M.

MEMORANDUM
MEETING OF:
COMMITTEE:
DEPARTMENT:

February 9, 2016
Brookhaven City Council
City Council

ISSUE/AGENDA ITEM TITLE:

Consideration and Approval of Resolution of the City of Brookhaven Finding Comcast in
Default of Cable Television Franchise Agreement for Failure to Remit Franchise Fees in
Accordance with Cable Television Franchise Agreement
BACKGROUND/SUMMARY:

STAFF RECOMMENDATION:
ATTACHMENTS:

ComcastBrookhaven Resolution

(PDF)

Page 1
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CITY OF BROOKHAVEN, GEORGIA

RESOLUTION NO. ____

A RESOLUTION OF THE CITY OF BROOKHAVEN FINDING COMCAST IN

DEFAULT OF CABLE TELEVISION FRANCHISE AGREEMENT FOR
FAILURE TO REMIT FRANCHISE FEES IN ACCORDANCE WITH CABLE
TELEVISION FRANCHISE AGREEMENT
RECITALS:

1.

On or about April 21, 2015, the City of Brook.haven, Georgia ("City") entered into a
Cable Television Franchise Agreement ("Franchise") with Comcast of Georgia/Virginia,
Inc. ("Grantee").

2.

The effective date of the Franchise is December 17, 2012 ("Effective Date") which
coincides with the City's date of incorporation.

3.

Grantee has been providing cable services to City residents since the Effective Date.

4.

Section 4.4.1 of the Franchise requires that from the Effective Date of the Franchise
Grantee shall pay the City a five percent (5%) franchise fee based on the Gross Revenues
derived by Grantee from the operation of the Cable System to provide Cable Services
within the City.

5.

Section 4.1.2 requires Grantee to remit Franchise Fees to the City on a quarterly basis no
later than thirty (30) days after the last day of March, June, September and December;
provided, however, that all Franchise Fees accrued from January 1, 2013 through and
including March 31, 2015 (the "Back Fees") shall be paid within forty-five (45) days of
(i) the date the Franchise was executed and delivered by all parties hereto , and (ii) the
Grantee's receipt of a written acknowledgement by DeKalb County, Georgia, of the
addresses of those tax parcels situated within the borders of limits of the City (the "City
Addresses") , whichever is later.

6.

Grantee was notified in writing by the City in a letter dated November 30, 2015 (see
Exhibit A attached hereto and made part of this resolution) that: 1) the Franchise was
executed by both parties on April 21, 2015; and 2) the Director of the DeKalb County
911 Emergency Communications Center confirmed the addresses provided by Comcast
as being in the City. The City further requested "Back Fees" in the amount of
$981,976.05 to be paid by Comcast to the City no later than December 21, 2015.

7.

As of the date of this Resolution, Grantee has not responded to the City's letter nor
remitted payment of "Back Fees" as required by the Franchise for the period January 1,
2013 through March 31, 2015.

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Attachment: ComcastBrookhaven Resolution (2210 : Consideration and Approval of Resolution of the City of Brookhaven Finding Comcast in

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8.

Pursuant to Section 6 of the Franchise, if the City believes that the Grantee has not
complied with the terms of the Franchise, the City shall notify the Grantee of the nature
of the alleged noncompliance by issuing a "Violation Notice."

NOW, THEREFORE, the City of Brookhaven, Georgia hereby resolves as follows:

I.

The Franchise is in full force and effect, and Grantee is the lawful holder of the
Franchise.

2.

The recitals set forth above are hereby incorporated in their entirety.

3.

This resolution shall constitute a Violation Notice to Grantee for Grantee's failure to
comply with Section 4.1.2 of the Franchise. Specifically, the Grantee has failed to pay
the City Franchise Fees accrued from January 1, 2013 through and including March 31,
2015 (the "Back Fees").

4.

The total amount of the Back Fees due the City for the period January 1, 2013 through
March 31, 2015 is $981,976.05.

5.

City hereby reserves any and all rights it may have under the Franchise and applicable
law to seek monetary damages, penalties, interest and/or any other equitable remedy
against Grantee for said violation.

6.

City staff is hereby authorized to take whatever action may required under Section 6 of
the Franchise, and applicable law, to recover the Back Fees.

This Resolution shall take effect and continue and remain in effect from and after the date
of its passage, approval, and adoption.
A motion to approve the foregoing Resolution No.
was
made
by
Councilmember
and duly seconded by Councilmember ____

City
_

The following Councilrnembers voted in the affirmative:

The following Councilmembers voted in the negative:

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Attachment: ComcastBrookhaven Resolution (2210 : Consideration and Approval of Resolution of the City of Brookhaven Finding Comcast in

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Passed and adopted by the City of Brookhaven , Georgia this 9th day of February 2016.
ATTEST:

By :___

CITY OF BROOKHAVEN , GEORGIA

_ _____

By: ____

__________

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Attachment: ComcastBrookhaven Resolution (2210 : Consideration and Approval of Resolution of the City of Brookhaven Finding Comcast in

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'

Bro..okhaven
, --

(; r utt<. 1r...

November 30, 2015

VII\ E-l\'11\IL(
And U.S. MAIL
Mr. Andy Macke
Vice President, External Affa irs
Comcast Cable Communications
2925 Co urtya rds Drive
Norcross, GA 30071
Dear Mr. Macke:
Thank you for faci litat ing the recenl. franchise fee payment the City receiv ed for the period Ap ril I, 20 l 5
through September 30 , 2015. However, the purpose ofmy letter is to infonn you the City has not received
franchise fee payments for the period January l, 2013 through Marc h 31, 2015 in the amount of
$981,976.05 .

In accordance with Section 4 .1.2 of our franchise, this payment was to be made to the City within forty five ( 45) days of receipt of the executed franchise agreement and Comcast's receipt of written
acknowledgement from DeKalb County of the addresses located within the City. According to our records
bot h of these conditions have been met. The Franch ise was fully executed by both patties on April 21st of
this yea r and I have enclosed a copy of an ema il from Mr. Marshall Mooneyham, Director of the DeKalb
County 911 Emergency Communicati ons Cente r confirming the addresses provided by Co mcast as being
City of Brookhaven addresses . I trust this has met the condit ions contained in the Franch ise for Comcast to
rem it payment to the City in the amou nt of $98 L,976.05 as full compensation for franchise fees due the City
for cable serv ices from J anuaiy l , 2013 tluough March 3 l, 20 15.
Accord ingly, Ja m requesting payment to be remitted to the City no later than Monday, December 21, 2015.
If for any reason you are unable to comply with this request please respond to me in writi ng as soon as
possib le so that the City can address this matter as quickly as possible.
Thank you for your attention to this maiter.
Sincerely,

Marie L. Garrett
City Manager

Enc.

City of Brookhaven
4362 Peachtree Road, Brookhaven, GA 30319
Phone: 404-637 -0500 Fax: 404-637-0501

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Attachment: ComcastBrookhaven Resolution (2210 : Consideration and Approval of Resolution of the City of Brookhaven Finding Comcast in

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Attachment: ComcastBrookhaven Resolution (2210 : Consideration and Approval of Resolution of the City of Brookhaven Finding Comcast in

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Greg Fender
From:

Sent:
To:

Cc:
Subject:

Marie Garrett < marie.garrett@brookhavenga.gov>

Monday, November 09, 2015 1:53 PM
Greg Fender
Lou Comer
FW: Addressing

From Dekalb County- see email correspondence below.

Thank you
Marie L. Garrett
City Manager
4362 Peachtree Rd
Atlanta, GA 30319
404 -637-0500

From: Gary Yandura <gary.yandura@brookhavenga.gov >

Date: Wednesday, November 4, 2015 at 4:24 PM
To: Marie Garrett <mar ie.garrett@brookhavenga .gov>
Subject: Fwd: Addressing
Marie
Finally - let me know if you need anything further.
Gary
Chief Gary Yandura
Brookhaven Police Department
678-502-6990
Begin forwarded message:
From: "Mooneyham, Mar shall G." <mgmooney@dekalbcountyga .gov>
Date : November 4, 2015 at 4 :21:09 PM EST
To: Brandon Gurley <brandon.gur ley@brookhavenga.gov >
Cc: Gary Yandura <gary.yandura@brookhavenga.gov> , Juan Grullon <juan.grullon@brookhavenga .gov>,
"Conroy, James" <JWConroy@dekalbcountyga.gov>
Subject: RE:Addressing

Good Afternoon Sir,

We have reviewed the spreadsheet you sent over and we can confirm that these
are City of Brookhaven addresses in our system.
Thanks,
Marshall G. Mooneyham, Director
Emergency 911 Communications
1

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