HomeMy WebLinkAboutORDINANCES-2001-107-O-0110/15/2001
107-0-01
AN ORDINANCE
Authorizing Cable Communications
System Franchise Between the City of
Evanston and AT&T Broadband
WHEREAS, the City of Evanston has granted AT&T Broadband, a non-exclusive
Franchise, to own, operate and maintain a Community Cable System within the City of
Evanston; and
WHEREAS, pursuant to Ordinance 82-0-00 said Cable Franchise was extended to
January 16, 2001 in order to allow negotiations for a Franchise renewal; and
WHEREAS, pursuant to Ordinance 135-0-00 said Cable Franchise was extended
• to July 16, 2001 in order to allow negotiations for a Franchise renewal; and
WHEREAS, pursuant to Ordinance 80-0-01 said Cable Franchise was extended to
January 16, 2002 in order to allow negotiations for a Franchise renewal; and
WHEREAS, the City of Evanston and AT&T Broadband have continued
negotiations for a new Franchise; and
WHEREAS, cable negotiations are now completed and the attached Cable
Franchise serves the best interests of the residents of Evanston; and
WHEREAS, the City of Evanston is a Home Rule Unit within the meaning of the
Illinois Constitution of 1970; and
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
0 EVANSTON, COOK COUNTY, ILLINOIS:
0
A
107-0-01
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SECTION 1: That the City Manager is hereby authorized and directed to execute,
attest, and deliver Exhibit A, Cable Communications System Franchise Between the
City of Evanston and AT&T Broadband.
SECTION 2: That all ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: That this ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
Introduced: 1 Et 44 ZZ , 2001
Adopted: 2001
ATTEST:
R C erk
,roved as t form:
Corpo tion Counsel
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Approved:
I
2001
Mayor
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ORDINANCE OF THE EVANSTON, ILLINOIS, CITY COUNCIL
GRANTING A CABLE COMMUNICATIONS SYSTEM FRANCHISE
TO AT & T BROADBAND
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TABLE OF CONTENTS
SECTION 1.
GRANT OF FRANCHISE
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SECTION 2.
SHORT TITLE AND DEFINITIONS
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SECTION 3.
FRANCHISE -LIMITATIONS
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SECTION 4.
NON-EXCLUSIVE FRANCHISE
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SECTION 5.
NO WAIVER
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SECTION 6.
AMENDMENTS TO FRANCHISE AGREEMENT
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SECTION 7.
CUSTOMER PROTECTION
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SECTION 8.
SYSTEM FACILITIES, EQUIPMENT, SERVICES
AND CONSTRUCTION SCHEDULES
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SECTION 9.
CONSTRUCTION STANDARDS
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SECTION 10.
RATE REGULATION
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SECTION 11.
FRANCHISE FEES
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SECTION 12.
INSURANCE
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SECTION 13.
PERFORMANCE BOND
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SECTION 14.
LETTER OF CREDIT
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SECTION 15.
QUALIFICATIONS OF INSURANCE COMPANIES,
BOND COMPANIES AND ENITIES ISSUING THE
LETTER OF CREDIT
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SECTION 16.
INDEMNIFICATION
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SECTION 17.
FRANCHISE VIOLATION NOTICE AND PROCEDURES
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SECTION 18.
REVOCATION
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SECTION 19.
REMEDIES - LIQUIDATED DAMAGES
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SECTION 20.
REMEDIES - CUMULATIVE
SECTION 21.
REMEDIES - CONTINUITY OF SERVICE
SECTION 22.
BOOKS AND RECORDS - INSPECTION
SECTION 23.
REPORTS AND RESPONSES TO QUESTIONS
SECTION 24.
BOOKS AND RECORDS - MAINTENANCE
SECTION 25.
INSPECTION OF PLANT
SECTION 26.
PERFORMANCE MONITORING
SECTION 27.
TRANSFER
SECTION 28.
RENEWAL
SECTION 29.
MISCELLANEOUS
EXHIBIT A. EVANSTON CUSTOMER SERVICE STANDARDS
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ORDINANCE OF THE EVANSTON, ILLINOIS CITY COUNCIL GRANTING A CABLE
COMMUNICATIONS SYSTEM FRANCHISE TO MEDIAONE ACQUISITIONS OF
NORTHERN ILLINOIS, INC.
NOW THEREFORE, be it ordained by the City Council of the City of Evanston, Illinois,
as follows:
SECTION 1. GRANT OF FRANCHISE
1.1 Grant. The City of Evanston, Illinois (hereinafter called the "City") enters into this
agreement with MediaOne Acquisitions of Northern Illinois, Inc., providing services as
AT&T Broadband (hereinafter "Grantee") for the provision of cable communication
service within its boundaries for the benefit of its residents and to promote the public
interest. The City hereby grants to Grantee a non-exclusive Franchise to engage in the
business of operating and providing a cable system in the City of Evanston, and for that
purpose -to use the streets and public ways to install, construct, repair, reconstruct,
maintain and retain in, on, over, under, upon, across and along any street or highway,
such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers,
appliances, attachments, and other property as may be necessary and appurtenant to is
said cable communication system.
1.2 Term. The Franchise granted hereby shall expire ten (10) years after its effective
date.
1.3 Effective Date. This Franchise shall take effect and be in force from and after the
passage of said ordinance granting the franchise as provided by law and the written
acceptance by the Grantee.
1.4 Franchise Area. The Franchise area for which this Franchise is granted consists of
all areas located within the City limits.
1.5 Effect of Acceptance. By accepting the Franchise, the Grantee:
A. Acknowledges and accepts the City's legal right to issue and enforce the
Franchise;
B. Agrees that it will not oppose intervention by the City in any proceeding
affecting the enforcement of its rights under this franchise; 0
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C. Accepts'and agrees to each and every provision contained herein;
D. Agrees that the Franchise was granted pursuant to processes and
procedures consistent with applicable law, and agrees that it will not raise any
claim or defense to the contrary;
E. Acknowledges that it has not been induced to enter into the Grant by any
understanding, or promise or other statement not expressed herein, whether oral
or written, concerning any term or condition of the Grant regardless of whether
such statement was made by or on behalf of the City;
F. Expressly acknowledges that upon accepting the Grant, it did so relying upon
its own investigation and understanding of the power and authority of the City in
connection with this Agreement;
G. Agrees that it will not at any time allege in any claim or proceeding by the
Grantee against the City that at the time of acceptance of the Agreement by the
Grantee, any provision, condition or term of this Agreement was unreasonable or
arbitrary or void or that the City had no power or authority to make or enforce any
such provision, condition or term;
is H. Hereby agrees rees to indemnify and hold harmless the City, its officers, boards
and commissions, agents and employees from all damages, claims, awards or
judgments against said City arising out of the granting of this franchise except to
the extent those damages, claims, awards and judgments arise from the
negligence of the City, its officers, boards and commissions, agents and
employees.; and
1. Further acknowledges by acceptance of the Grant, that it has carefully read
the terms and conditions of this Agreement.
1.6 RiQhts Reserved. The City reserves its rights under its lawful police powers, and
nothing in this Franchise shall be read to limit those rights. The City, among other
things, does not waive requirements of various codes, ordinances, and resolutions,
including zoning codes and codes regarding building permits and fees, or time or
manner of construction. Any fees or charges paid, so long as generally applicable to
entities, including but not limited to, like users of the public right-of-way and not
discriminatory, shall be paid in addition to the Franchise fee required under this
Franchise.
1.7 Grantee Compliance. The Grantee agrees to be bound by all the terms, conditions,
and provisions of this Evanston Cable Franchise Ordinance as well as all applicable
Federal, State and Local1aws- and regulations...
1.8 Legal Qualifications. The Grantee affirms that it meets all the legal qualifications
set forth in 47 U.S.C. § 533.
SECTION 2. SHORT TITLE AND DEFINITIONS
2.1 This Franchise Agreement shall be known and be cited as the "Evanston & AT&T
Broadband Franchise Agreement." The following terms, phrases, words and their
derivations have the meaning given herein.
"Access" means the availability of the cable system for use by various agencies,
institutions, organizations, groups and individuals in the community, including the City
and its designees of the cable system to acquire, create and distribute non-commercial
programming not under the Grantee's editorial control, including:
A. "Public Access" means access where organizations, groups, or individual
members of the general public, on a non- discriminatory basis, are the primary or is
designated programmers or users having editorial control over their
programming;
B. "Educational Access" means access where schools are the primary or
designated programmers or users having editorial control over their
programming;
C. "Governmental Access" means access where governmental institutions or
their designees are the primary or designated programmers or users having
editorial control over their programming; and
D. "PEG Access" means public access, educational access, and governmental
access, collectively.
"Affiliate" when used in relation to any entity shall mean another person, firm,
corporation, partnership, or other entity that owns or controls, is owned or controlled by,
or is under common ownership or control with such entity.
"Basic Service" means any service Tier regularly provided to all subscribers which
includes the retransmission of local television broadcast signals and PEG access ,
channels, or such other definition as may be adopted by federal law.
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"Cable Act" shall refer to the Cable Communications Policy Act of 1984, 47 U.S. §
521 et seq., as amended by the Cable Television Consumer Protection and Competition
Act of 1992, as amended by The Telecommunications Act of 1996, as it may be further
amended during the term of the Franchise.
"Cable Service" means (1) the one-way transmission to Subscribers of video
programming or other programming services; and (2) Subscriber interaction, if any,
which is required for the selection or use of such video programming or other
programming service.
"Cable System" or "Cable Communication System" or "Cable Telecommunications
System" means a facility, 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 a community, but such term does not include (A) a facility
that serves only to retransmit the television signals of one or more television broadcast
stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a
facility of a common carrier which is subject, in whole or in part, to the provisions of Title
11 of the Communications Act of 1934, except that such facility shall be considered a
Cable System if such facility is used in the transmission of video programming, whether
on a common carrier or non -common carrier basis, directly to customers unless the
extent of such use is solely to provide interactive on- demand services, (D) an open
Video system that complies with section 653 of this title; or (E) any facilities of any
electric utility used solely for operating its electric utility systems.
"Channel" is a band of frequencies, in electromagnetic spectrum capable of carrying
either one audio-visual television signal and a few non -video signals, or a large number
of non -video signals.
"City" or "Evanston" means the City of Evanston, a municipal corporation of the State of
Illinois, in its present incorporated form or in any later recognized, consolidated,
enlarged, or reincorporated form and, or the City Manager who may be designated by
the Corporate Authorities to administer or enforce parts of this Agreement.
"Construction" means any new construction, reconstruction, rebuild, or upgrade of the
system pursuant to this agreement.
"Corporate Authorities" means the City Council of the City of Evanston, Cook County,
• Illinois.
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"Document" .or "Record" means those materials normal) generated, used and retained
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in'the operation and management of a cable system, in whatever form stored, including
but not limited to computerized records and programs, paper records, and. video or
audio -taped records.
"FCC" means the Federal Communications Commission, established by the
Communications Act of 1934, as amended, and shall include any successor agency or
other agency with respect to the federal regulation and licensing in connection with the
subject matter of this Agreement.
"Feeder Line" means the intermediate cable distribution lines that connect the main
trunk line to the smaller drop lines that lead into residences, businesses or other
institutions receiving Cable services.
"Franchise" means the non-exclusive authorization granted pursuant to this Evanston
Cable Franchising Ordinance by the City to the Grantee to construct, rebuild, maintain,
and operate a cable system under, on, and over streets within all or specified areas of
the City. The terms and conditions of this franchise agreement between the Grantee
and the City, including attachments, collectively constitute the Franchise. The term
Franchise does not include any other license, permit, or agreement that may be •
required for the privilege of transacting and carrying on a business within the City or for
disturbing the surface of any street.
"Franchise Agreement" shall refer to this contract between the City and the Grantee.
"Franchise Area" means the geographic area for which a Franchise is issued. The
franchise area may be specified to authorize provision of service not only in areas within
the existing City limits, but also in other areas, as those areas are annexed in the future.
"Grantee" means MediaOne Acquisitions of Northern Illinois, Inc., an Illinois corporation,
and its lawful and permitted successors, assigns and transferees.
"Gross Revenues" means and includes all revenue received by a Grantee derived from
and in connection with the operation of the Grantee's Cable System to provide Cable
Service within the City, including but not limited to revenues, fees, receipts or charges
from or for: Basic Tier Cable Service; any tier of video programming service other than
Basic Service; any optional, premium, per -channel or per program service; any
Installation, disconnection, re -connection, change -in-service or other customer service;
rentals of Converters, remotes or other customer premises equipment; provision of data
services such as Internet services carried over the Cable System which are Cable
Services as defined by Title VI of the Act; commercial leased channels or channel
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access; advertising revenues (including infomercials), including a per Subscriber share
of'revenues for Grantee's Subscribers within the City which is received for advertising
carried on one or more Cable Systems in addition to the Grantee's Cable System within
the City; revenues from home shopping channels; the sales of programming guides,
and such other revenue sources from the provision of Cable Service as may now exist
or hereafter develop, provided that such revenues, fees, receipts or charges may
lawfully be included in the gross revenue. The City's cable television franchise fee shall
be included in gross annual receipts if allowed by applicable law. Gross Revenues shall
not include any amounts refunded to Subscribers, any unpaid Subscriber or advertiser
accounts and any sales tax, telecommunications tax, utility message tax or other taxes
imposed directly upon any Subscriber or user by the City, the State or other
governmental unit and collected by the Grantee on behalf of and for remittance to the
City, the State or other governmental unit or PEG capital support recovered from
subscribers. As used herein, Annual Gross Revenues shall mean Gross Revenues
attributable to a twelve (12) month accounting period, or portion thereof. This definition
of Gross Revenues shall be the basis for computing the fee imposed pursuant to
Section 11 hereof.
"Institutional Network" means a communications system, whether physically integrated
with a cable system or not, that is constructed, operated or maintained by the
• franchisee, whose transmissions are principally available to persons other than cable
subscribers (i.e. government agencies and educational institution).
"Interconnect" or "Interconnection" means the provision by a Grantee of the technical
and engineering components to maintain a linking of Grantee's cable system with any
other designated cable system or entity outside the City.
"Person" means any individual, sole proprietorship, partnership, association,
corporation, or other form of organization authorized to do business in the State of
Illinois, and includes any natural person or any other legally recognized entity.
"Programmer" means any person responsible for programming on the cable system,
including, without limitation, any person who produces or otherwise provides
programming material for transmission on the cable system.
"Programming" means the process of causing television programs or other patterns of
signals in video, voice, or data formats to be transmitted on the cable system, and
includes all programs or patterns of signals transmitted or capable of being transmitted
on the cable system.
• "Public Property" is any real property owned by the City that is not otherwise defined
herein as a street.
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"Public Way" means the surface, the air space above the surface, and the area below •
the surface of any public street, highway, land, path, alley, sidewalk, boulevard, drive,
bridge, tunnel, parkways, waterways, utility easements or other public right-of-way or
hereafter held by the City which shall entitle the City and the Grantee to the use thereof
for the purpose of installing and maintaining the Grantee cable television system. No
reference herein, or in any franchise, to the "public way" shall be deemed to be a
representation or guarantee by the City that its title to any property is sufficient to permit
its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to
gain only such rights to use property in the City as the City may have the right and
power to give.
"School" means any accredited grade K through grade 12 school, college, or university.
"Service Tier" means a category of cable service provided by Grantee and for which a
separate charge is made by Grantee.
"Street" shall mean the surface of and the space above and below any street, road,
highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, right of way,
easement, or other public way, now or hereafter existing within the City.
"Subscriber" means any person who is lawfully receiving, for any purpose or reason, •
any cable service or services provided by the Grantee by means of or in connection with
the cable system, whether or not a fee is paid for such service.
"Transfer" means that the ownership or control of forty percent (40%) or more of the
right of control of the grantee is acquired during the term of the franchise in any
transaction or series of transactions by a person or group of persons acting in concert,
none of whom owned or controlled forty percent (40%) or more of such right to control,
singularly or collectively on the effective date of the franchise whether by sale, lease,
assignment, consolidation, merger, or any other disposition of the Franchise, or any
change in the ownership or control of any person which owns, controls, or manages the
Grantee directly or through one or more intervening partnerships or corporations except
that any such transaction to one or more purchasers, assignees, or transferees
controlled by, controlling, or under common control with the seller, assignor or transferor
shall not constitute a transfer.
"Trunk Line" means the major distribution cable used in cable communications which
divides into feeder lines which are tapped for service to subscribers.
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"User" means a person or organization utilizing a system channel or system equipment
and facilities for purpose of production and/or transmission of material, as contrasted
with receipt thereof -in a subscriber capacity.
2.2 When not inconsistent with the context, words used in the present tense include the
future, words in the plural number include the singular number, and words in the
singular number include the plural number. The words "shall' and "will' are mandatory
and "may" is permissive. Words not defined herein shall be given the meaning set forth
in the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. as amended,
and, if not defined therein, shall be given their common and ordinary meaning.
SECTION 3. FRANCHISE LIMITATIONS
3.1 The Franchise does not confer any right, privilege or exemption other than as
provided by this franchise agreement, or as provided by federal or state law.
3.2 The Franchise does not authorize the use of private property without owner consent
except as provided by applicable federal, state or local law.
• 3.3 There is hereby reserved to the City every right and power which is reserved or
provided by any ordinance of the City.
3.4 Any right or power in, or duly impressed upon, any officer, employee, department,
or board of the City shall be subject to transfer by the City to any other officer,
employee, department, or board of the City. The City Council may delegate its authority
as permitted by state law.
3.5 The Grantee shall have no recourse against the City for any loss, cost, expense, or
damage arising out of any provision or requirement of this Franchise or because of its
lawful enforcement or non -enforcement
3.6 The Grantee shall at all times be subject to the exercise of the police power of the
City, and its other lawful authority.
SECTION 4. NON-EXCLUSIVE FRANCHISE
4.1 The Franchise and the right it grants to use and occupy the public right of way shall
• not be exclusive and does not explicitly or implicitly preclude the issuance of other
franchises to operate cable systems or other communications systems within the City.
after the effective date of this Franchise the City rants a •
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franchise to_ another person or persons to use and occupy the public right of way for the
purpose of operating a cable system or other communications system, said grantee
shall be required to provide all the payments, facilities, equipment and services required
herein.
SECTIONS. NO WAIVER
5.1 The failure of the City, upon one or more occasions, to exercise a right or to require
compliance or performance under this franchise agreement or any other applicable law
shall not be deemed to constitute a waiver of such right or a waiver of compliance or
performance, unless such right has been specifically waived in writing.
5.2 Waiver of a breach of this franchise agreement is not a waiver of any similar or
different breach.
SECTION 6. AMENDMENTS TO FRANCHISE AGREEMENT
The City and the Grantee may amend any provision of this franchise agreement by •
executing a written amendment mutually agreeable to the parties.
SECTION 7. CUSTOMER PROTECTION
7.1 Customer Protection. Exhibit A is incorporated into this franchise agreement by
reference, and the Grantee agrees that it shall abide by the terms and conditions
therein, or be subject to the remedies set forth in Section 19 of this Agreement. The
Grantee shall adhere to all applicable FCC regulations relating to customer service
obligations, and agrees not to contest any decision by the City to enforce the FCC
standards. Nothing in this Section shall be interpreted to limit the City's right to adopt
other consumer/ customer protection laws.
7.2 Privacv. The Grantee shall construct, install, maintain and operate its cable
television system so as to protect the privacy rights of each subscriber and user in
accordance with Section 551 of the 1984 Cable Act as amended and the FCC rules and
regulations promulgated thereunder.
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7.3 Maintenance and Comolaints.
A. The Grantee shall render efficient service, make repairs promptly, and
interrupt service only for good cause and for the shortest time possible.
B. Written complaints concerning billing, employee courtesy, programming,
safety, or the Grantee's operational policies, as well as all other written
complaints, including complaints about outages, signal quality, and service
disruptions, shall be maintained. The Grantee will maintain records of complaints
for a period of two years. Copies of any complaint and associated records shall
be provided to the City on request provided that the subscriber has authorized in
writing the release of said records to the City.
C. The Grantee shall maintain a repair force of technicians sufficient to respond
promptly, under normal operating conditions, to subscriber complaints, loss of
service, or requests for service. The Grantee shall have in place at all times the
equipment necessary to locate and correct cable system malfunctions.
D. All subscribers and members of the general public in the City
may direct complaints and inquiries regarding the Grantee's service or
performance to the City. Upon the request of a complaining party or the Grantee,
the City may facilitate a resolution of the complaint or dispute.
E. In the event a complaint or dispute directed to it is determined by the City to
be a potential violation of this franchise agreement, and after written notification
to the Grantee of that determination, the City may exercise any of its other rights
and remedies under the Franchise.
7.4 Non-discrimination and Equal Employment Opportunity.
A. Throughout the term of this Franchise, the Grantee shall fully comply with the
equal employment opportunity requirements of the applicable federal, state, and
local law (Title 1, Chapter 12 of the City Code) and, in particular, FCC rules and
regulations relating thereto. Upon request by the City, the Grantee shall furnish
the City a copy of the Grantee's annual statistical report filed with the FCC, -
along with proof of the Grantee's annual certification of compliance. The Grantee
shall immediately notify the City in the event the Grantee is at any time
determined by the FCC not to be in compliance with said FCC rules or
regulations. In order to implement its equal employment opportunity policy, the
Grantee shall establish, maintain and execute a positive, continuing program of
• specific practices designed to assure equal opportunity in every aspect of cable
system employment policy and practice. In addition, the Grantee shall evidence a
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commitment to the participation of minority and female enterprises in the award
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of contracts in connection with the construction and operation of its cable
systems. The Grantee shall actively seek out minority and female enterprises to
provide services to the cable system including, but not limited to marketing,
sales, program production, and materials and supplies used in the construction
and operation of its cable systems.
B. The Grantee shall not, in its rates or charges, or in the availability of the
services or facilities of its cable system, or in any other respect, make or grant
undue preferences or advantages to any subscriber, potential subscriber, or
group of subscribers or potential subscribers, nor shall the Grantee subject any
such persons of group of persons to any undue prejudice or any disadvantage;
provided, however, the Grantee may offer promotional discounts in order to
attract or maintain subscribers provided that such discounts are offered on a non-
discriminatory basis to similar classes or types of subscribers throughout the
City. The Grantee shall not deny, delay, or otherwise burden service or
discriminate against subscribers within its franchise area on the basis of age,
race, creed, religion, color, sex, national origin, marital status, sexual orientation,
physical or mental disability, or political affiliation. This section shall not prohibit
the Grantee from publishing different rates for different classes of subscribers, so
long as the rates are identical for every subscriber in each class.
C. The Grantee shall ensure that its services are accessible, as far as
reasonably practical, to people with disabilities. All programming received by the
Grantee with closed -captioning shall be retransmitted by the cable system
including the closed -caption signal.
7.5 Parental Control Device/Capability.
Upon request, the Grantee shall provide a converter with parental control capability to
any subscriber.
SECTION 8. SYSTEM FACILITIES, EQUIPMENT, SERVICES AND CONSTRUCTION
SCHEDULES
8.1 Subscriber Network.
A. The Grantee shall construct its cable system using equipment of high quality
and reliability to serve all subscribers. •
B. The Grantee shall install and activate the return portion of the cable system.
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C. The Grantee shall install equipment so that the headend is capable of
providing at least 100 video signals.
D. The System shall have the capacity for audio services.
E. The Grantee shall use equipment generally used in high -quality, reliable,
modern cable systems of similar design, including but not limited to back-up
power supplies capable of providing eight (8) hours of power to the headend and
four (4) hours of power to the cable system plant in the event of an electrical
outage.
8.2 Institutional Network.
A. The Grantee shall provide an Institutional Network. The I -Net shall have bi-
directional bandwidth capacity of at least 450 MHz. The Grantee shall install,
operate and maintain its cable system, headend, and network components
outside the public buildings necessary to provide the activated path between the
transmitting and receiving locations. The users of the I -Net shall be responsible
for the installation, operation and maintenance of terminal and interface
equipment within the users buildings, except as otherwise provided in this
Section 8.2.
B. The Grantee shall install, retain, replace as necessary, and maintain, a bi-
directional link between the access center and the feed point to the subscriber
network by means of the I -Net.
C. The use of bandwidth on the I -Net between upstream and downstream
transmissions shall be determined by the Grantee with input from the City and is
subject to the approval of the City.
D. Any capacity on the I -Net not assigned to institutional network users may be
utilized by the Grantee until such time that its use is required by the City or its
designee, or an educational institution.
E. The frequencies used for any upstream transmission on the I -Net system
must be approved in advance by the Grantee. The Grantee shall be responsible
for installing, testing, and activating the aforementioned equipment at all
designated locations.
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F. The Grantee shall. provide, maintain and service the I -Net to enable two-wa •
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communications among, all municipal buildings designated by the City; to all
library facilities, and to all public and private elementary, secondary buildings,
and college level (one connection to each college level educational institution )
schools located within the City upon request based upon a specific use. The City
may direct the Grantee to do such additional installations and the Grantee shall
provide such connections and shall make such connection at the location
designated by the specific institution or City upon request based upon a specific
use.
8.3 Emeraencv Override. The Grantee shall provide, service and maintain public
emergency transmission facilities to the City without charge. Such facilities shall permit
immediate transmission over designated cable channels, including capacity for audio
interruptions on all channels. The audio portion shall be operable from remote locations.
The City agrees to indemnify and hold the Grantee harmless from any damages or
penalties arising out of the negligence of the City, its employees or agents in using such
service.
8.4 Interconnection. The Grantee shall take all necessary technical and construction
steps to maintain and operate any existing interconnection that is operational on the •
effective date of this Franchise. Such interconnection shall take place between the City
and the following communities which are adjacent to the City including Skokie for
District 65 Schools and Wilmette. This interconnection shall be made by the technical
means most efficient for the cable companies involved. The Grantee shall cooperate
with the City in utilizing available interconnect capacity to assist with potential video and
data communication applications by local and state public and non-profit organizations
including forward and reverse applications.
8.5 Svstem Desion Review Process.
A. At least forty-five (45) days prior to the date construction of any upgrade or
rebuild is scheduled to commence, the Grantee shall provide a detailed cable
system design and construction plan, at a location designated by the City, which
shall include at least the following elements:
1. Trunk and feeder design; including location of hubs or nodes and
power supplies.
2. Plans for standby power at headend, hubs/nodes, and satellite
terminals. •
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3. Map providing a clear representation of the geographic areas within the
City which are included in the construction plan.
4. Design maps and trunk tree maps for the cable system. The cable
system design will be shown on maps of industry standard scale using
standard symbols, and shall depict all electronic and physical features of
the cable plant.
B. The City may review the design and construction plans to be submitted to the
City by the Grantee to assure that such comply with Section 8.1 of this Franchise
and with the construction standards delineated in Section 9 of this agreement.
The City shall have thirty (30) days from the date the Grantee submits to the City
the design and construction plans and fifteen (15) working days from the
submission of design maps and trunk tree maps to review and submit comments
on the plans. The Grantee must submit a written response to the comments
including an amended plan, if appropriate, within ten (10) days of the date it
receives the City's comments
• 8.6 Initial and Continuing Tests. The Grantee shall perform all tests necessary to
demonstrate compliance with the requirements of the franchise and other performance
standards established by law or regulation. All tests shall be conducted in accordance
with federal rules and in accordance with the most recent edition of NCTA
"Recommended Practices for Measurements on Cable Television Systems." The
Grantee shall perform at least the following tests:
A. Pre -construction auality control on cable and equipment. The Grantee shall
employ accepted industry procedures to assure the selection of quality system
components. No components shall be used that fail to meet manufacturer's
specifications. The Grantee shall perform quality tests on the existing system
components that will be reused in the system rebuild, including trunk, distribution,
and drop cable, and any passive devices, such as taps and directional couplers,
to ensure that each is fully functional and capable of meeting required standards.
B. Continuina Tests. If there are recurring problems or complaints the City may
require reasonable tests, including partial repeat tests, different test procedures,
or tests involving a specific subscriber's terminal, at the Grantee's expense to the
extent such tests may be performed by the Grantee's employees utilizing its
existing facilities and equipment. The City may require the Grantee to prepare a
. report to the City on the results of those tests, including a report identifying any
problem found and steps taken to correct the problem. The City will endeavor to
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arrange its request for such special tests so as to minimize hardship or
inconvenience to Grantee or to the subscriber.
8.7 Inspections durina Construction. The City may at its own expense conduct
inspections of construction areas and subscriber installations, to assure compliance with
applicable laws, codes and requirements of this Franchise. Any testing of the system
necessary to accomplish such inspections shall only be performed in the presence of an
authorized employee of the Grantee and only after reasonable advance notice to the
Grantee. The Grantee shall be notified in writing of any violations found during the
course of inspections. The Grantee must bring violations into compliance on or before
the date reasonably determined by the City to be appropriate for the violation in
question, and submit a report to the City describing the steps taken to bring itself into
compliance. Inspection does not relieve the Grantee of its obligation to build in
compliance with all provisions of the Franchise.
8.8 Other Construction Procedures. The Grantee:
A. Shall follow a cable system design and construction plan consistent with its
obligations under this Franchise, except for such minor modifications as are
typical in the industry; •
B. Shall use equipment of good and durable quality;
C. Shall provide a monthly construction report to the City in a form reasonably
acceptable to the City during any upgrade or rebuild;
D. Shall maintain a file showing its plan and timetable for construction of the
cable system (the Grantee shall notify residents in any construction area at least
one day in advance before first entering onto property to perform any work in
conjunction with cable system construction, and shall additionally notify affected
residents in advance of any work which will involve excavation, replacement of
poles, or tree trimming of branches of over two (2) inches in diameter);
E. Shall make available as -built and design maps for the City's review after the
completion of system construction in any geographic area at the Grantee's office
in the metropolitan Chicago area;
F. Shall make all new installations underground in those areas of the City where
public utilities providing both telephone and electric service are underground at
the time of installation. In areas where either telephone or electric utility facilities •
are above ground at the time of installation, the Grantee may install its service
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aboveground, provided that at such time as those facilities are required to be
placed underground by the City or are placed underground, the'Grantee shall
likewise place its services underground without additional cost to the City or to
the individual subscriber so served with the City, except that to the extent other
parties relocating their lines are reimbursed by the City or a third party the
Grantee shall be reimbursed for its relocation expenses. Where not otherwise
required to be placed underground by this Agreement, the Grantee's system shall
be located underground at the request of the property owner, provided that the
excess cost over aerial location shall be borne by the property owner making the
request. All new cable passing under the roadway shall be installed in conduit;
and,
G. Shall, in case of any disturbance of pavement, sidewalk, driveway or other
surfacing, the Grantee at its own cost and expense and in a manner approved by
the City, replace and restore all paving, sidewalk, driveway, landscaping, or
surface of any street or alley disturbed, in as good condition as before said work
was commenced and in a good workmanlike, timely manner in accordance with
standards and policies for such work set by the City.
• 8.9 System Maintenance & Svstem Performance.
A. Interruptions to be Minimized. The Grantee shall schedule planned
maintenance whenever possible so that activities likely to result in an interruption
of service are performed during periods of low subscriber use of the cable
system. The Grantee shall make best efforts to give notice prior to such
interruptions to the subscribers via the system except for emergency repairs,
which shall be done as soon as possible. The Grantee shall make best efforts to
minimize interruptions of service consistent with reasonable and customary
construction practices. Grantee shall not allow its cable or other operations to
interfere with the broadcast television reception of persons not served by the
Grantee.
B. Maintenance Practices. In addition to its other obligations, the Grantee shall
(a) use replacement components of good and durable quality, with characteristics
better or equal to replaced equipment; and, (b) follow its corporate maintenance
standards.
C. Efficient Service. The Grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest time
possible.
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8.10 Svstem Extension.
A. The Grantee shall build its cable system so that it is able to provide service to
all areas located within the City limits.
B. Line Extension Reauirements. Within the City boundaries as they existed on
January 1, 2000, the Grantee must extend service upon request to any
residential dwelling unit for no charge other than the then -prevailing normal
installation charge and/or the long drop charge as described in Section 8.10 C,
unless the Grantee demonstrates to the City's satisfaction that extraordinary
circumstances justify a waiver of this requirement. .
C. Subscriber Drops. The Grantee shall not assess any additional cost for
residential dwelling unit service drops of one hundred twenty-five (125) feet or
less unless the Grantee demonstrates to the City's satisfaction that extraordinary
circumstances justify a higher charge. Where a drop exceeds one hundred
twenty-five (125) feet in length, the Grantee may charge the subscriber for the
difference between the Grantee's actual costs associated with installing a one
hundred twenty-five (125) foot drop and the Grantee's actual cost of installing the
longer drop. •
D. Subscriber Option. In any area where the Grantee would be entitled to install
a drop above -ground, the Grantee, if requested will provide the subscriber the
option to have the drop installed underground, but may charge the subscriber the
difference between the actual cost of the above -ground installation and the actual
cost of the underground installation.
E. Time for Extension. After acquiring an easement, if necessary the Grantee
must install service to any residential dwelling unit located within 125 feet of
existing plant within seven (7) days of the request (weather and ground
conditions permitting).
F. Municipal and School Drops. Notwithstanding the foregoing, the Grantee
shall, upon request of the City, install one drop at no charge to any grade K
through grade 12 school building, City building or each college level educational
institution. Only one drop will be provided, free of charge, to each college level
educational institution. The City or a grade K through grade 12 school may for no
additional charge by the Grantee install their own facilities and equipment to
transmit the signal to additional non-residential rooms within a building if they
assume responsibility for the signal quality to said additional rooms. is
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8.11 Public. Educational and Governmental Use.
A. PEG Access Channel Capacity. The Grantee shall provide four (4)
downstream channels for non-commercial PEG access programming.
B. Requirements Reqardinq Rules and Procedures for Use of PEG Access,
Channels.
1. The City may designate a non-profit access management corporation
(hereafter "Access Corporation"), to manage the use of the PEG access
channels under the Franchise. The City shall be responsible for
establishing and enforcing rules for use of the PEG access channels
during any period such Access Corporation does not exist.
2. The Access Corporation shall establish and enforce rules for the non-
commercial use of the PEG access channels (a) to assure non-
discriminatory access to the channels to similarly situated users; and,
(b) to promote use and viewership of the channels, consistent with the
obligation to provide non- discriminatory access to similarly situated users.
•
3. The Grantee may not exercise any editorial control over the content of
programming on the designated PEG access channels except as provided
in Federal law.
4. The four (4) PEG access channels shall be available on a non-
discriminatory basis for non-commercial programming at no charge to the
Access Corporation.
C. PEG Capital Pavments For Equipment and Facilities. The Grantee shall add
an external charge of thirty-five cents ($0.35) per month on each direct pay
subscriber's bill for basic service for additional PEG access capital pursuant to 47
U. S. C. 542(g)(2)(C) of the Cable Act as long as the City documents the
availability of sufficient PEG operating funds for the practical utilization of the
contemplated capital investment. The external charge shall be added within
seventy-five (75) days of the effective date of the Agreement. The Company
shall collect the external charge and make the additional PEG capital payments
in installments from such collected sums. Said installments shall be paid at the
same time and in the same manner as franchise fee payments are made. The
• capital payments shall be expended for PEG facilities and equipment to be
utilized to develop PEG programming for subscriber.
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8.12 Leased Use. The Grantee shall P q provide Leased access Channels as required •
under the Cable Act.
8.13 Subscriber Services.
A. For the period beginning on the effective date of the Franchise through the
end of the Franchise: a minimum of one hundred (100) channels;
B. In addition to such other service requirements as may be contained in this
Franchise, the Grantee agrees to provide the following broad categories of
service:
1. Educational programming;
2. News & information;
3. Sports;
4. General entertainment (including movies);
5. Children/family-oriented;
6. Arts; culture, and performing arts;
7. Foreign language;
8. Science/documentary;
9. Weather information;
10. Ethnic/Minority programming
11. National, state and local government affairs;
12. PEG Access;
SECTION 9. CONSTRUCTION STANDARDS
9.1 The construction, installation, operation, and maintenance of the cable system and
all parts thereof shall be performed in an orderly and workmanlike manner. At a
minimum all such work shall be performed in accordance with the following safety,
construction, and technical specifications, codes and standards, as they may now exist
or be amended or adopted hereafter, which include but are not limited to:
A. Occupational Safety and Health Administration (OSHA) Safety and Health
Standards;
B. Obstruction Marking and Lighting, AC 7017460 i.e., Federal Aviation
Administration; •
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"ry C. All applicable federal, state and municipal construction requirements; and,
D. All building and zoning codes, applicable City of Evanston Engineering
Department Administrative Policies promulgated pursuant to Title 7, Chapter 4,
Section 3 of the City Code and all land use restrictions and local safety codes.
9.2 Construction Coordination. At least thirty (30) days prior to the date construction of
any upgrade or rebuild is scheduled to commence, the Grantee shall notify the City of
its intention to commence construction. The City shall convene a meeting between the
Grantee and appropriate City officials in order to facilitate a coordinated construction
effort. The City shall also use its best efforts to assist the Grantee in obtaining all local
licenses, permits and authorizations in an expeditious and timely manner.
9.3 Written Permits. No construction, reconstruction or relocation of the cable
communications system, or any part thereof, within the streets shall be commenced
unless the required written permits have been obtained from the proper official.
9.4 Licensed Contractors. All contractors of the Grantee who perform construction,
installation, maintenance, and repair of system equipment must be properly licensed
• under applicable law.
SECTION 10. RATE REGULATION
10.1 All charges to subscribers and users shall be uniform throughout the franchise
area with a written schedule of fees for all services offered available upon request. The
Grantee shall be required to provide each new subscriber with prices and options for
programming services and conditions of subscription to programming and other
services.
10.2 The Grantee shall not, with regard to fees, discriminate or grant any preference or
advantage to any person; provided, however, that the Grantee may establish different
rates for different classes of subscribers, provided that the Grantee shall not
discriminate among subscribers of the same class.
10.3 Any determination of the reasonableness of initial rates or any proposed rate
increase will be made pursuant to the Cable Act and other applicable Federal or State
laws.
• 10.4 The Grantee will notify subscribers and the City of any proposed increase at least
thirty (30) days before said increase is to become effective.
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10.5 The City reserves the right to prescribe reasonable rates for cable services or e o
associated equipment, pursuant to the Cable Act and other applicable Federal or State
law if the City determines, pursuant to the Cable Act that a proposed rate is
unreasonable.
SECTION 11. FRANCHISE FEES
11.1 The Grantee shall pay to the City an amount equal to five (5) percent of the gross
revenues derived from the operation of its cable system in the City, provided however
that the City Council may increase the franchise fee up to the maximum fee permitted
by federal law, if larger.
11.2 Payments due the City under this provision shall be computed at the end of each
calendar quarter and shall be due and payable for the preceding quarter on or before
May 16 (for the first quarter), August 16 (for the second quarter), November 15 (for the
third quarter), and February 15 (for the fourth quarter) of each year. Each payment shall
be accompanied by a statement of revenue received for the quarter in connection with
the operation of the Grantee's cable system in the City and a report showing the basis
for computation of fees. In the event the Grantee provides a more detailed report to any •
municipality on a regular basis such more detailed report format shall be submitted to
the City
11.3 No acceptance of any payment shall be construed as an accord that the amount
paid is in fact the correct amount, nor shall acceptance of payment be construed as a
release of any claim the City may have for further or additional sums payable under the
Franchise by the Grantee.
11.4 The Grantee shall submit to the City a late fee on franchise fee payments which
are submitted after the due dates as described in Section 11.2, except that the Grantee
shall be granted a five-day "grace" period. Any franchise fee payment submitted after
the five-day grace period shall be subject to a late fee. The late fee shall be
compounded daily and based upon an interest rate which shall be calculated by taking
the then current interest rate on one-year Treasury Bills and adding two percent (2%).
11.5 The Franchise fee shall be paid in addition to fees, charges, or assessments
required by the City for like users of the public right-of-way unless such fee, charge, or
assessment falls within the definition of a Franchise fee under the Cable Act.
11.6 The City shall have authority to arrange for and conduct an audit of the financial •
records of the Grantee or affiliates for the purpose of verifying Franchise fee payments.
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The City will notify the Grantee in writing at least sixty (60) days prior to the date of the
audit. The records shall be made available by the Grantee at the Grantee's office in the
Chicago metropolitan area.
11.7 When the Franchise terminates for any reason (other than through the issuance of
a renewal or superseding Franchise), the Grantee shall file with the City within ninety
(90) calendar days of the date its operations in the City cease a financial statement,
certified by a certified public accountant or the Grantee's chief financial officer, showing
the gross revenues received by the Grantee since the end of the previous fiscal year.
Adjustments will be made at that time for Franchise fees due to the date that the
Grantee's operations under the terminated Franchise ceased.
SECTION 12. INSURANCE
12.1 An insurance certificate from a Best A- Excellent rated insurance company for any
insurance policy obtained by the Grantee in compliance with this Section 12 shall be
filed and maintained with the City Clerk during the term of the franchise.
12.2 Grantee shall, during the continuance of this Agreement and at no expense to the
• City, maintain public liability and property damage insurance, including cable system
operators insurance, in the amount of $1,000,000 per occurrence $5,000,000 aggregate
on account of bodily or personal injuries, including death, or on account of property
damage, arising from, or caused, directly or indirectly, by the performance of this
Agreement. This insurance shall be a per occurrence policy.
•
12.3 Grantee shall, during the continuance of this Agreement and at no expense to the
City, maintain business automobile insurance in the amount of $1,000,000 per
occurrence on account of bodily or personal injuries, including death, or on account of
property damage arising from or cause, directly or indirectly, by the performance of this
Agreement. This insurance shall be a per occurrence policy.
12.4 Under the public liability, property damage and automobile liability insurance
required in Sections 12.2 and 12.3 above, the City, its officers, agents and employees
shall be named as an additional insured by endorsement.
12.5 Grantee shall, during the continuance of this Agreement and at no expense to the
City, maintain workers' compensation insurance, as required by law, for all Grantee's
officers and employees.
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12.6 The insurance required by Sections 12.2, 12.3, and 12.5 above shall be evidenced
by certificate or certificates submitted to the City before or at the time the Grantee
executes this Agreement. All certificates shall contain the following endorsement:
"Should any of the above described policies be canceled before the expiration
date thereof, the issuing company will mail 30 day written notice holder named
(on the certificate)."
SECTION 13. PERFORMANCE BOND
13.1 Within ninety (90) days of the effective date of this Franchise, the Grantee shall
establish in the City's favor a performance bond in the amount of $50,000.
13.2 In the event the Grantee fails to complete the cable system construction, upgrade,
or rebuild in a safe, timely, and competent manner in accord with the provisions of this
Franchise, applicable law, and permits, or otherwise fails to comply with its obligations
under this Franchise, there shall be recoverable, jointly and severally from the principal
and surety of the bond, any damages or loss suffered by the City as a result, including
the full amount of any compensation, indemnification, or cost of removal or •
abandonment of any property of the Grantee.
13.3 The performance bond shall contain the following endorsement or a similar
endorsement acceptable to the City:
"This bond may not be canceled, or allowed to lapse, until sixty (60) days after
receipt by the City, by certified mail, return receipt requested, of a written notice
from the issuer of the bond of intent to cancel or not to renew."
SECTION 14. LETTER OF CREDIT
14.1 On the effective date of the Franchise, the Grantee shall post with the City an
irrevocable letter of credit in the amount of $10,000. The City may draw on the letter of
credit pursuant to Section 17.4 to ensure the faithful performance of all provisions of the
Franchise, applicable law, and permits, and the payment by the Grantee of any
penalties, liquidated damages, claims, liens, fees, or taxes due the City which arise by
reason of the construction, operation, or maintenance of the cable system.
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1.4.2- The irrevocable letter of credit shall be subject to approval as to content and form
by the City Attorney. The letter of credit shall in no event require the consent of the
Grantee prior to the collection by the City of any amounts covered by the letter of credit.
14.3 Within three (3) business days of the date it draws on the Grantee's letter of credit,
the City shall send written notice to the Grantee notifying it that the City has drawn on
the letter of credit, the amount withdrawn, and the specific reasons for the withdrawal.
14.4 Within thirty (30) calendar days after notice to the Grantee that an amount has
been withdrawn by the City from the letter of credit, the Grantee shall restore the letter
of credit to the total amount in the letter of credit immediately prior to the withdrawal.
14.5 If the Franchise terminates for any reason, and the Grantee has ceased to provide
service in the City, the Grantee shall maintain the letter of credit until the City has
certified that the Grantee has satisfied all its obligations under this agreement.
SECTION 15. QUALIFICATIONS OF INSURANCE COMPANIES, BOND
COMPANIES AND ENITIES ISSUING THE LETTER OF CREDIT
• The insurance, bonds, and letter of credit required by Sections 12-14 shall be issued
either by a company rated A- Excellent or by a company acceptable (such acceptance
shall not be unreasonably be withheld) to the City.
SECTION 16. INDEMNIFICATION
16.1 Grantee agrees to defend, indemnify, hold harmless and release the City, its
officers, and employees, from actions, claims, damages, disability or the cost of
litigation, including all attorneys fees, that are asserted by any person or entity to the
extent arising out of the negligent acts or omissions or willful misconduct in the
performance by the Grantee hereunder., whether or not there is concurrent negligence
or willful misconduct of the City but excluding liability due to the sole active negligence
or misconduct of the City. This indemnification obligation is not limited in any way by
any limitation on the amount or type of damages or compensation payable to or for
Grantee or its agents, under workers' compensation acts, disability benefits acts or
other employees' benefits acts.
• 16.2 Grantee shall be liable to the City for any loss of or damage to City property
arising from Grantee's negligence or willful misconduct.
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SECTION 17. FRANCHISE VIOLATION NOTICE AND PROCEDURES
17.1 If the Grantee fails to observe any obligation under the Franchise, the City may
assess the Grantee, and the Grantee agrees to pay to the City, liquidated damages in
accordance with Section 19 below. Such assessment shall not constitute a waiver by
the City of any other right or remedy it may have under this Franchise, or under
applicable law.
17.2 If the City has reason to believe that the Grantee has violated any obligation under
the Franchise, the City shall notify the Grantee in writing of the violation setting forth the
nature of such violations. Within thirty (30) days of its receipt of such notice, the Grantee
either shall respond in writing to the City contesting the City's notice of violation with
supporting documentation that such violation did not occur or was beyond the Grantee's
control and requesting an opportunity to be heard or shall remedy the violation within
such thirty (30) day period. The City may determine that the violation is of such a
serious nature that a lesser period for remedying the violation is warranted. If the
Grantee cannot reasonably remedy the violation within the time period specified and so
informs the City, the City may extend the time permitted for remedying the violation,
provided that the Grantee informs the City on a regular basis of the steps being taken to
remedy the violation. •
17.3 If within thirty (30) days of its receipt of notice of the violation pursuant to Section
17.2, the Grantee fails to submit a written response contesting the City's notice of
violation or if after requesting an opportunity to be heard the Grantee fails to prove in
said hearing that such violation did not occur or was beyond its control or if the Grantee
fails to remedy the violation within the time period specified or any extensions thereto
pursuant to Section 17.2, the City after considering all relevant factors may assess the
Grantee liquidated damages in accordance with Section 19 and shall provide the
Grantee with written notice of such assessment. Such notice of assessment shall state
the amount to be assessed, the finding of fact and provide a date of at least fifteen (15)
days after receipt of such notice upon which said assessment payment is due.
17.4 If the Grantee fails to pay to the City any assessment pursuant to Section 17.3
within three (3) days after the date set forth in the notice of assessment, said
assessment shall be payable from the letter of credit provided herein upon written
demand by the City Manager.
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SECTION 18. REVOCATION
18.1 In addition to all other rights, powers, and remedies reserved by the City, the City
shall have the. additional, separate, and distinct right to revoke the Franchise in the
event of a substantial breach of a material provision of the franchise, said substantial
breach shall occur if:
A. The Grantee becomes fiscally unable to pay its debts, or is judged to be
bankrupt;
B. The Grantee practices any material fraud in its conduct in obtaining the
Franchise;
C. The Grantee repeatedly fails to pay the franchise fee in accordance with the
terms of this agreement;
D. The Grantee continues to violate a material provision of the Franchise after
written notice by the City of said substantial violation of a material provision and
refused to cure it within a reasonable period of time; or
• E. The Grantee abandons its Franchise (the Grantee shall be deemed to have
abandoned its Franchise if it willfully refuses to operate the cable system as
required by its Franchise, when there is no event beyond the Grantee's control
that prevents the operation of the cable system, and where operation would not
endanger the health or safety of the public or property).
18.2 The foregoing shall not constitute a substantial breach if the violation occurs but it
is without fault of the Grantee or occurs as a result of circumstances beyond its direct
control such as war, civil disturbance, natural catastrophe and other acts of God.
Grantee shall not be excused by mere economic hardship nor misfeasance or
malfeasance of its directors, officers or employees.
A. The City shall make a written demand that the Grantee cure the substantial
breach. If the substantial breach by the Grantee continues for a period of twenty
(20) days following such written demand without written proof that the corrective
action has been taken or is being actively and expeditiously pursued, the City
may consider the issue of terminating the franchise provided that the City shall
cause to be served upon the Grantee, at least fifteen (15) days prior to the date
the City is to consider the issue of termination, a written notice of intent to
• request such termination and the time and place of the meeting. Public notice
shall be given of the meeting and the issue that the City is to consider.
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i dul designated representative shall hear and consider •
B. The City Council or is y g p
the issue and shall hear any person interested therein, and the City Council shall
determine whether any substantial breach of a material provision of the franchise
by the Grantee has occurred.
C. If the City Council determines said substantial breach by the Grantee was the
fault of the Grantee and within its control, the Council may, by resolution, declare
that the franchise shall be terminated unless there is compliance within such
period as the Council may fix, such period shall not be less than ten (10) days,
provided that no opportunity for compliance need be granted for fraud.
18.4. Upon revocation of the Franchise, or upon any other termination of the Franchise
by passage of time or otherwise, the City shall have the right to require the Grantee to
remove, at the Grantee's expense, its cable system from streets, public property,
pursuant to the revoked, canceled, or terminated Franchise The City shall notify the
Grantee in writing that the cable system should be removed. In removing its cable
system, the Grantee shall refill and compact, at its expense, any excavation that shall
be made and shall leave all streets, public property, and private property in as good a
condition as that prevailing prior to the Grantee's removal of the cable system. The
provisions of Sections 12 through 16 of this franchise agreement shall remain in full •
force and effect until the cable system is removed.
18.5 Upon revocation of the Franchise, or upon any other termination of this Franchise
by passage of time or otherwise, the City shall have the alternative right to buy the
Grantee's cable system. If the Franchise is revoked for cause, the City may purchase
the cable system at an equitable price, within the meaning of the Cable Act; otherwise,
the cable system may be purchased at fair market value, determined on the basis of the
cable system valued as a going concern but with no value allocated to the franchise
itself within the meaning of the Cable Act. Grantee may, if the City declines to acquire
ownership of the cable system pursuant to this Section, transfer the ownership of the
cable system.
18.6 If the City does not purchase the Grantee's cable system as provided in Section
18.5, or the Grantee has not commenced a transfer of ownership of the system
pursuant to Section 27 within one hundred twenty (120) days of the date of termination
or revocation, and if the Grantee has failed to commence removal of its cable system as
specified by the City under Section 18.4, or if the Grantee has failed to complete such
removal within six months after removal is required to have begun, the City may declare
the cable system abandoned and cause the cable system, or such part thereof as the
City shall designate, to be removed at no cost to the City (the cost of said removal shall •
be recoverable pursuant to Sections 12 through 16 herein, or from the Grantee directly).
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SECTION 19. REMEDIES — LIQUIDATED DAMAGES
1.9.1 Because the Grantee's failure to comply with provisions of this Franchise will
result in injury to the City, and because it will be difficult to estimate the extent of such
injury, the City and the Grantee hereby agree to the following liquidated damages which
represent both parties' best estimate of the damages resulting from the specified injury.
19.2 The following liquidated damages shall apply, and liability therefore shall accrue
from the date established by the City to remedy after notice pursuant to Section 17.2.
19.3 For failure to complete construction or extend service in accordance with the
Franchise: $350.00 per violation/per day for each day the violation continues;
19.4 For failure to comply with material requirements for PEG Access: $300.00/day for
each day the violation continues;
19.5 For repeated, willful, or continuing failure to submit reports, maintain records,
provide documents or information: $100.00/day for each day the violation continues;
• 19.6 For violation of customer service standards: $150.00 per violation per day;
19.7 For failure to operate the system: $1150.00/day for each day the violation
continues; and _
19.8 For all other material violations of this agreement $200.00/day for each day the
violation continues.
SECTION 20. REMEDIES — CUMULATIVE
All remedies provided under this franchise agreement shall be cumulative, unless
otherwise expressly stated. The exercise of one remedy shall not foreclose use of
another, nor shall it relieve the Grantee of its obligations to comply with the Franchise.
Remedies may be used singly or in combination; in addition, the City may exercise any
rights it has under law or at equity.
SECTION 21. REMEDIES — CONTINUITY OF SERVICE
• 21.1 It is the right of all residential subscribers in the franchise area to receive all
available cable services from the Grantee as long as their financial and other obligations
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and Grantee is receiving all compensation due it from •
to the Grantee are satisfiedg p
subscribers.
21.2 In the event of the termination or transfer of the Franchise, the
Grantee shall ensure that all subscribers receive continuous, uninterrupted service
regardless of circumstances in accordance with this Section 21. At the City's request,
the Grantee shall cooperate with the City to operate its cable system for a temporary
period (the "Transition Period") following termination or transfer of the Franchise as
necessary to maintain continuity of service to all subscribers, and shall cooperate in the
development of plans required to ensure an orderly transition from one operator to
another. During such Transition Period, the cable system shall be operated in
accordance with the terms and conditions of this franchise agreement and the financial
benefits of operation shall accrue to the Grantee.
21.3 In the event the Grantee fails to operate the cable system where operation would
not endanger the health or safety of the public or property for ninety-six (96) hours
during any seven (7) day period without prior approval of the City, the City may, at its
option, operate the cable system or designate an operator until such time as the
Grantee restores service. If the City is required to fulfill this obligation for the Grantee,
the Grantee shall reimburse the City for all costs or damages resulting from the •
Grantee's failure to perform. Additionally, the Grantee will cooperate with the City to
allow City employees and/or City agents free access to the Grantee's facilities and
premises for purposes of continuing cable system operation
SECTION 22. BOOKS AND RECORDS — INSPECTION
22.1 The City may inspect the books, records and maps, in the control or possession of
the Grantee, affiliates, only to the extent necessary: (1) to enforce the City's rights or
assess compliance with the Franchise; (2) in the exercise of any lawful regulatory
power; or, (3) as may be necessary in connection with any proceeding the City may or
must conduct under applicable law with respect to the Grantee's cable system. The
books, records and maps in the control or possession of the Grantee shall be produced
at the Grantee's office in the Chicago metropolitan area. Material that the City requires
the Grantee to produce under this section shall be produced upon reasonable notice, no
later than fourteen (14) days after the request for production. Requests for extensions of
time to respond shall not be unreasonably denied.
22.2 The Grantee may request that the City treat records containing trade secrets or
proprietary information as confidential under the Illinois Public Records law. The Public .
Records law shall govern the City's treatment of any such request and other applicable
state and federal law.
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SECTION 23. REPORTS AND RESPONSES TO QUESTIONS
23.1 Upon request the Grantee shall provide the following reports not more than
monthly, in a form acceptable to the City:
A. A report showing the number of service calls completed by type during the
prior period.
B. A report showing the number of outages for the prior period.
C. A report stating the subscriber totals for the City including current subscribers,
new subscribers, reconnects, disconnects, secondary connects and pay units.
23.2 Upon request, within one hundred and twenty (120) days after the close of the
Grantee's fiscal year, the Grantee shall submit a written annual report regarding its
operation in Evanston, in a form acceptable to the Grantee and the City, including, but
not limited to, the following information:
A. A summary of the previous year's activities in the development of its cable
• system in the City, including, but not limited to, programming additions and
deletions, improvements begun or discontinued during the reporting year,
services initiated or discontinued, minority/ female enterprises participation
efforts, number of subscribers (including gains or losses), homes passed, and
miles of cable distribution plant in service.
B. A statement of certification under oath of annual gross revenues from an
official or representative of the Grantee having the requisite knowledge to make
said statement.
23.3 Upon request, the Grantee shall mail the following documents to the City:
A. Within thirty (30) days of the request, the current annual report, if any, of the
Grantee, or each affiliate which controls, owns, or manages the Grantee and
issues an annual report;
B. FCC Forms 325 and 395 (or their successor forms) for the Grantee's cable
system; and
C. FCC proof of performance and RF signal leakage tests (or their equivalent)
• filed with the FCC.
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23.4 The Grantee shall file with the City any notice or other document issued by any
state or federal agency which has instituted a civil or criminal proceeding naming the
cable system or the Grantee, to the extent the same may affect or bear on the
operations of the Grantee's cable system.
23.5 The Grantee shall file with the City any request for protection under Bankruptcy
laws, or any judgment related to a declaration of bankruptcy by the Grantee, any affiliate
which controls or manages the Grantee, or any operator of the cable system.
SECTION 24. BOOKS AND RECORDS — MAINTENANCE
In addition to reports required by this Franchise, the Grantee shall maintain records.
The records shall be kept at the Grantee's office in the Chicago metropolitan area and
said records other than personally identifiable information shall be available for City
review upon reasonable notice during normal business hours. Records shall be kept for
the time frame indicated below:
A. Records of outages, indicating date, duration, area and the estimated number
of subscribers affected, type of outage, and cause (to be maintained for two (2) •
years);
B. Records of service calls for repair and maintenance (to be maintained two (2)
years, subject to the limitations of the Grantee's data base);
C. Records of installation/reconnection and requests for service extension,
indicating date of request, date of acknowledgment, and date and time service
was extended (to be maintained two (2) years, subject to the limitations of the
Grantee's data base); and
D. Maps showing the current location of the cable system.
SECTION 25. INSPECTION OF PLANT
The City may inspect the Grantee's cable system during construction and upon
completion shall have the right to inspect the cable system and the Grantee's equipment
used in the maintenance of that cable system at any time upon reasonable prior notice.
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SECTION 26. PERFORMANCE MONITORING
26.1- Performance Review.
A. During the year that commences on the third, sixth and ninth anniversary of
the effective date of the Franchise, the City may commence a review of the
Grantee's performance under the Franchise. As part of this review, the City may
consider: (1) whether the Grantee has complied with its obligations under the
Franchise and applicable law; (2) whether customer service standards are
adequate or excessive; and, (3) other issues as may be raised by the Grantee,
the City, or the public.
B. The City may conduct public hearings to provide the Grantee and the public
the opportunity to comment on the Grantee's performance and other issues
considered as part of any review.
26.2 Grantee Cooperation. The Grantee shall cooperate in the performance reviews.
SECTION 27. TRANSFERS
Prior approval of the City shall be required for any transfer of the franchise. The Grantee
shall commence the transfer process by submitting the information required in FCC
form 394 (or successor FCC form) or reasonable information requested by the City, if
there is no FCC form. The City shall follow the transfer provisions of the Cable Act. Any
transfer made without the authorization required herein renders the Franchise null and
void from the time of the transfer.
SECTION 28. RENEWAL
28.1 In the case of an application for a renewal of this Franchise that is not governed
by the formal renewal provisions of the Cable Act, the following shall apply:
A. The City may issue a request for proposals (hereinafter "RFP").
B. The City may give public notice when it receives a properly completed
Franchise renewal submittal. After receiving a proposal that contains the required
• information, the City may schedule a meeting or meetings to determine whether
a renewal Franchise should be granted. In making this determination, the City
shall consider:
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1. The extent to which an applicant for renewal has substantially complied
with the applicable law and the material terms of any existing cable
Franchise for Evanston;
2. Whether the applicant for renewal's quality of service under its existing
Franchise, including signal quality, response to customer complaints, and
billing practices, but without regard to the mix or quality of cable or other
services provided over the system has been reasonable in light of the
needs of the community;
3. Whether the applicant has the financial, legal, and technical ability to
provide the services, facilities, and equipment set forth in a renewal
submittal;
4. Whether the applicant's renewal submittal is reasonable to meet the
future cable -related needs and interests of Evanston as identified by the
City including any minimum requirements, taking into account the cost of
meeting those interests and needs. •
C. The City need not review any renewal submittal that does not include
information required by this Ordinance.
28.2 Formal renewal applications for renewal will be governed by the formal renewal
provisions of the Cable Act. A Grantee which intends to exercise rights under 47 U.S.C.
§ 546(a)-(g) shall submit a notice in writing to the City in a timely manner clearly stating
that it is activating the formal renewal procedures of the Cable Act. A Grantee which has
applied for renewal under the formal renewal provision of the Cable Act shall submit all
information requested by the City within the time frame delineated by the City.
SECTION 29. MISCELLANEOUS
29.1 Map Accuracv not Guaranteed. The City does not guarantee the accuracy of any
maps showing the horizontal or vertical location of existing substructure.
29.2 Citv Action. In any action by the City mandated or permitted by this Agreement,
the City shall act in a reasonable and timely manner. Additionally, in any instance where
the City approval or consent is required, the City shall not unreasonably withhold its •
approval or consent.
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29.3 Time of Essence. The City and the Grantee agree that with regards to the terms
and conditions of this agreement, time is of essence.
29.4 Effect of Preemption. Federal and State Law. The City and Grantee shall comply
with all applicable provisions of federal and state law. If the City's ability to enforce any
Franchise provision is preempted, then the provision shall be deemed preempted but
only to the extent and for the period law requires the preemption. If, as a result of a
change in law, the provision would again be enforceable, it shall be enforceable and the
Grantee will comply with all obligations thereunder after receipt of notice from the City
29.5 Exercise of Authoritv. The City may exercise appropriate regulatory authority
under the provisions of this Franchise and applicable law, as amended from time to
time.
29.6 Force Maieure. The Grantee shall not be deemed in default or non-compliance
with provisions of its Franchise where performance was rendered impossible by war,
riots, civil disturbance, hurricanes, floods, other natural catastrophes, or other events
beyond the Grantee's control, and the Franchise shall not be revoked or the Grantee
penalized for such non-compliance, provided the Grantee takes immediate and diligent
steps to bring itself back into compliance and to comply as soon as possible under the
circumstances with its Franchise without unduly endangering the health, safety, and
integrity of the Grantee's employees or property, or the health, safety, and integrity of
the public, streets, public property, or private property.
29.7 Severabilitv. If any provision of this franchise agreement is held by a court or by
any federal or state agency of competent jurisdiction to be invalid as conflicting with any
federal or state law, rule, or regulation now or hereafter in effect, the validity of the
remaining sections hereof shall not be affected.
29.8 Written Notice. All notices between the parties shall be given as follows.
To the City: City Manager
City of Evanston
2100 Ridge Avenue
Evanston, Illinois 60201
With copies to: First Assistant Corporation Counsel and Cable Coordinator
City of Evanston
• 2100 Ridge Avenue
Evanston, Illinois 60201
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To the Grantee: AT&T Broadband
Attn: Government Affairs
1585 Waukegan Road
Waukegan, Illinois 60085
With copy to: AT&T Broadband
Attn: Government Affairs
2001 York Road
Oak Brook, Illinois 60523
Notice shall be deemed given three business (3) days after posting with pre -paid
postage, return receipt requested, first class mail or upon actual receipt of said notice, if
earlier. By notice complying with this Section 29 either party shall have the right to
change the address to which notice to such party may be sent.
29.9 Applicable Law. This Agreement shall be construed pursuant to the laws of the
State of Illinois.
PASSED & APPROVED by the City Council of the City of Evanston, Illinois and
approved on this 12th day of November, 2001, pursuant to Ordinance 107-0-01. •
THE CITY OF EVANSTON, ILLINOIS Medi ne A q is 7q,f
Nort ernIlli of
(City Managetf
ATTEST: TITLE:'.t"1!-� fi
(Gift Ili=
APPROVED this day of'�� V , 200 I
BY: av\
iffy Attorney)
r
ATTEST: C�
(City Clerk)
ACCEPTED this �-lPct'day of 0 0 V , 200j_
•
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EXHIBIT A. Evanston Customer Service Standards
Section 1. DEFINITIONS -
A. The term "normal business hours" means those hours during which most
similar businesses in the community are open to serve customers. In all cases,
"normal business hours" must include some evening hours at least one night per
week and/or some weekend hours.
B. The term "normal operating conditions" means those service conditions that
are within the control of the Grantee. Those conditions which are not within the
control of the Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, .telephone network outages, and severe or unusual
weather conditions. Those conditions which are ordinarily within the control of the
Grantee include, but are not limited to, special promotions, pay -per -view events,
rate increases, regular peak or seasonal demand periods, and maintenance or
upgrade of the cable system.
C. The term "service interruption" means the loss of picture or sound on one or
more cable channels.
Section 2. NOTIFICATIONS TO SUBSCRIBERS
A. The Grantee shall provide written information on each of the following areas
at the time of installation of service, at least annually to all subscribers, and at
any time upon request:
1) Products and services offered;
2) Prices and options for programming services and conditions of
subscription to programming and other services;
3) Installation and service maintenance policies;
4) Instructions on how to use the cable service;
5) Channel positions of programming carried on the system;
6) Billing and complaint procedures, including the address and telephone
number of the local franchise authority's cable office;
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B. Subscribers will be notified of any changes in rates, programming services or
channel positions as soon as possible through announcements on the cable
system and in writing. Notice must be given to subscribers a minimum of thirty
(30) days in advance of such changes if the change is within the control of the
Grantee. In addition, Grantee shall notify subscribers a minimum of thirty (30)
days in advance of any significant changes in the other information required by
Section 2. A. above.
SECTION 3. SUBSCRIBER BILLING
A. Subscriber bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and premium
service charges and equipment charges. Bills will also clearly delineate all
activity during the billing period, including optional charges, rebates and credits.
B. In case of a billing dispute, Grantee must respond to a written complaint from
a subscriber within 30 days.
C. Credits for service will be issued no later than the subscriber's next billing
cycle following the determination that a credit is warranted. •
D. Refund checks will be issued promptly, but no later than either:
1) The subscriber's next billing cycle following resolution of the request or
thirty (30) days, whichever is earlier; or
2) The return of the equipment supplied by the Grantee if service is
terminated.
SECTION 4. TELEPHONE SERVICE
A. The Grantee will maintain a local, toll -free or collect call telephone access line
which will be available to its subscribers 24 hours a day, seven days a week.
1) Trained representatives will be available to respond to subscriber
telephone inquiries during normal business hours.
2) After normal business hours, the access line may be answered by a
service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be
responded to by a trained Grantee representative no later than the next
business day.
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B. Under normal operating conditions, the telephone answer time by a customer
service representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less than
ninety (90) percent of the time under normal operating conditions, measured on a
quarterly basis.
C. Under normal operating conditions, the subscriber will receive a busy signal
less than three (3) percent of the time.
SECTION 5. INSTALLATIONS, OUTAGES AND SERVICE CALLS
A. Under normal operating conditions, each of the following four standards will
be met no less than ninety five (95) percent of the time measured on a quarterly
basis:
1) Standard installations will be performed within seven (7) business days
after an order has been placed. "Standard" installations are those that are
• located up to 125 feet from the existing distribution system.
2) Excluding conditions beyond its control, the Grantee will begin working
on "service interruptions" promptly and in no event later than 24 hours
after the interruption becomes known. The Grantee must begin actions to
correct other service problems the next business day after notification of
the service problem.
3) The "appointment window" alternatives for installations, service calls
and other installation activities will be either a specific time or, at
maximum, a four hour time block during normal business hours. The
Grantee may schedule service calls and other installation activities outside
normal business hours for the express convenience of the subscriber.
4) Grantee may not cancel an appointment with a subscriber after the
close of business on the business day prior to the scheduled appointment.
B. If Grantee's representative is running late for an appointment with a
subscriber and will not be able to keep the appointment as scheduled, the
subscriber will be contacted. The appointment will be rescheduled, as necessary
• at a time that is convenient for the subscriber.
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0