S-1374 - 07/09/2013 - COMCAST - OrdinancesORDINANCE 2013- COMCAST - FRNCHS- AG -EX -S -1374
AN ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE TO
COMCAST OF ILLINOIS VI, LLC
WHEREAS, Comcast of Illinois VI, LLC ( "Comcast ") applied to the Village for the renewal of a
franchise to provide cable television services within the Village; and
WHEREAS, public comment has been received on the proposed franchise renewal pursuant to
federal law; and
WHEREAS, representatives of the Village and Comcast have engaged in negotiations regarding
the terms and conditions of the renewal of the franchise and have presented a proposed cable television
franchise agreement ( "Franchise Agreement') for consideration; and
WHEREAS, the Village President and Board of Trustees has determined that it is necessary,
desirable, and in the best interest of the Village to award a franchise to Comcast for the provision of
Cable Services, as defined in the Franchise Agreement, within the Village, subject to the terms and
conditions of the Franchise Agreement;
NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part
of, this Ordinance as the findings of the President and Board of Trustees of the Village of Oak Brook.
Section 2: Grant of Franchise. A non - exclusive franchise is hereby granted to Comcast to
provide Cable Services within the Village for a term of 10 years from the effective date of the Franchise
Agreement, subject to the terms and conditions of the Franchise Agreement, a copy of which attached to
and, by this reference, made a part of this Ordinance as Exhibit A.
Section 3: Execution of Agreement. The Village President and the City Clerk shall be, and
they are hereby, authorized and directed to execute and seal, on behalf of the Village, the Franchise
Agreement in substantially the form attached to this Ordinance as Exhibits A.
Section 4: Prior Franchise. Upon full execution of the Franchise Agreement pursuant to this
Ordinance, the original franchise, granted to Comcast's predecessor -in- interest, shall be considered at an
end and shall no longer be in effect except for those terms that survive the termination of that Franchise
Agreement.
Section 5: Repeal of Ordinance 2003 -CB -G -718. Village Ordinance 2003 -CB -G -718 shall
be, and is hereby, repealed in its entirety, and shall have no force or effect from and after the effective
date of this Ordinance.
Section 6: Effective Date. This Ordinance shall be in full force and effect from and after its
passage, approval, and publication in the manner provided by law.
[SIGNATURE PAGE FOLLOWS]
Ordinance 2013- COMCAST - FRNCHS- AG -EX -S -1374
Ordinance Granting A Cable Franchise to Comcast
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APPROVED THIS 91h day of July, 2013
Gopal G. Lalmalani
Village President
PASSED THIS 9th day of July, 2013
Ayes: Trustees Adler, Manzo, Moy, Wolin, Yusuf
None
Trustee Baar
ATTEST:
Charlotte K. Pruss
Village Clerk
Ordinance 2013- COMCAST - FRNCHS- AG -EX -S -1374
Ordinance Granting A Cable Franchise to Comcast
Page 3 of 3
EXHIBIT A
CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN
The
VILLAGE OF OAK BROOK, ILLINOIS
And
COMCAST OF ILLINOIS VI, LLC
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise Agreement ") is
made between the Village of Oak Brook, Illinois (hereinafter, the "Village ") and Comcast of
Illinois VI, LLC (hereinafter, "Grantee ") this 21 day of April, 2013 (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 Franchise Agreement is entered into by and between the parties under the authority
of the Cable Act, the Illinois Constitution of 1970, and the Illinois Municipal Code, as amended
from time to time, and shall be governed by the Cable Act and the Illinois Municipal Code;
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 in this Franchise Agreement.
"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 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 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 Section 602 of the Cable Act
(Public Law 98 -549), 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.
"Grantee" shall mean Comcast of Illinois VI, LLC.
"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
monthly fees for: Basic Cable Service; cable programming service regardless of Service Tier;
and premium Channels. Cable Service revenue also includes pay- per -view video fees,
advertising and home shopping revenue, installation fees and equipment rental fees. Gross
Revenues shall also 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,
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Texas v. F.C.C., 118 F.3d 393 (5h 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 Red. 18192 (2001), and In re: Texas Coalition of Cities for Utility Issues v. F.C.C., 324
F.3d 802 (5th Cit. 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, limited liability company, 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 public, educational institutions such as public
or private schools (but not "home schools "), community colleges, and universities, as well as the
Village.
"Public, Educational and Government (PEG) Access Programming" shall mean non-
commercial programming produced by any Village residents or organizations, schools and
government entities and the use of designated facilities, equipment and/or Channels of the Cable
System in accordance with 47 U.S.C. 531 and this Agreement.
"Public Way" shall mean 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 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 Oak Brook, 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 Authority
2.1. Pursuant to Section 621(a) of the Cable Act, (47 U.S.C. § 541 (a)), and Section
11- 42 -11(a) of the Illinois Municipal Code (65 ILCS 5/11- 42- 11(a)), the Illinois Constitution,
and Village of Oak Brook Ordinance No. , the Village hereby grants to the Grantee a
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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 by the Village for the health, safety, and welfare of the public, and
the Grantee shall comply with all generally applicable laws, codes 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 laws, codes or ordinances of general
applicability promulgated or enforceable 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.
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 Title 8, Chapter 1, entitled "Public Works
Regulations," of the Village Code of the Village of Oak Brook, Illinois as may be amended from
time to time.
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3.2. Aerial and Underground Construction. At the time of any 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 construction are underground, the Grantee shall, at no
expense to the Village, 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 location(s) within 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 authorize any new aerial facilities without the express authorization of the Village.
Nothing in this Section shall be construed to require the Grantee to construct, operate, or
maintain 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.
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 users 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 Franchise Service Area throughout the term of this
Agreement and Grantee shall extend its Cable System to other portions of the Franchise Area
from time to time 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 and within one (1)
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mile of 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 on a Customer 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.
4.3. Programming. The Grantee agrees to provide cable programming services in the
following broad categories;
Children General Entertainment Family Oriented
Ethnic/Minority Sports Weather
Educational Arts, Culture and Performing Arts News & Information
Pursuant and subject to federal law, all Video Programming decisions, excluding PEG Access
Programming, are at the sole discretion of the Grantee.
4.4. 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 several Subscriber
complaints.
4.5. 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 development or property development where undergrounding or extension of the Cable
System is required, the Village shall provide or require the developer or property owner to
provide the Grantee with 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.
4.6. Service to School Buildings and Governmental Facilities.
4.6.1. 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.
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4.6.2. 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.
4.7. 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 gross negligence or willful misconduct of the Village, its employees or agents
in using such system.
4.8. 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 5122 -501 et seq. 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: 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 of Franchise Fees than the rate paid by
any other Person paying a video service provider or franchise fee, 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. The Franchise Fee shall be considered paid on: (i) if mailed, the date it is postmarked;
or (ii) if by electronic funds transfer, on the date deposited in the Village's designated account.
With each Franchise Fee payment, Grantee shall concurrently submit a report prepared by a
representative of the Grantee showing the basis for the computation of the Franchise Fees paid
during that period, including the Gross Revenues of the Cable System in the Franchise Area.
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 J.P. Morgan Chase
& Co., or its successor, computed daily from the 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 the 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
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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: (i) collect the increased Franchise Fee and Grantee shall have a
reasonable time (not to exceed one hundred twenty (120) days from receipt of notice from the
Village) to effectuate any changes necessary to begin the collection of such increased Franchise
Fee; or (ii) notify the Grantee of the Village's 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 (65 ILCS 5/11- 42 -11); 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 unless the reduction of franchise fee percentage is mandated to occur in less than
ninety (90) days.
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. The Village and Grantee agree that the audit
procedures set forth in the Illinois Municipal Code at 65 ILCS 5/11 -42 -11.05 shall be applicable
to any audit of PEG Capital payments as provided for in Section 8.7 of this Agreement.
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 fees as set forth in Section 5.2 of this Agreement. The Village agrees to
treat any information disclosed by the Grantee as confidential and only to disclose it: (i) 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; or (ii) if disclosure is required by law. 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
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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 reasonably cooperate with
Grantee in opposing such request. Grantee shall indemnify the Village from and against any
claims, and all costs arising from such claims (including the Village's attorneys fees), arising
from the Village's opposition to disclosure of any information Grantee designates as proprietary
or confidential. Compliance by the Village with an opinion, directive, or determination letter
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, or assign this Franchise Agreement 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 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.
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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 such insurance and provide the Village certificates of
insurance in accordance with Title 1, Chapter 8 of the Village Code of the Village of Oak Brook,
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 attorneys' fees
and costs of suit or defense (collectively, 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, provided that the claim or action is initiated within the
applicable statute of limitations, 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 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
counsel in addition to the Village's corporate 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 solely 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.
7.3. Effect of Renewal on Indemnification. The Grantee and the Village acknowledge
that this Franchise Agreement is a renewal of a prior franchise agreement between the Village
and Grantee, and the parties further agree that the Grantee's obligations to defend, indemnify and
hold harmless under the prior agreement are unaffected with respect to any Indemnification
Event which may have occurred during the period covered by the prior agreements and for which
a claim is made within the period of the applicable statute of limitations.
SECTION 8: Public, Educational and Governmental (PEG) Access
8.1. PEG Capacity. The Grantee shall provide capacity for the Village's
noncommercial public, educational and governmental ( "PEG ") programming through Grantee's
Cable System consistent with the requirements set forth herein. As of the Effective Date of this
Agreement, the Village does not utilize a PEG Channel. To the extent Grantee currently
provides playback of PEG programming (e.g., playback of the video coverage of the Village's
board meetings), the Grantee shall continue to cablecast the meetings for which video coverage
is provided by the Village on a first -come non - discriminatory basis consistent with the Grantee's
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existing rules for PEG Access Programming. In the event the Grantee decides to cease providing
playback of PEG programming, if any, the Grantee shall notify the Village.
8.1.1. Upon written request by the Village, the Grantee shall provide the Village
with one (1) PEG Channel within one hundred eighty (180) days of that request, as provided for
herein. The Grantee agrees to submit a cost estimate of Grantee's costs to establish an
Origination Point and activate a PEG Channel within a reasonable period of time after the
Village's request. The Village may accept or decline Grantee's cost estimate in the Village's
sole discretion. After an agreement to reimburse the Grantee for the costs of establishing an
Origination Point and activating the 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 establish an Origination Point and activate the PEG
Channel. Unless otherwise agreed to by the Village and the Grantee to the extent required by
applicable law, the PEG Channel shall be carried on the Grantee's basic digital service tier. The
Village's PEG programming shall be provided consistent with Section 611 of the Cable Act, as
amended from time to time.
8.2. Rules and Procedures for Use of the PEG Access Channel. The Village shall be
responsible for establishing, and thereafter enforcing, rules for the non - commercial use of the
PEG Access Channel and to promote the use and viewership of the Channel.
8.3. Allocation and Use of the PEG Access Channel. The Grantee does not relinquish
its ownership of a Channel by designating it for PEG use. However, the PEG Access Channel is,
and shall be, operated by the Village. The Village shall adopt rules and procedures under which
Grantee may use the PEG Access Channel for the provision of Video Programming if the PEG
Access channel is not being used for its designated purpose(s) pursuant to Section 611(d) of the
Cable Act, 47 U.S.C. §531.
8.4. Editorial Control. Grantee shall not exercise any editorial control over any use of
the PEG Access Channel except as permitted by 47 U.S.C. §531(e).
8.5. Origination Point. At such time that the Village determines that it wants to
establish capacity to allow its residents who subscribe to Grantee's Cable Service to receive PEG
Access Programming originated from Schools and/or Village facilities (other than the signal
point of origination described in Section 8.1.1 above); or at such time that the Village determines
that it wants to change or upgrade a location from which PEG Access Programming is
originated; 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 thirty (30) days of receiving the Village's notice. After an agreement to
reimburse the Grantee for its expenditure, the Grantee will implement any necessary system
changes within one hundred twenty (120) days or such other period as agreed to by the parties..
8.6. PEG Signal Quality. Provided the PEG signal feed is 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.
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8.7. PEG Capital Support. At its sole discretion, the Village may designate a PEG
access capital project to be funded by the Village as set forth herein. 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, unless some other
period 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 detailed and itemized description of the intended utilization of the PEG Capital Fee for
PEG Access Channel facilities and/or equipment and the Grantee shall have the opportunity to
review and make recommendations upon the Village's plan prior to agreeing to collect and pay
to the Village the requested amount. The capital payments shall be expended for capital costs
associated with PEG access. 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.
8.7.1. For any payments owed by Grantee in accordance with this Section 8.7
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.
8.7.2. 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.
8.8. Grantee Use of Unused Time. Because the Village and Grantee agree that a blank
or underutilized PEG 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
PEG 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 a PEG Access Channel. Unused time shall not include periods of time where
programming cannot be viewed that are caused by technical difficulties, transition of broadcast
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media, signal testing, replacement or repair of equipment, or installation or relocation of
facilities.
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 a material term of the Franchise Agreement, 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: (A) to respond to the Village, contesting the
assertion of noncompliance or default; or (B) to cure such default; or (C) 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.
9.3. Enforcement. Subject to applicable federal and state law, and following notice
and an opportunity to cure and respond pursuant to the provisions of Section 9.2 above, 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 or equity, including declaratory and/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 or in the event that the
Grantee has not taken action to cure the default, 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, 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 10.2. The Grantee may appeal such determination to
any court whose jurisdiction includes DuPage County, Illinois within thirty (30) days after
receipt of the Village's decision.
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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 4.8 of this Franchise
Agreement and the Illinois Cable and Video Customer Protection Law to adopt requirements,
standards, and penalties for non - compliance with such requirements and standards, as well as
non - compliance with the Illinois Cable and Video Customer Protection Law, provided that any
such requirements, standards, and penalties are consistent with the Illinois Cable and Video
Customer Protection Law. Grantee further acknowledges that in addition to the remedies set
forth in this Section 9, the Village may enforce any and all remedies available if Grantee violates
any provision of Title 8 Chapter 1 of the Village Code of the Village of Oak Brook, Illinois.
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 10: Miscellaneous Provisions
10.1. Force Maieure. 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 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. This provision shall apply only if Grantee has
given written notice to the Village within fourteen (14) days of the occurrence of (a) the force
majeure event or (b) the date on which Grantee knew or should have known that the event would
cause, or be likely to cause, Grantee to not be in compliance with this Agreement. Non-
compliance or default shall be corrected within a reasonable amount of time after force majeure
has ceased. Non - compliance or default shall be corrected as soon as practicable after force
majeure has ceased.
10.2. Notice. Any or communication required or permitted to be given under this
Agreement that (a) requires a response or action by a party to this Agreement, (b) may affect any
fees paid pursuant to this Agreement, or (c) may affect any time period for performance by a
party under this Agreement, shall be in writing and shall be delivered (i) by hand delivery, (ii) by
a reputable overnight courier, or (iii) by certified or registered mail, return receipt requested, and
deposited in the U.S. Mail, postage prepaid, to the parties at the address set forth below:
To the Village:
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, IL 60523
ATTN: Village Manager
To the Grantee:
Comcast
155 W. Industrial Drive
Elmhurst, IL 60126
ATTN: Director of Government Affairs
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Recognizing the widespread usage and acceptance of electronic forms of communication, emails
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.
10.3. 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.
10.3.1. 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.
10.4. Severabilitv. 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 over the
parties, 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 made or
found to be unenforceable by such a binding and final decision, either parry 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.
10.5. 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.
10.6. 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,
DuPage 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.
10.7. 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
15
authorized on behalf of the Village through the adoption of an appropriate ordinance or
resolution by the Village, as required by applicable law.
10.8. 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.
10.9. 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 the Grantee may have under
Federal or state law unless such waiver is expressly stated herein.
10.10. 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. The parties further agree that the parties shall not, at any time,
challenge any provision, term, or condition of this Franchise Agreement on the basis that it is
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 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.
10.11. Authority to Sian 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.
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 Oak Brook:
By:
Name: Gupal G. Lalmalani
Title: Village President
Date: July 9, 2013
For Comeast of Illinois VI, LLC:
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Title: R1 w
Date: k1
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