R-12-16VILLAGE OF DEERFIELD
LAKE AND COOK COUNTIES, ILLINOIS
RESOLUTION NO. R -12 -16
A RESOLUTION APPROVING AND AUTHORIZING A NONEXCLUSIVE
CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE
VILLAGE OF DEERFIELD AND COMCAST OF CALIFORNIA/ILLINOIS LP
WHEREAS, Comcast of California/Illinois, LP (hereinafter "Comcast ") operates a cable
television system within the Village of Deerfield pursuant to a cable television franchise
agreement between the Village of Deerfield and Comcast; and
WHEREAS, Comcast gave written notice to the Village requesting a renewal of its cable
television franchise pursuant to Section 626 of the Cable Communications Policy Act of 1984, as
amended; and
WHEREAS, the Village has reviewed Comcast's performance under its prior cable
television franchise with the Village, has considered the future cable - related needs and interests
of the community, has considered the technical ability, financial conditions and legal
qualifications of Comcast, and has considered Comcast's plans for operating its cable system
during the term of a renewed cable television franchise; and
WHEREAS, the Village and Comcast have negotiated the terms of a renewed cable
television franchise authorizing Comcast to provide cable television services within the Village
of Deerfield pursuant to the terms of the Cable Television Franchise Agreement attached hereto
as Exhibit A (the "Agreement "); and
WHEREAS, the corporate authorities of the Village of Deerfield are of the opinion that
it is advisable and in the best interests of the Village of Deerfield and its residents that the
Village authorize and approve the Cable Television Franchise Agreement with Comcast of
California/Illinois, LP attached hereto as Exhibit A for a ten year term as provided in the
Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF DEERFIELD, LAKE AND COOK COUNTIES,
ILLINOIS, in the exercise of its home rule powers, as follows:
SECTION 1: That the corporate authorities of the Village of Deerfield do hereby
approve the Cable Television Franchise Agreement by and between Comcast of
California/Illinois, LP and the Village of Deerfield, a copy of which is attached hereto as Exhibit
A, and do further authorize and direct the President of the Village of Deerfield to execute said
Cable Television Franchise Agreement for and on behalf of the Village of Deerfield.
SECTION 2: That this Resolution, and each of its terms, shall be the effective
legislative act of a home rule municipality without regard to whether such Resolution should: (a)
contain terms contrary to the provisions of current or subsequent non - preemptive state law; or,
(b) legislate in a manner or regarding a matter not delegated to municipalities by state law. It is
the intent of the corporate authorities of the Village of Deerfield that to the extent that the terms
of this Resolution should be inconsistent with any non - preemptive state law, this Resolution shall
supersede state law in that regard within its jurisdiction.
[This Space Left Blank Intentionally]
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SECTION 3: That this Resolution shall be in full force and effect upon its passage and
approval as provided by law.
PASSED this 18th day of September , 2012.
AYES: Benton, Farkas, Jester, Oppenheim, Seiden, Struthers (6)
NAYS: None
ABSENT: None
ABSTAIN: None
APPROVED this 18th day of September , 2012.
ATTEST:
' <�4t
Village —Clerk
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Village President
04
CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN
The
VILLAGE OF DEERFIELD
And
COMCAST OF CALIFORNIA/ILLINOIS, LP
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise
Agreement") is made between the Village of Deerfield, Illinois (hereinafter, the
"Village") and Comcast of California/Illinois, LP, (hereinafter, "Grantee") this t'b day
of��(?012 (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 of
the Cable Act, the Illinois Constitution of 1970, including the Village's home rule
powers, and the Illinois Municipal Code, as amended from time to time, and shall be
governed by the Cable Act and the Illinois Municipal Code, as amended from time to
time; provided that any provisions of the Illinois Municipal Code that are inconsistent
with the Cable Act shall be deemed to be preempted and superseded.
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, unless
otherwise defined herein.
"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, 47 U.S.C. §§ 521 et seq., as the same may be amended
from time to time.
"Cable and Telecommunications Commission" or "Commission" means the
Commission appointed by the Village President with the consent of the Village Board to
pursuant to Chapter 2, Article 12 of the Municipal Code of the Village of Deerfield,
Illinois; and to perform such duties as established therein.
"Cable Operator" means any Person or group of Persons who provides Cable
Service over a Cable System and directly or through one or more affiliates owns a
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significant interest in such Cable System; or who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a Cable System.
"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," has the meaning set forth in 47 U.S.C. § 522 of the
Cable Act, and means Grantee's facilities, 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 the Franchise Area, but such term does not include (i) a
facility that serves only to re -transmit the television signals of one or more television
broadcast stations; (ii) a facility that serves Subscribers without using any public right-of-
way, (iii) a facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Communications Act of 1934, as amended, except that such a
facility shall be considered a Cable System (other than for purposes of section 621(c) of
the Cable Act) to the extent such facility is used in the transmission of Video
Programming directly to Subscribers, unless the extent of such use is solely to provide
Interactive On -Demand Services; (iv) an open video system that complies with section
653 of the Cable Act; or (v) any facilities of any electric utility used solely for operating
its electric utility systems.
"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 a television channel is defined by the Federal Communications Commission
by regulation.
"Customer" or "Subscriber" means a Person who lawfully receives and pays for
Cable Service with the Grantee's express permission.
"FCC" means the Federal Communications Commission or successor
governmental entity thereto.
"Franchise" means the initial authorization, or renewal thereof, 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 or operation of the Cable System.
"Franchise Agreement" or "Agreement" shall mean this 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 as provided in this Agreement.
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"Grantee" shall mean Comcast of Califomia/Illinois, LP.
"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. Gross revenues
shall include such other revenue sources from Cable Service delivered over the Cable
System as may now exist or hereafter develop, provided that such revenues, fees,
receipts, or charges may be lawfully 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, third party advertising sales
commissions and agency fees, nor any taxes, fees or assessments imposed or assessed by
any governmental authority. Gross Revenues shall include amounts collected from
Subscribers for Franchise Fees pursuant to City of Dallas, Texas v. F.C.C., 118 F.3d 393
(5,1, Cir. 1997), and amounts collected from non -Subscriber revenues in accordance with
the Court of Appeals decision resolving the case commonly known as the "Pasadena
Decision," City of Pasadena, California et. al., Petitions for Declaratory Ruling on
Franchise Fee Pass Through Issues, CSR 5282-R, Memorandum Opinion and Order, 16
FCC Rcd. 18192 (2001), and In re: Texas Coalition of Cities for Utility Issues v. F.C.C.,
324 F.3d 802 (5th Cir. 2003).
"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.
"Public, Educational and Governmental (PEG) Access Channel" shall mean a
video Channel designated for non-commercial use by the Village, the public, and/or
educational institutions such as public or private schools, but not "home schools,"
community colleges, and universities.
"Public, Educational and Government (PEG) Access Programming" shall mean
non-commercial content produced or provided by any person, group, governmental
agency, or non-commercial public or private agency or organization in accordance with
47 U.S.C. § 531. PEG channels shall be used only for non-commercial purposes;
however, underwriting or sponsorship recognition may be carried on the channels for the
purpose of funding public, educational, and government access related activities.
"Public Way" shall mean, pursuant and in addition to what is provided for in the
Village's Right of Way Ordinances in Chapter 19 Article 9 of the Village of Deerfield
Code of Ordinances, the surface of, and the space above and below, any street, alley,
other land or waterway, dedicated or commonly used for pedestrian or vehicular traffic or
other similar purposes, including, but not limited to, public utility easements and other
easements dedicated for compatible uses, now or hereafter held by the Village in the
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Franchise Area, to the extent that the Village has the right and authority to authorize,
regulate, or permit the location of facilities other than those of the Village. Public Way
shall not include any real or personal Village property that is not specifically described in
this definition and shall not include Village buildings, fixtures, and other structures and
improvements, regardless of whether they are situated in the Public Way.
"Standard Installation" means those installations to Subscribers that are located up
to one hundred twenty-five (125) feet from the existing distribution system (Cable
System).
"Village" means the Village of Deerfield, Illinois or the lawful successor,
transferee, designee, or assignee thereof.
"Video Programming" or "Programming" means programming provided by, or
generally considered comparable to programming provided by, a television broadcast
station.
SECTION 2: Grant of Authori
2.1. Pursuant to Section 621(a) of the Cable Act, 47 U.S.C. § 541 (a), and 65
ILCS 5/11-42-11(a) of the Illinois Municipal Code, the Illinois Constitution, and
Resolution No. t2_4 b , the Village hereby grants to the Grantee a nonexclusive
Franchise authorizing the Grantee to construct and operate a Cable System in the Public
Ways within the Franchise Area, and for that purpose to erect, install, construct, repair,
replace, reconstruct, maintain, or retain in any Public 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 the Franchise granted hereunder shall be
ten (10) years from 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. From and after the Effective Date of this Franchise Agreement, the Parties
acknowledge that this Franchise Agreement is intended to be the sole and exclusive
Franchise Agreement between the Parties pertaining to the Grantee's Franchise for the
provision of Cable Service.
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, and any applicable
State law which may exist at the time of renewal and which is not superseded by the
Cable Act.
2.4. Police Powers. Nothing in this Franchise Agreement shall be construed as
an abrogation by the Village of any of its police powers to adopt and enforce generally
applicable ordinances deemed necessary for the health, safety, and welfare of the public,
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and the Grantee shall comply with all generally applicable laws and ordinances enacted
by the Village pursuant to such police power.
2.5. Reservation of Authority. Nothing in this Franchise Agreement shall (A)
abrogate the right of the Village to perform any public works or public improvements of
any description, (B) be construed as a waiver of any codes or ordinances of general
applicability promulgated by the Village, or (C) be construed as a waiver or release of the
rights of the Village in and to the Public Ways.
2.6. Competitive Equity.
2.6.1. In the event the Village grants an additional Franchise to use and
occupy any Public Way for the purposes of operating a Cable System, the additional
Franchise shall only be granted in accordance with 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 to the extent permitted by law promptly notify the
Grantee, or require the Grantee to be notified, and include a copy of such application.
2.6.3. Provided that appropriate vehicle safety markings have been
deployed, Grantee's vehicles shall be exempt from parking restrictions of the Village
while used in the course of installation, repair and maintenance work on the Cable
System. This exemption does not apply to fire lanes or designated handicapped spaces.
SECTION 3: Construction and Maintenance of the Cable System
3.1. Except as may be otherwise provided in this Franchise Agreement,
Grantee shall comply with all generally applicable provisions of Chapter 19, Article 9 of
The Municipal Code of the Village of Deerfield, Illinois, entitled "Regulations Governing
Construction Work Within The Rights Of Way" of the Village of Deerfield 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
construct, operate, or maintain underground any ground -mounted appurtenances such as
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customer taps, line extenders, system passive devices, amplifiers, power supplies,
pedestals, or other related equipment.
3.3. Underground im, and Beautification Projects.
3.3.1. In the event the Village requires users of the Public Way who
operate aerial facilities to relocate such aerial facilities underground, Grantee shall
participate in the planning for relocation of its aerial facilities, if any, contemporaneously
with such users. Grantee shall be reimbursed its relocation costs from public or private
funds allocated for the project to the same extent as such funds are made available to
other user's of the Public Way, if any, provided that any utility's exercise of authority
granted under its tariff to charge consumers for the said utility's cost of the project that
are not reimbursed by the Village shall not be considered to be public or private funds.
3.3.2. The Grantee shall not be required to relocate its facilities unless it
has been afforded at least sixty (60) 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. In instances where a third party is
seeking the relocation of the Grantee's facilities or where the Grantee is entitled to
reimbursement pursuant to the preceding Section, the Grantee shall not be required to
perform the relocation work until it has received payment for the relocation work.
SECTION 4: Service Obligations
4.1. Initial Service Obligations. As of the Effective Date of this Agreement,
Grantee's Cable System has been designed to provide, and is capable of providing, Cable
Service to residential Customers throughout the Initial Franchise Service Area. The
Grantee shall continue to make Cable Service available in the Initial Service Area
throughout the term of this Agreement and Grantee shall extend its Cable System and
provide service consistent with the provisions of this Franchise Agreement.
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 mile as measured from the existing Cable System's 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
(125) feet of the Grantee's distribution cable (e.g., a Standard Installation).
4.2.1. 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 or line extension in excess of a Standard Installation. Any such additional charge
shall be computed on a time plus materials basis plus a reasonable rate of return.
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4.3. 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, as amended
from time to time. The Grantee shall cooperate with the Village in conducting
inspections related to these standards upon reasonable prior written request from the
Village based on a significant number of Subscriber complaints.
4.4. Annexations and New/Planned Developments. In cases of annexation the
Village shall provide the Grantee written notice of such annexation. In cases of new
construction, planned developments or property development where undergrounding or
extension of the Cable System is required, the Village shall provide or cause the
developer or property owner to provide notice of the same. Such notices shall be
provided at the time of notice to all utilities or other like occupants of the Village's Public
Way. If advance notice of such annexation, new construction, planned development or
property development is not provided, 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 Agreement.
4.5. Service to School Buildings and Governmental Facilities.
4.5.1. The Village and the Grantee acknowledge the provisions of 220
ILCS 5/22-501(f), whereby the Grantee shall provide complimentary Basic Cable Service
and a free Standard Installation at one outlet to all eligible buildings as defined in said
state statute. Eligible buildings shall not include buildings leased to non -governmental
third parties or buildings such as storage facilities at which government employees are
not regularly stationed.
4.5.2. Long Drops. The Grantee may impose an additional charge in
excess of its regular installation charge for any service installation requiring a drop or line
extension in excess of a Standard Installation. Any such additional charge shall be
computed on a time plus materials basis to be calculated on that portion of the installation
that exceeds a Standard Installation.
4.6. 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. Should the Village become qualified and authorized to
activate the EAS, the Grantee shall provide instructions on the access and use of the EAS
by the Village to the Village on an annual basis. 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.
4.7. Customer Service Obligations. The Village and Grantee 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 enforcement
provisions are included in Article 15, Chapter 7 of The Municipal Code of the Village of
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Deerfield, Illinois. Enforcement of such requirements and 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.
SECTION 5: OversiLyht and Re-aulation by VillaLye
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 of fees than any other
video service provider, under state authorization or otherwise, providing 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. If mailed, the
Franchise Fee shall be considered paid on the date it is postmarked. 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 delinquent Franchise Fee payments,
Grantee shall make such payments including interest at the prime lending rate as quoted
by JP Morgan Chase & Company or its successor, computed 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.
5.1.1. The Parties acknowledge that, at present, the Cable Act limits the
Village to collection of a maximum permissible Franchise Fee of five percent (5%) of
Gross Revenues. In the event that a change in the Cable Act would allow the Village to
increase the Franchise Fee above five percent (5%), the Village shall hold a public
hearing and determine if the Village should collect the additional amount. Following the
determination, the Village shall notify the Grantee of its intent to collect the increased
Franchise Fee and Grantee shall have a reasonable time (not to be less than ninety (90)
days from receipt of notice from the Village) to effectuate any changes necessary to begin
the collection of such increased Franchise Fee or notify the Grantee of its intent to not
collect the increased fee. In the event that the Village increases said Franchise Fee, the
Grantee shall notify its Subscribers of the Village's decision to increase said fee prior to
the implementation of the collection of said fee from Subscribers as required by law.
5.1.2. In the event a change in state or federal law requires the Village
to reduce the franchise fee percentage that may be collected, the parties agree the Grantee
shall reduce the percentage of franchise fees collected to the lower of: (i) the maximum
permissible franchise fee percentage; or (ii) the lowest franchise fee percentage paid by
any other Cable Operator granted a Cable Franchise by the Village pursuant to the Cable
Act, and Section 11-42-11 of the Illinois Municipal Code; provided that: (a) such
amendment is in compliance with the change in state or federal law; (b) the Village
approves the amendment by ordinance; and (c) the Village notifies Grantee at least ninety
(90) days prior to the effective date of such an amendment.
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5.1.3. Taxes Not Included. The Grantee acknowledges and agrees that
the term "Franchise Fee" does not include any tax, fee, or assessment of general
applicability (including any such tax, fee, or assessment imposed on both utilities and
Cable Operators on their services but not including a tax, fee, or assessment which is
unduly discriminatory against Cable Operators or Cable Subscribers),
5.2. Franchise Fees Subiect to Audit. The Village and Grantee acknowledge
that the audit standards are set forth in the Illinois Municipal Code at 65 ILCS 5/11-42-
11.05 (Municipal Franchise Fee Review; Requests For Information). Any audit shall be
conducted in accordance with generally applicable auditing standards.
5.3. 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, with the exception of the
information directly related to an audit of Franchise Fees as set forth in Section 5.2. 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 Franchise Authority's representative. In the event that the Village has in
its possession and receives a request under the Illinois Freedom of Information Act (5
ILCS 140/1 et seq.), or similar law for the disclosure of information 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. 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. Compliance by the Village with an opinion or directive from the Illinois
Public Access Counselor or the Illinois Attorney General under the Illinois Freedom of
Information Act, 5 ILCS 140/1 et seq., or with a decision or order of a court with
jurisdiction over the Village, shall not be a violation of this Section.
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.
6.2. 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
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written consent of the Village, which consent shall not be unreasonably withheld or
delayed.
6.3. 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.
6.4. The Grantee, and any proposed transferee under this Section 6, shall
submit a written application to the Village containing or accompanied by such
information as is required in accordance with applicable law and FCC regulations,
specifically including a completed Form 394 or its successor, and in compliance with the
processes established for transfers under FCC rules and regulations, including Section
617 of the Cable Act, 47 U.S.C. §537. Within thirty (30) days after 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.
6.5. Any transfer of control resulting from or after the appointment of a
receiver or receivers or trustee or trustees, however denominated, designated to take over
and conduct the business of the grantee, whether in a 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. §537 and require the Village's
consent thereto in the manner described in Section 6 above.
SECTION 7: Insurance and Indemnitv
7.1. Insurance. Throughout the term of this Franchise Agreement, the Grantee
shall, at its own cost and expense, maintain such insurance and provide the Village
certificates of insurance in accordance with Section 19-64(e) of The Municipal Code of
the Village of Deerfield, Illinois, as may be amended from time to time.
7.2. Indemnification. The Grantee shall indemnify, defend and hold harmless
the Village, its officers, employees, and agents (the "Indemnitees") from and against any
injuries, claims, demands, judgments, damages, losses and expenses, including
reasonable attorney's fees and costs of suit or defense (the "Indemnification Events"),
arising in the course of the Grantee constructing and operating its Cable System within
the Village. The Grantee's obligation with respect to the Indemnitees shall apply to
Indemnification Events which may occur during the term of this Agreement
notwithstanding that the claim may be made or action filed subsequent to the termination
or expiration of this Agreement. The Village shall give the Grantee timely written notice
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of its obligation to indemnify and defend the Village after the Village's receipt of a claim
or action pursuant to this Section. For purposes of this Section, the word "timely" shall
mean within a time period that does not cause prejudice to the respective positions of the
Grantee and/or the Village. If the Village elects in its own discretion to employ
additional counsel, the costs for such additional counsel for the Village shall be the
responsibility of the Village.
7.2.1. The Grantee shall not indemnify the Village for any liabilities,
damages, costs or expense resulting from any conduct for which the Village, its officers,
employees and agents may be liable under the laws of the State of Illinois.
7.2.2. Nothing herein shall be construed to limit the Grantee's duty to
indemnify the Village by reference to the limits of insurance coverage described in this
Agreement.
SECTION 8: Public Educational and Governmental PEG Access
8.1. PEG Capacity. Subject to Section 8.6 of this Agreement, throughout the
term of this Franchise Agreement, Grantee shall provide capacity for the Village's
noncommercial Public, Educational and Governmental ("PEG") Access Programming
through two (2) PEG Access Channels (the "Channels") on the Grantee's Cable System
consistent with the requirements set forth herein. The Village's PEG Access
Programming shall be provided consistent with Section 611 of the Cable Act (47 U.S.C.
§531), as amended from time to time. The Village may request, and Grantee shall
provide, a third PEG Channel upon one hundred eighty (180) days advance written notice
by the Village and sufficient proof that the Channels are inadequate for all programming
offered. "Sufficient proof' shall include a verified program log of all original, non -
repeat, first -run, non -character generated, locally produced programs that are carried on
both Channels for the prior six month period during the times of noon to midnight. In the
event that eighty percent (80%) of the programming on both Channels meets the criteria
of being original, non -repeat, first -run, non -character generated, locally produced
programming, Grantee shall provide a third PEG Access Channel. Any cost for the
activation of the additional Channel shall be paid for by the Village. The Grantee agrees
to submit a cost estimate to activate the additional PEG Channel within a reasonable
period of time after the Village's request. The cost estimate shall include a written
itemization of costs on a time plus materials basis. The Village may accept or decline
Grantee's cost estimate in the Village's sole discretion. After an agreement to reimburse
the Grantee the costs of activating the additional PEG Channel, the Grantee shall proceed
to activate the PEG Channel within the number of days set forth above. If no agreement
is reached between Grantee and Village, Grantee is not obligated to activate the
additional PEG Channel.
8.2. Allocation- Use and Control of PEG Channels. The Grantee does not
relinquish its ownership of or ultimate right of control over a Channel by designating it
for PEG use. However, the PEG Channels are, and shall be, operated by the Village, and
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the Village may at any time allocate or reallocate the usage of the PEG Channels among
and between different non-commercial uses and users.
8.2.1. Editorial Control. Grantee shall not exercise any editorial
control over any use of PEG Channels except as permitted by 47 U.S.C. §531(e), 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 the PEG
Channel(s).
8.3. 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
(video and character generated) which may originate from schools, Village facilities
and/or other government 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 Access 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. After an agreement to reimburse the Grantee for its
expenditure, the Grantee will implement any necessary system changes within a
reasonable period of time.
8.3.1. The Village of Deerfield has an intergovernmental agreement
with the City of Highland Park for the use of its television studio and playback of its PEG
Access Programming. Should the Highland Park Studio close or should the Village wish
to terminate their agreement with the City of Highland Park, the Grantee shall cooperate
with the Village to ensure that the Village's PEG Channels continue to be cablecast on
the Cable System.
8.4. 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 FCC
technical standards as the remainder of the Cable System set forth in this Agreement.
8.5. PEG Capital Support. At its sole discretion, the Village may designate
PEG access capital projects to be funded by the Village. 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 Grantee shall collect the external charge over a period of twelve
(12) months to fund the implementation of the capital improvement plan, or such other
period of time as is mutually agreed upon in writing, and shall make the PEG capital
payments from such sums at the same time and in the same manner as Franchise Fee
payments. The notice shall include a description of the intended utilization of the PEG
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Capital Fee for PEG Access Channel facilities and/or equipment (the "Plan and
Request"). The Grantee shall have sixty (60) days from receipt of the Plan and Request
to review and make recommendations upon the Village's Plan and Request to review, for
compatibility with Comcast's system and to verify that the expenditures are for PEG
capital costs only, prior to agreeing to collect and pay to the City the PEG Capital Fee.
The Grantee shall agree to collect and pay the PEG Capital Fee provided the funds shall
be expended for capital costs associated with PEG access, and the facilities requested are
technically and operationally compatible with Grantee's Cable System. Consistent with
the description of the intended utilization of the PEG Capital Fee, the Village shall be
permitted to hold all or a portion of the PEG Capital Fee from year to year as a
designated fund to permit the Village to make large capital expenditures, if necessary, as
long as any finds remaining at the end of the term of this Agreement shall be credited to
PEG Capital obligations in the subsequent Franchise. Moreover, if the Village chooses to
borrow from itself or a financial institution revenue for large PEG capital purchases or
capital expenditures, the Village shall be permitted to make periodic repayments using
the PEG Capital Fee. Said PEG Capital Fee shall be imposed within one hundred twenty
days (120) of the Village's written request.
8.5.1. For any payments owed by Grantee in accordance with this
Section 8.5 which are not made on or before the due dates, Grantee shall make such
payments including interest at an annual rate of the prime lending rate as quoted by JP
Morgan Chase & Company or its successor, computed 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.
8.5.2. 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.
8.6. Grantee Use of Unused Time. Because the Village and Grantee agree that
a blank or underutilized Access Channel is not in the public interest, in the event the
Village does not completely program a Channel, Grantee may utilize the Channel for its
own purposes. Grantee may program unused time on the Channel subject to reclamation
by the Village upon no less than sixty (60) days' notice. Except as otherwise provided
herein, the programming of the Access Channel with text messaging or playback of
previously aired programming shall not constitute unused time. Text messaging
containing out of date or expired information for a period of thirty (30) days shall be
considered unused time. A programming schedule that contains playback of previously
aired programming that has not been updated for a period of ninety (90) days shall be
considered unused time. Unused time shall be considered to be a period of time, in
excess of six (6) hours, where no community produced programming of any kind can be
viewed on an access Channel. Unused time shall not include periods of time where
programming cannot be viewed that are caused by technical difficulties, transition of
broadcast media, signal testing, replacement or repair of equipment, or installation or
relocation of facilities.
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8.7. Encouragement of PEG Access Cablecastin . To the extent the Grantee
lists PEG Access Channels in its electronic program guides, the Grantee will provide
such listings for PEG Channels in the Village; provided the Village shall be responsible
for the timely provision of the information necessary for the provision of the listing and
the Grantee shall have no liability with respect thereto in the event the material is not
timely provided, is in error or if the listing of the information would in the Grantee's
reasonable determination violate applicable law or regulation; and provided further that
the Village shall be responsible for any and all costs or expenses associated with the
provision of such listing.
SECTION 9: Cable and Telecommunications Commission
9.1. The Grantee recognizes that the Village has a Cable and
Telecommunications Commission (the "Commission") with responsibilities and powers
as set forth in Chapter 2 Article 12 of the Village of Deerfield Municipal Code. At the
request of the Village, the Grantee shall make available staff to attend meetings and to
respond to Village requests pertaining to items within the purview of this Franchise
Agreement as reasonably necessary.
SECTION 10: Enforcement of Franchise
10.1. Notice of Violation or Default. In the event the Village believes that the
Grantee has not complied with a material term of the Franchise, it shall notify the Grantee
in writing with specific details regarding the exact nature of the alleged noncompliance or
default. The notice shall state specifically whether revocation of the Franchise is to be
considered as a remedy at that time.
10.2. Grantee's Right to Cure or Respond. The Grantee shall have thirty (30)
days from the receipt of the Village's written notice: (A) to respond to the Village
contesting the assertion of noncompliance or default; or (B) cure such violation within
said 30 days period; or (C) in the event that, by nature of the violation, such breach
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 (alternatively, the "Cure Date"); or (D) request an administrative
hearing to contest the alleged violation.
10.3. Administrative Hearings. All administrative hearings held to adjudicate
whether an alleged violation of this Franchise exists shall be held before not less than a
quorum of the Cable and Telecommunications Commission described in Section 9.
10.3.1. The Commission shall conduct an administrative hearing to
review the alleged violation and Grantee shall be provided with an opportunity to be
heard (which shall include the right to present testimony and to question witnesses) no
later than twenty-one (21) days following the Village's receipt of Grantee's notice
contesting the alleged violation.
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10.3.2. The Commission staff shall send written notice to the Grantee of
the time and place of the hearing at least seven (7) days in advance of the date set for the
hearing.
10.3.3. The strict rules of evidence shall not apply in such hearings. The
Commission may consider such written evidence and testimony as a prudent person may
reasonably rely upon in conducting his or her affairs. The Commission, Village staff, and
the Grantee shall have the right to examine and cross-examine witnesses. The
Commission may, in its sole discretion, request the attendance of witnesses only in the
following circumstances:
a) Testimony to be elicited is relevant to the violations under
consideration by the Commission;
b) Allegation of a special knowledge beyond that of general
public;
c) Evidence to be elicited from the witness cannot be obtained
through some other document or testimony.
10.3.4. The Commission's decision shall be presented in writing.
10.3.5. A written transcript of the proceedings shall be made available
for Grantee's purchase for the purposes of appeal and consideration hereunder.
10.4. Enforcement. Subject to applicable federal and state law, in the event
either the Grantee fails to cure the violation by the Cure Date or the Commission
determines that the Grantee is in default of any material provision of the Franchise, the
Village may 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.
10.5. Appeal. In the event the Grantee disagrees with the findings, conclusions
and penalties prescribed by the Commission, the Grantee may appeal the Commission's
decision to the Village's Corporate Authorities within thirty (30) days from Grantee's
receipt of the Commission's written decision. Neither party shall be deemed to have
waived any legal argument or defense by failure to assert or raise the same during the
administrative hearing. Hearings on appeal may be heard either during a regular or
special meeting of the Corporate Authorities and shall be held within twenty-one (21)
days following the Village's receipt of Grantee's petition for an appeal. The decision of
the Village's Corporate Authorities shall be in writing and shall be delivered to the
Grantee in a manner authorized by Section 11.2. The Grantee may appeal such
determination to any court with jurisdiction within thirty (30) days after receipt of the
Village's decision.
10.6. Revocation. In the case of a final finding of substantial default or the
frequent default of a material provision of the Franchise (as determined in the manner
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described above), the Village may declare the Franchise Agreement to be revoked in
accordance with the following:
10.6.1. The Village shall give written notice to the Grantee of its intent
to revoke the Franchise on the basis of the substantial default or a pattern of frequent
defaults by the Grantee. The notice shall set forth with specificity the exact nature or
series of noncompliance. The Grantee shall have forty-five (45) 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.
10.6.2. At the designated hearing, the Village shall give the Grantee an
opportunity to state its position on the matter, present evidence and question witnesses,
after which the Village shall determine whether or not the Franchise shall be terminated.
The public hearing shall be on the record. A copy of the transcript shall be made
available to the Grantee at its sole expense. The decision of the Village shall be in
writing and shall be delivered to the Grantee in a manner authorized by Section 11.2.
The Grantee may appeal such determination to any court with jurisdiction within thirty
(30) days after receipt of the Village's decision.
10.7. Remedies Not Exclusive. In addition to the remedies set forth in this
Section 10, the Grantee acknowledges the Village's ability pursuant to Section 4.8 of this
Franchise Agreement to enforce the requirements and standards, and the penalties for
non-compliance with such standards, consistent with the Illinois Cable and Video
Customer Protection Law enacted by the Village as Chapter 7, Article 15 of the
Municipal Code; and, pursuant to Section 3.1 of this Franchise Agreement and Chapter
10, Article 9 of the Municipal Code, to enforce the Grantee's compliance with the
Village's requirements regarding "Regulations Governing Construction Work Within
The Rights Of Way." 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
exercised from time to time and as often and in such order as may be deemed expedient
by the Village.
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
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
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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. Non-compliance or default shall be corrected within a
reasonable amount of time after force majeure has ceased.
11.2. Notice. Any notification that requires a response or action from a party to
this franchise within a specific time -frame, or that would trigger a timeline that would
affect one or both parties' rights under this franchise, 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:
Village of Deerfield Comcast
850 Waukegan Road 155 Industrial Drive
Deerfield, IL 60015 Elmhurst, Illinois 60126
ATTN: Village Manager ATTN: Director of Government Affairs
Recognizing the widespread usage and acceptance of electronic forms of communication,
emails and faxes will be acceptable as formal notification related to the conduct of
general business amongst the parties to this contract, including but not limited to
programming and price adjustment communications. Such communication should be
addressed and directed to the person of record as specified above. Either party may
change its address and addressee for notice by notice to the other party under this Section.
11.3. 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. Except for ordinances
adopted pursuant to Sections 2.4 and 2.5 of this Agreement, all ordinances or parts of
ordinances related to the provision of Cable Service that are in conflict with or otherwise
impose obligations different from the provisions of this Franchise Agreement are
superseded by this Franchise Agreement.
11.3.1. The Village may adopt a cable television/video service provider
regulatory ordinance that complies with applicable law, provided the provisions of any
such ordinance adopted subsequent to the Effective Date of this Franchise Agreement
shall not apply to the Grantee during the term of this Franchise Agreement.
11.4. 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
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other portions shall continue in full force and effect. If any material provision of this
Agreement is made or found to be unenforceable by such a binding and final decision,
either party may notify the other in writing that the Franchise has been materially altered
by the change and of the election to begin negotiations to amend the Franchise in a
manner consistent with said proceeding or enactment; provided, however, that any such
negotiated modification shall be competitively neutral, and the parties shall be given
sufficient time to implement any changes necessitated by the agreed -upon modification.
11.5. 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.
11.6. 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, Lake 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.
11.7. Modification. Except as provided in Sections 5.1.1 and 5.1.2, 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 ordinance or resolution 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, 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 in
good faith on the validity of the provisions, terms and conditions of this Franchise
Agreement, in their entirety, and that the Parties have the power and authority to enter
into the provisions, terms, and conditions of this Agreement.
11.11. Authority to Sign Agreement. Grantee warrants to the Village that it is
authorized to execute, deliver and perform this Franchise Agreement. The individual
signing this Franchise Agreement on behalf of the Grantee warrants to the Village that
s/he is authorized to execute this Franchise Agreement in the name of the Grantee.
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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 Deerfield:
Name:
Title:
Date:
For Com
By:
Name:
Title:
Date:
s, LP:
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