HomeMy WebLinkAboutORDINANCES-1996-069-O-969
06-05-96
AN ORDINANCE
Granting a Cable Franchise to Continental Cablevision
Acquisition of Northern Illinois, Inc.
WHEREAS, pursuant to Ordinance 85-0-81, the City of Evanston granted to
Cablevision of Chicago a non-exclusive Franchise to own, operate and maintain a Cable
Communications system within the City of Evanston (the Franchise); and
WHEREAS, pursuant to Ordinance 121-0-85, said Franchise was amended; and
WHEREAS, the Franchise granted under Ordinance 85-0-81 as amended, terminated
on April 19, 1996; and
WHEREAS, pursuant to Ordinance 23-0-96, the City granted a Franchise extension
0 of not to exceed six (6) months; and
WHEREAS, pursuant to Resolution 55-R-95, the City consented to an asset purchase
agreement dated January 6, 1995, providing for the assignment of the Franchise to
Continental Cablevision acquisition of Northern Illinois, Inc.; and
WHEREAS, the City and Continental Cablevision Acquisition of Northern Illinois, Inc.
have been in extensive negotiations concerning a new Franchise; and
WHEREAS, concurrent with the adoption of Ordinance 69-0-96, the City Council
pursuant to Resolution 37-R-96 authorizes the City Manager to enter into a rate settlement
agreement with Continental Cablevision of Northern Illinois, Inc.; and
WHEREAS, the proposed rate settlement agreement concerns among other matters
• the allocation of external costs for Access Studio Costs, PEG Access Capital payments, and
the disposition of the existing Cable Escrow Fund; and
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WHEREAS, the proposed cable franchise is in the best interests and needs of the
citizens of Evanston.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON:
SECTION 1: That the City Manager is hereby authorized to sign the Franchise
Agreement marked as Exhibit A attached hereto and incorporated herein by reference.
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hereby repealed.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 Q)'f,4 P , l
O
Adopted:
ATTE
City Clerk
Ap rived as t form:
Corporation Counsel
, 1996
, 1996
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EXHIBIT A
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ORDINANCE OF THE EVANSTON, ILLINOIS, CITY COUNCIL GRANTING CABLE
COMMUNICATIONS SYSTEM FRANCHISE TO CONTINENTAL CABLEVISION
• ACQUISITIONS OF NORTHERN ILLINOIS, INC.
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TABLE OF CONTENTS
•
Page
SECTION 1
GRANT OF FRANCHISE
1
SECTION 2.
SHORT TITLE AND DEFINITIONS
3
SECTION 3.
FRANCHISE -LIMITATIONS
8
SECTION 4.
NON-EXCLUSIVE FRANCHISE
9
SECTION 5.
NO WAIVER
9
SECTION 6.
AMENDMENTS TO FRANCHISE AGREEMENT
10
SECTION 7
CUSTOMER PROTECTION
10
SECTION 8.
SYSTEM FACILITIES, EQUIPMENT, SERVICES AND
CONSTRUCTION SCHEDULES
12
SECTION 9.
CONSTRUCTION STANDARDS
22
•
SECTION 10.
RATE REGULATION
23
SECTION 11.
FRANCHISE FEES
23
SECTION 12.
INSURANCE
25
SECTION 13.
PERFORMANCE BOND
26
SECTION 14.
LETTER OF CREDIT
26
SECTION 15.
QUALIFICATIONS OF INSURANCE COMPANIES,
BOND COMPANIES AND ENITIES ISSUING THE
LETTER OF CREDIT
27
SECTION 16.
INDEMNIFICATION
27
SECTION 17.
FRANCHISE VIOLATION NOTICE AND PROCEDURES
28
SECTION 18.
REVOCATION
29
•
SECTION 19.
REMEDIES --LIQUIDATED DAMAGES
31
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SECTION 20.
REMEDIES --CUMULATIVE
32
•
SECTION 21.
REMEDIES -CONTINUITY OF SERVICE
32
SECTION 22.
BOOKS AND RECORDS -INSPECTION
33
SECTION 23
REPORTS AND RESPONSES TO QUESTIONS
33
SECTION 24.
BOOKS AND RECORDS -MAINTENANCE
35
SECTION 25.
INSPECTION OF PLANT
35
SECTION 26.
PERFORMANCE MONITORING
35
SECTION 27.
TRANSFER
36
SECTION 28
RENEWAL
36
SECTION 29.
MISCELLANEOUS
37
EXHIBIT A.
EVANSTON CUSTOMER SERVICE STANDARDS
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ORDINANCE OF THE EVANSTON, ILLINOIS CITY COUNCIL GRANTING A CABLE
• COMMUNICATIONS SYSTEM FRANCHISE TO CONTINENTAL CABLEVISION
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 Continental Cablevision Acquisitions of
Northern Illinois (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 said cable communication system.
• 1.2 Term. The Franchise granted hereby shall expire four (4) 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 as they exist on
the effective date of the Franchise.
1.5 Effect of Acceotance. 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;
C. accepts and agrees to each and every provision contained herein;
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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;
H. hereby agrees 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
I. further acknowledges by acceptance of the Grant, that it has carefully
read the terms and conditions of this Agreement
1.6 Rights 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.
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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 Local laws 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 & Continental Cablevision 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 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.
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"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.
"Cable Act" shall refer to the Cable Communications Policy Act of
1984, 47 U.S.C. § 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 II 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, currently six megahertz wide in
electro-magnetic 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, any Board or Commission that may be designated by the
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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.
"Document" or "Record" means those materials normally generated,
used and retained 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
is
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.
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"Grantee" means Continental Cablevision Acquisitions of Northern •
Illinois, Inc., an Illinois corporation, and its lawful and permitted
successors, assigns and transferees.
"Gross Revenues" shall mean all cash, credits, property, or other
consideration of any kind or nature received by the Grantee or its
affiliates in any way derived from the operation of Grantee's cable
system within the City. Gross revenues include, but are not limited
to, fees charged subscribers for basic service; fees charged
subscribers for any optional, premium, per -channel, or per -program
service; monthly fees charged subscribers for any Tier of service
other than basic service; installation, disconnection, re -connection,
and change -in-service fees; commercial leased channel fees or other
leased channel fees; converter rentals; advertising revenues,
including a per capita share of advertising revenues for advertising
carried on more than one cable system; revenues from home
shopping channels; sales of programming guides; and such other
revenue sources as may now exist or hereafter develop. Gross
revenues, however, shall not include any refunds to subscribers, bad
debt (defined as unpaid Evanston subscriber or advertiser
accounts), nor any taxes on services furnished to the Grantee and
imposed directly upon any subscriber or user by the state, City, or •
other governmental unit and collected by the Grantee on behalf of
said governmental unit.
"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
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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.
"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
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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.
"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. § 621 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. is
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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.
4.2 In the event that, after the effective date of this Franchise, the City
• grants a 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 without exception
to provide all the payments, facilities, equipment and services required
herein.
•
SECTION 5. 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.
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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 Privacy,. 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.
7.3 Maintenance and Complaints.
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
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• 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.
7.5 Non-discrimination and Equal Emplovment Opportunitv.
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 commitment to the
participation of minority and female enterprises in the award 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
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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.
7.6 Parental Control Device/Capability.
Upon request, the Grantee shall provide a converter with parental
control capability to any subscriber.
SECTION 8. SYSTEM FACILITIES ,
E UIPMENT SERVICES AND CONSTRUCTION •
EQUIPMENT,
SCHEDULES
8.1 Subscriber Network.
A. The Grantee shall construct its cable system so that the forward
bandwidth of the cable system is at least 750-MHz 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 between 5 MHz and 40 MHz.
C. The Grantee shall install equipment so that the headend is
capable of providing at least 78 NTSC 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)
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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 1-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 Grantee shall provide up to fifty thousand dollars ($50,000) of
additional funds for the acquisition of I -Net switching equipment to
be located at the 1-Net headend. The City shall approve the allocation
is of these I -Net funds
D. 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.
E. 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.
F. The Grantee shall provide a matching fund of up to fifty thousand
dollars ($50,000) to be used to assist I -Net users in acquiring end user
equipment. This fund shall provide a match for dollars spent by I -Net
users for the acquisition of such equipment. The Grantee shall
coordinate with the City and the City shall approve the distribution of
these funds. The frequencies used for any upstream transmission on
the 1-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.
• G. The Grantee shall provide, maintain and service the 1-Net to enable
two-way communications among, all municipal buildings designated by
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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 Emergencv Override. The Grantee shall provide, service and maintain
public emergency transmission facilities to the City without charge. Such
facilities shall include, without limitation, a character generator and
keyboard to be placed in a location designated by the City, for use in
preparing alphanumeric announcements for 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 is
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,
Lincolnwood, 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 Construction Schedules
A. The construction required under Sections 8.1 & 8.2 shall
commence and be completed between 4-20-98 and 4-20,99. The City
shall grant reasonable extensions of time to complete construction
in particular areas of the City if, prior to the scheduled time for
completion, the Grantee shows that, notwithstanding its due
diligence, it has been unable to extend service to a specified area
because the acts or omissions of a third party (not including the
Grantee's subcontractors or agents) have caused a delay in •
construction beyond delays reasonably expected during the.course
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of an upgrade or rebuild, and the Grantee proposes a reasonable
• alternative deadline for extension of service to that area.
B. Nothing in this section shall prevent the Grantee from
commencing and completing the system rebuild & I -Net System
earlier than planned. However, any delay in the system construction
beyond the times specified in this Franchise, shall require
application to and consent by the City. The City may not withhold
consent when Grantee has shown good cause for the delay as set
forth in this section but City may attach reasonable conditions to
ensure performance. Any delay beyond the terms of this Franchise,
unless specifically approved by the City, shall constitute a violation
of this Agreement for which the provisions of Sections 17-19, shall
apply, as determined by the City.
C. Commercial impracticability, expense or other economic reasons
shall not excuse or justify Grantee's failure to comply with the
construction schedule set forth in Section 8.5 A. Grantee further
agrees that any litigation instituted by a third party shall not suspend
Grantee's obligation to construct and install the cable
communications system in accordance with the construction time
schedule unless otherwise ordered by a court of competent
jurisdiction.
8.6 System Desian Review Process
A. At least forty-five (45) days prior to the date construction of any
required 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
3. Map providing a clear representation of the geographic
areas within the City which are included in the construction
plan described in Section 8.5 A.
• 4. Design maps and trunk tree maps for the cable system.
The cable system design will be shown on maps of industry
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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 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
8.7 Initial and Continuina 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. Preconstruction quality 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. Continuinq 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 arrange its request for such special tests so as to
minimize hardship or inconvenience to Grantee or to the subscriber.
•
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• 8.8 Inspections during 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.
8.9 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;
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 and shall update said maps quarterly;
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 aboveground,
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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.
8.10 Svstem Maintenance & Svstem Performance •
A. Interruotions 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. 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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8.11 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 as they
existed on January 1, 1995. Grantee shall, with all due diligence,
construct its cable communications system to pass all residential
dwelling unit buildings within the City including those residential
multi -dwelling unit buildings that are unserved on the effective date
of this franchise. Construction of the cable communication system
to pass and to install service (after acquiring an easement, if
necessary) to previously unserved residential multi -dwelling unit
buildings shall be completed no later than September 30, 1996.
B. Line Extension Requirements. Within the City boundaries as they
existed on January 1, 1995, 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 8.11 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. 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
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within 125 feet of existing plant within seven (7) days of the request
(weather and ground conditions permitting). i
F. 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.
8.12 Public, Educational and Governmental Use.
A. PEG Access Channel Capacity. The Grantee shall provide five (5)
downstream channels for non-commercial PEG access
programming.
B. Requirements Reciardinq 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 five (5) PEG access channels shall be available on a
non-discriminatory basis for non-commercial programming at •
no charge to the Access Corporation.
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C. PEG Capital Pavments For Equipment and Facilities. The Grantee
• shall pay to the City, for PEG access Capital pursuant to 47 U. S. C.
542(g)(2)(C) of the Cable Act, the following amounts:
1. $100,000.00 on the effective date of the Franchise
2. $100,000.00 on the first anniversary of the effective date of
the Franchise.
3. $100,000.00 on the second anniversary of the effective date
of the Franchise.
4. $250,000.00 on the third anniversary of the effective date of
the Franchise contingent upon a documented City
commitment to provide sufficient operating funds to the
Access Corporation for the practical utilization of the
contemplated capital investment.
8.13 Leased Use. The Grantee shall provide Leased access Channels as
required under the Cable Act.
Figure 1
• 8.14 Subscriber Services.
A. For the period beginning on the effective date of the Franchise
through the completion of the cable system construction required by
Section 8, a minimum of 52 activated channels;
B. For the period beginning on completion of the cable system
construction required by this Section 8, through the end of the
Franchise: a minimum of seventy-eight (78) channels;
C. 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;
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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 70/7460 i.e., Federal Aviation
Administration;
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 the required 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. •
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• 9.4 All contractors of the Grantee who perform construction, installation,
maintenance, and repair of system equipment must be properly licensed
under laws of the State of Illinois, and all local ordinances.
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. The notice will list the FCC community identifier for the cable
system and the name, address, and phone number of a contact person or
department at the City so that information regarding procedures for public
participation is readily available to subscribers.
10.5 The City reserves the right to prescribe reasonable rates for cable
services or 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
11.2 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.
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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 31 (for the first quarter), August 31 (for
the second quarter), November 30 (for the third quarter), and February 28
(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. 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.
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• SECTION 12. INSURANCE
12.1 An insurance certificate from a Best A+ 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.
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 certificate(s) 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)."
•
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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 $150,000.
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 City shall reduce the bond requirement to $50,000 upon the
documentation of satisfactory completion of the cable system
construction, upgrade, or rebuild pursuant to Section 8.5.
is
13.4 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 $50,000. 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.
14.2 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
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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 Best A+ 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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0 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
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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.
B. The City Council or its duly designated representative shall hear
and consider 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.
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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).
SECTION 19. REMEDIES —LIQUIDATED DAMAGES
19.1 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: $50.00/day for each day the
violation continues;
19.6 For violation of customer service standards: $100.00 per violation per
day;
19.7 For failure to operate the system: $1,000.00/day for each day the
violation continues; and
•
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19.8 or all other material violations of this agreement $200.00/day for each
day the violation continues. 0
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 to the Grantee are satisfied and Grantee is
receiving all compensation due it from 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
consistent 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
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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 30 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.
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
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Grantee and the City, including, but not limited to, the following
information: r
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 is
cable system; and
C. FCC proof of performance and RF signal leakage tests (or their
equivalent) filed with the FCC.
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.
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•
•
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.
SECTION 26. PERFORMANCE MONITORING
26.1 Performance Review.
A. During the year which commences on the third 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
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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:
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
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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 Maa 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.
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 Grantee must
comply with all applicable provisions of federal and state law, except to the
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extent those provisions are lawfully superseded by a provision of this
Franchise Agreement. 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 the preemption is required by law. 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
29.6 Exercise of Authority,. 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
To the Grantee: General Manager
•
0]
07/15/96
Continental Cablevision--Northem District
• 688 Industrial Drive
Elmhurst, IL 60126
With copy to: Government Relations Manager
Continental Cablevision--Northern District
688 Industrial Drive
Elmhurst, IL. 60126
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 ADDlicable 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 Zy day of '1A)E ,199 6 , pursuant to Ordinance
k2-0-96.
• THE CITY OF7J)
on, Illinois
BY: ,Q ,- 5 5 �
(City Manager) ,
ATTES -
(City
APPROVED is day of OPL �. ( a , 199-L
1;�� I
(CBY ity Attorney)
ATTEST:
(City Clerk
4-w"
ACCEPTED THIS 1 6 DAY OF J v , 199(�
Continental Cablevision Ac uisitions of Northern Illinois, Inc.
BY:
• R rt E. Ryan, Vice P s ent—Governmental Affairs
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EXHIBIT A
Evanston Customer Service Standards i
Sectirin 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 which 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 1 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 which is convenient for the subscriber. •