.13. Successor Franchise Agreement. Upon passage and approval of this Franchise
Agreement, the Parties acknowledge that this Franchise Agreement is intended to replace
all existing franchise agreements, including the Prior Franchise, with the Grantee,
regardless of whether said franchise agreements are in effect.
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11. 14. Venue. Except as to any matter within the jurisdiction of the federal courts or the
FCC, all judicial actions, relating to any interpretation, enforcement, dispute resolution or
any other aspect of this Agreement shall be brought in the Circuit Court of the State of
Illinois, Cook County, Illinois. Any matter brought pursuant to the jurisdiction of the
federal court shall be brought in the United States District Court of the Northern District
of Illinois.
IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly
authorized representatives of the parties as set forth below, as of the date set forth below:
For the Village of Elk Grove Village:
By: Craip, B. Johnson
Name: Craig B. Johnson
Title: Mayor
Attest: Ann I. Walsh
Name: Ann I. Walsh
Name: Village Clerk
For Comeast.of Illinois VI, LLC
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Name: Sandy Weigher
Title: Area Vice President
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