Loading...
S-1035 - 04/22/2003 - CABLE TV - OrdinancesORDINANCE 2003- AG- CB- EXI -S- 1035 AN ORDINANCE APPROVING A NON- EXCLUSIVE CABLE TELEVISION FRANCHISE AGREEMENT AND AUTHORIZING THE EXECUTION THEREOF WHEREAS, on or about May 26, 1987, the Village Board passed an ordinance approving a cable telecommunications franchise agreement with Continental Cablevision of Cook County, Inc.; and WHEREAS, the Grantee of that Franchise has passed to a number of entities since 1987 and is currently held by Comcast of Illinois VI, Inc., ( "Comcast "); and WHEREAS, the Franchise Agreement entered into in 1987 has passed its expiration date, but by agreement of the parties, has been extended to June, 2003; and WHEREAS, Comcast has requested a renewal of its cable television franchise to provide cable television service in the Village; and WHEREAS, the Village has afforded the public an opportunity for comment on the proposed terms of the franchise renewal; and WHEREAS, the Village of Oak Brook has determined that it is in the public interests to renew the grant of a non - exclusive cable television Franchise to Comcast in accordance with the terms set forth in the attached Agreement; and WHEREAS, the Village has adopted a Cable Television Franchise Ordinance, Ordinance No. G -718 , on April 22, 2003, 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 herein set forth; and WHEREAS, Comcast has agreed to be bound by the terms of the attached Franchise Agreement; NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DUPAGE AND COOK COUNTIES, ILLINOIS, as follows: Section 1: That the provisions of the preamble hereinabove set forth are hereby adopted as though fully set forth herein. Section 2- That the Agreement entitled "Non- Exclusive Cable Television Franchise Agreement By And Between Comcast Cablevision Of Illinois, Inc And The Village Of Oak Brook, Illinois ", which is attached hereto as Exhibit "A" and made a part hereof, is hereby approved. Section 3: That the Village President and village Clerk are hereby authorized and directed to execute said document by and on behalf of the Village of Oak Brook. Section 4: That this ordinance shall be in full force and effect from and after passage and approval pursuant to law. Ordinance 2003-AG-CB-EX1-S-1035 Approving Cable TV Franchise Page 2 PASSED THIS 22nd day of April -, 2003. Ayes: Trustees Aktipis, Caleel, Craig, Korin, Miologos and Savino Nays: None Absent: None Abstain: Nn„p APPROVED THIS 22nd day of April 52003. n Q 70, "m :, d Yo Form , i A Village Attorney WORMOUS-ORDS/Cable Tv approve of d Published Date Not Published xx Paper EXHIBIT A 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 ") WITNESSETH- 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 l: 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 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 5/11-42-11 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 2 I 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. 3 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 4 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 rights -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, normal 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 5 i 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 prior 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. 6 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. 7 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. 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 E 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 10 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. 11 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 12 R1 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: 13 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: i l l aaP M arlr WORDDOC/S -ORDS /CABLE TV 14 COMCAST OF ILLIN,04 VI, INC., DO VILLAGE OF OAK BROOK, DUPAGE AND COOK COUNTIES, ILLINOIS, a municipal corporation, L Village President'