[Adopted 3-26-2018 by Ord. No. 18-02]
(A)
This Franchise Agreement (hereinafter, the "Agreement" or "Franchise
Agreement") is made between the Village of Harristown, Illinois (hereinafter,
the "Village"), and Comcast of Illinois/Indiana/Ohio, LLC, (hereinafter,
"Grantee") this 26th day of March 2018 (the "Effective Date").
(B)
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.
(C)
This Agreement is entered into by and between the parties under the
authority of 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Act shall be deemed to be preempted and superseded.
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.
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.
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.
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.
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:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves Subscribers without using any public
right-of-way;
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;
An open video system that complies with Section 653 of the Cable
Act; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
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.
A Person who lawfully receives and pays for Cable Service
with the Grantee's express permission.
The Federal Communications Commission or successor governmental
entity thereto.
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.
This Agreement and any amendments or modifications hereto.
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.
Comcast of Illinois/Indiana/Ohio, LLC.
The Cable Service revenue received by the Grantee from the
operation of the Cable System in the Franchise Area to provide Cable
Services, calculated in accordance with generally accepted accounting
principles. Cable Service revenue includes monthly 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 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 (5th 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.C.C., 324 F.3d 802
(5th Cir. 2003).
That portion of the Franchise Area served by the Grantee's
Cable System as of the Effective Date of this Franchise Agreement.
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.
Pursuant and in addition to the Village's Right-of-Way Ordinance (§ 8-1-5), 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.
Those installations to Subscribers that are located up to
125 feet from the existing distribution system (Cable System).
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
The Village of Harristown, Illinois, or the lawful successor,
transferee, designee, or assignee thereof.
(A)
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, and Ordinance
No. 18-02, 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.
(B)
Term of franchise. The term of the Franchise granted hereunder shall
be 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.
(C)
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.
(D)
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.
(E)
Reservation of authority. Nothing in this Franchise Agreement shall:
(1)
Abrogate the right of the Village to perform any public works
or public improvements of any description;
(2)
Be construed as a waiver of any codes or ordinances of general
applicability promulgated by the Village; or
(3)
Be construed as a waiver or release of the rights of the Village
in and to the Public Ways.
(F)
Competitive equity.
(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)
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.
(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.
(A)
Except as may be otherwise provided in this Franchise Agreement, Grantee shall comply with all generally applicable provisions of § 8-1-5, entitled "Right-of-way occupancy," of the Harristown Village Code, as may be amended from time to time.
(B)
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.
(C)
Undergrounding and beautification projects.
(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.
(2)
The Grantee shall not be required to relocate its facilities
unless it has been afforded at least 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 subsection, the
Grantee shall not be required to perform the relocation work until
it has received payment for the relocation work.
(A)
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.
(B)
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 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 125 feet of the Grantee's distribution cable (e.g.,
a Standard Installation).
(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.
(C)
Programming.
(1)
The Grantee agrees to provide cable programming services in
the following broad categories:
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Children
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General Entertainment
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Family Oriented
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Ethnic/Minority
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Sports
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Weather
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Educational
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Arts, Culture and Performing Arts
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News and Information
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(2)
Pursuant and subject to federal law, all Video Programming decisions,
excluding PEG Access Programming, are at the sole discretion of the
Grantee.
(D)
Technical standards. The Grantee shall comply with all applicable
technical standards of the FCC as published in 47 CFR 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.
(E)
Annexations and new/planned developments. In cases of annexation,
the Village shall provide the Grantee written notice of such annexation.
In cases of new construction, planned 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 time frame for it to construct its facilities and
provide the services required under this Franchise Agreement.
(F)
Service to school buildings and governmental facilities.
(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 nongovernmental third
parties or buildings such as storage facilities at which government
employees are not regularly stationed.
(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.
(G)
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 CFR 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.
(H)
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. Enforcement of such requirements and standards
and the penalties for noncompliance with such standards shall be consistent
with the Cable and Video Customer Protection Law, 220 ILCS 5/22-501
et seq.
(A)
Franchise fees. The Grantee shall pay to the Village a Franchise
Fee in an amount equal to 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 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.
(1)
The Parties acknowledge that, at present, the Cable Act limits
the Village to collection of a maximum permissible Franchise Fee of
5% of Gross Revenues. In the event that a change in the Cable Act
would allow the Village to increase the Franchise Fee above 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 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.
(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 the maximum permissible franchise fee
percentage; or 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,[1] 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 90 days prior to the effective
date of such an amendment.
[1]
Editor's Note: See 65 ILCS 5/11-42-11.
(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).
(B)
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.
(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.
(C)
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 Subsection (B).
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.
(A)
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.
(B)
No transfer of control of the Grantee, defined as an acquisition
of 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.
(C)
No consent shall be required, however, for 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 a transfer to an entity directly or
indirectly owned or controlled by Comcast Corporation.
(D)
The Grantee, and any proposed transferee under this section, 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 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 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.
(E)
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-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 this
section above.
(A)
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 § 8-1-9, entitled "Indemnification and insurance," of the Harristown Village Code.
(B)
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.
(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.
(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.
(A)
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.
(B)
Grantee's right to cure or respond. The Grantee shall have 30 days
from the receipt of the Village's written notice:
(1)
To respond to the Village, contesting the assertion of noncompliance
or default; or
(2)
To cure such default; or
(3)
In the event that, by nature of the default, such default cannot
be cured within the thirty-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.
(C)
Enforcement. Subject to applicable federal and state law, and following
notice and an opportunity to cure and respond pursuant to the provisions
of Subsection (B) above, in the event the Village determines that
the Grantee is in default of any material provision of the Franchise,
the Village may:
(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
(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:
(a)
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 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 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.
(b)
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 § 8-2-10(B). The Grantee may appeal such determination to any court with jurisdiction within 30 days after receipt of the Village's decision.
(D)
Remedies not exclusive. In addition to the remedies set forth in this section, the Grantee acknowledges the Village's ability, pursuant to § 8-2-5(H) of this Franchise Agreement, to enforce the requirements and standards, and the penalties for noncompliance with such standards, consistent with the Illinois Cable and Video Customer Protection Law; and, pursuant to § 8-2-4(A) of this Franchise Agreement and § 8-1-5 of the Harristown Village Code, to enforce the Grantee's compliance with the Village's requirements regarding "Construction of Utility Facilities in the Rights-Of-Way." 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.
(A)
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. Noncompliance or default shall be corrected within a reasonable
amount of time after force majeure has ceased.
(B)
Notice.
(1)
Any notification that requires a response or action from a party
to this franchise within a specific time frame, or that would trigger
a time line 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:
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To the Village:
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To the Grantee:
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Village of Harristown
P.O. Box 200
Harristown, Illinois 62537
ATTN: President
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Comcast
1500 McConnor Parkway
Schaumburg, Illinois 60173
ATTN: Director of Government Affairs
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(2)
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.
(C)
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 § 8-2-3(D) and (E) 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.
(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.
(D)
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.
(E)
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.
(F)
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, Macon
County, Illinois. Any matter brought pursuant to the jurisdiction
of the federal court shall be brought in the United States District
Court of the Central District of Illinois.
(G)
Modification. Except as provided in § 8-2-6(A)(1) and (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.
(H)
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.
(I)
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.
(J)
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.
(K)
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.
