S-1035 - 04/22/2003 - CABLE TV - Ordinances Exhibitsd
EXHIBIT )k
NON - EXCLUSIVE CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN COMCAST CABLEVISION OF ILLINOIS, INC.
AND THE VILLAGE OF OAK BROOK, ILLINOIS
THIS FRANCHISE AGREEMENT is made and entered into this 22nd day of April , 2003 by
and between the Village of Oak Brook ( "Village "), an Illinois municipal corporation, and
Comcast of Illinois VI, Inc. ( "Comcast" or "Grantee ")
WITNES SETH:
WHEREAS, Comcast has requested a renewal of its cable television Franchise to provide
cable television service in the Village and,
WHEREAS, the Village has reviewed Comcast's performance under its prior cable
television Franchise with the Village, has identified the future cable - related needs and interests
of the community, has considered the financial, legal and technical qualifications of Comcast to
provide cable television service in the Village, and has considered Comcast's plans for operating
and maintaining its cable system during the term of a renewed Franchise; and,
WHEREAS, after affording the public adequate notice and an opportunity for comment,
the Village Board of Trustees of the Village of Oak Brook has determined that it is in the public
interest to renew the grant of a non - exclusive cable television Franchise to Comcast in
accordance with the terms hereinafter set forth; and,
WHEREAS, the Village adopted a Cable Television Franchise Ordinance on April 22
2003 (Ordinance), which authorizes the Village to issue cable television Franchises to operate a
cable system in the Village and to renew any existing cable television Franchises for cable
systems currently operating in the Village, and
WHEREAS, Comcast and the Village have reached agreement on the Franchise terms
and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the mutual terms, conditions,
promises and undertakings contained herein, Comcast and the Village hereby agree as follows:
Section 1: TITLE
This Agreement may be cited as the Franchise Agreement and is hereinafter referred to as the
Agreement.
Section 2: DEFINITIONS
The definitions set out in Section 2 of the Ordinance are incorporated into this Agreement by
reference as if fully set forth herein.
Section 3: GRANT OF AUTHORITY
A. There is hereby granted by the Village to Comcast the non - exclusive right and privilege
to construct, operate, maintain and extend a cable system to all territory within the
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Corporate Limits of the Village, subject to all applicable federal, state and local laws and
regulations.
B. Without reducing its police powers to adopt and enforce any generally applicable
Ordinance that is necessary to protect the health, safety and welfare of the public,
Comcast is granted franchise authority to use and occupy the Public Ways of the Village
for the purposes of this Agreement.
C. In the event the (Village) grants an additional Franchise to use and occupy the public
right -of -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
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Section 4: DURATION AND ACCEPTANCE OF FRANCHISE AGREEMENT
A. Term: The Franchise granted herein shall expire ten (10) years from and after its
effective date unless otherwise extended, terminated, or revoked in accordance with this
Agreement. The term of the Franchise may also be extended by written agreement of the
parties. The effective date shall be the date on the first page of this Agreement.
B. Acceptance: The Franchise as well as all rights, privileges, obligations and authority
granted therein shall become effective upon the authorization of the corporate authorities
of the municipality for the execution of this Agreement, and the parties execution of said
Franchise Agreement. By their execution of the Agreement, the parties promise to
comply with and abide by all provisions, terms and conditions of this Agreement.
Comcast hereby agrees to abide by all the provisions of the Ordinance, which is
incorporated into this Agreement by reference as if fully set forth herein.
C. Effect of Acceptance. By acceptance of this Franchise, Comcast acknowledges that (a) it
has relied on its own investigation and understanding of the power and authority of the
Village to grant this Franchise; (b) it has not been induced to enter into this Franchise by
any understanding or promise or other statement, whether verbal or written, by or on
behalf of the Village concerning any term or condition of this Franchise that is not
included in this Agreement or Ordinance; and (c) it has carefully read the terms and
conditions of the Ordinance and this Agreement and is willing to and does accept all the
obligations of such terms and conditions and further agrees that it will not set up as
against the Village the claim that any provision of the Ordinance or this Agreement is
unreasonable, arbitrary, invalid or void, but accepts the validity of the terms and
conditions of the Franchise in their entirety.
Section 5: PAYMENT OF FRANCHISE FEE
A. Comcast agrees to pay to the Village the Franchise Fee as required by the Ordinance.
Such Franchise Fee shall be 5% of the Grantee's annual gross revenues, or such other
maximum amount as allowed by law. The Franchise Fee shall be paid on a quarterly
basis. Payment shall be made to the Village on or before 30 Days following the end of
the preceding calendar year quarter. In the event that a change in either state or federal
law would allow the Village to increase the Franchise Fee above five (5) percent of
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Comcast's gross revenues, the Village shall have the right to notify Comcast of its intent
to collect the increased Franchise Fee and Comcast shall have a reasonable time to
effectuate any changes necessary to begin the collection of such increased Franchise Fee.
B. Each payment shall be accompanied by a statement of revenue received for the quarter in
connection with the operation of Comcast's cable system in the Village and a showing of
all gross revenues derived from the cable system as defined herein.
C. Any Franchise Fee which remains unpaid in whole or in part after the date specified
herein shall be delinquent and shall thereafter accrue interest at an annual rate of twelve
percent (12 %) or two percent (2 %) over prime lending rates quoted by Bank One,
whichever is higher, computed daily from time due until paid.
D. The parties herein acknowledge the March 15, 2002 Declaratory Ruling by the FCC,
which declared Cable Broadband Internet Service was not a Cable Service as defined
under the Cable Act. The parties also acknowledge that as this issue proceeds through
the applicable administrative and judicial processes, neither party is waiving any rights
with regard to the Village's ability to collect Franchise Fees should Cable Broadband
Internet Service be re- classified as a Cable Service under the Cable Act.
Section 6: FREE SERVICE TO PUBLIC BUILDINGS
Comcast agrees to provide one (1) free standard installation of basic service to Village buildings
used for municipal purposes, and all public and private schools in the Village.
Section 7: EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS; EMERGENCY
OVERRIDE CAPABILITY
Comcast agrees to provide at least three (3) specially - designated channels for use by local
educational authorities and for local governmental uses. Regional Access Programming: In lieu
of operating its own PEG channels, Village can choose to receive the regional PEG signals, as
long as they exist, on one or all three of the PEG channels in the Village.
At such time that the Village determines that it wants the capacity to allow the Village to receive
educational and /or governmental access programming (video and character generated) which
may originate from Schools and/or Village facilities (other than those having a signal point of
origination at the time of the execution of this Agreement), the Village will give the Grantee
written notice detailing the location of the signal point of origination. 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. At such time that the Village
determines that it wants to change a location from which educational and governmental access
programming is originated, the Village will give the Grantee written notice detailing the change
in point of origination. 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.
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Comcast agrees to incorporate into its cable television system the capacity to permit the Village,
in times of emergency, to override by telephone the audio of all analog channels simultaneously.
The Village agrees to indemnify and hold Comcast harmless from any damages or penalties
arising out of the actions of the Village, its employees or agents in using such service.
Section 8: SYSTEM DESIGN
A. Subscriber Network
(1) Comcast shall construct, operate and maintain its cable system in accordance
with its current engineering practices and provide system capacity capable of
providing a minimum of 100 downstream video channels, regardless of their
method of delivery.
(2) Comcast shall provide backup power for the cable system including but not
limited to backup power supplies capable of providing eight (8) hours of
power to the headend and two (2) hours of power to the cable system plant in
the event of an electrical outage, with additional backup capacity provided by
portable generators.
B. Periodic Testing and Compliance with FCC Standards:
(1) The Grantee shall construct and operate the Cable System to comply with the
FCC technical standards contained in Part 76, Subpart K of the Commissions
rules and regulations, as updated and amended from time to time (47 U.S.C.
§76, Subpart K).
(2) The Grantee shall perform all tests necessary to determine compliance with
the FCC technical standards. Tests shall include, at minimum, proof -of-
performance tests required by FCC Rule Section 76.601 (47 U.S.C. §76.601)
and such additional or repeat tests involving specified Subscriber terminals as
may be required to determine compliance with the FCC technical standards
(3) Written records of test results shall be maintained at a Grantee's local office
and made available for inspection by the Village or by the Consortium or
other designated agent of the Village, upon request of the Village
(4) The Village or other designated agent of the Village may monitor compliance
with the FCC technical standards referenced herein in accordance with
applicable law.
(5) Not later than ninety (90) days after any new or substantially upgraded or
rebuilt portion of the Cable System is made available for service to
Subscribers, technical performance tests shall be conducted by the Grantee to
demonstrate full compliance with the FCC Technical Standards cited
hereinabove. Such tests shall be performed by or under the supervision of a
qualified engineer or an engineer with proper training and experience. Upon
request, a copy of the report shall be submitted to the Franchising Authority or
the Consortium describing test results, instrumentation, calibration, and test
procedures. Where said report has been requested, the Grantee shall send such
completed report to the Franchising Authority or the Consortium within seven
(7) calendar days of the receipt of said request
(6) Where there exists recurring evidence, which in the judgment of the Village,
casts doubt upon the reliability or quality of Cable Service, the Village shall
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have the right and authority to require the Grantee to test, analyze, and report
on the performance of the Cable System. The Grantee shall fully cooperate
with the Village in performing such testing and shall prepare results, and a
report, if requested, within thirty (30) days after notice. Such report shall
include the following information:
1. The nature of the complaint or problem that precipitated the special
tests;
2. The system component(s) tested;
3. The equipment used and procedures employed in testing;
4. The method, if any, in which such complaint or problem is
resolved;
5. Any other information pertinent to the tests and analysis, which
may be required.
(7) The Village may require that tests be observed by an independent professional
engineer or equivalent of the Village's choice. The engineer shall be given
records of special tests and may forward to the Village such records with a
report interpreting the results of the tests.
C. Permitting and Inspection
(1) Comcast shall comply with all applicable federal, state and local rules,
regulations and construction codes governing the construction, operation,
maintenance and installation of the cable system, as such rules, regulations
and codes are in force as of the time of the installation or other work.
(2) All construction, installation, restoration and maintenance work shall be
subject to pertinent Ordinances, regulations or policies of the Village
applicable to all occupants of its nghts -of -way.
(3) All work done by or on behalf of Comcast shall be done in a manner that does
not unreasonably interfere with the rights and convenience of property owners
who adjoin the Public Ways of the Village. If property is disturbed or
damaged, Comcast shall restore the property to its former condition, nonnal
wear and tear accepted.
(4) All restoration shall be performed in accordance with the permit requirements
Comcast shall remain responsible for the acts or omissions of its contractors
or sub - contractors.
(5) Comcast shall not construct any facilities within the Village until it has
secured all necessary approvals and permits from the Village, and any other
governmental body having jurisdiction. In any permit issued by the Village,
the Village may impose any condition, restriction, or regulation, consistent
with the Village codes and regulations, for the purpose of protecting any
structures or facilities in the Public Ways of the Village, for the proper
restoration of the Public Ways of the Village, for the continuity of pedestrian
and vehicular traffic, and for protection of the public.
(6) All facilities constructed or installed within the Village shall be located and
installed so as not to unreasonably interfere with the proper and usual use of
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the Public Way. All facilities shall be installed in a manner consistent with
existing utility installations within the Public Way.
(7) Comcast shall make reasonable effort to avoid major disturbances of street
pavements, sidewalks, alleys, public and private landscaping, and all other
publicly or privately held properties or structures during all phases of
construction and maintenance of the cable system within the Public Ways of
the Village.
(8) All cable passing under any roadway or public way shall be installed in
conduit, which has been augured, not open cut, under the roadways or public
ways, unless the permit issued for the work contains an express waiver of this
requirement and approval for an alternative installation.
(9) The Village shall have the right to inspect all construction work performed
within the Village public right -of -ways. Any inspections of construction work
made by the Village shall be at the expense of the Village.
(10) Comcast shall be a member of J.U.L.I.E. (the Joint Utility Location
Information for Underground Excavator), and shall be responsible for
contacting J.U.L.I.E. or any successor agency for all of its construction and
for responding in a timely manner to requests from J.U.L I.E. or successor
agency and the Village to locate its cables. Comcast is responsible for
accurately marking its plant in conformance with J.U.L.I.E. or successor
agency standards.
D. Personnel. Comcast is responsible for all of its personnel, including its contractors,
agents, employees and subcontractors engaged in system construction and maintenance.
All employees working for Comcast in the field shall carry identifications of the person at
all time. All of Comcast's vehicles, and any contractor or sub - contractor vehicles, shall
be clearly identified as performing work for Comcast.
E. Installation Standards.
(1) All underground drops shall be buried a minimum of six (6) inches.
(2) A subscriber shall have the option to connect a standard drop to the dwelling
unit by either:
a. Connection of the aerial drop to the dwelling unit at a minimum of
twelve (12) feet above the ground level; or,
b. Attachment of the drop to the side of the utility pole and buried from the
base of the utility pole to the dwelling unit.
(3) All temporary service drops placed between November 1 of the pnor year and
March 1 of the current year, also known as snowdrops, shall be buried
between April 1 and May 31, weather permitting, in addition to any delays
permitted by the Village.
Weather permitting; Comcast shall bury all temporary drops, excluding snowdrops referenced
above, within fourteen (14) business days after placement
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Section 9: SUBSCRIBER SERVICES
A. Comcast agrees to provide, at a minimum, cable programming services in the following
broad categories:
Children Sports
Family oriented Ethnic /Minority programming
Educational programming Arts, culture and performing arts
News & Information General Entertainment
Weather
B. Business Office. Comcast shall operate and maintain several conveniently located bill
payment and customer service facilities throughout the metropolitan Chicago area. Such
facilities will be available during normal business hours capable of accepting payments
and answering cable television inquiries. Comcast shall also maintain additional
locations throughout the metropolitan Chicago area for the sole purpose of allowing
subscribers to drop off payments without postage.
Section 10: CUSTOMER SERVICE STANDARDS
Comcast shall comply with these customer service standards:
A. NOTIFICATIONS TO SUBSCRIBERS
The Grantee shall provide written information on each of the following areas at the time of
installation of service, at least annually to all subscribers, and at any time upon request:
1. Products and services offered;
2. Prices and options for programming services and conditions of subscription to
programming and other services;
3. Installation and service maintenance policies;
4. Instructions on how to use the cable service;
5. Channel positions of programming carried on the system;
6. Billing and complaint procedures, including the address and telephone number
of the local franchise authority's cable office;
Subscribers will be notified of any changes in rates, programming services or channel
positions as soon as possible through announcements on the cable system and in writing.
Notice must be given to subscribers a minimum of thirty (30) days in advance of such
changes if the change is within the control of the Grantee. In addition, Grantee shall notify
subscribers a minimum of thirty (30) days in advance of any significant changes in the other
information required above.
B. SUBSCRIBER BILLING
Subscriber bills will be clear, concise and understandable. Bills must be fully itemized, with
itemizations including, but not limited to, basic and premium service charges and equipment
charges. Bills will also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
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In case of a billing dispute, Grantee must respond to a written complaint from a subscriber
within 30 days. Credits for service will be issued no later than the subscriber's next billing
cycle following the determination that a credit is warranted.
Refund checks will be issued promptly, but no later than either:
1. The subscriber's next billing cycle following resolution of the request or thirty
(30) days, whichever is earlier; or
2. The return of the equipment supplied by the Grantee if service is terminated.
C. TELEPHONE SERVICE
The Grantee will maintain a local, toll -free or collect call telephone access line which will be
available to its subscribers 24 hours a day, seven days a week. Trained representatives will
be available to respond to subscriber telephone inquiries during normal business hours. After
normal business hours, the access line may be answered by a service or an automated
response system, including an answering machine. Inquiries received after normal business
hours must be responded to by a trained Grantee representative no later than the next
business day.
Under normal operating conditions, the telephone answer time by a customer service
representative, including wait time, shall not exceed thirty (30) seconds when the connection
is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds.
These standards shall be met no less than ninety (90) percent of the time under normal
operating conditions, measured on a quarterly basis.
Under normal operating conditions, the subscriber will receive a busy signal less than three
(3) percent of the time.
D. INSTALLATIONS, OUTAGES AND SERVICE CALLS
Under normal operating conditions, each of the following four standards will be met no less
than ninety five (95) percent of the time measured on a quarterly basis:
1. Standard installations will be performed within seven (7) business days after
an order has been placed. "Standard" installations are those that are located up
to 125 feet from the existing distribution system.
2. Excluding conditions beyond its control, the Grantee will begin working on
"service interruptions" promptly and in no event later than 24 hours after the
interruption becomes known. The Grantee must begin actions to correct other
service problems the next business day after notification of the service
problem. Upon service interruption of a subscriber's cable service, and upon
subscriber request, Grantee shall provide a credit for lost Cable Service of not
less than the value of the actual time without service, due to an outage or
interruption of Cable Service lasting at least four (4) or more hours, or provide
equal or greater credit as is consistent with its normal customer service policy
and practices.
3. The "appointment window" alternatives for installations, service calls and
other installation activities will be either a specific time or, at maximum, a
four -hour time block during normal business hours. The Grantee may
schedule service calls and other installation activities outside normal business
hours for the express convenience of the subscriber. If Grantee's
representative is running late for an appointment with a subscriber and will
not be able to keep the appointment as scheduled, the subscriber will be
contacted. The appointment will be rescheduled, as necessary at a time that is
convenient for the subscriber.
4. Grantee may not cancel an appointment with a subscriber after the close of
business on the business day prior to the scheduled appointment.
Section 11: LIQUIDATED DAMAGES
A. Amounts. Because Grantee's failure to comply with or to perform certain obligations
under this Franchise Agreement, or its failure to do so in a timely manner may result in
damage to the Village that is difficult to determine, the Village and the Grantee agree to
the following liquidated damages as the liquidated sum or sums to be reasonably paid in
light of the anticipated loss caused by or resulting from the specified violation, default
and resulting injury:
1. Failure to provide data, documents, applications or reports, including financial
reports to the Village — $150.00 per day or any part thereof until filed.
2- Failure of Grantee to provide or maintain required insurance coverage — $500.00
per day from the time the insurance lapsed until policy is reinstated.
3. Failure of Grantee to maintain required bonds, letters of credit or security fund —
$500.00 per day from time due.
4. Failure of Grantee to comply with the customer service standards as required by
this Franchise Agreement — $150.00 per day.
5. Failure to Comply With a Construction Standard — $150.00 per day.
6. Failure to comply with any other provision of this Franchise Agreement not stated
hereinabove — $150.00 per day.
B. Accrual of Liquidated Damages. Unless otherwise specified in this Agreement,
liquidated damages accrue from the date written notice of the violation is given.
C. Assessment of Liquidated Damages. Liquidated damages shall be assessed against the
Grantee at such time upon the following events:
1. The failure to answer a Notice of Violation within the time period allowed as
provided in Section 12 C and a Determination made pursuant to Section 12 F.
2. If not disputed, the failure to cure the violation within the time period allowed in
the Notice of Violation or such extended time period as provided in Section 12 D
(3) and a Determination made pursuant to Section 12 F; or
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3. If disputed, a determination that a violation occurred as provided in Section 12F.
D. Effect on Grantee's Franchise Duties. The assessment and collection of liquidated
damages shall not affect Grantee's obligation to comply with the provisions of this
Agreement or applicable law.
E. Other Remedies. If the Village elects to assess liquidated damages, such election shall
constitute the exclusive remedy for a period of thirty (30) days. Thereafter, if the Grantee
remains in noncompliance with the requirement of this Agreement, the Village may
pursue any available remedy.
Section 12: FRANCHISE VIOLATION; NOTICE AND PROCEDURES
A. General. The Grantee shall comply with the requirements of this Franchise Agreement
and the Ordinance at all times during the term of its Franchise.
B. Material Violations. If the Village has reason to believe that the Grantee has committed a
material violation of this Franchise Agreement or the Ordinance„ the Village may act to
remedy the violation in accordance with the procedures set forth below. A material
violation shall include:
1. Construction or operation in the Village or in the Public Ways of the Village
without a required permit, license or authorization.
2. Construction or operation at an unauthorized location.
3. Unauthorized Franchise transfer.
4 Material misrepresentation by or on behalf of the Grantee in any application to the
Village.
5. Failure to construct, complete, relocate or remove all or any part of the Cable
System as required by this Franchise Agreement or the Ordinance.
6. Failure to provide the services, facilities or resources required by this Franchise
Agreement or the Ordinance.
7 Failure to pay taxes, Franchise Fees, or other payments required under this
Agreement or the Ordinance when and as due the Village.
8. Failure to deliver evidence of Grantee's insurance coverage as required by the
Ordinance.
9. Failure to file and maintain with the Village all required bonds.
10. Failure to establish and maintain the security fund required pursuant to this
Agreement or the Ordinance.
11. Failure to commence or complete construction within the time specified in this
Franchise Agreement or the Ordinance.
12. Repeated failure to comply with the Customer Service Standards as required by
this Franchise Agreement or the Ordinance.
13. Failure to comply with the various Public, Educational or Governmental Access
provisions of this Franchise Agreement or the Ordinance.
C. Notice of Violations. Written notice shall be given to the Grantee setting forth the nature
of the material violation and a reasonable period of time for the Grantee to correct the
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violation. Unless the Village determines that the violation is of such a nature that a lesser
period of time is warranted for remedying the violation, the Grantee shall be given thirty
(30) days after receipt of such notice to remedy the violation.
D. Answer to Notice of Violations. Within thirty (30) days, or such other period of time
specified by the Village in its notice to the Grantee, the Grantee shall respond in writing
to the Village:
1. That it contests the Village's notice of violation and requests an opportunity to be
heard as provided herein. The Grantee shall submit supporting documentation
with its response to the notice
2. That the Grantee will remedy the violation within the time specified by the
Village in its notice to the Grantee.
3. If the Grantee contends that an extended period of time is reasonably needed to
remedy the violation, it shall submit a written request for an extension, together
with supporting documentation that the Grantee cannot reasonably remedy the
violation within the time period specified by the Village in its notice to the
Grantee.. If the Village grants the extension, the Grantee shall proceed to remedy
the violation within the extended time prescribed, provided that the Grantee shall
also inform the Village on a regular basis of the steps being taken to remedy the
violation.
E. Hearing. The Village shall give the Grantee not less than fourteen (14) days written
notice of the date, time and place of the public hearing to be held before the Village
Board. At the public hearing, the Village Board shall hear and determine the issues and
render its findings and its decision. If the Village has appointed a hearing officer, the
hearing officer shall hear the relevant evidence and shall render a record of the
administrative hearing and recommended findings and decision to the Village Board.
F. Determination. If the Grantee fails to submit a written response to the Village's notice of
violation as provided in Paragraph D, or if the Grantee fails to remedy the violation
within the time period specified by the Village in its notice to the Grantee, or any
extensions thereto granted by the Village or if the Grantee submits a response, and if the
Village Board is persuaded that the Grantee has committed a material violation as
provided herein; the Village Board may, after giving the Grantee an opportunity to be
heard:
1. Order the Grantee to remedy the violation within a reasonable period of time
specified by the Village Board;
2. Assess liquidated damages against the Grantee in accordance with this Franchise
Agreement; or
3. Impose any lesser sanction permitted by the Franchise Agreement
G. Judicial Relief Not Barred. No provision of this Section shall be deemed to bar or
otherwise limit the right of the Village to seek or obtain judicial relief to enforce the
provisions of this Franchise Agreement.
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Section 13: MISCELLANEOUS PROVISIONS
A. Comcast's Inability to Perform: In the event Comcast's performance of any of the terms,
conditions, obligations of this Franchise is prevented or impaired by a cause or event
beyond Comcast's reasonable control, the inability to perform shall be deemed to be
excused and no penalties or sanctions shall be imposed as a result thereof, provided,
however, that the inability to perform shall not relieve Comcast from the obligations
pertaining to refunds and credits for interruptions in service. For the purpose of this
Section, causes or events not within the control of Comcast shall include without
limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by
order of a governmental agency or court, explosions, acts of public enemies, and natural
disasters such as floods, earthquakes, landslides, and fires or other events beyond
Comcast's control, but shall not include financial inability of Comcast to perform or
failure of Comcast to obtain any necessary permits or licenses from other governmental
agencies or the right to use the facilities of any public utility where such failure is due
solely to the acts or omissions of Comcast, or the failure of Comcast to secure supplies,
services or equipment necessary for the installation, operation, maintenance or repair of
the cable system where Comcast has failed to exercise reasonable diligence to secure
such supplies, services or equipment.
B. No Recourse Against the Village: Comcast shall have no recourse whatsoever against the
Village or its officials, boards, commissions, agents, or employees for any loss, costs,
expense, or damages arising out of any provision or requirement of the Franchise
Agreement, or the Ordinance, or from the Village's regulation or from the Village's
exercise of its authority to grant additional Franchises.
C. Acknowledgments by Comcast: Comcast expressly acknowledges the following:
1. Comcast acknowledges by acceptance of the Grant, that it has carefully read and
considered the terms and conditions of this Franchise Agreement and accepts all
of the terms and conditions and agrees to abide by the same.
2. Comcast acknowledges that it has carefully read the terms and conditions of this
Franchise Agreement and expressly waives any claims that any provisions are
unreasonable or arbitrary or void, or that the Village had no power or authority to
make the provision, term or condition as part of or pursuant to this Franchise
Agreement except as to those matters which are preempted by federal or state law.
3. Comcast acknowledges that it has not been induced to accept the Franchise by
any promise, oral or written, by or on behalf of the Village or by any third person,
regarding any term or condition of this Franchise Agreement not expressed
herein.
4. Comcast represents that no promise or inducement, oral or written, has been made
to any Village employee, agent or official regarding receipt of this Franchise.
D. Enforcement: Except as to any matter within the exclusive jurisdiction of the federal
courts, 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
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Illinois, DuPage County, Illinois. With respect to any matter within the exclusive
jurisdiction of the Federal Court shall be brought in the United States District Court of
the Northern District of Illinois.
E. Entire Agreement: This Agreement constitutes the entire Agreement among the parties
pertaining to the subject matter of this Agreement and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussion of the parties,
whether oral or written, and there are no representations or other agreements among the
parties except as specifically set forth herein.
F Amendment: No provision of this Agreement shall be deemed amended by either party,
unless such amendment is in writing and signed by the authorized representative of each
party.
G. Modification: The Grantee and the Franchising Authority shall follow the procedure for
Franchise modifications as established by the Cable Communications Policy Act of 1984
as set forth in Section 625.
H. No Waiver: The failure of the Village or Grantee on one or more occasions to exercise a
right or to require compliance or performance under this Agreement, or any other
applicable law shall not be deemed to constitute a waiver of such right or a waiver of
compliance or performance, unless such right, compliance or performance has
specifically been waived in writing. No delay or omission of the Village or Grantee to
exercise any right or remedy shall be considered to be a waiver of or acquiescence in any
default.
I. Compliance with state and federal laws: The Village and Comcast shall, at all times,
comply with all applicable laws and regulations of federal, state, and local governments,
or any administrative agencies thereof. In accepting this Franchise, Comcast
acknowledges that its rights hereunder are subject to the police power of the Village to
adopt and enforce generally applicable Ordinances necessary to protect the health, safety
and welfare of the public, and it agrees to comply with all applicable general laws and
Ordinances enacted by the Village pursuant to such power.
J. Severability: Should any word, phrase, clause, sentence, paragraph, or portion of this
Agreement be declared to be invalid by a court of competent jurisdiction, such
adjudication shall not affect the validity of this Agreement, or the Franchise as a whole,
but shall only affect the portion thereof declared to be invalid.
K. Notices: Any notice shall be provided to the representatives specified below. All notices
or other written communications required to be provided to the Franchising Authority or
Grantee under any provision of this Agreement, shall be deemed to be received by the
recipient thereof only when said notices or other written communications are actually
received in the office of the recipient at the following addresses:
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' , 4L i
Village: Village Manager
1200 Oak Brook Road
Oak Brook, IL 60523
Grantee: Director of Governmental Affairs
Comcast Cablevision
2001 York Road
Oak Brook, Illinois 60523
All notices with regard to compliance or enforcement matters relating to any Ordinance or this
Franchise Agreement shall be provided via certified mail with return receipt required. All other
routine notices may be provided via regular U.S. Mail. Routine notices provided via facsimile or
other electronic means may be acceptable as long as each is subsequently provided via U S.
Mail.
Either party can change the designated address for notices provided that the notice of such
change complies with this provision as stated above.
Approved and Accepted By:
illa�e Clerk
WORDDOC/S -ORDS /CABLE TV
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COMCAST OF ILLINQJ-� VI, INC.,
0
VILLAGE OF OAK BROOK, DUPAGE
AND COOK COUNTIES, ILLINOIS,
a municipal corporation,
Village President -0-