HomeMy Public PortalAboutOrdinance 3103Ordinance No. 3103
AN ORDINANCE AUTHORIZING THE EXECUTION OF A CERTAIN CABLE
TELEVISION FRANCHISE AGREEMENT BETWEEN THE VILLAGE OF
PLAINFIELD, ILLINOIS, AND COMCAST OF ILLINOIS VI, LLC
WHEREAS, a certain Agreement, a true and exact copy of which is attached hereto
as Exhibit "A," and by reference thereto incorporated herein, has been submitted to the
Corporate Authorities of the Village of Plainfield by the owner.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF PLAINFIELD, WILL COUNTY, AS FOLLOWS:
Sec. 1: That the President and Village Clerk are hereby authorized and directed to
execute the aforesaid Agreement, in substantially the form attached hereto,
for and on behalf of the Village of Plainfield, Illinois.
That all ordinances or parts thereof in conflict herewith are hereby repealed.
This Ordinance shall be in full force and effect from .and after its passage and
approval as required by law.
This Ordinance shall be numbered as Ordinance No. 3103.
PASSED THIS 18TH DAY OF MARCH, 2013.
AYES: Bonuchi, Fay, Lamb, Peck, Racich, Rippy
NAYS: None
ABSENT: None
APPROVED THIS 18TH DAY OF MARCH, 2013.
VIL GE PRESIDENT
VILLAGE CLERK
Ordinance No. 3103
AN ORDINANCE AUTHORIZING THE EXECUTION OF A CERTAIN CABLE
TELEVISION FRANCHISE AGREEMENT BETWEEN THE VILLAGE OF
PLAINFIELD, ILLINOIS, AND COMCAST OF ILLINOIS VI, LLC
WHEREAS, a certain Agreement, a true and exact copy of which is attached hereto
as Exhibit "A," and by reference thereto incorporated herein, has been submitted to the
Corporate Authorities of the Village of Plainfield by the owner.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF PLAINFIELD, WILL COUNTY, AS FOLLOWS:
Sec. 1: That the President and Village Clerk are hereby authorized and directed to
execute the aforesaid Agreement, in substantially the form attached hereto,
for and on behalf of the Village of Plainfield, Illinois.
That all ordinances or parts thereof in conflict herewith are hereby repealed.
This Ordinance shall be in full force and effect from and after its passage and
approval as required by law.
This Ordinance shall be numbered as Ordinance No. 3103.
PASSED THIS 18TH DAY OF MARCH, 2013.
AYES: Bonuchi, Fay, Lamb, Peck, Racich, Rippy
NAYS: None
ABSENT: None
APPROVED THIS 18TH DAY OF MARCH, 2013.
VIL GE PRESIDENT
VILLAGE CLERK
Plainfield Franchise — 2/15/13
CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN
The
VILLAGE OF PLAINFIELD, ILLINOIS
And
COMCAST OF ILLINOIS VI, LLC
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise Agreement") is
made between the Village of Plainfield, Illinois ereinafter, the "Village") and Comcast of
Illinois VI, LLC (hereinafter, "Grantee") this !' day of 4)n �c �� , 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 Agreement is entered into by and between the parties under the authority of the
Cable Act, the Illinois Constitution of 1970, including the Village's _home rule powers, and the
Illinois Municipal Code, as amended from time to time, and shall be governed by the Cable Act
and the Illinois Municipal Code, as amended from time to time; provided that any provisions of
the Illinois Municipal Code that are inconsistent with the Cable Act shall be deemed to be
preempted and superseded.
SECTION 1: Definition of Terms
For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and
abbreviations shall have the meanings ascribed to them in the Cable Act, unless otherwise
defined herein.
"Cable Act" or "Act" means the Cable Communications Policy Act of 1984, as amended
by the Cable Consumer Protection and Competition Act of 1992 and the Telecommunications
Act of 1996, 47 U.S.C. §§ 521 et seq., as the same may be amended from time to time.
"Cable 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 47 U.S.C. § 522 of the Cable
Act, and means Grantee's facilities, consisting of a set of closed transmission paths and
associated signal generation, reception and control equipment, that is designed to provide Cable
Service which includes Video Programming and which is provided to multiple Subscribers
within. the Franchise Area, but such term does not include (i) a facility that serves only to re-
transmit the television signals of one or more television broadcast stations; (ii) a facility that
serves Subscribers without using any public right-of-way, (iii) a facility of a common carrier
which is subject, in whole or in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such a facility shall be considered a Cable System (other than for,
purposes of section 621(c) of the Cable Act) to the extent such facility is used in the transmission
of Video Programming directly to Subscribers, unless the extent, of such use is solely to provide
Interactive On -Demand Services; (iv) an open video system that complies with section 653 of the
Cable Act; or (v) any facilities of any electric utility used solely for operating its electric utility
systems.
"Channel" or "Cable Channel" means a portion of the electromagnetic frequency
spectrum which is used in a Cable System and which is capable of delivering a television
channel as a television channel is defined by the Federal Communications Commission by
regulation.
"Customer" or "Subscriber" means a Person who lawfully receives and pays for Cable
Service with the Grantee's express permission.
"FCC" means the Federal Communications Commission or successor governmental
entity thereto.
"Franchise" means the initial authorization, or renewal thereof, issued by the Village,
whether such authorization is designated as a franchise, agreement, permit, license, resolution,
contract, certificate, ordinance or otherwise, which authorizes the construction or operation of
the Cable System.
"Franchise Agreement" or "Agreement" shall mean this Agreement and any amendments
or modifications hereto.
"Franchise Area" means the present legal boundaries of the Village as of the Effective
Date, and shall also include any additions thereto, by annexation or other legal means as
provided in this Agreement.
"Grantee" shall mean Comcast of Illinois VI, LLC.
"Gross Revenue" means the Cable Service revenue received by the Grantee from the
)n of the Cable System in the Franchise Area to provide Cable Services, calculated in
accordance with generally accepted accountmg pnncipies. Caoie Dery iur, 1GYG11UG 11 t, ULL-
monthly Basic Cable Service, cable programming service regardless of Service Tier, premium
and 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
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purposes of computing the Village's permissible franchise fee under the Cable Act, as amended
from time to time. Gross Revenue shall not include refundable deposits, bad debt, investment
income, programming launch support payments, third party advertising sales commissions and
agency fees, nor any taxes, fees or assessments imposed or assessed by any governmental
authority. Gross Revenues shall include amounts collected from Subscribers for Franchise Fees
pursuant to City of Dallas, Texas v. F.C.C., 118 F.3d 393 (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 Rcd. 18192 (2001), and In re: Texas Coalition of
Cities for Utility Issues v. F.CC, 324 F.3d 802 (5th Cir. 2003).
"Initial Franchise Service Area" means that portion of the Franchise Area served by the
Grantee's Cable System as of the Effective Date of this Franchise Agreement.
"Person" means any natural person or any association, firm, partnership, joint venture,
corporation, or other legally recognized entity, whether for-profit or not -for profit, but shall not
mean the Village.
"Public, Educational and Governmental (PEG) Access Channel" shall mean a video
Channel designated for non-commercial use by the Village, the public, and/or educational
institutions such as public or private schools, but not "home schools," community colleges, and
universities.
"Public, Educational and Government (PEG) Access Programming" shall mean non-
commercial 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 Plainfield, 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 65 ILCS
5/1142-11(a) of the Illinois Municipal Code, the Illinois Constitution, and Ordinance No.
/y3 , the Village hereby grants to the Grantee a nonexclusive Franchise authorizing the
Grantee to construct and operate a Cable System in the Public Ways within the Franchise Area,
and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in
any Public Way such poles, wires, cables, conductors, ducts, conduits, vaults, manholes,
pedestals, amplifiers, appliances, attachments, and other related properly or equipment as may be
necessary or appurtenant to the Cable System, and to provide such services over the Cable
System as may be lawfully allowed.
2.2. Term of Franchise. The term of the Franchise granted hereunder shall be ten (10)
years from the Effective Date, unless the Franchise is renewed or is lawfully terminated in
accordance with the terms of this Franchise Agreement and/or applicable law. From and after
the Effective Date of this Franchise Agreement, the Parties acknowledge that this Franchise
Agreement is intended to be the sole and exclusive Franchise Agreement between the Parties
pertaining to the Grantee's Franchise for the provision of Cable Service.
2.3. Renewal. Any renewal of this Franchise shall be governed by and comply with
the provisions of Section 626 of the Cable Act, as amended, and any applicable State law which
may exist at the time of renewal and which is not superseded by the Cable Act.
2.4. Police Powers. Nothing in this Franchise Agreement shall be construed as an
abrogation by the Village of any of its police powers to adopt and enforce generally applicable
ordinances deemed necessary for the health, safety, and welfare of the public, and the Grantee
shall comply with all generally applicable laws and ordinances enacted by the Village pursuant
to such police power.
2.5. Reservation of Authority. Nothing in this Franchise Agreement shall (A)
abrogate the right of the Village to perform any public works or public improvements of any
description, (B) be construed as a waiver of any codes or ordinances of general applicability
promulgated by the Village, or (C) be construed as a waiver or release of the rights of the Village
in and to the Public Ways.
2.6. Competitive Equity.
2.6.1. In the event the Village grants an additional Franchise to use and occupy
any Public Way for the purposes of operating a Cable System, the additional Franchise shall only
be granted in accordance with the Illinois Level Playing Field Statute, 65 ILCS 5/11-42-11.
2.6.2. In the event an application for a new cable television franchise or other
similar authorization is filed with the Village proposing to serve the Franchise Area, in whole or
in part, the Village shall to the extent permitted by law promptly notify the Grantee, or require
the Grantee to be notified, and include a copy of such application.
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2.6.3. Provided that appropriate vehicle safety markings have been deployed,
Grantee's vehicles shall be exempt from parking restrictions of the Village while used in the
course of installation, repair and maintenance work on the Cable System.
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 policies and procedures of the Village as may be established
from time to time with respect to the occupancy and use of the Public Way by all users of the
Public Way.
3.2. Aerial and Underground Construction. At the time of Cable System construction,
if all of the transmission and distribution facilities of all of the respective public or municipal
utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable
Systems' transmission and distribution facilities underground, provided that such underground
locations are actually capable of accommodating the Grantee's cable and other equipment
without technical degradation of the Cable System's signal quality. In any region(s) of the
Franchise Area where the transmission or distribution facilities of the respective public or
municipal utilities are both aerial and underground, the Grantee shall have the discretion to
construct, operate, and maintain all of its transmission and distribution facilities or any part
thereof, aerially or underground. Nothing in this Section shall be construed to require the Grantee
to construct, operate, or maintain underground any ground -mounted appurtenances such as
customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or
other related equipment.
3.3. Underuounding 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 fiords.
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.
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SECTION 4: Service Obligations
4.1. Initial Service Obligations. As of the Effective Date of this Agreement, Grantee's
Cable System has been designed to provide, and is capable of providing, Cable Service to
residential Customers throughout the Initial Franchise Service Area. The Grantee shall continue
to make Cable Service available in the Initial Service Area throughout the term of this
Agreement and Grantee shall extend its Cable System and provide service consistent with the
provisions of this Franchise Agreement.
4.2. General Service Obligation. The Grantee shall make Cable Service available
beyond the Initial Franchise Service Area to every residential dwelling unit within the Franchise
Area where the minimum density is at least thirty (30) dwelling units per linear Cable System
network mile as measured from the existing Cable System's technically feasible connection
point. Subject to the density requirement, Grantee shall offer Cable Service to all new homes or
previously unserved homes located within one hundred twenty-five (125) feet of the Grantee's
distribution cable (e.g., a Standard Installation).
4.2.1. The Grantee may elect to provide Cable Service to areas not meeting the
above density and distance standards. The Grantee may impose an additional charge in excess of
its regular installation charge for any service installation requiring a drop or line extension in
excess of a Standard Installation. Any such additional charge shall be computed on a time plus
materials basis plus a reasonable rate of return.
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 a significant number
of 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,
manned developments or property development where undergrounding or extension of the Cable
System is required, the Village shall provide or cause the developer or properly owner to provide
notice of the same. Such notices shall be provided at the time of notice to all utilities or other
like occupants of the Village's Public Way. If advance notice of such annexation, new
construction, planned development or property development is not provided, the Grantee shall be
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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.
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 negligence 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 5/22-501 et seq., and enforcement provisions are included
in Chapter 4, Article XI of the Code of Ordinances, Village of Plainfield, Illinois. Enforcement
of such requirements and standards and the penalties for non-compliance with such standards
shall be consistent with the Cable and Video Customer Protection Law, 220 ILCS 5/22-501 et
seq.
SECTION 5. 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 (51/6) 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 pezeentage of fPPc than any other video service
provider, under state authorization or otherwise, providing service in the Franchise Area. The
payment of Franchise Fees shall be made on a quarterly basis and shall be due forty-five (45)
days after the close of each calendar quarter. If mailed, the Franchise Fee shall be considered
paid on the date it is postmarked. Each Franchise Fee payment shall be accompanied by a report
prepared by a representative of the Grantee showing the basis for the computation of the
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franchise fees paid during that period. Any undisputed Franchise Fee payment which remains
unpaid in whole or in part, after the date specified herein shall be delinquent. For any delinquent
Franchise Fee payments, Grantee shall make such payments including interest at the prime
lending rate as quoted by TP Morgan Chase & Company or its successor, computed from time
due until paid. Any undisputed overpayments made by the Grantee to the Village shall be
credited upon discovery of such overpayment until such time when the full value of such credit
has been applied to the Franchise Fee liability otherwise accruing under this Section.
5.1.1. The Parties acknowledge that, at present, the Cable Act limits the Village
to collection of a maximum permissible Franchise Fee of five percent (51/6) of Gross Revenues.
In the event that a change in the Cable Act would allow the Village to increase the Franchise Fee
above five percent (5%), the Village shall hold a public hearing and determine if the Village
should collect the additional amount. Following the determination, the Village shall notify the
Grantee of its intent to collect the increased Franchise Fee and Grantee shall have a reasonable
time (not to be less than ninety (90) days from receipt of notice from the Village) to effectuate
any changes necessary to begin the collection of such increased Franchise Fee or notify the
Grantee of its intent to not collect the increased fee. In the event that the Village increases said
Franchise Fee, the Grantee shall notify its Subscribers of the Village's decision to increase said
fee prior to the implementation of the collection of said fee from Subscribers as required by law.
5.1.2. In the event a change in state or federal law requires the Village to reduce
the franchise fee percentage that may be collected, the parties agree the Grantee shall reduce the
percentage of franchise fees collected to the lower of i) the maximum permissible franchise fee
percentage; or ii) the lowest franchise fee percentage paid by any other Cable Operator granted a
Cable Franchise by the Village pursuant to the Cable Act, and Section 11-42-11 of the Illinois
Municipal Code; provided that: (a) such amendment is in compliance with the change in state or
federal law; (b) the Village approves the amendment by ordinance; and (c) the Village notifies
Grantee at least ninety (90) days prior to the effective date of such an amendment.
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 Subject to Audit. The Village and Grantee acknowledge that the
audit standards are set forth in the Illinois Municipal Code at 65 ILCS 5/11-42-11.05 (Municipal
Franchise Fee Review; Requests For Information). Any audit shall be conducted in accordance
with generally applicable auditing standards.
5.3. Proprietary Information. Notwithstanding anything to the contrary set forth in
this e grement, the Grantee shall not be required to disclose information which it reasonably
deems to be proprietary or confidential in nature, with the exception of the information directly
related to an audit of Franchise Fees as set forth in Section 5.2. The Village agrees to treat any
information disclosed by the Grantee as confidential and only to disclose it to those employees,
representatives, and agents of the Village that have a need to know in order to enforce this
Franchise Agreement and who agree to maintain the confidentiality of all such information. For
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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 competitively sensitive.
Grantee may make proprietary or confidential information available for inspection but not
copying or removal by the Franchise Authority's representative. In the event that the Village has
in its possession and receives a request under the Illinois Freedom of Information Act (5 ILCS
140/1 et seq.), or similar law for the disclosure of information the Grantee has designated as
confidential, trade secret or proprietary, the Village shall notify Grantee of such request and
cooperate with Grantee in opposing such request. Grantee shall indemnify and defend the
Village from and against any claims arising from the Village's opposition to disclosure of any
information Grantee designates as proprietary or confidential. Compliance by the Village with
an opinion or directive from the Illinois Public Access Counselor or the Illinois Attorney General
under the Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., or with a decision or order
of a court with jurisdiction over the Village, shall not be a violation of this Section.
SECTION 6: Transfer of Cable System or Franchise or Control of Grantee
6.1 Neither the Grantee nor any other Person may transfer the Cable System or the
Franchise without the prior written consent of the Village, which consent shall not be
unreasonably withheld or delayed.
6.2. No transfer of control of the Grantee, defined as an acquisition of fifty-one
percent (51%) or greater ownership interest in Grantee, shall take place without the prior 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.
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6.5. Any transfer of control resulting from or after the appointment of a receiver or
receivers or trustee or trustees, however denominated, designated to take over and conduct the
business of the grantee, whether in a receivership, reorganization, bankruptcy or other action or
proceeding, unless such receivership or trusteeship shall have been vacated prior to the
expiration of a one hundred twenty (120) day period, shall be treated as a transfer of control
pursuant to 47 U.S.C. §537 and require the Village's consent thereto in the manner described in
Section 6 above.
SECTION 7: Insurance and Indemnity
7.1. Insurance. Throughout the term of this Franchise Agreement, the Grantee shall,
at its own cost and expense, maintain Commercial General Liability Insurance and provide the
Village certificates of insurance designating the Village and its officers, boards, commissions,
councils, elected officials, agents and employees as additional insureds and demonstrating that
the Grantee has obtained the insurance required in this Section. Such policy or policies shall be
in the minimum amount of five million dollars ($5,000,000.00) for bodily injury or death to any
one person, and five million dollars ($5,000,000.00) for bodily injury or death of any two or
more persons resulting from one occurrence, and five million dollars ($5,000,000.00) for
property damage resulting from any one accident. Such policy or policies shall be non-
cancelable except upon thirty (30) days prior written notice to the Village. The Grantee shall
provide workers' compensation coverage in accordance with applicable law. The Grantee shall
indemnify and hold harmless the Village from any workers compensation claims to which the
Grantee may become subject during the term of this Franchise Agreement.
7.2. Indemnification. The Grantee shall indemnify, defend and hold harmless the
Village, its officers, employees, and agents (the "Indemnitees") from and against any injuries,
claims, demands, judgments, damages, losses and expenses, including reasonable attorney's fees
and costs of suit or defense (the "Indemnification Events"), arising in the course of the Grantee
constructing and operating its Cable System within the Village. The Grantee's obligation with
respect to the Indemnitees shall apply to Indemnification Events which may occur during the
term of this Agreement, 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 additional counsel, the
costs for such additional counsel for the Village shall be the responsibility of the Village.
7.2.1. The Grantee shall not indemnify the Village for any liabilities, damages,
eests er- Wense resulting ftom any conduct for Wbich the- Village, its officers, employees d
agents may be liable under the laws of the State of Illinois.
7.2.2. Nothing herein shall be construed to limit the Grantee's duty to indemnify
the Village by reference to the limits of insurance coverage described in this Agreement.
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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 Access ("PEG") Programming through
one Channel (the "Channel") on the Grantee's Cable System. Unless otherwise agreed to by the
Village and the Grantee to the extent required by applicable law, the Channel may be carried on
the Grantee's basic digital service tier. The Village's PEG Access 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. §53l(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 those having a
signal point of origination at the time of the execution of this Agreement); or at such time that
the Village determines that it wants to 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 a reasonable period of time. After an agreement
to reimburse the Grantee for its expenditure within a reasonable period of time, the Grantee will
implement any necessary system changes within a reasonable period of time.
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.
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
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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 TP 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
media, signal testing, replacement or repair of equipment, or installation or relocation of
SECTION 9: Enforcement of Franchise
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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, 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, including declaratory or injunctive relief; or
9.3.2. in the case of a substantial or frequent default of a material provision of
the Franchise, declare the Franchise Agreement to be revoked in accordance with the following:
(i) The Village shall give written notice to the Grantee of its intent to
revoke the Franchise on the basis of a pattern of noncompliance by the Grantee. The notice shall
set forth with specificity the exact nature of the noncompliance. The Grantee shall have ninety
(90) days from the receipt of such notice to object in writing and to state its reasons for such
objection. In the event the Village has not received a response from the Grantee or upon receipt
of the response does not agree with the Grantee's proposed remedy 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 with jurisdiction within thirty (30) days after receipt of the Village's decision.
9.4. Rmedies Not Exclusive. -In addition to the iremedies set f6fth in hhis Seetion 9,
the Grantee acknowledges the Village's ability pursuant to Section 4.8 of this Franchise
Agreement to enforce the requirements and standards, and the penalties for non-compliance with
such standards, consistent with the Illinois Cable and Video Customer Protection Law enacted by
the Village as Chapter 4 Article XI of the Code of Ordinance, Village of Plainfield, Illinois.
Notwithstanding the foregoing, nothing in this Agreement shall be interpreted to permit the
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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 Majeure. The Grantee shall not be held in default under, or in
noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty
relating to noncompliance or default (including termination, cancellation or revocation of the
Franchise), where such noncompliance or alleged defaults occurred or were caused by strike,
riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado
or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate
the Cable System, governmental, administrative or judicial order or regulation or other event that
is reasonably beyond the Grantee's ability to anticipate or control. This provision also covers
work delays caused by waiting for utility providers to service or monitor their own utility poles
on which the Grantee's cable or equipment is attached, as well as unavailability of materials or
qualified labor to perform the work necessary. Non-compliance or default shall be corrected
within a reasonable amount of time after force majeure has ceased.
10.2. Notice. Any notification that requires a response or action from a party to this
franchise within a specific time -frame, or that would trigger a timeline that would affect one or
both parties' rights under this franchise, shall be in writing and shall be sufficiently given and
served upon the other party by hand delivery, first class mail, registered or certified, return
receipt requested, postage prepaid, or by reputable overnight courier service and addressed as
follows:
To the Village:
Village of Plainfield
24401 W. Lockport Street
Plainfield, IL 60544
ATTN: Village Administrator
To the Grantee:
Comcast
155 W. Industrial Drive
Elmhurst, IL 60126
ATTN: Director of Government Affairs
Recognizing the widespread usage and acceptance of electronic forms of communication, emails
and faxes will be acceptable as formal notification related to the conduct of general business
amongst the parties to this contract, including but not limited to programming and price
adjustment communications. Such communication should be addressed and directed to the
person of record as specified above. Either party may change its address and addressee for
notice by notice to the other party under this Section.
tO.3. Entire Cggigg his FranctuJG Agreement embodies D
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
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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. Severability. If any section, subsection, sentence, clause, phrase, or other portion
of this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by any
court, agency, commission, legislative body, or other authority of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not
affect the validity of the remaining portions hereof, which other portions shall continue in full
force and effect. If any material provision of this Agreement is made or found to be
unenforceable by such a binding and final decision, either party may notify the other in writing
that the Franchise has been materially altered by the change and of the election to begin
negotiations to amend the Franchise in a manner consistent with said proceeding or enactment;
provided, however, that any such negotiated modification shall be competitively neutral, and the
parties shall be given sufficient time to implement any changes necessitated by the agreed-upon
modification.
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, Will
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
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. o g in Ms ranc se Agreement sh-ali be constraed as
a waiver of any rights, substantive or procedural, Grantee may have under Federal or state law
unless such waiver is expressly stated herein.
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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.
10.11. Authority to Sign Agreement. Grantee warrants to the Village that it is authorized
to execute, deliver and perform this Franchise Agreement. The individual signing this Franchise
Agreement on behalf of the Grantee warrants to the Village that s/he is authorized to execute this
Franchise Agreement in the name of the Grantee.
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 Plainfield: For Corncast of Illinois VI, LLC:
By A .��G.a, B `•• *. �' ---
Name: PI 1 din n 2t I . C-01(1/1S Name: ��`� t C► ��
Title: Ot I I Pfr c.1 e n 4- Title: v�
Date: 3 (1 iiat,k3 Date: 5� ,�
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