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HomeMy WebLinkAboutOrdinances - ORD-19-1969 - 06/17/2019 - Cable Franchise Agreement - ComcastCITY OF MCHENRY MCHENRY COUNTY STATE OF ILLINOIS ORDINANCE NUMBER ORD-19-1969 An Ordinance Authorizing Renewal and Execution of a Cable Television Franchise Agreement between the City of McHenry and Comcast Adopted by the Mayor and City Council Of the City of McHenry McHenry County State of Illinois June 17, 2019 Published in pamphlet form by authority of the Mayor and City Council of the City of McHenry, McHenry County, Illinois this ay of Jone 20190 ORDINANCE NO, ORD-194969 An Ordinance Authorizing Renewal and Execution of a Cable Television Franchise Agreement between the City of McHenry and Comcast WHEREAS, the City of McHenry, McHenry County, Illinois, is a home rule municipality as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as granted in the Constitution of the State of Illinois. WHEREAS, the City of McHenry (City) and Comcast of California/Colorado/Illinois/Indiana/ Michigan, LLC (Comcast), are parties to a franchise agreement that expires on June 30, 2019; and WHEREAS, the City has given notice to the public of a hearing on the Comcast proposal pursuant to 47 U.S.C. § 546, which notice was published in the Northwest Herald on June 2, 2019; and WHEREAS, the City has held such public hearing pursuant to Federal law and the City Council finds accepting the Comcast proposal is in the best interest of the City and its residents. NOW THEREFORE BE IT ORDAINED by the Mayor and City Council of the City of McHenry, McHenry County, Illinois as follows: SECTION 1: The Mayor is hereby authorized to execute the City's franchise agreement with Comcast attached hereto as Exhibit A. SECTION 2: If anysection, paragraph, subdivision, clause, sentence or provision ofthis Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the reminder thereof, which remainder shall remain and continue in full force and effect. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: This ordinance shall be in full force and effect from and after its passage, approval and publication, as provided by law. Passed and approved this 17th day of June, 2019, Ayes Nays Absent Abstain Alderwoman Baehne X Alderman Devine k Alderman Glab X Alderman Mihevc . k Alderman Miller k Alderman Santi k Alderman Schaefer X Wayne J� , ay r Monte Johnson, D uty Clerk STATE OF ILLINOIS COUNTY OF MCHENRY CERTIFICATION I, Monte Johnson, do hereby certify that I am the duly appointed, acting and qualified Deputy Clerk of the City of McHenry, McHenry County, Illinois, and that as such Deputy City Clerk, I am the keeper of the records and minutes and proceedings of the Mayor and Aldermen of said City of McHenry, I do hereby further certify that at a regular meeting of the Mayor and Aldermen of the City of McHenry, held on the 17"' day of June, 2019, the foregoing Ordinance entitled An Ordinance Authorizing Renewal and Execution of a Cable Television Franchise Agreement behneen the City of McHenry and Comcast was duly passed by the City Council of the City of McHenry. The pamphlet form of Ordinance NumUer OIZD-19-1969, including the Ordinance and a cover sheet thereof, was prepared, and a copy of such Ordinance was posted in the City Hall, cone fencing on the 18°i day of June, 2019, and will continue for at least 10 days thereafter. Copies of such Ordinance are also available for public inspection upon request in the office of the City Clerk. I do fiu•ther certify that the original, of which the attached is a true and correct copy, is entrusted to me as the Clerk of said City for safekeeping, and that I am the lawful custodian and keeper of the same. GIVEN under my hand and seal this 18°i day of June, 2019. Monte Johnson, Deputy City Clerk City of McHenry, McHenry Comity, Illinois (SEAL) I XHiBIT A CABLE TELEVISION FRANCHISE AGREEMENT BY AND BETWEEN THE CITY OF McHENRY, ILLINOIS AND COMCAST OF CALIFORNIA/COLORADO/IILLINOIS/ INDIANA/MICHGAN, LLC THIS FRANCHISE AGREEMENT (hereinafter, the "Agreement" or "Franchise Agreement") is made between the City of McHenry, Illinois (hereinafter, the "City"), an Illinois municipal corporation and Comcast of California/Colorado/Illinois/Indiana/Michigan, LP (hereinafter, "Grantee"), effective this 111 day of July, 2019 (the "Effective Date"). The City, 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 City, 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 underthe authority and shall be governed by the Cable Communications Policy Act of 1984, as amended from time to time, 47 U.S.C. Sections 521 et seq, (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. Article I -Franchise Herebv Granted a.The City hereby agrees to permit the Grantee to construct, operate and maintain a cable system in the City subject to the terms and provisions of the City's generally applicable ordinances governing the streets and rights of way of the City. b. The City hereby agrees that, provided the Grantee is in compliance with all generally applicable City codes and ordinances, this Franchise Agreement shall be effective for a period of five (5) years from and after the Effective Date. Article II- Operations within the Citv's Rights of Wav a. The Grantee hereby agrees to occupy the rights of way in accordance with the terms and provisions of Illinois State law and the City's generally applicable ordinances governing the streets and rights of way of the City including, but not limited to, the provisions of Chapter 21, of the McHenry Municipal Code governing streets and sidewalks, as currently in effect and as may be subsequently amended. EXHIBIT A b.The Grantee shall at all times maintain insurance and shall provide the City with certificates of insurance in accordance with the provisions of Chapter 21, of the McHenry Municipal Code. governing streets and sidewalks, as currently in effect and as may be subsequently amended. Said certificates of insurance shall name the City and its elected and appointed officers, officials, agents and employees as additional insureds. Article III -Franchise Fee a. The Grantee shall pay a franchise fee to the City for the privilege of operating in the City's rights of way in a manner consistent with the provisions of the Cable Communications Policy Act of 1984, as now in effect and as maybe subsequently amended from time to time. The franchise fee shall be 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 City, and shall be made on a quarterly basis, and shall be due forty- five (45) days afterthe close of each calendar quarter. If mailed, the Franchise Fee shall be considered paid on the date it is postmarked. The City hereby agrees that the total franchise fee, as interpreted under the Cable Act, shall not exceed the greater of the percentage of fees any othervideo service provider, under state authorization or otherwise, providing service in the Franchise Area pays to the City. b. As used in this agreement, gross revenue means the cable service revenue derived by the Grantee from the operation of the cable system in the City's Rights of Way to provide cable services, calculated in accordance with generally accepted accounting principles. Gross revenues shall also include such revenue sources from the provision of cable service as may now exist or hereafter develop from or in connection with the operation of the cable system within the City, provided that such revenues, fees, receipts, or charges may lawfully be included in the gross revenue base for purposes of computing the City's permissible franchise fee under the Cable Act, as may be amended from time to time. c. The City 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. d. In accordance with 65 ILCS 5/11-42-11.05 (k), the City shall provide on an annual basis, a complete list of addresses within the corporate limits of the City. 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. EXHIBIT A Article IV - Cable Communications Policy Act of 1984 Nothing in this Agreement shall be construed to limit, in any way, the Grantee's rights or responsibilities under the Cable Communication Policy Act of 1984, as amended and the renewal of this Agreement shall be governed by that Act. Article V -Public, Educational and Governmental Access PI oQrammine a. The Grantee shall provide capacity for the City's noncommercial public, educational and governmental access ("PEG") programming through one Channel (the "Channel") on the Grantee's Cable System. Unless otherwise agreed to by the City and the Grantee to the extent required by applicable law, the Channel may be carried on the Grantee's digital basic service tier. The City's PEG programming shall be provided consistent with Section 611 of the Cable Act, as amended from time to time. b.The Grantee does not relinquish its ownership of or ultimate right of control over a channel by designating it for PEG use. However, the PEG channel is, and shall be, operated by the City, and the City may at any time allocate or reallocate the usage of the PEG channel among and between different non- commercial uses and Users. c.At such time that the City 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 City facilities; or at such time that the City determines that it wants to change or upgrade a location from which PEG access programming is originated; the City will give the Grantee written notice detailing the point of origination and the capability sought by the City. The Grantee agrees to submit a cost estimate to implement the City's plan within a reasonable period of time. After an agreement to reimburse the Grantee for its expenditure, the Grantee will implement any necessary system changes within a reasonable period of time, d.Because the City and Grantee agree that a blank or underutilized Access Channel is not in the public interest, in the event the City 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 from the City upon no less than sixty (60) days' notice. The programming of the Access Channel with text messaging or playback of previously aired programming shall not constitute fallow time. Text messaging containing out of date or expired information for a period of thirty (30) days shall be considered fallow 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 fallow time. Fallow 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 an access Channel. Fallow time shall not include periods of time where programming cannot be viewed that are caused by technical difficulties, transition of EXHIBIT A broadcast media, signal testing, replacement or repair of equipment, or installation or relocation of facilities. Article VI -Customer Service Standards The City and Grantee acknowledge that the customer service standards and customer privacy protections are set forth in the Cable and Video Customer Protection Act (220 ILCS 5/22-501 et. seq.). Enforcement of such requirements and standards and the penalties for non-compliance with such standards shall be consistent with that Act. 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 City of McHenry, Illinois: By: Wayr)&Ofett, p ayor For Comcast of California/Colorado/Illinois/ Indiana/Michigan, LLC: