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HomeMy WebLinkAboutOrdinances - ORD-09-1474 - 06/29/2009 - AUTHORIZE EXECUTION RENEWAL FRANCHISE AGREEMENT CODraft June 23, 2009 ORDINANCE NO.ORD-09-1474 An Ordinance Authorizing the Execution of a Revised Renewal of the City of McHenry Franchise Agreement with Comcast WHEREAS, the City of McHenry, as Illinois municipal corporation ("City") and Comcast of CaliiFomia/Colorado/Illinois/Indiana/Michigan, LP, the successor in interest and assignee of TCI of Illinois, Inc., ("Comcast") are parties to a franchise agreement that expired on March 2, 2009; and WHEREAS, the City and Comcast have negotiated a new franchise agreement governing their relationship, which agreement is acceptable to both parties; and WHEREAS, the City has given notice to the public of a hearing on Comcast's proposal pursuant to 47 U.S.C. § 546, which notice was published in the Northwest Herald on June 12, 2009; and WHEREAS, the City has held such public hearing pursuant to Federal law; and WHEREAS, the City Council finds that accepting Comcast's proposal is in the best interests 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 of Califomia/Colorado/Illinois/Indiana/Michigan, LP, attached hereto as Exhibit A. SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder 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 SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.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 upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Voting Aye: GLAB, MURGATROYD, WIMMER, PETERSON, CONDON Comcast, Page 1 Voting Nay: NONE Absent: SA'NTI, SCHAEFER Abstain: NONE Draft June 23, 2009 APPROVED: Mayor Susan E. Low (SEAL) ATTEST: \ CC1 Clerk �ni C. Jones Passed: J E 7 , 2004-`-- Approved: JUNE 29, 2009 Z: U"cHenryCityoffOrdinanceslComcastExtend.ord.doc Comcast, Page 2 CABLE TELEVISION FRANCHISE AGREEMENT BY AND BETWEEN COMCAST OF CALIFORNIA/COLORADO/ILLINOIS/INDIANA/MICHIGAN, LP, AND THE CITY OF McHENRY, ILLINOIS THIS FRANCHISE AGREEMENT (hereinafter, the "Agreement" or "Franchise Agreement") is made between the City of McHenry, Illinois (hereinafter, the "City"), an Illinois municipal co oration and Comcast of California/Colorado/Illinois/Indiana/ Michigan, LP (hereinafter, "Grantee"), this!day of a ne 2009 (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 under the 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, and the Illinois Municipal Code, as amended from time to time; provided that any provisions of the Illinois Municipal Code that are inconsistent with Cable Act shall be deemed to be preempted and superseded. Article I — Franchise Hereby 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 through June 30, 2014. Article II — Operations within the City's Riizhts of Way 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 21-89, et seq., of the McHenry Municipal Code governing Utilities In Right -Of -Way, as currently in effect and as may be subsequently amended. 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 21-89 et seq., of the McHenry Municipal Code governing Utilities In Right -Of -Way, 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 a i 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 may be 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 after the 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 Communications Policy Act of 1984, shall not exceed the greater of the percentage of fees any other video 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 Communications Policy Act of 1984, as may be amended from time to time. c. The City and Grantee agree that within 60 days of the Effective Date and in accordance with applicable privacy laws, they will exchange in electronic form their respective lists of addresses located within the boundaries of the City in order to ensure that all addresses in the City are included in the Grantee's database for the City. The parties agree to exchange said address lists upon written request, but not more than once annually, during the term of this Franchise Agreement. The City and Grantee agree to exercise good faith efforts to maintain the accuracy of their respective databases. The parties further agree except that in the case of gross negligence, no penalties or interest shall apply to any errors discovered as result of any exchanges of information hereunder. 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 Prosrammine 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 2 location from which PIEG 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 perriod of time. d. Because the City and Grantee agree that a blank or under utilized 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 broadcast media, signal testing, replacement or repair of equipment, or installation or relocation of facilities. 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 41-v-t Its P1A v C P - For Comcast of California/Colorado/ Illinois/ Indiana/Michigan, LP: Its: Cfer� � /CO 9`rr`f_'s