2020-03-16 - Ordinance 2020-027 - AUTHORIZING EXECUTION OF A CABLE TELEVISION FRANCHISE AGREEMENT BY AND BETWEEN THE VILLAGE OF BUFFALO GROVE AND COMCAST OF ILLINOIS VI LLC ORDINANCE 2020-027
AN ORDINANCE AUTHORIZING EXECUTION OF A CABLE TELEVISON FRANCHISE
AGREEMENT BY AND BETWEEN THE VILLAGE OF BUFFALO GROVE AND COMCAST
OF ILLINOIS VI LLC
WHEREAS, the Village of Buffalo is a home rule unit pursuant to the Illinois Constitution of
1970; and
WHEREAS, the Village worked with several communities to negotiate a Cable Television
Franchise Agreement; and
WHEREAS,it is in the best interest of the Village to execute an agreement with Comcast of Illinois
VI,LLC.
NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES,
ILLINOIS,as follows:
SECTION 1. The foregoing recitals are hereby adopted and incorporated and made a part of this Ordinance
as if fully set forth herein.
SECTION 2.The Village President is authorized to execute a Cable Television Franchise Agreement with
Comcast of Illinois VI,LLC.
SECTION 3. If any section, paragraph, clause or provision of this Ordinance shall be held invalid, the
invalidity thereof shall not affect any other provision of this Ordinance.
SECTION 4. This Ordinance shall be in full force and effect from and after its passage and approval and
shall not be codified.
AYES: 4— Stein Ottenheimer, Smith Pike
NAYS: 0 -None
ABSENT: 2—Weidenfeld Johnson
PASSED: March 16, 2020
APPROVED: March 16 2020
APPROVED:
Beverly Suss , Village President
ATTEST:
Janet M. irabian, Village Clerk
VoBG-2019-38
Buffalo Grove—February 14,2020 VoBG-2019-38
CABLE TELEVISION FRANCHISE AGREEMENT
BY AND BETWEEN
The
VILLAGE OF BUFFALO GROVE
And
COMCAST OF ILLINOIS VI, LLC
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise Agreement") is
made between the Village of Buffalo Grove, Illinois (hereinafter, the "Village") and Comcast of
Illinois VI,LLC (hereinafter, "Grantee")this 1(v1Y`day of March, 2020(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.
"Basic Cable Service"has the meaning set forth in 47 U.S. Code § 522.
"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
VoBG-2019-38
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 and Comcast of IllinoisAVest Virginia,
LLC.
"Gross Revenue" means the Cable Service revenue received by the Grantee from the
operation of the Cable System in the Franchise Area to provide Cable Services, calculated in
accordance with generally accepted accounting principles as may now exist or hereafter develop,
provided that such revenues, fees, receipts, or charges may be lawfully included in the gross
revenue base for purposes of computing the Village's permissible franchise fee under the Cable
Act, as amended from time to time. Gross Revenue shall not include refundable deposits, bad
debt, investment income, programming launch support payments, third party advertising sales
commissions and agency fees, nor any taxes, fees or assessments imposed or assessed by any
governmental authority. Gross Revenues shall include amounts collected from Subscribers for
Franchise Fees pursuant to City of Dallas, Texas v. F.C.C., 118 F.3d 393 (5 Cir. 1997), and the
amounts collected from non-Subscriber revenues in accordance with the Court of Appeals decision
resolving the case commonly known as the"Pasadena Decision," City of Pasadena, California et.
al., Petitions for Declaratory Ruling on Franchise Fee Pass Through Issues, CSR 5282-R,
Memorandum Opinion and Order, 16 FCC Rcd. 18192(2001),and In re: Texas Coalition of Cities
for Utility Issues v. F.C.C., 324 F.3d 802 (5th Cir. 2003).
2
VoBG-2019-38
"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.
"PEG Capital Fee" means those fees described in Section 622(c) of the Cable Act (47
U.S.C. §542 (c)).
"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 Channel of the Cable
System in accordance with 47 U.S.C. 531 and this Agreement.
"Public Way"shall mean,pursuant and in addition to the Village's Right of Way Ordinance
(Title 12,Chapter 12.04,"Construction And Use Of Public Ways"of the Village of Buffalo Grove,
Illinois Municipal Code), 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 Buffalo Grove, Illinois or the lawful successor, transferee,
designee, or assignee thereof.
"Village Code"means the Village of Buffalo Grove, Illinois Municipal Code.
"Video Programming" or "Programming" means programming provided by, or generally
considered comparable to programming provided by, a television broadcast station.
3
VoBG-2019-38
SECTION 2: Grant of Authorit
2.1. Pursuant to Section 621(a)of the Cable Act,47 U.S.C. § 541 (a),and 65 ILCS 5/11-
42-11(a) of the Illinois Municipal Code, the Illinois Constitution, and Ordinance No.
approving and authorizing the execution of this Agreement, the Village hereby grants to the
Grantee a nonexclusive Franchise authorizing the Grantee to construct and operate a Cable System
in the Public Ways within the Franchise Area, and for that purpose to erect, install, construct,
repair, replace, reconstruct, maintain, or retain in any Public Way such poles, wires, cables,
conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and
other related property or equipment as may be necessary or appurtenant to the Cable System, and
to provide such services over the Cable System as may be lawfully allowed.
2.2. Term of Franchise. The term of the Franchise granted hereunder shall be ten(10)
years from the Effective Date, unless the Franchise is renewed or is lawfully terminated in
accordance with the terms of this Franchise Agreement and/or applicable law. From and after the
Effective Date of this Franchise Agreement, the Parties acknowledge that this Franchise
Agreement is intended to be the sole and exclusive Franchise Agreement between the Parties
pertaining to the Grantee's Franchise for the provision of Cable Service.
2.3. Renewal. Any renewal of this Franchise shall be governed by and comply with the
provisions of Section 626 of the Cable Act, as amended, and any applicable State law which may
exist at the time of renewal and which is not superseded by the Cable Act.
2.4. Police Powers. Nothing in this Franchise Agreement shall be construed as an
abrogation by the Village of any of its police powers to adopt and enforce generally applicable
ordinances deemed necessary for the health, safety, and welfare of the public, 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 authorize the use of Public Ways for public purposes or 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 or enforceable by the Village, or (C) be
construed as a waiver or release of the rights of the Village in and to the Public Ways.
2.6. No Waiver of Tort Impunity.. Nothing in this Agreement shall constitute a waiver
by the Village of any right,privilege or defense available to the Village under statutory or common
law, including, but not limited to, the Illinois Governmental and Governmental Employees Tort
Immunity Act, 745 ILCS 10/1-101 et seq., as amended.
4
VoBG-2019-38
2.7 Competitive Equity.
2.7.1. 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.
2.7.2. 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.
END OF SECTION 2
5
VoBG-2019-38
SECTION 3: Construction and Maintenance of the Cable System
3.1. Except as may be otherwise provided in this Franchise Agreement, Grantee shall
comply with all generally applicable provisions of Title 12,Chapter 12.04,"Construction And Use
Of Public Ways" of the Village of Buffalo Grove, Illinois Municipal Code as may be amended
from time to time.
3.2. Aerial and Underground Construction. At the time of Cable System construction,
if all of the transmission and distribution facilities of all of the respective public or municipal
utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable
Systems' transmission and distribution facilities underground, provided that such underground
locations are actually capable of accommodating the Grantee's cable and other equipment without
technical degradation of the Cable System's signal quality. In any region(s) of the Franchise Area
where the transmission or distribution facilities of the respective public or municipal utilities are
both aerial and underground, the Grantee shall have the discretion to construct, operate, and
maintain all of its transmission and distribution facilities or any part thereof, aerially or
underground. Nothing in this Section shall be construed to require the Grantee to construct,
operate, or maintain underground any ground-mounted appurtenances such as customer taps, line
extenders, system passive devices, amplifiers, power supplies, pedestals, or other related
equipment.
3.3. Undergrounding and Beautification Projects.
3.3.1. In the event the Village requires users of the Public Way who operate aerial
facilities to relocate such aerial facilities underground,Grantee shall participate in the planning for
relocation of its aerial facilities, if any, contemporaneously with such users. Grantee shall be
reimbursed its relocation costs from public or private funds allocated for the project to the same
extent as such funds are made available to other users of the Public Way, if any, provided that any
utility's exercise of authority granted under its tariff to charge consumers for the said utility's cost
of the project that are not reimbursed by the Village shall not be considered to be public or private
funds.
3.3.2. The Grantee shall not be required to relocate its facilities unless it has been afforded
at least sixty(60) days' notice of the necessity to relocate its facilities. Upon adequate notice the
Grantee shall provide a written estimate of the cost associated with the work necessary to relocate
its facilities. In instances where a third party is seeking the relocation of the Grantee's facilities or
where the Grantee is entitled to reimbursement pursuant to the preceding Section,the Grantee shall
not be required to perform the relocation work until it has received payment for the relocation
work.
3.4 Emergency Removal of a plant.
Whenever, in case of emergency, it becomes necessary in the judgement of the Village in
the exercise of its Police Powers for the health, safety and welfare of the public, to remove or
damage any of the Grantee's facilities,no charge shall be made by the Grantee against the Village
for restoration or repair;provided the Village shall endeavor to notify the Grantee of the situation
prior to taking such action, if reasonably possible.
6
VoBG-2019-38
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 Obli ation. 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.
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 Develo ments. In cases of annexation the Village
shall provide the Grantee written notice of such annexation. In cases of new construction,planned
developments or property development where undergrounding or extension of the Cable System
is required, the Village shall provide or cause the developer or property owner to provide notice
of the same. Such notices shall be provided at the time of notice to all utilities or other like
occupants of the Village's Public Way. If advance notice of such annexation, new construction,
planned development or property development is not provided, the Grantee shall be allowed an
adequate time to prepare,plan and provide a detailed report as to the timeframe for it to construct
its facilities and provide the services required under this Franchise Agreement.
7
VoBG-2019-38
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. The Village must
be authorized to activate the EAS through the appropriate EAS plan.
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
Title 5, Chapter 5.78, of the Village of Buffalo Grove, Illinois Municipal Code(Customer Service
and Privacy Protection Law). Enforcement of such requirements and standards and the penalties
for non-compliance with such standards shall be consistent with the Cable and Video Customer
Protection Law, 220 ILCS 5/22-501 et seq.
SECTION 5: Oversight and Regulation by Village
5.1. Franchise Fees. The Grantee shall pay to the Village a Franchise Fee in an amount
equal to five percent (5%) of annual Gross Revenues received from the operation of the Cable
System to provide Cable Service in the Franchise Area; provided, however, that Grantee shall not
be compelled to pay any higher percentage of fees than any other video service provider, under
state authorization or otherwise, providing service in the Franchise Area. The payment of
Franchise Fees shall be made on a quarterly basis and shall be due forty-five (45) days after the
close of each calendar quarter. If mailed,the Franchise Fee shall be considered paid on the date it
is postmarked. Each Franchise Fee payment shall be accompanied by a report prepared by a
representative of the Grantee showing the basis for the computation of the franchise fees paid
during that period. Any undisputed Franchise Fee payment which remains unpaid in whole or in
part, after the date specified herein shall be delinquent. For any delinquent Franchise Fee
payments,Grantee shall make such payments including interest at the prime lending rate as quoted
by JP Morgan Chase & Company or its successor, computed from time due until paid. Any
undisputed overpayments made by the Grantee to the Village shall be credited upon discovery of
such overpayment until such time when the full value of such credit has been applied to the
Franchise Fee liability otherwise accruing under this Section.
8
VoBG-2019-38
5.1.1. The Parties acknowledge that, at present,the Cable Act limits the Village to
collection of a maximum permissible Franchise Fee of five percent (5%) of Gross Revenues. In
the event that a change in the Cable Act would allow the Village to increase the Franchise Fee
above five percent(5%),and the Village actually proposes to increase the Franchise Fee in exercise
of such authority, the Village may amend the Franchise Fee percentage. Following the
determination to increase the Franchise Fee and enactment of an ordinance enabling the same,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. 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.
5.2.1 In accordance with 65 ILCS 5/11-42-11.05(k),the Village shall provide on an annual
basis, a complete list of addresses within the corporate limits of the Village. If an address is not
included in the list or if no list is provided, the Grantee shall be held harmless for any franchise
fee underpayments (including penalty and interest) from situsing errors if Grantee used a
reasonable methodology to assign the address or addresses to a municipality.
9
VoBG-2019-38
5.3. Proprietary Information. Notwithstanding anything to the contrary set forth in this
Agreement, the Grantee shall not be required to disclose information which it reasonably deems
to be proprietary or confidential in nature,with the exception of the information directly related to
an audit of Franchise Fees as set forth in Section 5.2. The Village agrees to treat any information
disclosed by the Grantee as confidential and only to disclose it to those employees,representatives,
and agents of the Village that have a need to know in order to enforce this Franchise Agreement
and who agree to maintain the confidentiality of all such information. For purposes of this Section,
the terms "proprietary or confidential" include, but are not limited to, information relating to the
Cable System design, customer lists, marketing plans, financial information unrelated to the
calculation of Franchise Fees or rates pursuant to FCC rules,or other information that is reasonably
determined by the Grantee to be competitively sensitive. Grantee may make proprietary or
confidential information available for inspection but not copying or removal by the Franchise
Authority's representative. In the event that the Village has in its possession and receives a request
under the Illinois Freedom of Information Act (5 ILCS 140/1 et seq.), or similar law for the
disclosure of information the Grantee has designated as confidential, trade secret or proprietary,
the Village shall notify Grantee of such request and cooperate with Grantee in opposing such
request. Grantee shall indemnify and defend the Village from and against any claims arising from
the Village's opposition to disclosure of any information Grantee designates as proprietary or
confidential. Compliance by the Village with an opinion or directive from the Illinois Public
Access Counselor or the Illinois Attorney General under the Illinois Freedom of Information Act,
5 ILCS 140/1 et seq., or with a decision or order of a court with jurisdiction over the Village, shall
not be a violation of this Section.
SECTION 6: Transfer of Cable System or Franchise or Control of Grantee
6.1. Neither the Grantee nor any other Person may transfer the Cable System or the
Franchise without the prior written consent of the Village,which consent shall not be unreasonably
withheld or delayed.
6.2. No transfer of control of the Grantee, defined as an acquisition of fifty-one percent
(51%)or greater ownership interest in Grantee, shall take place without the prior 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.
10
VoBG-2019-38
6.4. The Grantee, and any proposed transferee under this Section 6, shall submit a
written application to the Village containing or accompanied by such information as is required in
accordance with applicable law and FCC regulations,specifically including a completed Form 394
or its successor, and in compliance with the processes established for transfers under FCC rules
and regulations, including Section 617 of the Cable Act, 47 U.S.C. §537. Within thirty(30) days
after receiving a request for consent, the Village shall, in accordance with FCC rules and
regulations, notify the Grantee in writing of the additional information, if any, it requires to
determine the legal, financial and technical qualifications of the transferee or new controlling
party. If the Village has not taken final action on the Grantee's request for consent within one
hundred twenty (120) days after receiving such request, consent shall be deemed granted. As a
condition to granting of any consent, the Village may require the transferee to agree in writing to
assume the obligations of the Grantee under this Franchise Agreement.
6.5. Any transfer of control resulting from or after the appointment of a receiver or
receivers or trustee or trustees, however denominated, designated to take over and conduct the
business of the grantee, whether in a receivership, reorganization, bankruptcy or other action or
proceeding,unless such receivership or trusteeship shall have been vacated prior to the expiration
of a one hundred twenty (120) day period, shall be treated as a transfer of control pursuant to 47
U.S.C. §537 and require the Village's consent thereto in the manner described in Section 6 above.
SECTION 7: Insurance and Indemnit
7.1. Insurance. Throughout the term of this Franchise Agreement, the Grantee shall, at
its own cost and expense,maintain such insurance and provide the Village certificates of insurance
in accordance with Title 12, Chapter 12.04.080, "Construction And Use Of Public Ways" of the
Village of Buffalo Grove, Illinois Municipal Code.
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,costs
or expense resulting from any conduct for which the Village, its officers, employees and agents
may be liable under the laws of the State of Illinois.
11
VoBG-2019-38
7.2.2. Nothing herein shall be construed to limit the Grantee's duty to indemnify
the Village by reference to the limits of insurance coverage described in this Agreement.
SECTION 8: Public Educational and Governmental `PEG Access
8.1. PEG Capacity.The Grantee shall provide capacity for the Village's noncommercial
Public, Educational and Governmental Access ("PEG") Programming through two Channels (the
"Channels") on the Grantee's Cable System. Unless otherwise agreed to by the Village and the
Grantee to the extent required by applicable law, the Channels 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. As of the Effective Date of this agreement,the PEG channels described in Section 8.1
have been assigned to channel 6 and 18 on the Basic Cable Service Tier on the Grantee's Cable
System.
8.3.Relocation. During the term of this Franchise Agreement,if Grantee desires to change
the location of the PEG channels from that listed in Section 8.2, above, the Grantee shall exercise
good faith efforts to give the Village at least ninety(90) days prior notice of such relocation. The
Grantee shall cooperate with the Village to notify subscribers of the change in the channel(s)
number. The foregoing shall not apply to changes that are beyond Grantee's control, such as a
television station under federal law requiring carriage on a channel currently used by a PEG
channel.
8.4. Rules and Procedures for Use of the PEG Access Channels. The Village shall be
responsible for establishing,and thereafter enforcing,rules for the non-commercial use of the PEG
Access Channels and to promote the use and viewership of the Channel.
8.5.Allocation and Use of the PEG Access Channels. The Grantee does not relinquish its
ownership of Channels by designating them for PEG use. However, the PEG Access Channels
are, and shall be, operated by the Village. The Village shall adopt rules and procedures under
which Grantee may use the PEG Access Channels for the provision of Video Programming if the
PEG Access channels are not being used for their designated purposes pursuant to Section 611(d)
of the Cable Act, 47 U.S.C. §531.
8.6. Editorial Control. Grantee shall not exercise any editorial control over any use of the
PEG Access Channels except as permitted by 47 U.S.C. §531(e).
12
VoBG-2019-38
8.7. 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 but not longer than sixty(60)days. After an
agreement to reimburse the Grantee for its expenditure,the Grantee will implement any necessary
system changes within a reasonable period of time but not longer than one hundred twenty(120)
days; unless another timeline is agreed to by both parties.
8.8. 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.
8.9. 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 One
Dollar($1.00)per customer per month charge to be passed on to each Subscriber pursuant Section
622(g)(2)(C) of the Cable Act (47 U.S.C. §542(g)(2)(C)). The Grantee shall collect the external
charge over a period of twelve (12) months, unless some other period is mutually agreed upon in
writing, and shall make the PEG capital payments from such sums at the same time and in the
same manner as Franchise Fee payments. The notice shall include a detailed and itemized
description of the intended utilization of the PEG Capital Fee for PEG Access Channel facilities
and/or equipment and the Grantee shall have the opportunity to review and make recommendations
upon the Village's plan prior to agreeing to collect and pay to the Village the requested amount.
The capital payments shall be expended for capital costs associated with PEG access. Consistent
with the description of the intended utilization of the PEG Capital Fee, the Village shall be
permitted to hold all or a portion of the PEG Capital Fee from year to year as a designated fund to
permit the Village to make large capital expenditures, if necessary, as long as any finds remaining
at the end of the term of this Agreement shall be credited to PEG Capital obligations in the
subsequent Franchise. Moreover, if the Village chooses to borrow from itself or a fmancial
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.
8.9.1. For any payments owed by Grantee in accordance with this Section 8.9
which are not made on or before the due dates, Grantee shall snake such payments including
interest at an annual rate of the prime lending rate as quoted by JP Morgan Chase & Company or
its successor, computed from time due until paid. Any undisputed overpayments made by the
Grantee to the Village shall be credited upon discovery of such overpayment until such time when
the full value of such credit has been applied to the PEG Capital Fee liability otherwise accruing
under this section.
13
VoBG-2019-38
8.9.2. 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.
8.10. PEG HD Programming
8.10.1. Annual Meeting to Discuss PEG High-Definition Programming. In
recognition of the Village's interest in the future distribution of the PEG Channel(s) in high-
definition (HD), the Grantee will meet with the Village on an annual basis to discuss:
(i) the status of the Village's preparedness to produce and cablecast the PEG
Access Programming in HD, taking into consideration the amount of PEG
programming being produced in HD versus standard definition (SD);
(ii) the proportion of channels cablecast in SD versus HD; and
(iii) the percentage of HD subscription penetration across the Grantee's
subscriber base.
8.10.2. PEG Channel Migration from SD to HD. On or after the fourth anniversary
date of this Franchise Agreement,the Village shall migrate PEG Access Programming from SD to
HD,but only if all of the following conditions have been met and notice has been given in writing:
(i) the Village is capable of producing and transmitting PEG programming in
HD.
(ii) 50 percent of channels comprising the Basic Cable Service Tier are
cablecast in HD; and
(iii) the percentage of HD subscription penetration across the Grantee's
subscribers is equivalent to 80 percent.
For purposes of this Agreement, an HD signal refers to a television signal delivering picture
resolution of 720p or 1080i. For the first PEG Channel transitioned to HD, the Channel must
include a minimum of five hours per day,seven days per-week of HD PEG programming. For the
purpose of calculating this condition, any networks which are simulcast in HD and SD shall be
counted as only one channel.
8.10.3.Transition Period. If all of the conditions above have been met, then the
Grantee will be provided up to one (1) year to transition the PEG programming on the eligible
PEG Channel to HD.
8.10.4. No Dual Broadcasts. In no instance shall the PEG Channels be cablecast in
both SD and HD.
14
VoBG-2019-38
8.10.5. Status as of Fourth AnniversarMy. In the event the metrics in this Section
8.10 have not been met by the Grantee or by the Village by the fourth anniversary of this Franchise
Agreement, then the party that has not met its metrics shall give, upon request of the other party,
written notice within 30 days whether it has reached attainment or completion of such condition.
For example,the Village shall give notice to the Grantee for criterion 8.8.2(i)and the Grantee shall
give notice to the Village for criteria 8.8.2(ii) and(iii).
8.11. Villa e O)eration and Control of M PEG Channels,. Consistent with Section 8.5
of this Franchise Agreement, the Grantee does not relinquish its ownership of a PEG Channel by
migrating the channel to HD and the standards of Section 8.5 of this Franchise Agreement apply
to HD PEG Channels.
8.12. 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 programmming cannot be
viewed that are caused by technical difficulties, transition of broadcast media, signal testing,
replacement or repair of equipment, or installation or relocation of facilities.
SECTION 9: Enforcement of Franchise
9.1. Notice of Violation or Default. In the event the Village believes that the Grantee
has not complied with a material terns 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
15
VoBG-2019-38
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. Remedies Not Exclusive. In addition to the remedies set forth in this Section 9, the
Grantee acknowledges the Village's ability pursuant to Section 4.8 of this Franchise Agreement
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 Title 5, Chapter 5.78, of the Village of Buffalo Grove, Illinois Municipal Code
(Customer Service and Privacy Protection Law); and, pursuant to Section 3.1 of this Franchise
Agreement and Title 12, Chapter 12.04 of the Village of Buffalo Grove, Illinois Municipal Code,
to enforce the Grantee's compliance with the Village's requirements regarding"Construction And
Use Of Public Ways." Notwithstanding the foregoing, nothing in this Agreement shall be
interpreted to permit the Village to exercise such rights and remedies in a manner that permits
duplicative recovery from, or payments by, the Grantee. Such remedies may be exercised from
time to time and as often and in such order as may be deemed expedient by the Village.
9.5 Failure to Enforce Franchise Agreement. The Grantee shall not be excused from
complying with any of the terms and conditions of this Franchise Agreement by any failure of the
Village upon any one or more occasions, to insist upon the Grantee's performance or to seek
Grantee's compliance with any one or more of such terms or conditions.
16
VoBG-2019-38
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 parry by hand delivery, first class mail, registered or certified,return receipt
requested,postage prepaid, or by reputable overnight courier service and addressed as follows:
To the Village: To the Grantee:
Village of Buffalo Grove Comcast
50 Raupp Boulevard 1500 McConnor Parkway
Buffalo Grove, Illinois 60089 Schaumburg, Illinois 60173
ATTN: Village Manager ATTN: Director of Government Affairs
Recognizing the widespread usage and acceptance of electronic forms of communication, emails
and faxes will be acceptable as formal notification related to the conduct of general business
amongst the parties to this contract,including but not limited to programming and price adjustment
communications. Such communication should be addressed and directed to the person of record
as specified above. Either parry may change its address and addressee for notice by notice to the
other party under this section
10.3. Entire Agreement. This Franchise Agreement embodies the entire understanding
and agreement of the Village and the Grantee with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings, negotiations and
communications, whether written or oral. Except for ordinances adopted pursuant to Sections 2.4
and 2.5 of this Agreement, all ordinances or parts of ordinances related to the provision of Cable
Service that are in conflict with or otherwise impose obligations different from the provisions of
this Franchise Agreement are superseded by this Franchise Agreement.
17
VoBG-2019-38
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,shall maintain to the maximum extent
possible the original intent of the Agreement, 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, Cook 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. Modf cation. 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. Nothing in this Franchise Agreement shall be construed as a
waiver of any rights,substantive or procedural,Grantee may have under Federal or state law unless
such waiver is expressly stated herein.
18
VoBG-2019-38
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 f B ffalo Grove: For Comcast of Illinois VI, LLC:
B I I IA.. By:
Name: er Name:
JOHN CROWLEY
Title: U; Ila4� �e�cew,a Title: GION SENIOR VICE PRESIDENT
—3 RE..................
19