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Following is the cable television Franchise Agreement entered into
between the City of Chicago and 21st Century Cable TV, Inc. pursuant to the
Chicago Cable Communications Ordinance. The effective date of this Agreement is
__________________.
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TABLE OF CONTENTS
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Preamble Recitals.................................................1
Section 1. Definitions..............................................3
Section 2. Grant of Authority.......................................4
2.1 Grant of Franchise..................................4
2.2 Term and Effective Date of This Agreement...........4
2.3 Territorial Extent of Franchise.....................5
2.4 Proof of Financing..................................5
2.5 Acts or Omissions...................................5
Section 3. Incorporation of Other Documents and Laws by Reference...6
Section 4 Franchise Fee and Other Fees.............................6
4.1 Franchise Fee.......................................6
4.2 Subsequent Action Affecting Franchise Fee...........6
4.3 Prepayment of Franchise Fee.........................7
4.4 Incidental Fees.....................................8
4.5 Other Fees..........................................8
4.6 Not a Tax...........................................9
4.7 Recomputation.......................................9
4.8 Interest............................................9
Section 5. Insurance and Bonds.....................................10
5.1 Types and Amounts of Insurance.....................10
5.2 General Requirements Applicable to All Types and
Amounts of Insurance...............................12
5.3 Performance Bonds..................................15
5.4 Right to Require Replacement of Insurance or Bonds.16
5.5 Insurance for Contractors and Subcontractors.......17
5.6 Alterations........................................17
5.7 The City's Right to Increase Minimum Amounts.......18
5.8 No Excuse from Performance.........................18
5.9 Endorsement........................................18
Section 6. Letter of Credit........................................19
6.1 Form and Amount....................................19
6.2 Endorsement........................................19
Section 7. Programming Services and Fees...........................20
7.1 Subscriber Services and Fees.......................20
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7.2 User Services and Fees.............................20
7.3 New Subscriber Services............................20
7.4 Promotions and Discounts...........................21
7.5 Extra-Long Drops...................................21
7.6 Non-Standard Installations...........................
Section 8. System Design...........................................22
8.1 Subscriber Network System..........................22
8.2 Additional Channels/Institutional Network System...22
8.3 Twenty-Four Hour Operation.........................23
8.4 Transmissions Between the Subscriber and
Institutional Network Systems......................23
8.5 Alternative Design.................................23
8.6 Interference.......................................24
8.7 Reliability and Safety.............................24
8.8 Satellite Earth Stations...........................24
8.9 Standby Power......................................24
8.10 Standby Capability.................................25
8.11 Status/Performance Monitoring......................25
8.12 Equipment..........................................25
8.13 Satellite Uplink...................................26
8.14 Applicability of Sections 9, 10, 11 and 12 of
This Agreement.....................................26
Section 9. Technical Standards.....................................26
9.1 Performance Requirements...........................27
9.2 Subscriber Network System..........................27
9.3 Institutional Network System.......................27
9.4 Performance Measurement Standards..................28
9.5 Data Transmissions.................................28
9.6 Interference.......................................28
2.7 Test Procedures....................................28
Section 10. Maintenance of System...................................29
Section 11. Construction Schedule and Other Reports.................29
11.1 Construction Timetable............................29
11.2 Construction Schedule and Map.....................29
11.3 "As Built" Maps...................................30
11.4 Third Party Litigation............................31
Section 12. Construction Requirements and Standards.................31
12.1 General...........................................31
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12.2 Compliance Standards..............................31
12.3 Construction and Installation Manual..............32
12.4 The Grantee's Construction and Inspection Manual..32
12.5 Engineering Site Survey...........................33
12.6 Restoration.......................................33
12.7 Tree Trimming on Public Property..................34
12.8 Tree Trimming on Private Property.................34
12.9 New Technologies..................................34
12.10 Contracts and Subcontractors......................35
Section 13. Extension of Service....................................35
13.1 New Developments..................................35
13.2 Annexation........................................35
Section 14. Removal of System.......................................36
14.1 Removal By The Grantee............................36
14.2 Removal by the City...............................36
Section 15. Intra-City Interconnection..............................37
15.1 Purpose...........................................37
15.2 Capacity and Timetable............................37
15.3 Plan of Interconnection...........................38
15.4 Interconnection Responsibilities..................38
15.5 Construction and Technical Standards..............39
15.6 Fees, Rules, Etc..................................39
Section 16. Channel Allocation......................................39
16.1 Standard Allocation...............................39
16.2 Aeronautical Frequencies..........................40
Section 17. Universal Subscriber Service............................40
Section 18. Local Origination.......................................40
Section 19. Chicago Access Corporation..............................41
19.1 Channel Commitments...............................41
19.2 Payments and Contributions........................42
19.3 Equipment.........................................43
19.4 Programming Authority.............................43
19.5 CAC/The Grantee Policies and Procedures...........43
Section 20. Leased Access...........................................44
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Section 21. Municipal Utilization...................................44
21.1 Description.......................................44
21.2 Additional Channel Capacity.......................45
Section 22. Enhanced/Developmental Services.........................45
Section 23. Employment Requirements.................................45
23.1 Affirmative Action................................46
23.2 Equal Employment Opportunity/Affirmative Action
Plan............................................46
23.3 Pass-Through Requirements.........................46
23.4 Local Resident....................................47
23.5 Unions............................................47
23.6 Training..........................................48
23.7 Records...........................................48
23.8 Reporting Requirements............................48
23.9 Compliance........................................49
Section 24. Contractors and Subcontractors..........................50
24.1 Local Businesses..................................50
24.2 Minority Business Enterprises (MBEs)..............50
24.3 Women's Business Enterprises (WBEs)...............51
24.4 Business Enterprise Plans.........................51
24.5 Reporting Requirements............................51
24.6 Compliance........................................52
Section 25. Consumer Services.......................................53
25.1 Consumer Services Plan............................53
25.2 Business Offices and Personal.....................54
25.3 Subscriber Complaints.............................54
25.4 Major Outages.....................................55
25.5 Pre-Construction Information......................55
25.6 The Grantee Solicitation..........................55
25.7 Requests for Installation.........................56
25.8 Translated Information............................56
25.9 Program Guides....................................57
25.10 Information Filed With The Cable Commission.......57
25.11 Employee Identification...........................57
25.12 Nondiscrimination.................................57
Section 26. Users...................................................57
Section 27. Privacy.................................................58
27.1 Requirements......................................58
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27.2 Monitoring Collection, Use or Release.............58
27.3 Privacy Information...............................59
27.4 Ownership of Data.................................59
27.5 Court-Ordered Disclosure..........................60
27.6 Destruction of Information........................60
27.7 Request for Information...........................60
Section 28. Enforcement.............................................61
28.1 Sanctions.........................................61
28.2 Notice of Violation...............................61
28.3 Notice of Assessment..............................62
28.4 Withdrawal from Letter of Credit..................62
28.5 Substituted Damages...............................63
28.6 Monetary Penalties, Fines and Other Monetary
Sanctions.......................................64
28.7 Act of Omission Beyond The Grantee's Control......65
28.8 Other Rights of The City..........................65
28.9 No Waiver of Rights...............................65
Section 29. Miscellaneous Provisions................................66
29.1 Governing Law.....................................66
29.2 Descriptive Headings..............................66
29.3 Employees and Agents..............................66
29.4 Rights Reserved to The City.......................66
29.5 Compliance with The Cable Ethics Ordinance........66
29.6 No Inducement.....................................67
29.7 No FCC Waivers Without Notice to The City.........67
29.8 No Excuse from Compliance.........................67
29.9 Transfer of Franchise.............................67
29.10 Cable Commission Action...........................68
29.11 Force Majeure.....................................68
29.12 Severability......................................69
29.13 Notices...........................................69
EXHIBITS
A. FORM OF ACCEPTANCE................................................A-1
B. DESCRIPTION OF FRANCHISE AREA 1...................................B-1
C. SUBSCRIBER SERVICES...............................................C-1
D. USER DISCOUNTS....................................................D-1
E-1. CONSTRUCTION SCHEDULE FORMS.....................................E-1-1
E-2. CONSTRUCTION SCHEDULE AND MAP...................................E-2-1
E-3. CONSTRUCTION TIMETABLE..........................................E-3-1
E-4. STANDARD CHANNEL ALLOCATION.......................................F-1
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G. LOCAL ORIGINATION.................................................G-1
H. CHICAGO ACCESS CORPORATION/PEG CAPITAL............................H-1
I. MUNICIPAL UTILIZATION.............................................I-1
J. EQUAL EMPLOYMENT OPPORTUNITY/AFFIRMATIVE ACTION PLAN..............J-1
K. MBE AND WBE PLANS.................................................K-1
L. PLAN OF INTERCONNECTION...........................................L-2
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This Agreement, made and executed this ___ day of _________ 1996, by and
between the City of Chicago (the "City") and 21st Century Cable TV, Inc. ("the
Grantee"):
WITNESSETH
WHEREAS, Section 6(a) of Article VII of the Illinois Constitution provides
in relevant part that a home rule unit "may exercise any power and perform any
function pertaining to its government and affairs including but not limited to,
the power to regulate for the protection of the public health, safety, morals
and welfare; to license; to tax;..."; and
WHEREAS, Section 5/11-42-11 of the Illinois Municipal Code, 65 ILCS 5/11-
42-11, provides in relevant part that "[T]he corporate authorities of each
municipality may license, franchise and tax the business of operating a
community antenna television system..."; and
WHEREAS, the City Council of the City of Chicago (the "City Council")
adopted Chapter 4-280 of the Municipal Code of Chicago, "Chicago Cable
Communications Ordinance" (the "Cable Ordinance"), on February 10, 1982, to
provide for the non-exclusive franchising and regulation of cable television
systems within the City, and
WHEREAS, the City Council adopted Chapter 4-284 of the Municipal Code of
Chicago, "Chicago Cable Ethics Ordinance - Franchising or Transfer Process" (the
"Cable Ethics Ordinance"), on April 21, 1982, to ensure that the awarding of
franchises for and operation of cable television systems within the City be
conducted free of conflict of interest or the appearance of conflict of interest
and with maximum protection to enhance public confidence in the cable television
services franchise award process and the operations of all franchised cable
television services within the City; and
WHEREAS, the City desires the establishment of competitive cable television
systems within the City for the benefit of the City and all persons located
therein; and
WHEREAS, the City Council desires to introduce competition in the provision
of cable television services into Franchise Area I because the City Council has
determined that such action will be in the public interest and will comport with
the Communications Act of 1934, as amended, 47 U.S. C. Sections 521 et seq. (the
"Communications Act") and the rules and regulations promulgated by the Federal
Communications Commission (the "FCC") thereunder; and
WHEREAS, on November 9, 1992, the Grantee submitted an application to
provide cable television services within Xxxxxxxxx Xxxx 0 of the City; and
WHEREAS, the Cable Administrator of the City of Chicago (the "Cable
Administrator") has distributed copies of the immediately above referenced
franchise application, as well as the
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clarifying materials (the "Grantee's Application"), to libraries throughout the
City so that the public would have the opportunity to be informed regarding the
Grantee's Application; and
WHEREAS, after reviewing the Grantees Application and after considering the
comments made thereon, the legal financial technical and character
qualifications of the Grantee, and the public interest, the City Council has
determined that it is in the best interests of the City and all persons located
therein to grant a non-exclusive franchise to 21st Century Cable TV, Inc., to
construct, install, maintain and operate a cable television system within
Franchise Area I of the City, and
WHEREAS, The Grantee has voluntarily agreed to various terms in this
Agreement that the City could not have legally required as conditions precedent
to a cable television services franchise grant, and each party recognizes that
such agreement was voluntary on the part of the Grantee.
NOW THEREFORE, it is hereby agreed as follows:
Section 1. Definitions
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Unless the context clearly indicates that a different meaning is intended,
for purposes of this Agreement all terms, phrases, words or their derivations
shall be defined as set forth in Section 4-280-b3O of the Cable Ordinance, or as
follows; provided, however, that terms, phrases, words or their derivations not
defined in the Cable Order or in this Agreement shall be given their common and
o meanings:
(1) "Activation" means that sufficient facilities have been
constructed and installed by -the Grantee in accordance with applicable federal
state and local laws and regulations or other standards so as to permit a person
with proper terminal equipment to receive the services offered by the Grantee.
(2) "Affiliates" means any person or entity that directly or
indirectly controls or is controlled by or is under common control with the
Grantee.
(3) "Completion of Construction" means the date when the Grantee's
cable television system is constructed and activated pursuant to the
construction schedule set forth in Exhibit E-2 referenced in Section I I of this
Agreement.
(4) "Fiber Optic Node Section" means a portion of Franchise Area I
consisting of approximately 500 occupied dwelling units, all of which are able
to receive the Grantees cable service from the same optical to radio frequency
signal conversion device.
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(5) "Franchise Area I" means that portion of the City set forth in
Exhibit B referenced in Section 2.3 of this Agreement and any subsequent
annexations to Franchise Area I by the City during the term of this Agreement.
(6) "Major Outage" means the simultaneous loss of service (i.e. total
loss of signals on any cable of the Grantees subscriber network system) to five
hundred (500) or more subscribers.
Section 2. Grant off Authority
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2.1 Grant of Franchise
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Pursuant to the Communications Act and Section 0-000-000 of the
Cable Ordinance, which together with the Cable Ethics Ordinance, provide dw
regulatory framework for all cable television systems within the City, the City
hereby grants to the Grantee a nonexclusive franchise to construct, install,
maintain and operate a cable television system within Franchise Area I on the
terms and conditions set forth in this Agreement, in the Communications Act, in
the Cable Ordinance, and in the Cable Ethics Ordinance.
2.2 Term and Effective Date of This Agreement
-----------------------------------------
Pursuant to Section 4-280-060(A) of the Cable Ordinance, the term of this
Agreement and the franchise granted hereunder shall be fifteen (15) years from
the date that this Agreement and the franchise granted hereunder are accepted by
the Grantee pursuant to Section 4-280-550(A) of the Cable Ordinance in a form
set forth in Exhibit A attached to this Agreement and made apart hereof
Notwithstanding the time for acceptance set forth in Section 0-000-000 of the
Cable Ordinance, such acceptance by the Grantee shall occur no later than ninety
(90) days subsequent to the date of passage by the City Council of an ordinance
approving and adopting this Agreement and the franchise granted hereunder. For
purposes of this Agreement, the date of such acceptance (the "Acceptance Date"
or "Date of Acceptance") shall be deemed the effective date of this Agreement.
2.3 Territorial Extent of Franchise
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The territorial extent of Franchise Area I is as defined in Section I.(5)
of this Agreement and currently as set forth in Exhibit B attached to this
Agreement and made part hereof.
2.4 Proof of Financing
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In addition to other conditions precedent as set forth in this Agreement,
as a condition precedent to the commencement of construction of the Grantees
cable. television services system pursuant to this Agreement, the Grantee shall
provide the Cable Administrator with written
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evidence of financing, including identification of any and all sources for such
financing as set forth in the Grantee's Application ("Proof of Financing").
Construction of the Grantee's cable television services system shall not
commence until such time as the Cable Administrator has reviewed and approved
the Grantee's Proof of Financing. Approval by the Cable strator of the
Grantee's Proof of-Financing shaft be within ten (10) business days of receipt
by the Cable Administrator of the Grantees Proof of Financing and shall not be
unreasonably withheld.
2.5 Acts or Omissions of Affiliates
-------------------------------
During the term of this Agreement, the Grantee shall be liable for the acts
or omissions of its affiliates while such affiliates are involved directly or
indirectly in the construction, installation, maintenance or operation of the
Grantees cable television system as if the acts or omissions of such affiliates
were the acts or omissions of the Grantee.
Section 3. Incorporation of Other Documents and Laws by Reference
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This Agreement incorporates by reference the Grantee's Application. The
Grantee agrees that in the case of conflict or ambiguity between the Grantee's
Application and this Agreement, this Agreement shall control. In the event of a
conflict or ambiguity between the Grantee's Application and the Cable Ordinance,
the Cable Ordinance shall prevail. This Agreement and the ordinance adopting
this Agreement supplement and harmonize the regulatory framework set forth in
the Cable Ordinance and the Communications Act; and this Agreement and the
ordinance adopting this Agreement shall at all times be read and construed for
consistency and compatibility with the provisions of the Cable Ordinance and the
Communications Act as read and interpreted in concert each with the other.
Section 4. Franchise Fee and Other Fees
----------------------------
The terms and conditions set forth in this Section 4 are pursuant to the
terms and conditions set forth in Sections 4-280-050(C) and 0-000-000 of the
Cable Ordinance as interpreted and applied in accordance with Section 542 of the
Communications Act.
4.1 Franchise Fee
-------------
Pursuant to Sections 4-280-170(A) and (B) of the Cable Ordinance, the
Grantee shall pay to the City a franchise fee of five percent (5%) of the annual
gross revenues received by the Grantee during the period of its operation under
this Agreement.
4.2 Subsequent Action Affecting Franchise Fee
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If, during the term of this Agreement, any court, agency or other entity of
competent jurisdiction takes any action or makes any declaration that adversely
affects the amount or method of payment of the franchise fee set forth in
Sections 4.1 and 4.3 of this Agreement, the City and the Grantee shall promptly
enter into negotiations to amend this Agreement to make the City whole in a
manner consistent with said action or declaration by restoring the City to a
position equivalent to that which the City held prior to said action or
declaration.
4.3 Prepayment of Franchise Fee
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The Grantee shall pay to the City three million dollars ($3,000,000) as
prepayment of its franchise fee required pursuant to Section 4.1 of this
Agreement. Such prepayment shall be made in two equal installments, the first
of which is due on the Acceptance Date pursuant to Section 2.2 of this Agreement
and the second of which will be due within thirty (30) days thereafter. The
amount of such prepayment shall be credited against the amount determined to be
payable in franchise fees for any twelve month period until the amount
determined to be payable in franchise fees equals the amount of such prepayment;
provided, however, that the Grantee shall comply with the filing requirements
set forth in Section 4-280-170(B) of the Cable Ordinance during the period in
which such prepayment is being credited (the "Prepayment Period"). The Grantee
shall receive an additional credit against the amount determined to be payable
in franchise fees during the Prepayment Period equal to the time value of its
prepayment. The additional credit shall reflect the actual annual interest rate
of the cost of the Grantee's borrowed funds (the "Grantee's Time Value Rate")
and shall be determined for any twelve month period by multiplying the
prepayment balance by the Grantees Time Value Rate, adding that amount to the
prepayment balance and then subtracting from the prepayment balance the amount
of franchise fees determined to be payable for the particular twelve month
period in question.
4.4 Incidental Fees
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Upon the Acceptance Date and pursuant to Section 4-280-050(C) of the Cable
Ordinance, the Grantee has voluntarily agreed to pay to the City in addition to
the franchise fee and other fees or forms of compensation set forth in this
Agreement, an amount to be determined by the Cable Administrator, to be used to
off-set all costs incurred by the City incidental to the grant of the franchise
that are not defrayed by the application fee required pursuant to Section 4280-
050(B) of the Cable Ordinance.
4.5 Other Fees
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Pursuant and in addition to Section 4-280-310(A) of the Cable Ordinance,
the Grantee shall pay all fees necessary to obtain all federal, state and local
licenses, permits and authorizations required for the construction,
installation, maintenance or operation of the Grantee's cable television system;
provided, however, that no additional or special fees shall be imposed on the
Grantee by the City for any such license, permit or authorization other than
fees applicable to other persons for such licenses, permits or authorizations
and that no fees shall be
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imposed on the Grantee by the City for any permits and/or inspections for
attachments to utility poles or service drops. Additionally, the City shall use
its best efforts to assist the Grantee in obtaining all such local licenses,
permits and authorizations in an expeditious and timely manner. To the extent
that any license, permit or authorization is not granted by the City within ten
(10) days of it being requested by the Grantee, all timetables set forth in this
Agreement that must be met by the Grantee shall be lengthened accordingly, upon
approval by the Chicago Cable Commission (the "Cable Commission").
4.6 Not a Tax
---------
Payment by the Grantee to the City of the franchise fee and other fees set
forth herein shall not be considered in the nature of a tax, but shall be in
addition to any and all federal, state and local taxes, that are separate and
distinct obligations of the Grantee.
4.7 Recomputation
-------------
Pursuant to Section 4-280-170(C) of the Cable Ordinance, the City expressly
reserves the right to inspect the Grantee's books and records and to audit and
recompute the amount determined to be payable to the City as a percentage of the
Grantees gross revenues as defined in Section 4-280-030(N) of the Cable
Ordinance ("Gross Revenues"); provided that the City shall be reimbursed by the
Grantee for the City's costs in connection with exercising the City's rights
consistent with Section 4-280-170(C) of the Cable Ordinance. If, after
exercising such right, the City determines that an additional amount is due from
the Grantee, the Grantee shall pay such additional amount within thirty (30)
days after the Grantees receipt of notice from the City pursuant to Section 4-
280-170(C) of the Cable Ordinance. The City's rights pursuant to this Section
4.7 shall also apply to verification of all other payments for which the Grantee
is obligated pursuant to this Agreement.
4.8 Interest
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If any payments for which the Grantee is obligated pursuant to this
Agreement are not made on or before the due dates, the Grantee shall make such
payments from such due date in the amount due and owing until such amount is
paid in full plus an amount calculated at the prime rate of interest effective
and as publicly announced by the First National Bank of Chicago or its successor
as of the due date. If an additional amount is due as a result of the
recomputation referred to in Section 4.7 of this Agreement and such amount is
not paid within thirty (30) days after the Grantees receipt of notice from the
City pursuant to Section 4-280-170(C) of the Cable Ordinance, the Grantee shall
pay the amount due and owing until such amount is paid in full plus an amount
calculated at the prime rate of interest effective and as publicly announced by
the First National Bank of Chicago or its successor as of the due date. The
obligations and calculations set forth in this Section 4.8 shall apply to all
payment obligations of the Grantee as set forth in this Agreement.
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Section 5. Insurance and Bonds
-------------------
The Grantee expressly acknowledges and agrees that the requirements set
forth in this Section 5 are in addition to the obligations of the Grantee to
Section 0-000-000 of the Cable Ordinance.
5.1 Types and Amounts of Insurance
------------------------------
Pursuant and in addition to Section 0-000-000 of the Cable Ordinance, the
Grantee shall procure and maintain at all times, at the Grantee's own expense,
during the term of this Agreement, and during any time period following
expiration of this Agreement if the Grantee is required to perform additional
work or services in connection with this Agreement for any reason whatsoever,
the VM of policies of ce specified below, with insurance companies licensed to
do business in the State of Illinois covering all operations under this
Agreement, whether performed by the Grantee or, by way of illustration and not
on, any and all of the Grantee's contractors, subcontractors, architects,
engineers, xxxx managers, agents or consultants (collectively "Contractors and
"Subcontractors").
The types of policies of insurance and current limits of liability and
related coverages required pursuant to Section 5 of this Agreement are as
follows:
(1) Workers Co nd OcoRational Disease Insurance
-------------------------------------------
Workers Compensation and Occupational Disease Insurance, in accordance
with the laws of the State of Illinois, or any other applicable jurisdiction,
covering all employees who are to provide a service under this Agreement and
Employer's Liability coverage with limits of liability of not less than one
hundred thousand dollars ($100,000) each accident or illness.
(2) Commercial General Liability Insurance (Primary and Umbrella)
--------------------------------------
Commercial General Liability Insurance or equivalent with limits of
not less than ten million dollars ($10,000,000) per occurrence, combined single
limits, for bodily injury, personal injury, and property damage liability.
Coverage extensions shall include the following: all premises and operations,
products/completed operations, explosion, collapse, underground, independent
contractors, separation of insured, broad form property, and contractual
liability (with no limitation endorsement).
(3) Automobile Liability Insurance (Primary and Umbrella)
------------------------------
When any motor vehicles owned, non-owned or hired are used in
connection with work or services to be performed pursuant to this Agreement, the
Grantee shall provide Comprehensive Automobile Liability Insurance with
liability Insurance of not less than one
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million dollars ($1,000,000) per occurrence combined single limit, for bodily
injury and property damage.
(4) Professional Liability
----------------------
If and when any architects, engineers, construction managers or
consultants perform work or services in connection with this Agreement,
Professional Liability Insurance covering acts, efforts, or omissions shall be
maintained with limits of not less than one million dollars ($1,000,000).
Coverage extensions shall include contractual liability. When any Professional
Liability policy of insurance as required in this Section 5.(I)(4) is renewed or
replaced, the policy of insurance retroactive date shall coincide with, or
precede, start of work or services pursuant to this Agreement and as the case
may be prior to the start of work or services pursuant to any contract between
the Grantee and any of the Grantees Contractors or Subcontractors. Any claims-
made policy of insurance issued to this Section 5.(I)(4) that is not renewed or
replaced shall have an extended reporting period of a minimum of two (2) years.
(5) All Risk Property Insurance
---------------------------
The Grantee shall be responsible for all loss or damage to personal
property (including but not limited to material, equipment, tools and supplies),
owned or rented, by the Grantee.
5.2 General Requirements Applicable to All Types and Amounts of Insurance
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(1) Certificates to City.
--------------------
The Grantee shall furnish the Comptroller of the City of Chicago (the
"City Comptroller") (c/o Department of Purchases, Xxxxxxxxx xxx Xxxxxxxx, Xxxx
Xxxx, Xxxx 000, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 60602), original
Certificates of Insurance (including evidence of premium payment) evidencing all
required insurance coverages to be in force on the Acceptance Date, and such
Renewal Certificates of Insurance (including evidence of premium payment), or
such similar evidence of insurance, if such policies of insurance have an
expiration or renewal date occurring during the term of this Agreement. Prior
to the Date of Acceptance the Grantee shall submit such evidence of insurance on
the "City of Chicago Insurance Certificate of Coverage Form" or such other
form(s) as prescribed by the City. The receipt by the City of any such
certificate(s) or other evidence of insurance shall not constitute agreement by
the City that the insurance requirements set forth in the Cable Ordinance and
this Agreement have been fully met or that the policies of insurance indicated
on such certificate(s) or other evidence of insurance are in compliance with the
requirements of the Cable Ordinance and this Agreement. It shall not be deemed
a waiver by the City of the requirements of this Section 5, if, for any reason,
the City does not receive such certificates or other evidence of insurance from
the Grantee. The Grantee shall advise all its insurers of the provisions of
this Agreement regarding insurance. Non-conforming insurance shall not relieve
the Grantee of its obligation to secure
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insurance as specified in the Cable Ordinance and this Agreement. Nonfulfillment
of the insurance conditions may constitute a violation of this Agreement. The
City retains the right to order the Grantee to stop work and services until
proper evidence of insurance is provided consistent with this Agreement.
(2) Named Insureds
--------------
The City, including its employees, its elected and appointed
officials, its agents, its consultants and its representatives are to be
expressly named as additional insureds on a primary, non-contributory basis, on
all policies of insurance required pursuant to the Section 5 for any liability
arising directly or indirectly from the work or services of the Grantee or the
Grantee's Contractors or Subcontractors.
(3) 60 Day Notice
-------------
All policies of compliance required pursuant to this Section 5 shall
expressly provide for sixty (60) days prior written notice to the City in the
event limits of liability or any other coverages are substantially changed,
canceled, or non-renewed.
(4) Contractors and Subcontractors
------------------------------
The Grantee shall require all the Grantee's Contractors and
Subcontractors to carry all relevant policies of insurance as are required of
the Grantee with the same limits of liability and related coverages as required
of the Grantee by this Agreement. In the alternative, the Grantee, at the
Grantee's expense, may provide such coverages for any or all Contractors and
Subcontractors. If so, the evidence of such assumption by the Grantee shall be
in writing.
(5) Deductibles
-----------
Any and all deductibles or self-insured retentions on all insurance
coverages pursuant to this Agreement shall be become solely by the Grantee.
(6) Subrogation Waiver
------------------
Unless and until the Grantee and each Contractor or Subcontractor and
each entity issuing a policy of insurance pursuant to this Agreement agree that
all insurers issuing any policy of insurance pursuant to this Agreement shall
waive their rights of subrogation against the City, its employees, its elected
and appointed officials, its agents, its consultants and its representatives
such policy of insurance shall be per se inadequate and non-conforming for
purposes of compliance by the Grantee with Section 0-000-000 of the Cable
Ordinance and this Agreement.
(7) No Limit Liability
------------------
-16-
The Grantee agrees that the insurance coverages pursuant to this
Agreement shall in no way limit the Grantee's liabilities and responsibilities
specified in this Agreement or by law.
(8) Claims Made Policies
--------------------
In addition to the requirements of Section 5.1(4) of this Agreement,
to the extent that any policy of ce required by the Cable Ordinance and Section
5 of this Agreement is issued on a claims made basis and is not renewed or
replaced, such policy of insurance retroactive date shall have an extended
reporting period of a minimum of two (2) years.
(9) Additional Coverage
-------------------
If the Grantee, or any of the Grantees Contractors or Subcontractors,
desire additional insurance coverage, higher limits of liability, or other forms
of indemnification for their own protection, the Grantee and each of its
Contractors and Subcontractors, shall be responsible for the acquisition and
cost of such additional policies of insurance and limits of liability
thereunder.
(10) Modifications of Section 5
--------------------------
The City maintains the right to modify the requirements of Section 5
of this Agreement at any time during the term of this Agreement. The City shall
give the Grantee written notice of any such modifications not less than 30 days
in advance of requiring such modification.
5.3 Performance Bonds
-----------------
Pursuant to the applicable provisions of Section 4-280-180(A)(3) of the
Cable Ordinance, the Grantee shall file with the Comptroller of the City of
Chicago (the "City Comptroller") for approval by the City Comptroller written
evidence of the following: A performance bond with a good and sufficient surety
running to the City with a minimum amount of three million dollars
($3,000,000.00); provided, however, that the amount of such performance bond
may, at the Grantee's option, be reduced to two million dollar ($2,000,000.00)
upon construction of fifty percent (50%) of the Grantee's cable television
system and may, at the Grantee's option, be further reduced to one million
dollars ($1,000,000.00) upon completion of construction of the Grantee's cable
television system. To the extent the Grantee chooses to reduce the levels of
such performance bond provided for in this Section 5.3, such reduction shall
only be accomplished with the prior approval of the City Comptroller.
The form of the initial performance bond and any optional reductions
pursuant to this Section 5.3 shall also be ffied with the Corporation Counsel of
the City of Chicago (the "Corporation Counsel") for approval.
-17-
5.4 Right to Require Replacement of Insurance or Bonds.
--------------------------------------------------
In the event that the financial condition of any entity insuring any policy
of insurance or performance bond pursuant to the requirements of the Cable
Ordinance and this Agreement materially adversely changes during the term of
this Agreement or during the term of any such policy of insurance and
performance bond issued pursuant to the Cable Ordinance and this Agreement such
that the City Comptroller, pursuant to Section 0-000-000 of the Cable Ordinance
would not have accepted the policy of insurance or approved the performance bond
or the City Corporation Counsel would not have found the form of the policy of
insurance or performance bond satisfactory; the City may, at any time, require
the prompt replacement of such policy of ce or bond, as the financial condition
of any entity issuing such policy of insurance or performance bond may require.
The Grantee agrees to inform the City of any information the Grantee receives
regarding a material adverse change in the financial condition of any entity
issuing any policy of insurance or performance bond pursuant to this Agreement.
If the City determines replacement of any policy of insurance or
performance bond is necessary, the City shall infom the Grantee in writing
setting forth the City's reasons for such replacement demand. Upon receipt by
the Grantee of such written notice from the City, the Grantee shall promptly,
but in no event within more than twenty-one (21) days of receipt of such notice,
either respond in writing to the City regarding the City's replacement demand or
replace the policy of ce or performance bond, as the case may be.
5.5 Insurance for Contractors and Subcontractors
--------------------------------------------
Consistent with Section 5.2(4) and (9) of this Agreement, the Grantee shall
provide insurance coverage for any Contractor or Subcontractor involved in the
construction, installation, maintenance or operation of its cable television
system by either obtaining the necessary endorsements to any and all of the
Grantee's policies of insurance or by requiring such Contractor or Subcontractor
to obtain appropriate insurance coverage consistent with Section 4280-180(A) and
(B) of the Cable Ordinance and appropriate to the extent of such Contractor or
Subcontractor's involvement in the construction, installation, maintenance or
operation of the Grantee's cable television system.
5.6 Alterations
-----------
The Grantee shall not materially change or alter the terms or conditions of
any policy of insurance or performance bond required pursuant to this Section 5
except upon sixty (60) days prior written notice to the Cable Commission, the
City Comptroller and the City Corporation Counsel. Any changes or alterations
to any policy of insurance or performance bond shall satisfy the requirements
set forth in this Section 5 and Section 0-000-000 of the Cable Ordinance and be
in a form satisfactory to the City Corporation Counsel and to the extent
provided for in Section 0-000-000 of the Cable Ordinance acceptable to the City
Comptroller.
-18-
5.7 The City's Right To Increase Minimum Amounts. In the event of
--------------------------------------------
changed circumstances that render the limits of liability and coverages provided
for in any policy of insurance or performance bond provided for in Sections 5.1
and 5.3 of this Agreement inadequate, the City reserves the right to reasonably
increase the minimum amounts of such limits of liability and related coverages
upon sixty (60) days prior written notice to the Grantee in order to ensure
adequate protection to the City. Within twenty-one (21) days after such notice,
the Grantee shall increase the limits of liabilities and related coverages, as
applicable, to an amount(s) consistent with the City's notice pursuant to this
Section 5.7.
5.3 No Excuse from Performance
--------------------------
None of the provisions contained in this Section 5 nor the policies
of insurance or performance bonds required pursuant to this Agreement shall be
construed to excuse the faithful performance by the Grantee of the terms and
conditions of the Cable Ordinance and this Agreement or limit the liability of
the Grantee under the Cable Ordinance and this Agreement for any and all damages
in excess of the coverages provided for in such policies of insurance or
performance bonds.
5.9 Endorsement
-----------
Any and all of the policies of insurance and performance bonds
required pursuant to this Section 5 shall expressly contain the following
endorsement:
"It is hereby understood and agreed that the insurance company
[surety] shall not cancel or refuse to renew this policy of insurance
[performance bond] without giving the City Comptroller written notice, by
registered mail, of its intention to cancel or not to renew, at least sixty (60)
days prior to such action."
Section 6. Letter of Credit
----------------
6.1 Form and Amount
---------------
Pursuant to the terms and conditions set forth in Section 0-000-000
of the Cable Ordinance, within 10 days from the Date of Acceptance, the Grantee
shall obtain and deposit with the City a letter of credit from a financial
institution satisfactory to and approved by the City Comptroller. Additionally,
the form and content of this letter of credit shall be approved by the City
Corporation Counsel. The wnount of the letter of credit shall be five hundred
thousand dollars ($500,000.00); provided, however, that the amount of the letter
of credit shall be three hundred seventy-five thousand dollars ($375,000.00) per
franchise area if the Grantee or its affiliates provide cable television
services in two of the City's franchise areas; provided, further, that the
amount of the letter of credit shall be three hundred fifty thousand dollars
($350,000.00)
-19-
per franchise area if the Grantee or its affiliates provide cable television
services in three or more of the City's franchise areas.
6.2 Endorsement
-----------
Pursuant and in addition to Section 4-280-190(E) of the Cable Ordinance,
the letter of credit referred to herein shall contain the following endorsement:
"It is hereby understood and agreed that the surety will not cancel or
reffim to renew this letter of credit without giving the City Comptroller
written notice, by registered mad, of its intention to cancel or not to renew
this letter of credit, at least thirty (30) days prior to such action."
Section 7. Programming Services and Fees
-----------------------------
7.1 Subscriber Services and Fees
----------------------------
The Grantee shall provide to subscribers the broad categories of
programming services set forth in Exhibit C attached to this Agreement and made
a part hereof The Grantee shall provide thirty (30) days prior written notice to
the Cable Commission and the subscribers affected thereby of any change in the
monthly subscriber fees for all such services and of any change in channel
Assignment or in the video programming service provided over any such channel.
The City expressly retains and reserves throughout the term of this Agreement
all authority and right to regulate the amount of said monthly subscriber fees
to the extent the City's exercise of such authority and right is permitted by
and in accordance with applicable law, including Section 4-280-210(E) of the
Cable Ordinance as interpreted and applied in harmony with Section 543 of the
Communications Act as same may be amended from time to time, and the rules and
regulations of the FCC promulgated thereunder.
7.2 User Services and Fees
----------------------
The Grantee shall provide to users the services at the discounted
rates set forth in Exhibit D attached to this Agreement and made a part hereof
The Grantee shall file with the Cable Commission a description of all its user
services and the fees to be charged therefor at least thirty (30) days prior to
the marketing of any such services.
7.3 New Subscriber Services
-----------------------
In the event the Grantee proposes to offer any new subscriber
services on the Grantee's cable television system, the Grantee, pursuant to
Section 4-280-220(E) of the Cable Ordinance, shall file with the Cable
Commission a description of such services and the fees to be charged therefor
not less than thirty (30) days prior to any marketing of such new subscriber
services.
-20-
7.4 Promotions and Discounts
------------------------
Pursuant and in addition to Section 4-280-210(G) of the Cable Ordinance, as
interpreted and applied in harmony with Section 543(d) of the Communications Act
as same may be amended from time to time, and the rules and regulations of the
FCC promulgated thereunder, the Grantee may, for promotional purposes, offer
service tiers, pay-per-channel or other services at discounted fees. The
Grantee shall file a description of such swaces and the fees to be charged
therefor with the Cable Commission not less than forty-eight (48) hours prior to
any marketing of such services described in this Section 7.4.
7.5 Extra-Long Drops
----------------
If the installation of a service outlet requires an aerial drop in excess
of one hundred fifty (150) feet or an underground drop in excess of seventy-five
(75) feet, the Grantee may charge the subscriber requesting such extra-long drop
an amount that is equal to the costs of time and materials in accordance with
industry standards for that portion of the drop in excess of one hundred fifty
(150) feet or seventy-five (75) feet, respectively. The Grantee shall provide
such subscriber a written estimate of the costs of installing an extra-long drop
and obtain such subscribers written consent prior to any installation of such
drop; provided, however, that the Grantee may require an advance payment of such
costs from such subscriber as a condition of performing the requested
installation.
7.6 Non-Standard Installations
--------------------------
If a subscriber requests a non-standard on for aesthetic purposes
including, but not limited to, optional underground construction pursuant to
Section 4-280-300(E) of the Cable Ordinance, concealed wiring or routing from
the tap to the dwelling unit that differs from the easiest route that could
otherwise be taken (usually following the telephone drop) which results in
greater costs, the Grantee may charge the subscriber for such non-standard
installation in an amount equal to the costs of time and materials in accordance
with prevailing industry standards at the time of such request. The Grantee
shall provide such subscriber a written estimate of the costs of such
installation and obtain such subscriber's written consent prior to any such
installation; provided, however, that the Grantee may require an advance payment
of such costs from such subscriber as a condition of performing the requested
non-standard installation.
Section 8. System Design
-------------
8.1 Subscriber Network System
-------------------------
The Grantee shall construct a subscriber network system utilizing a fiber
optic trunk and coaxial feeder cable providing a minimum upper frequency limit
of 75OMRz with return transmission paths, which shall be capable of one hundred
sixteen (116) analog charmers
-21-
downstream and four (4) channels upstream, 4 of which a minimum of eighty (80)
downstream channels will be activated upon initiation of service in accordance
with the design set forth in the Grantee's Application.
8.2 Additional Channels/Institutional Network System
------------------------------------------------
If the Grantee determines the need for additional channel capacity or the
activation of upstream channel capacity, or for the activation of an
institutional network system ("INS"), the Grantee shall provide such additional
capacity or activate any or all of such capacity either on the subscriber
network system or on a separate institutional network system upon the Grantees
determination that such additional capacity is technically and economically
feasible.
8.3 Twenty-Four Hour Operation
--------------------------
The Grantee's cable television system shall be designed and operated to
ensure that it is in operation and is capable of receiving and transporting
twenty-four (24) hours per day; provided, however, that the operation of the
Grantee's cable television system may be interrupted by the Grantee only during
the times and for the reasons set forth in Section 4-280290 (E) of the Cable
Ordinance.
8.4 Transmissions Between the Subscriber and Institutional Network Systems
----------------------------------------------------------------------
In the event that an INS is constructed by the Grantee, both the Grantees
subscriber network system and INS shall be designed so as to prevent access from
either the subscriber network system onto the INS or from the INS onto the
subscriber network system except upon the mutual agreement of the Grantee and
the originator of a transmission or as otherwise specified in this Agreement.
8.5 Alternative Design
------------------
If the Grantee elects to use an alternative to the design set forth in the
Grantee's Application and Section 5.1 of this Agreement, such alternative
design shall be at least equal to or exceed the performance and capabilities of
the design set forth in the Grantee's Application and Section S.I of this
Agreement. The Grantee shall submit in writing such alternative design with
appropriate documentation to the Cable Commission no later than sixty (60) days
prior to the implementation of such design alternative in the construction or on
of the Grantee's cable television system.
8.6 Interference
------------
The Grantees cable television system shall be designed to minimize
accumulation of upstream thermal noise. All connectors, splices and other
equipment used therein by the Grantee shall be designed, manufactured and
installed so as to signal leakage or ingress.
-22-
8.7 Reliability and Safety
----------------------
In order to promote reliability and the Grantee shall protect its equipment
in a suitable manner from possible damage due to electrical surges. All trunk
amplifiers shall contain automatic or manual gain and slope control circuitry
designed to maintain high levels of signal quality over varying temperature
conditions; provided, however, that no less than one-half of all trunk
amplifiers shall contain automatic gain and slope control circuitry.
8.8 Satellite Earth Stations
------------------------
The Grantee shall, at a minimum, provide and maintain uninterrupted
carriage of all satellite-delivered services offered on the Grantee's cable
television system. Additionally, the Grantee shall provide an uninterruptible
power supply ("UPS") for all equipment necessary to carry such satellite-
delivered services.
8.9 Standby Power
-------------
The Grantee shall provide standby power as set forth in the relevant
provisions of the Grantee's Application or shau provide and maintain equipment
capable of providing standby power for the Grantee's headend and hub facilities
for a minimum of eight (8) hours and for the transportation and distribution
amplifiers for a minimum of two (2) hours at any temperature above -
10(degrees)F; provided, however, that standby power for the transportation and
distribution amplifiers may be maintained at a minimum of one (1) hour at any
temperature above 10(degrees)F if:
(i) an automatic remote visual and aural alarm is provided and
continuously monitored twenty-four (24) hours per day and automatically
indicates when a standby power unit is operating in an emergency mode; (H) a
pool of portable generators capable of providing the requisite power are
conveniently located; and (iii) procedures are established to ensure the prompt
dispatch of a portable generator to any standby power unit operating in an
emergency mode.
8.10 Standby Capability
------------------
The Grantee shall provide and maintain facilities including a diversity of
failure modes to ensure standby capability so that the faflure of any part of
the Grantees cable television system does not result in a loss of service
throughout the Grantee's cable television system.
8.11 Status/Performance Monitoring
-----------------------------
The Grantee shall perform such status/performance monitoring as may be
required by applicable FCC rules and regulations.
-23-
8.12 Equipment
---------
In the construction and installation of its cable television systm the
Grantee shall install the equipment set forth in the Grantee's Appfication;
provided, however, that upon prior written notice to the Cable Commission the
Grantee may substitute such equipment with equipment of equivalent or better
quality and function consistent with the requirements set forth in Section 8 of
this Agreement. Such notice shall provide a description of the proposed
equipment and the reasons for the substitution. All equipment used in the
construction and installation of the Grantee's cable television system shall be
new-, provided, however, that the Grantee may, in specific instances, seek a
waiver from the Cable Commission of said requirement. In any event the Grantee
shall retain the necessary invoices and records as evidence of such purchases
for a period of not less than two (2) years from date of such purchases.
8.13 Satellite Uplink
----------------
If the Grantee determines that it is technically and economically feasible
to offer satellite uplink services, a written notice shall be filed by the
Grantee with the Cable Commission at least thirty (30) days prior to offering
such satellite uplink service. This notice from the Grantee shall contain, at a
minimum, a detailed description of such satellite uplink services and applicable
rates.
8.14 Applicability of Sections 9. 10, 11 and 12 of This Agreement.
------------------------------------------------------------
The Grantee expressly understands and agrees with respect to the design,
construction and operation of the Grantee's cable television system this Section
8 shall be read, interpreted and enforced consistent with the Grantee's
obligations pursuant to the Cable Ordinance and Sections 9, 10, 11 and 12 of
this Agreement.
Section 9. Technical Standards
-------------------
The Grantee shall conform to the FCC Proof of Performance Standards
including, but not fin-dted to, composite triple beat ("CTB"), carrier noise
("C/N"), composite second order ("CSO"), Hum and Differential Gain and number of
system status monitoring test points based on the number of the Grantee
subscribers, plus one (1) test point at each repeater in accordance with the
design set forth in the Grantee's Application and consistent with the
requirements set forth in Section 8 of this Agreement.
9.1 Performance Requirements
------------------------
The Grantee shall maintain the following performance Standards at the
output of any trunk or distribution amplifier on both the Grantees subscriber
and institutional network systems:
Visual carrier-to-noise ratio 46 dB Minimum
-24-
Visual carrier-to-composite triple
beat ratio
Without HRC or IRS 53 dB Minimum
With either HRC or IRC 47 dB Minimum
9.2 Subscriber Network System
-------------------------
Prior to utilizing the upstream portion of the Grantee's subscriber network
system for the transmission of subscriber or user video signals the Grantee
shall submit to the Cable Commission for its approval a plan that establishes
performance standards and methods of measurement for the utilization of such
upstream portion. Prior to the activation of service to subscribers on the
downstream portions of the Grantee's subscriber network system the Grantee shall
submit to the Cable Commission for its approval a plan that establishes methods
of measurement for all applicable technical standards for the utilization of
such downstream portion.
9.3 Institutional Network System
----------------------------
In the event that the Grantee offers an INS, the Grantee's INS performance
parameters shall be in accordance with those set forth in Section 9.2 of this
Agreement.
9.4 Performance Measurement Standards
---------------------------------
In order to properly conduct the performance observations set forth in
Section 9.2 of this Agreement, the Grantee shall ensure that all amplifiers and
other equipment are in normal operating condition with automatic slope and gain
control ("ASGC") carriers properly adjusted.
9.5 Data Transmissions
------------------
The Bit Error Rate ("BER") for all point-to-point data transmissions on the
Grantee's cable television system shall not exceed one multiplied by ten to the
negative eighth power (I x 10/-8/) unless error detection and correction
protocols are provided in accompanying software to ensure reliable transmission
of all point-to-point data notwithstanding a larger BER.
9.6 Interference
------------
The Grantee shall comply with applicable FCC rules and regulations in order
to ensure that the operation of the Grantee's cable television system does not
cause objectionable interference to any television or radio reception.
-25-
9.7 Test Procedures
---------------
Pursuant and in addition to Section 4-280-280(A) of the Cable Ordinance,
the Grantee shall conduct all technical performance tests in accordance with the
procedures set forth in the most current (at the time of each technical
performance test) edition of "Standards of Good Engineering Practices for
Measurements on Cable Television Systems," NCTA-008-0477. The Grantee shall
also submit to the Cable Commission initial proof of performance tests for each
portion of the Grantees cable television system activated pursuant to the
Grantees construction schedule as set forth in Exhibit E-2 described in Section
11.2 of this Agreement.
Section 10. Maintenance of System
---------------------
At all times during the term of this Agreement, the Grantee shall maintain
its cable television system in good repair and condition.
Section 11. Construction Schedule and Other Reports
---------------------------------------
Pursuant and in addition to Section 0-000-000 of the Cable Ordinance:
11.1 Construction Timetable
----------------------
The Grantee has submitted to the City a construction timetable (the
"Construction Timetable") as set forth in Exhibit E-3 attached to this Agreement
and made a part hereof Exhibit E-3 shall be enforceable under the terms and
conditions of the Cable Ordinance and this Agreement and consistent with the
Communication Act, as may be amended from time to time.
11.2 Construction Schedule and Map
-----------------------------
Pursuant to Section 4-280-310(D) of the Cable Ordinance, the Grantee shall,
within three (3) months of the Date of Acceptance, furnish the Cable Commission
a complete construction schedule and map (the "Construction Schedule"). Such
Construction Schedule shall be consistent with the Grantee's Construction
Timetable referred to in Section 11.1 of this Agreement and upon approval by the
Cable Commission shall be attached to this Agreement as Exhibit E-2 and made a
part hereof. More specifically, such Construction Schedule shall expressly
provide: the number of fiber optic node sections, the approximate number of
plant mileage within Franchise Area 1; and the approximate number of dwelling
units to be constructed and activated on the subscriber network system on a
quarterly basis, and the scheduled dates for completion of construction of all
major facilities. Such Construction Schedule shall also include a map of
Franchise Area I showing the boundaries of all fiber optic node sections to be
constructed and activated by the Grantee consistent with the Grantee's
Construction Timetable referred to in Section 11.1 of this Agreement. The
Grantee's Construction Schedule shall be submitted by the Grantee to the Cable
Commission on forms set forth in Exhibit E-1 to this Agreement. The Grantees
Construction Schedule shall, at a minimum
-26-
set forth the location of all major facilities, trunk and supertrunk lines for
the Grantee's cable television system. Additionally, the Grantee's Construction
Schedule shall be updated whenever substantial changes become necessary. A
substantial change in the Grantee's Construction Schedule shall be deemed to
occur whenever an adjustment is necessary that would result in a delay in
construction as set forth in the Grantee's quarterly schedule. Without the prior
approval of the Cable Commission, no change in the Construction Schedule shall
be permitted that would result in a delay inconsistent with the Grantee's
Construction Timetable referred to in Section 11.1 and Exhibit E-3 to this
Agreement. In addition, upon commencement of construction of its cable
television system, the Grantee, for informational purposes, shall notify the
Cable Commission in writing on a monthly basis of those areas where strand or
cable has been installed or where service is being provided. Such informational
notices to the Cable Commission shall be included on the forms set forth in
Exhibit E-1 to this Agreement.
11.3 "As Built" Maps
---------------
The Grantee shall submit to the Cable Commission "as built" maps for those
portions of the Grantee's cable television system that have been constructed and
activated pursuant to the Construction Schedule referred to in Section 11.2 of
this Agreement as soon as such maps are completed by the Grantee, but in no
event later than ninety (90) days after completion of such construction and
activation. Such maps, set forth by fiber optic node section, shall, at a
minimum, include cable routings and the location of amplifiers, power supplies
and system monitor test points. The Grantee shall, during the term of this
Agreement, maintain up-to-date as built maps, that shall be available for
examination by the City during the Grantee's normal business hours.
11.4 Third Party Litigation
----------------------
The Grantee agrees that, except to the extent it is prevented from doing so
by order of a court or strative agency or other body having appropriate
jurisdiction, litigation or any administrative proceedings instituted by any
person or persons or entity or entities not a party to this Agreement shall not
suspend the Grantee's obligation to construct, install, activate and operate its
cable television system in accordance with the construction schedules referred
to in Sections 11.1, 11.2 and 11.3 of this Agreement.
Section 12. Construction Requirements and Standards
---------------------------------------
12.1 General
-------
The Grantee shall construct, install, maintain and operate its cable
television system in a safe, orderly and workmanlike manner utilizing only
materials of good, durable quality with due respect for engineering
considerations and in accordance with applicable federal, state and local laws
and regulations.
-27-
12.2 Compliance Standards
--------------------
Pursuant and in addition to Section 4-280-270(A) of the Cable Ordinance,
the Grantee shall at all times during the term of this Agreement comply with the
following:
(1) National Electrical Safety Code of the American National Standards
Institute (latest edition);
(2) National Electrical Code of the National Fire Protection Association
(latest edition);
(3) UL Code, (latest edition);
(4) Tower Standards:
(a) EIA-RS-222-A,
(b) Federal Aviation Administration (the "FAA") and
(c) United States and State of Illinois Departments of Transportation.
12.3 Construction and Installation Manual
------------------------------------
The Grantee shall submit to the Cable Commission a manual that sets forth
the specifications, standards and procedures for construction and installation
of the Grantees cable television system (the "Construction/Installation
Manual"). Said manual shall be consistent with the highest state-of-the-art
standards of the cable television industry and shall, at a minimum, establish
procedures to ensure quality work and provide for the safety and protection of
residents and property. The Grantee's Construction/Installation Manual shall be
submitted to the Cable Commission not later than sixty (60) days prior to
commencement of construction of the Grantee's cable television system.
12.4 The Grantee's Construction and Inspection Manual
------------------------------------------------
The Grantee shall submit a "Construction and Inspection Mamud for
Grounding, Bonding, and Surge Protection," (the "Construction/Inspection
Manual") to the Cable Commission not later than sixty (60) days prior to the
commencement of construction of its cable television system. Such manual shall,
at a minimum, included procedures regarding the following:
(a) Aerial Pole Lines
(b) Ground Resistance Measurement
(c) Grounding and Bonding Locations
-28-
(d) Underground Construction
(e) Service Drops - Aerial
(f) Service Drops - Underground
(g) Towers
(h) TVROs (including LNAs and LNCs)
(1) Buildings Power Supplies
(k) Amplifiers
(1) Operating Reliability Goals.
12.5 Engineering Site Survey
-----------------------
The Grantee shall submit to the Cable Commission a fully coordinated
engineering site survey (the "Site Survey") of all the Grantee's off-air
broadcast and satellite signal reception sites demonstrating adequate clearance
from interference at least sixty (60) days prior to commencement of construction
of the Grantee's cable television system.
12.6 Restoration
-----------
Pursuant and in addition to Section 4-280-300(F) of the Cable Ordinance,
the Grantee shall promptly restore or replace all public ways or private
property in as good a condition as the Grantee found said public ways and
private property at the time of commencement of the Grantee's work thereon;
provided, however, that where conditions prohibit prompt restoration or
replacement of said public ways, the Grantee may request from the City an
extension of time within which to complete such restoration, which request shall
not unreasonably be denied. The Grantee shall conduct all restoration or
replacement in a competent and efficient manner minimizing disruption and
inconvenience to others.
12.7 Tree Trimming on Public Property
--------------------------------
Pursuant and in addition to Section 4-280-300(I) of the Cable Ordinance,
the Grantee, in trimming trees or other foliage on public property, shall
properly and promptly dispose of such trimmings.
12.8 Tree Trimming on Private Property
---------------------------------
The Grantee shall not trim any tree or other foliage located on private
property prior to obtaining the written consent of the owner of such private
property. Such trees or other foliage shall be trunmed at the Grantees own and
trlmmmgs therefrom shall be disposed of properly and promptly.
12.9 Iogies
------
-29-
The Grantee's cable television system shall be designed, constructed and
operated as a state-of-the-art cable television system consistent with the
Grantee's Application and as required by this Agreement. If, as a result of
technological developments during the term of this Agreement, the quality or
quantity of programming or services available to subscribers or users of the
Grantee's cable television system become subject to upgrade, the Grantee shall,
at the request of the Cable Commission, investigate the feasibility of
implementing such new developments and shall implement such technological
developments if such implementation (i) can be accomplished without adding an
unwarranted financial burden to subscribers and (ii) is economically feasible
and viable for the Grantee. In det whether or not the Grantee shall be required
to implement such new developments, the Cable Commission and the Grantee shall
consider, among other factors, the remaining term of this Agreement, performance
demonstrating the operational feasibifity of the new developmenm construction
costs, the adaptabifity of such developments to the Grantee's cable television
system or any part thereof and the potential marketability of the new services
and other factors affecting the economic feasibility and viability of
implementation of such new technologies.
12.10 Contractors and Subcontractors
------------------------------
All Contractors and Subcontractors of the Grantee must be properly licensed
under all applicable federal, state and local laws and regulations. The Grantee
shall be solely and completely responsible for all acts or omissions of any and
all of the Grantee's Contractors or Subcontractors in the construction, on,
maintenance or operation of the Grantee's cable television system.
Section 13. Extension of Service
--------------------
13.1 New Developments
----------------
The Grantee shall, upon request for service, provide service to all new
developments located within Franchise Area I if a new development is located
within a portion of Franchise Area I in which construction of the Grantee's
cable television system has been completed or is in the process of being
completed; provided, however, that the Grantee may, upon approval of the Cable
Commission, extend the time for providing such service.
13.2 Annexation
----------
Upon annexation by the City of any new territory contiguous to Xxxxxxxxx
Xxxx 0, the Grantee shall, at the request of the City, provide service to said
area upon terms and conditions mutually agreed to by the City and the Grantee;
provided, however, that the Grantee may, upon Cable Commission approval,
postpone the time for providing service to said area where it would result in a
delay in the Grantee's Construction Schedule as set forth in Exhibit E-2 of this
Agreement.
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Section 14. Removal of System
-----------------
14.1 Removal By The Grantee
----------------------
If the City Council requires the removal of all of the Grantee's property
located within the public ways of the City pursuant to Section 4-280-100(D)(3)
or Section 4-280-1 10(F) of the Cable Ordinance, the Grantee, at its own
expense, shall remove such property within one (1) year after complete cessation
of the Grantees cable television service or such longer period as approved by
the City Council, and under supervision of the City shall repair and restore the
public ways pursuant to Section 4-280-300(F) of the Cable Ordinance. The
Grantee shall be responsible for any and all damages caused by such removal. If
the City Council requires the removal of all of the Grantee's property located
within the public ways of the City pursuant to Section 4-280-100(D)(3) or
Section 4-280-110(F) of the Cable Ordinance and it after complete cessation of
the Grantee's cable television service, the Grantee fads to remove or cause the
removal of all of its property located within the public ways of the City within
one (1) year or such longer period as approved by the Council, the City shall
deem such property abandoned and such property, at the option of the City, shall
become property of the City.
14.2 Removal By The City
-------------------
If the City Council requires the removal of all of the Grantee's property
located within the public ways of the City pursuant to Section 4-280-100(D)(3)
or Section 4-280-110(F) of the Cable Ordinance and if the Grantee xxxx to remove
or cause the removal of all of its property located within the public ways of
the City within one (1) year after complete cessation of the Grantee's cable
television service, or such longer period as approved by the City Council, the
City may remove or cause the removal of such system; provided, however, that the
City shall be reimbursed for the total costs of such removal to the extent that
such costs exceed the amount of the performance bond provided for pursuant to
Section 5.3 of this Agreement.
Section 15. Intra-City Interconnection
--------------------------
15.1 Purpose
-------
Pursuant and in addition to Section 0-000-000 of the Cable Ordinance, the
Grantee shall cooperate with other cable television services franchise grantees
within the City ("Other Grantees") to interconnect all cable television within
the City to amre that the granting by the City of separate franchises for cable
television services does not restrict utilization of such cable television
service systems on a City-wide basis. Sufficient interconnection is essential
for access channels and local origination channels to facilitate City-wide and
geographically-targeted programming and services.
15.2 Capacity and Timetable
----------------------
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Interconnection of all cable, television systems within the City shall, at
a minimum provide adequate capacity for two (2) channels including two (2)
subcarriers to be delivered from each of the Other Grantees' franchise areas to
a central interconnection facility and eight (8) channels including two (2)
subcarriers to be delivered to each of the grantees' franchise areas from a
central interconnection facility. Said interconnection shall be operational
within one (1) year of service being delivered by the Grantee to its first
subscriber. Additional channel capacity shall be incrementally activated on an
as-needed basis to ensure that all public access, municipal utilization, non-
alphanumeric local origination, and at least one leased access channel can be
delivered to each of the Other Grantees' franchise areas from a central
interconnection facility; provided, however, that the Other Grantees as part of
the interconnection plan referred to in Section 15.3 of this Agreement may
submit an alternative design that equals or exceeds the performance and
capabilities of the design referred to in this Section 15.2.
15.3 Plan of Interconnection
-----------------------
The Grantee, in cooperation with the Other Grantees, shall develop a plan
of interconnection (the "Interconnection Plan") consistent with the requirements
set forth in Section 15 of this Agreement. Such plan shall address, in detail,
all tasks necessary to implement an interconnection system for the City,
including, but not limited to, organizational structure, administration, design
financing, projected costs and expenses, technical performance and construction
standards, channel bandwidth allocation procedures, construction, operation,
maintenance and upgrading of the interconnection system. This Interconnection
Plan shall be submitted to the Cable Commission for approval within ninety (90)
days of the Acceptance Date; provided, however, that the Cable Commission may
extend the time for submission of such plan upon request by the Grantee and the
Other Grantees. In the event that the Grantee and Other Grantees are unable to
agree upon such a plan within ninety (90) days or such longer period as approved
by the Cable Commission, the Cable Commission shall act as the arbitrator and
its decision shall be final and binding on the Grantee and the Other Grantees.
Upon Cable Commission approval, this Interconnection Plan shall be attached to
this Agreement as Exhibit L and made a part hereof.
15.4 Interconnection Responsibilities
--------------------------------
The Grantee and the Other Grantees, shall be responsible for (i) providing
and covering the costs of all equipment and facilities necessary to implement
the Interconnection Plan referred to in Section 15.3 of this Agreement, (ii)
obtaining all licenses, permits and authorizations necessary to conduct and
operate such interconnection system, and (iii) covering all capital costs and
operational and maintenance expenses associated therewith, as provided in said
plan of interconnection.
15.5 Construction and Technical Standards
------------------------------------
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The interconnection system described in Section 15 of this Agreement shall
be designed, constructed, installed, maintained and operated in accordance with
the standards set forth in Sections 4-280-260(A), 4-280-270(A) and 4-280-280(A)
of the Cable Ordinance and Sections 9, 10, 11 and 12 of this Agreement.
Additionally, such interconnection system shall be designed, constructed,
operated and maintained so as not to degrade the quality of any of the signals
transmitted on the Grantee's and Other Grantees' subscriber or institutional
network systems.
15.6 Fees, Rules, Etc.
----------------
Nothing herein shall prohibit the Grantee from establishing reasonable fees
for use of the interconnection system or from promulgating and requiring
reasonable terms or conditions relating to the use thereof; provided, however,
that neither the City nor the Chicago Access Corporation (the "CAC") shall be
charged at any time for the use thereof In addition, the Cable Commission shall
annually review utilization of the interconnection system and the allocation of
bandwidth to the City and the CAC to ensure that the City and the CAC have been
reserved adequate capacity on the interconnection system to meet the respective
reasonable needs of the City and the CAC.
Section 16. Channel Allocation
------------------
16.1 Standard Allocation
-------------------
The Grantee shall at all times provide the same channel allocations for the
following channels as provided for by all Other Grantees operating cable
television services systems within the City:
(1) The non-alphanumeric local origination channel referred to in
Exhibit 0 attached hereto and made part of this Agreement;
(2) All channels under the control of the CAC;
(3) At least one (1) leased access channel; and
(4) At least two (2) local government access channels.
The Grantee hereby agrees to comply with the standard channel allocation
set forth in Exhibit F attached hereto and made part of this Agreement. The
Grantee shall exercise its best efforts in cooperation with all Other Grantees
operating within the City to establish a standard allocation for those channels
for which such allocation is required but not established as of the Date of
Acceptance. Upon agreement between and among the Grantee and all Other
Grantees, such standard channel allocation shall be incorporated into Exhibit F
to this Agreement.
16.2 Aeronautical Frequencies
------------------------
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The Grantee shall comply with all FCC rules and regulations regarding
operation in the frequency bands 108-137 and 225-400
Section 17. Universal Subscribers
---------------------
The Grantee shall make service available throughout Franchise Area I in
accordance with Sections 7 and 11 of this Agreement.
Section 18. Local Origination
-----------------
Pursuant to and in compliance with Section 542(g)(2)(C) of the
Communications Act, and consistent with the public benefits of public,
educational and governmental ("PEG") access, during the term of this Agreement,
the Grantee, in cooperation with the Other Grantees operating cable television
services systems within the City, has voluntarily agreed to contribute to local
origination as set forth in Exhibit G attached hereto and made part of this
Agreement. The Grantee has voluntarily agreed to remit seven hundred ninety-
eight thousand eight hundred sixty-five dollars ($798,865.00) in funding for PEG
access local origination directly to the City in fifteen (15) equal annual
payments of fifty three thousand two hundred fifty-eight dollars ($53,258.00).
The first annual payment shall be made no later than ninety (90) days following
the Acceptance Date, and each subsequent payment shall be made on or before such
date of each subsequent year during the term of this Agreement. The Grantee
shall provide local origination workshops as set forth in Exhibit C to this
Agreement.
Section 19. Chicago Access Corporation
--------------------------
In furtherance of the benefits to the public of PEG access:
19.1 Channel Commitments
-------------------
Pursuant to Section 4-280-360(A) of the Cable Ordinance, the Grantee shall
dedicate ten percent (10%) of its usable channels from their inception as access
channels on its subscriber network system. All such channels shall be provided
to the CAC free of charge and under the exclusive use and control of the CAC;
provided, however, that such channels are utilized by the CAC for non-commercial
programming and purposes and without any charges by the CAC to any subscriber or
advertiser. Under no circumstances shall the Grantee have the authority or
right to exercise any control over the use or operation of such channels except
as provided in Section 4-280-360(B) of the Cable Ordinance and Section 531
of the Communications Act. Neither the Grantee nor the CAC shall be liable for
the quality or content of programming produced or transmitted by the Grantee or
CAC.
19.2 Payments and Contributions
--------------------------
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(1) Pursuant to and in compliance with Section 542(g)(2)(C) of the
Communications Act, the Grantee shall during the term of this Agreement pay to
CAC a total of one million one hundred twenty-five thousand dollars ($1,125,000)
for the exclusive use of CAC in connection with CAC PEG access capital costs.
These CAC PEG capital cost payments by the Grantee shall be made in accordance
with Exhibit H attached hereto and made part of this Agreement. These PEG
access related capital costs payments to CAC by Grantee shall be as follows:
one hundred twenty five thousand dollars ($125,000) shall be payable no later
than one hundred eighty (180) days from the Date of Acceptance; one hundred
thousand dollars ($100,000) shall be payable no later than three hundred sixty
(360) days from the Date of Acceptance (the "360 Day Payment"); one hundred
thousand dollars ($100,000) shall be payable no later than the last day of each
of the four (4) calendar years begining with the calendar year in which the 360-
Day Payment is to be made; and fifty thousand dollars ($50,000) shall be payable
no later than the last day of each of the following ten (10) calendar years.
(2) In addition to the PEG access cost capital payments set forth in
Section 19.2(1) of this Agreement, the Grantee has voluntarily agreed to pay CAC
one percent (1%) of its annual gross revenues as defined in an agreement dated
January 26, 1996 by and between the Grantee and CAC (the "CAC Agreement"). The
terms and conditions of those payments by the Grantee to CAC are as set forth in
the CAC Agreement.
19.3 Equipment
---------
The Grantee shall provide, at the Grantee's sole expense but without change
in ownership, modulators and other necessary equipment to permit full and
practical utilization from the Grantee's headend downstrum by conventional
technical means, of each CAC channel as from time to time requested by the CAC
but in no event earlier than system activation. Additionally, the Grantee shall
insure that its cable television system is constructed and operated to permit
the CAC, at CAC's expense, to cablecast live pro from remote locations with no
charge to the CAC for access to the Grantee's existing facilities suitable for
such purposes at the Grantee's headend.
19.4 Programming Authority
---------------------
The Grantee shall have no authority or control over any programming
cablecast on channels dedicated to the CAC pursuant to Section 19.1 of this
Agreement. All programming cablecast on such channels shall not be considered
origination cablecasting for purposes of Grantee's compliance with Section 76
Subpart G of the FCC rules and regulations unless otherwise determined by the
FCC with respect to the Grantee. The Grantee shall have no responsibility under
Section 4-280-260(D) of the Cable Ordinance for programming cablecast on any CAC
dedicated channels. Nothing in Section 19 of this Agreement shall be construed
to imply that Grantee is a common carrier.
19.5 CAC/The Grantee Policies and Procedures
---------------------------------------
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In order to facilitate effective operations and worldng arrangements
between the CAC and the Grantee and to resolve difficulties, if any, in the
implementation of the Grantee's commitments to the CAC, within one hundred and
twenty (120) days after the Acceptance Date or such later date as agreed upon by
and between the Grantee and the CAC, the Grantee and the CAC shall develop
written policies and procedures that shall be filed with the Cable Commission.
Said policies and procedures shall detail the mutual obligations of the Grantee
and the CAC 'm a manner not inconsistent with the Cable Ordinance, Section 542
of the Communications Act, as it may be amended from time to time and this
Agreement and shall include an acknowledgment by the CAC and the Grantee that,
with respect to any mutual obligations provided for under this Agreement and the
written policies and procedures to be adopted by and between the Grantee and the
CAC, the Grantee and CAC shall act in a reasonable, expeditious and timely
manner.
Section 20. Leased Access
-------------
The Grantee shall comply with Section 532 of the Communications Act as
amended from time to time, and all FCC rules and regulations promulgated
thereunder, regarding the provision of channel capacity for commercial use. The
Grantee acknowledges and agrees that, should current federal preemptive
authority be modified so as to permit the City to enact and enforce requirements
governing the provision of channel capacity for commercial use, the Grantee
shall comply with such any and all requirements of the City during the remainder
of the term of this Agreement.
Section 21. Municipal Utilization
---------------------
21.1 Description
-----------
During the term of this Agreement, the Grantee shall provide for municipal
utintion on its subscriber network system as set forth in the Grantee's
Application and Exhibit I attached to this Agreement. The channels dedicated to
the use and control of the City and other local government agencies designated
by the City as set forth in Exhibit I to this Agreement shall be utiked for non-
commercial programming and purposes and without any charges by the City to any
subscribers The Grantee shall have no authority or control over any programming
cablecast on such dedicated channels. All programming cablecast on such
dedicated channels shall not be considered origination cablecasting for purposes
of the Granteies compliance with Section 76 Subpart G of the FCC rules and
regulations unless otherwise determined by the FCC with respect to the Grantee.
The Grantee shall have no responsibility under Section 4-280-260(D) of the Cable
Ordinance for programming cablecast on any such dedicated channel.
Additionally, nothing in Section 21 of this Agreement shall be construed to
imply that Grantee is a common carrier.
21.2 Additional Channel CanaciU
--------------------------
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Upon demonstration by the City of full utilization of the channel capacity
dedicated to the City, the Grantee shall exercise its best efforts to provide
additional channel capacity to the City on the Grantee's cable television system
to meet the reasonable needs of the City unless to do so would place an
unreasonable economic burden on the Grantee.
Section 22. Enhanced/Developmental Services
-------------------------------
If the Grantee determines to offer enhanced/developmental services, a
notice shall be filed with the Cable Commission at least thirty (30) days prior
to launch of such enhanced/developmental services. Said notice shall contain
detailed descriptions of such services and applicable rates.
Section 23. Employment Requirements
-----------------------
The following provisions are set forth pursuant and in addition to Section
554 of the Communications Act, as may be amended from time to time, and all FCC
rules and regulations promulgated thereunder, and Section 0-000-000 of the Cable
Ordinance.
23.1 Affirmative Action
------------------
Pursuant to Section 0-000-000 (B) and (C) of the Cable Ordinance, the
Grantee, during the term of this Agreement, shall exercise its best efforts to
maximize equal employment opportunities for minorities and women. The goal for
the Grantees workforce with respect to minority employment shall be parity with
the population of minorities in relation to the general population of the City.
The Grantee shall take affirmative action to accomplish this goal in each of the
job categories set forth in Exhibit J attached hereto and made part of this
Agreement. The goals for the Grantee's workforce with respect to female
employment shall be parity with the respective percentage representations of
females in the labor force of the City in each of the job categories set forth
in Exhibit J to this Agreement. The Grantee shall take affirmative action to
accomplish such goals in such job categories.
23.2 Equal Employment Opportunity Affirmative Action Plan
----------------------------------------------------
The Grantee shall develop an Equal Employment Opportunity/Affirmative
Action Plan (the "EEO/AA Plan") in accordance with the requirements set forth in
Exhibit J to this Agreement. This EEO/AA Plan shall be Med with the Cable
Commission for approval within ninety (90) days after the Acceptance Date. The
Cable Commission shall within forty-five (45) days after receipt by it of such
plan approve such plan or notify Grantee in writing of the deficiencies in such
plan. In no event shall Grantee commence construction of its cable television
services system prior to approval of the Grantee's EEO/AA Plan.
23.3 Pass-Through Requirements
-------------------------
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In order to satisfy the employment requirements of Section 23 of this
Agreement, the Communications Act and applicable FCC rules and regulations, and
the Cable Ordinance, the Grantee shall ensure that each contractor having a
contract or contracts with the Grantee and each sub-contractor having a contract
or contracts with the Grantees Contractors and Subcontractors in excess of fifty
thousand dollars ($50,000) and at least fifteen (15) employees engaged in the
construction, installation, maintenance or operation of the Grantee's cable
television system complies with Sections 23.1, 23.4, 23.5,73.6, 23.7 and 23.8 of
this Agreement, Section 0-000-000 of the Cable Ordinance, Section 554 of the
Communications Act, and all FCC rules and regulations promulgated thereunder.
Additionally, the Grantee shall ensure that each such contractor or sub-
contractor develops an Equal Employment Opportunity/Affirmative Action Plan (the
"Contractors/Sub-Contractors' EEO/AA Plan") in accordance with the requirements
set forth in Exhibit J to this Agreement. Each such Contractor/Sub-Contractor
EEO/AA Plan shall be made available to the Cable Commission upon the Cable
Commissions request.
23.4 Local Residents
---------------
The Grantee shall take affirmative action to ensure that at least fifty
percent (50%) of its employees engaged in the construction, installation,
maintenance or operation of its cable television system are actual residents of
the City.
23.5 Unions
------
The Grantee shall notify each labor union or representative of workers with
which it has a collective bargaining agreement or other contract or
understanding or with which the Grantee enters into discussions regarding a
collective bargaining agreement or other contract or understanding of the
Grantees responsibilities under Section 23 of this Agreement, Section 0-000-000
of the Cable Ordinance, Section 554 of the Communications Act, and all FCC rules
and regulations promulgated thereunder. The Grantee shall, to the extent
possible through negotiation or modification of any such agreements, contracts
or understandings, ensure that such agreements, contracts or understandings
contain provisions consistent with Section 23 of this Agreement, Section 4-280-
530 of the Cable Ordinance, and Section 554 of the Communications Act, and all
FCC rules and regulations promulgated thereunder so as not to impede the
Grantee's ability to satisfy the requirements set forth herein and therein.
23.6 Training
--------
The Grantee shall provide training programs for qualified minorities and
women as set forth in Grandees Application. In addition, the Grantee shall
establish such other training programs as necessary to satisfy the employment
requirements as set forth in this Agreement.
23.7 Records
-------
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Commencing ninety (90) days after the Acceptance Date and continuing for
the term of this Agreement, the Grantee shall prepare and maintain the following
records on forms provided by the Cable Commission: job applicant flow logs,
promotion, demotion, termination and transfer logs, and training activity and/or
apprenticeship program participation summaries. Such records shall be available
to the City during the Grantees normal business hours and shall be retained in
the Grantees files for not less than three (3) years.
23.8 Reporting Requirements
----------------------
The Grantee, during the term provided of this Agreement, shall Me with the
Cable Commission the following reports on forms supplied by the Cable
Commission:
(1) Commencing within one hundred twenty (120) days after the
Acceptance Date and continuing on a quarterly basis until construction of the
Grantees cable television system has been completed and annually thereafter for
the term of this Agreement:
(a) statistical reports;
(b) progress evaluation reports;
(c) a report listing any EEO/AA complaints filed against the
Grantee with a court or federal or State of Illinois or local agency having
appropriate jurisdiction.
(2) Commencing one (1) year after approval by the Cable Commission
of the Grantees EEO/AA Plan and con on an annual basis for the term of this
Agreement a report summarizing and updating the Grantee's EEO/AA Plan.
23.9 Compliance
----------
In order to monitor the Grantee's compliance with its EEO/AA Plan and the
other requirements set forth in Section 23 of this Agreement, the Cable
Commission, whenever necessary or appropriate, but no less than annually, shall,
commencing one (1) year after its approval of the Grantee's EEO/AA Plan, conduct
a compliance review. Such review shall consist of a comprehensive analysis and
evaluation of the records maintained and the reports required to be submitted to
the Cable Commission pursuant to Sections 23.7 and 23.9 of this Agreement and
any other relevant information and data. The Grantee shall be deemed to be in
compliance for purposes of Section 23 of this Agreement and Section 4-280-530(B)
and (C) and of the Cable Ordinance if the Cable Commission determines that the
Grantee has exercised its best efforts to comply on an annual basis with the
Grantees EEO/AA Plan and the requirements set forth in Sections 23.1, 23.3, 23.4
and 23.6 of this Agreement.
Section 24. Contractors and Subcontractors
------------------------------
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24.1 Local Businesses
----------------
The Grantee shall utilize businesses located in the City in connection with
the construction, installation, maintenance and operation of its cable
television services system to the maximum extent feasible and with due regard to
price, quality and timing of delivery. in addition, the Grantee shall to the
maximum extent feasible and with due regard to price, quality and timing of
delivery of the purchase of comparable materials, equipment or supplies of any
nature, give preference for such items which are led, manufactured or otherwise
produced, in whole or in part, within the City.
24.2 Minority Business Enterprises (MBEs)
------------------------------------
Pursuant to Section 4-280-530(E) of the Cable Ordinance, the Grantee shall,
during the term of this Agreement, exercise its best efforts to ensure that
qualified minority-owned businesses ("MBEs") located in and certified by the
City receive a fair and substantial share of the economic benefits forthcoming
from development of the Grantee's cable television services system. For
purposes of this Section 24.2, "a fair and substantial share of the economic
benefits" shall mean twenty-five percent (25%) of the total dollar value of
contracts awarded by the Grantee, excluding contracts where participation of
MBEs would not be practically possible such as factory direct purchases,
purchases of satellite-delivered services and purchases of materials or
equipment from a sole source of supply. Such exclusions shall be detailed, with
justifications, in the Grantee's Minority Business Enterprise Plan (the "MBE
Plan") referred to in Section 24.4 of this Agreement. The Grantees MBE Plan
shall be subject to Cable Commission approval.
24.3 Women's Business Enterprises (WBEs)
-----------------------------------
The Grantee, during the term of this Agreement, shall exercise its best
efforts to ensure that qualified women-owned businesses ("WBEs") located in and
certified by the City are awarded five percent (5%) of the total dollar value of
con issued by the Grantee, excluding contacts where participation of WBEs would
not be practically possible such as factory direct purchases, purchases of
satellite-delivered services and purchases of materials or equipment from a sole
source of supply. Such exclusions shall be detailed, with justifications, in
the Grantee's Women's Business Enterprise Plan (the "WBE Plan") referred to in
Section 24.4 of this Agreement. The Grantee's WBE Plan shall be subject to
Cable Commission approval.
24.4 Business Enterprise Plans
-------------------------
The Grantee shall develop separate MBE and WBE Plans in accordance with the
requirements set forth in Exhibit J attached hereto and made a part of this
Agreement. Such plans shall be filed with the Cable Commission for approval
within ninety (90) days after the Acceptance Date. The Cable Commission shall,
within forty-five (45) days of receipt by it of such plans, approve such plans
or notify Grantee in writing of the deficiencies in any of said plans. In no
event shall Grantee commence construction prior to such approvals.
-40-
24.5 Reporting Requirements
----------------------
During the term of this Agreement, the Grantee shall file with the Cable
Commission the following reports on forms supplied by the Cable Commission:
(1) Commencing within one hundred twenty (120) days after the
Acceptance Date and continuing on a quarterly basis until construction of the
Grantee's cable television system has been completed and annually thereafter for
the term of this Agreement:
(2) (a) a descriptive summary of the categories and total dollar
value of all contracts awarded by the Grantee,
(b) a descriptive summary of the categories and total dollar
value of all contracts awarded by the Grantee, excluding
contracts where participation of MBEs and WBEs would not be
practically possible in accordance with Sections 24.2 and
24.3 of this Agreement and Exhibit I to this Agreement;
(c) a descriptive of the total dollar value of all contracts
awarded to MBEs and WBES;
(d) a descriptive summary of the Grantee's efforts both to
locate and facilitate the participation of qualified MBEs and
WBEs in the construction, installation, maintenance and
operation of the Grantee's cable television system including
a description of the specific programs implemented by the
Grantee to meet the goals set forth in Sections 24.2 and 24.3
of this Agreement.
(e) Commencing within one (1) year after approval by the
Cable Commission of the Grantees MBE and WBE Plans and
continuing on an annual basis for the term of this Agreement,
separate reports summarizing and updating the Grantees WBE
and WBE Plans.
24.6 Compliance
In order to monitor the Grantee's compliance with its MBE and WBE Plans and
the other requirements set forth herein, the Cable Commission, whenever
necessary or appropriate, but no less than annually shall, commencing one (1)
year after approval by the Cable Commission of the Grantee's MBEs and WBE Plans,
conduct a compliance review. Such review shall consist of a comprehensive
analysis and evaluation of the reports required to be submitted to the Cable
Commission pursuant to Section 24.5 of this Agreement and any other relevant
information and data. The Grantee shall be deemed to be in compliance for
purposes of Section 24 of this Agreement and Section 4-280-530(E) of the Cable
Ordinance if the Cable Commission
-41-
determines that the Grantee has exercised its best efforts to comply on an
annual basis with its MBE and WBE Plans and the requirements set forth in
Sections 24.1, 24.2 and 24.3 of this Agreement.
Section 25. Consumer Services
-----------------
The Grantee shall adhere to all applicable FCC regulations relating to
customer service obligations, and shall not contest any decision by the City,
the Cable Commission or the Cable Administrator to enforce FCC standards in
accordance with federal or local law.
25.1 Consumer Services Plan
----------------------
Pursuant and in addition to Section 4-280-220(E) of the Cable Ordinance and
Grantee Application, the Grantee shall submit to the Cable Commission a detailed
Consumer Services Plan (the "Consumer Services Plan") sixty (60) days prior to
commencement of service to its first subscriber. Such plan shall, at a minimum,
demonstrate that the facilities, personnel, repair, complaint and adjustment
procedures, telephone and other information systems of the Grantee are
sufficient to ensure timely, efficient and effective services to consumers. The
Grantee's Consumer Services Plan shall also be consistent with the highest
standards of the cable television industry and the requirements set forth in
this Agreement, in applicable FCC regulations, and in Sections 4-280-270(B) and
0-000-000 of the Cable Ordinance.
25.2 Business Offices and Personnel
------------------------------
Pursuant and in addition to Section 4-280-270(B) of the Cable Ordinance,
the Grantee shall establish and maintain such business offices and provide
personnel, telephone service and other equipment, as needed, to ensure timely,
efficient and effective service to consumers. Such personnel shall include one
person designated by the Grantee to act as a liaison between the Grantee and the
City regarding consumer service issues. All business offices of the Grantee
shall have a locally fisted telephone number with an access line available to
subscribers 24 hours a day, seven days a week. The Grantee's business offices
shall be open, at a minimum, during the hours set forth in the Grantee's
Application (including one (1) evening per week and/or on the weekends.)
Additionally, at various times during the day, the Grantee shall cablecast the
address, telephone number and office hours of its business offices on a local
origination channel received by all subscribers.
25.3 Subscriber Compliance
---------------------
Pursuant and in addition to Section 4-280-290(B) of the Cable Ordinance,
the Grantee shall promptly respond to and resolve all subscriber complaints;
provided, however, that nothing herein shall require the Grantee to maintain or
repair any equipment not provided by the Grantee, maintain records with respect
thereto nor respond to or resolve subscriber complaints relating thereto. The
Grantee shall maintain records of such complaints setting forth the date and
nature
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of the company and any action taken in response thereto. Such records shall be
available to the City during the Grantees normal business hours and retained in
the Grantee's files for not less than three (3) years. A statistical summary of
such records shall be prepared by the Grantee and submitted to the Cable
Commission monthly commencing thirty (30) days after commencement of
construction and continuing until construction of the Grantee's cable television
system is complete in accordance with Exhibit E-2 to this Agreement. Thereafter,
such records shall be submitted to the Cable Commission annually.
25.4 Major Outages
-------------
The Grantee shall maintain records of all major outages. Such records
shall indicate the estimated number of subscribers affected, the date and time
of first notification of the outage, the date and time service was restored, the
cause of the outage and a description of the collective action taken. Such
records shall be available to the City during the Grantees normal business hours
and retained in the Grantees files for not less than three (3) years. A
statistical summary of such records shall be prepared by the Grantee and
submitted to the Cable Commission annually, commencing twelve (12) months after
service is provided to the first subscriber.
25.5 Pre-Construction Information
----------------------------
Prior to commencement of construction of an area, the Grantee shall
exercise its best efforts to inform the residents thereof of the nature and
timetable for such construction and shall provide the residents with the
procedures for filing complaints.
25.6 The Grantee Solicitation
------------------------
At the time the Grantee solicits the residents of an area for subscription
of cable television services, and again upon actual installation of service, the
Grantee shall provide such residents a simple written explanation of all
products and services offered, the options for and prices of such products and
services, the parental lock-out devise, installation and service maintenance
procedures, cable television services use instructions, programming channel
positions, billing and complaint procedures and privacy rights of the subscriber
as set forth in Section 0-000-000 of the Cable Ordinance and Section 27 of this
Agreement.
25.7 The Grantee Solicitation
------------------------
Pursuant and in addition to Section 4-280-310(C) of the Cable Ordinance,
the Grantee shall fill all reasonable orders for a standard tion of its services
within seven (7) business days and all other reasonable orders within thirty
(30) days after the date of such order. For purposes of the time period for
installation as opposed to any costs charged as set forth in Sections 7.5 and
7.6 of this Agreement, "standard" installations are those that are located up to
125 feet from the existing distribution system. A request shall be deemed
reasonable if (i) the services requested are uniformly available on the Grantees
cable television system; (ii) the services are requested in
-43-
a portion of Franchise Area I where the Grantees cable television system has
been constructed and activated; (iii) the Grantee in cooperation with
appropriate agencies can accomplish a proper physical extension of its cable
television system to a person's premises within such seven (7) or thirty (30)
days; and (iv) the Grantee can obtain access to a performs premises. If the
Grantee fails within such seven (7) or thirty (30) day period to provide the
service requested, the Grantee, upon request of the person requesting service,
shall within thirty (30) days thereafter promptly refund any and all deposits or
advance payments made by such person. The Grantee shall maintain a record of all
installation requests detailing when and what action was taken.
25.8 Translated Information
----------------------
The information and materials required in Sections 25.5 and 25.6 of this
Agreement shall also be available in the Spanish language.
25.9 Program Guides
--------------
In the event the Grantee or an agent of the Grantee provides to the
Grantee's subscribers written program guides, such guides shall fist, at a
minimum, all non-must carry channels carried on the Grantee's cable television
system and shall, to the extent reasonable as determined by the Grantee fist all
programs carried on all non-must carry channels.
25.10 Information Filed With The Cable Commission
-------------------------------------------
Pursuant and in addition to Section 4-280-220(E) of the Cable Ordinance,
the Grantee shall file the information required in Section 4-280-220(E) and the
information and materials set forth in Sections 25.5, 25.6 and 25.8 of this
Agreement with the Cable Commission at least fourteen (14) days prior to any
distribution of such information or materials except as otherwise provided in
Section 7 of this Agreement.
25.11 Employee Identification
-----------------------
Each employee of the Grantee when entering private property or working on
public ways shall be required to wear an employee identification card issued by
the Grantee bearing the name and a photograph of said employee.
25.12 Nondiscrimination
-----------------
The Grantee shall not discriminate against any person in the solicitation
or provision of any service on the basis of age, sex, race, color, creed, ethnic
origin, sexual orientation, marital status or physical or mental impairment.
Section 26. Users
-----
-44-
The provisions set forth in Sections 4-280-210(F) and 4-280-220(E) of the
Cable Ordinance shall apply to all users of the Grantee's cable television
system.
Section 27. Privacy
-------
27.1 Requirements
------------
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 0-000-000 of the Cable Ordinance as interpreted
and applied in harmony with Section 551 of the Communications Act and FCC rules
and regulations promulgated thereunder, the requirements of this Agreement and
any other applicable federal, state and local laws and regulations.
27.2 Monitoring, Collection, Use or Release
--------------------------------------
Pursuant and in addition to Section 4-280-320(B) of the Cable Ordinance,
the Grantee shall not monitor, connect or use any information or signals
transmitted over the Grantees cable television system, with the exception of any
record of aggregated data that does not identify particular persons, without the
prior written or electronic consent of the subscriber or user, provided that
such collection and use is permissible in order to obtain information necessary
to provide services to the subscriber or detect an unauthorized reception of
cable service. The Grantee shall not release or disclose any individually
identifiable information about any subscriber or user to the City or any other
third party without the prior written or electronic consent of such subscribers
or users unless such disclosure is made by the Grantee to a subscriber(s) or
user(s) in accord with the exceptions set forth in Section 551(c)(2) of the
Communications Act. Any consent of a subscriber or user for the monitoring
collection, use or release of any information or signals transmitted over or
obtained by the Grantees cable television system shall be explicit, in writing
or electronic form, and in a form separate from any contract or other agreement
for cable television services or use. Such consent shall contain a statement in
bold print that states that the subscriber or user knowingly authorizes the
monitoring, collection, use or release of such information, that the consent is
revocable at any time by the subscriber or user without penalty and that
describes the exact timing and nature of the monitoring, collection, use or
release of such information. Such consent is revocable without penalty at any
time by the subscriber or user upon prior written or electronic notice to the
Grantee. In no event shall such consent be obtained by the Grantee from a
subscriber or user as a condition of cable television service or a continuation
thereto, except if such consent is necessary to adequately provide such service.
27.3 Privacy Information
-------------------
Prior to installation of service, and at least once a year thereafter,
the Grantee shall provide each subscriber with a simple, thorough written
explanation conforming to the notice requirements set forth in Section
551(1)(a)(A-E) of the Communications Act, and further
-45-
informing each subscriber of all applicable privacy requirements as set forth
herein and in Section 0-000-000 of the Cable Ordinance; provided, however, that
such information shall be filed with the Cable Commission not less than fourteen
(14) days prior to its being distributed to-any subscriber.
27.4 Ownership of Data
-----------------
The ownership of any data or signals originated by a subscriber or user
and maintained by the Grantee or a third party that are intended for the sole
use of such subscriber or user shall remain solely in the originating subscriber
or user, even though such data or signals are maintained by the Grantee or a
third party.
If the Grantee cannot reasonably remedy the violation within the time
period specified and so informs the Cable Commission, the Cable Commission may
extend the time permitted for remedying the violation provided the Grantee
informs the Cable Commission on a regular basis of the steps being taken to
remedy such violation.
28.3 Notice of Assessment
--------------------
If within thirty (30) days of its receipt of notice of the violation
pursuant to Section 28.2 of this Agreement, the Grantee falls to submit a
written response contesting any Cable Commission notice of violation as set
forth in Section 28.2 of this Agreement or if after requesting an opportunity to
be heard the Grantee fails to establish during such hearing that such violation
did not occur or was beyond its control or if the Grantee falls to remedy the
violation within the time period specified or any extensions thereto pursuant to
Section 28.2 of this Agreement, the Cable Commission, after considering an
relevant factors, may impose upon the Grantee monetary penalties, fines,
liquidated or substituted damages or other monetary sanctions from the date of
notice of violation in accordance with Sections 28.5 or 28.6 of this Agreement
and shall provide the Grantee with prior written notice of such assessment.
Such notice of assessment shall state the amount to be assessed and provide a
date of at least fifteen (15) days after receipt of such notice upon which
payment for the violation is due from the Grantee.
28.4 Withdrawal from Letter of Credit
--------------------------------
If The Grantee fails to pay to the City any monetary penalties, fines,
liquidated or substituted damages or other monetary sanctions imposed upon the
Grantee by the Cable Commission within three (3) days after the date set forth
in the notice of assessment pursuant to Section 28.3 of this Agreement, the
Cable Commission, pursuant to Section 4-280-190(B) of the Cable Ordinance, may
immediately request payment of the amount thereof from the letter of credit and
draw on the letter of credit referred to in Section 6 of this Agreement. If a
draw by the City on Grantee's letter of credit is made, the City shall notify
the Grantee in writing of the date and amount of such draw.
-46-
28.5 Substituted Damage
------------------
The Grantee agrees the following events, if any such event occurs, will
result in actual damages to the City which actual damages will be either
impracticable or difficult to ascertain and therefore agrees to pay to the City
the following amounts which shall not be considered in the nature of penalties:
(1) $750.00 a day for each day and part thereof that such failure
continues as a result of a material failure to construct and activate the
Grantee's cable television services system in accordance with the Construction
Timetable and Construction Schedule and referred to in Sections I 1. I and II. 2
of this Agreement unless such failure is caused by circumstances beyond the
Grantee's control or by a change or extension in such timetable, schedule or map
approved by the Cable Commission;
(2) $750.00 a day for each day or part thereof that such failure
continues as a result of a material failure to comply with the design,
technical, maintenance, construction or operational requirements set forth or
referred to in Sections 8. 9. 10 and 12 of this Agreement;
(3) $750.00 per day for each day or part thereof that such failure
continues as a result of a material failure to comply with the interconnection
requirements set forth or referred to in Section 15 of this Agreement; and
(4) $250.00 a day for each day or part thereof that such a failure
continues, except as approved by the Cable Commission or the City Council, if
required, a material failure to provide the services set forth or referred to in
Section 7 of this Agreement.
28.6 Monetary Penalties, Fines and Other Monetary Sanctions
------------------------------------------------------
Pursuant to Section 4-280-570(A) and (B) of the Cable Ordinance, if the
Grantee falls to comply with any provision of the Cable Ordinance or this
Agreement, the Cable Commission may assess and impose monetary penalties, fines
and other monetary sanctions for such failure in an amount not to exceed $750.00
per day per violation for each day or part thereof that such failure continues.
If the Grantee fails to comply with any rule or regulation lawfully adopted by
the Cable Commission pursuant to Section 4-280-460(A)(10) of the Cable.
Ordinance, the Cable Commission may assess and impose fines for such failure in
an amount not to exceed $50.00 per day per violation for each day or part
thereof that such failure continues. AU such monetary penalties, fines and
other monetary sanctions shall be determined by the Cable Commission in
accordance with the principles set forth below:
(1) Such monetary penalties, fines and other monetary sanctions
shall exceed the financial benefits to the Grantees delaying or failing to
comply with the applicable requirement;
-47-
(2) Even where such benefits are not easily discemable, such
monetary penalties, fines and other monetary sanctions shall be of an
amount to have a significant deterrent effect on the Grantee; and
(3) Such monetary penalties, fines and other monetary sanctions
shall be sufficient to protect the City and other affected parties against
loss resulting from the Grantees violations.
28.7 Act or Omission Beyond The Grantee's Control
--------------------------------------------
The Grantee shall not be subject to the imposition of monetary
penalties, fines, liquidated or substituted damages or other monetary sanctions
referred to in Section 28 of this Agreement for any act or omission if such act
or omission was beyond the Grantee's control. An act or omission shall not be
deemed to be beyond the Grantee's control if committed, omitted or caused by an
affiliate, or Contractor or Subcontractor of the Grantee involved in
constructing, installing, maintaining or operating the Grantees cable television
system within the City of Chicago. Neither the inability of the Grantee to
obtain financing for whatever reason nor the n-dsfeasance or malfeasance of the
Grantee's officers, directors, employees, agents, affiliates and Contractors and
Subcontractors shall be deemed an act or omission beyond the Grantee's control.
28.8 Other Rights of The City
------------------------
The right of the Cable Commission to impose upon the Grantee monetary
penalties, fines, liquidated or substituted dwnages or other monetary sanctions
pursuant to Sections 28.5 and 28.6 hereof shall be in addition to any other
rights or remedies the Cable Commission or the City have pursuant to the
Communications Act, FCC rules and regulations, the Cable Ordinance, this
Agreement or other applicable laws.
28.9 No Waiver of Rights
-------------------
The decision by the Cable Commission to forego the imposition upon the
Grantee of monetary penalties, fines, liquidated or substituted damages or other
monetary sanctions in a particular instance shall in no way act to waive the
Cable Commission's or the City's rights under .this Section 28 for subsequent
violations of the Cable Ordinance or this Agreement.
Section 29. Miscellaneous Provisions
------------------------
29.1 Law
---
This Agreement shall be construed pursuant to the laws of the State of
Illinois unless otherwise preempted by Federal law.
29.2 Descriptive Headings
--------------------
-48-
Section headings are descriptive and used merely for the purpose of
organization and where inconsistent with the text are to be disregarded.
29.3 Employees and Agents
--------------------
The Grantee shall be solely and completely responsible for the actions
of its employees and agents in the course of their employment.
29.4 Rights Reserved to The City
---------------------------
The Grantee hereby acknowledges and accepts the rights reserved to the
City in Section 0-000-000 of the Cable Ordinance and hereby waives the Grantees
rights, if any, to attempt to modify any provisions of this Agreement without
the prior written approval of the City or appropriate action of the City
Council, if such City Council action is required.
29.5 Compliance with The Cable Ethics Ordinance
------------------------------------------
The Grantee pledges that it has made no promise or inducement, oral or
written, to any City employee, City representative or City advisor as defined in
Section 0-000-000 of the Cable Ethics Ordinance regarding the receipt or award
of the franchise granted hereunder.
29.6 No Inducement
-------------
The Grantee acknowledges that it has not been induced to accept this
franchise by any promise, verbal or written, made by or on behalf of the City or
by any third person regarding any term or condition set forth in the Cable
Ordinance or this Agreement.
29.7 No FCC Waivers Without Notice to The City
-----------------------------------------
The Grantee shall not apply for any waivers, exceptions or declaratory
rulings from the FCC or any other federal or state regulatory agency regarding
the Grantee's cable television system without prior written notice to the City.
29.8 No Excuse from Compliance
-------------------------
The Grantee shall not be excused from compliance with any of the terms
or conditions of the Communications Act, FCC rules and regulations, the Cable
Ethics Ordinance, the Cable Ordinance or this Agreement by failure of the City
upon one or more occasions to insist upon such compliance by the Grantee or to
seek compliance by the Grantee with any term or condition of the Ethics
Ordinance, the Communications Act, FCC rules and regulations, the Cable
Ordinance or this Agreement.
-49-
29.9 Transfer of Franchises
----------------------
Except as otherwise provided in Section 537 of the Communications Act,
the Grantee agrees that the Grantee shall not assign, transfer, sell,
hypothecate or otherwise alienate this franchise granted pursuant to the Cable
Ordinance from the Date of Acceptance until thirty-six (36) months thereafter.
During and after such thirty-six month period and during the term of this
Agreement, the Grantee shall conform in all respects to Section 0-000-000 of the
Cable Ordinance.
29.10 Cable Commission Action
-----------------------
In any action by the Cable Commission mandated or permitted under the
Cable Ordinance or this Agreement, the Cable Commission shall act in a
reasonable, expeditious and timely manner. Additionally, in any instance where
Cable Commission approval or consent is required under the Cable Ordinance or
this Agreement, the Cable Commission shall not unreasonably withhold its
approval or consent.
29.11 Force Majeure
-------------
The Grantee shall not be deemed in violation of this Agreement or the
Cable Ordinance for delay in performance or failure to perform in whole or part
its obligations under the Cable Ordinance or this Agreement due to strike, war
or act of war (whether an actual declaration is made or not), insurrection,
riot, act of public enemy, accident, fire, flood or other act of God or by other
events to the extent that such events are caused by circumstances beyond the
Grantee's control pursuant to Section 4-280-110(E) of the Cable Ordinance and
Section 28.7 of this Agreement. Any such delay or failure to perform shall not
be deemed to be a violation of the Cable Ordinance or this Agreement. in the
event that a delay in performance or failure to perform affects only part of the
Grantees ability to perform such obligations under the Cable Ordinance or this
Agreement, the Grantee shall perform such obligations to the extent the Grantee
is able to do so in as expeditious a manner as possible. The Grantee shall
promptly notify the Cable Commission in writing of an event covered by this
Section 29.1 1, which writing shall include, at a minimum, the date, nature and
cause of such event. Additionally, the Grantee, in such notice, shall indicate
the anticipated extent of such delay and the specific obligations pursuant to
the Cable Ordinance or this Agreement to be affected.
29.12 Severability
------------
Except as otherwise provided in Section 4.2 of this Agreement, if any
provision of this Agreement or any portion of any provision of this Agreement is
deemed invalid under any applicable ordinance or federal or state law, such
provision shall be, to the extent invalid, deemed omitted and all remaining
provisions of this Agreement shall remain in full force and effect.
29.13 Notices
-------
-50-
All notices and filings required by the Cable Ordinance, this Agreement
or any other applicable law or regulation shall be, except as otherwise provided
in this Agreement, or other applicable law or regulation:
If to the City: The Cable Administrator
Office of Cable Communications
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
If to the Grantee: Xxxxx X. Xxxxxxxx
President and CEO
21st Century Cable T.V., Inc.
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
and
Xxxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx and Associates
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
and shall be by United States Mail, with all necessary postage pre-paid, except
as otherwise provided by this Agreement, the Cable Ordinance or any other law or
regulation.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective, duly authorized agents or officers, as of the day
and year set forth below.
City of Chicago
-------------------------- -------------------------------
Date
21st Century Cable TV, Inc.
-------------------------- By:
Date ----------------------------
Its:
---------------------------
-51-
Approved as to form
and legality:
------------------------------
Corporation Counsel of the
City of Chicago
Date:
-------------------------
-52-
EXHIBIT A
---------
FORM OF ACCEPTANCE
------------------
In accepting the franchise for Xxxxxxxxx Xxxx 0 within the City of Chicago,
pursuant to Sections 4-180-470(A),(B), (C), 4-280-500(A) and 4-280-550(A) of the
Cable Ordinance, the Grantee hereby:
a) agrees to accept the validity of the terms and conditions of the
Chicago Cable Communications Ordinance, Chapter 4-280 of the Municipal Code and
the Agreement in their respective entireties relying upon the Grantee's own
investigation and understanding of the power and authority of the City of
Chicago to grant said franchise. The Grantee further agrees that it shall not,
at any time, proceed against the City in any claim or proceeding challenging any
term or provision of the Chicago Cable Communications Ordinance or Agreement as
unreasonable, arbitrary or void, or allege that the City did not have the
authority to impose such term or condition;
b) expressly acknowledges that the Grantee has not been induced to accept
the Agreement by any promise, verbal or written, on behalf of the City or by any
third person regarding any term or condition of the Chicago Cable Communications
Ordinance or the Agreement not expressed therein;
c) further acknowledges that the Grantee has carefully read the terms and
conditions of the Chicago Cable Communications Ordinance and the Agreement and
accepts without reservation the obligations imposed by the terms and conditions
therein; and
d) pledges that no promise or inducement, oral or written, has been made
to any City employee or official regarding receipt of this franchise.
-53-
Exhibit A (con't)
The undersigned hereby certifies:
That he/she has been duly authorized pursuant to [expressly identify the
corporate action permitting such action] to make this acceptance of the
franchise for Franchise Area I within the City of Chicago
The Grantee 21st Century Cable T.V., Inc.
Signature of Affiant
----------------------------
Name of Affiant
----------------------------
Title of Affiant
----------------------------
Date
----------------------------
Sworn to and subscribes before me
this __ day of _______, 1996.
--------------------------
Notary
--------------------------
Date Commission Expires
-54-
EXHIBIT B
---------
Beginning at the intersection of Lake Michigan and the North City Limits;
thence west and south along the City Limits to the intersection of Kedzie Ave.
and Devon Ave. (City Limits); thence west on Devon Ave. (City Limits) to the
North Shore Channel; thence south on the North Shore Channel to Bryn Mawr Ave.;
thence east on Bryn Mawr Ave. to Western Ave.; thence north on Western Ave. to
Xxxxxxxx Ave.; thence east on Xxxxxxxx Ave. to Ravenswood Ave.; thence south on
Raveswood Ave. to Wellington Avenue.; thence west on Wellington Ave. to the C &
N.W. RY.; thence south on the C & N.W. RY. to Diversey Ave.; thence west on
Diversey Ave. to the North Branch of the Chicago River; thence south on the
North Branch of the Chicago River and the South Branch of the Chicago River to
18th St.; thence east on 18th St. to Xxxxx St.; thence south on Xxxxx St. to
Xxxxxx Xx.; thence east on Xxxxxx Xx. to Federal St.; thence south on Federal
St. and Federal St. extended across the Xxxxx X. Xxxxxxxxx Expressway and
continuing south on Federal St. to 26th St.; thence west on 26th St. to the
C.R.I. & P.R.R.; thence south on the C.R.I. & P.R.R. to 35th St; thence east on
35th St. to Federal St.; thence south on Federal St. to Pershing Rd.; thence
west on Pershing Rd. to the C.R.I. & P.R.R.; thence south on the C.R.I. & P.R.R.
to 51st St.; thence east on 00xx Xx. xx Xxxxxxx Xxxxx Xxx.; thence north on
Cottage Grove Ave. to 43rd St.; thence east on 43rd St. and 43rd St. as extended
to Lake Michigan; thence north along Lake Michigan to the place of beginning.
-55-
EXHIBIT C
---------
SUBSCRIBER SERVICES
-------------------
In addition to other services the Grantee may offer on its cable television
network, the Grantee shall provide on its lowest-priced tier of service and to
all subscribers: two (2) local government access channels; all channels
dedicated to the Chicago Access Corporation; all television broadcast signals
required to be carried by FCC regulations; at least one (1) leased access
channel; and three (3) local origination channels, not more than two (2) of
which may be alphanumeric.
The Grantee shall, in addition, offer the following broad categories of
programming services which are available and meet the needs of the subscribers:
children's programming, family programming, cultural programming, educational
programming, consumer programming, ethnic programming, entertainment
programming, music programming, sports programming, news and public affairs
programming, business programming, religious programming and special interest
programming.
-56-
EXHIBIT D
---------
USER DISCOUNTS
--------------
At such time as the Grantee may choose to activate an institutional network
system ("INS"), a discount for government and not-for-profit institutions shall
be established subject to applicable regulatory approvals.
-57-
EXHIBIT E-1
-----------
CONSTRUCTION SCHEDULE FORMS
---------------------------
I. Construction Schedule - Quarterly
II. Construction Schedule - Major Installations
III. Construction by Year - Subscriber Network System
IV. Monthly Construction Summary Report and Map
-58-
Exhibit E-1 (con't)
The Grantee: 21st Century Cable TV, Inc.
Xxxxxxxxx Xxxx 0.
I. Construction Schedule - Quarterly
Quarter commencing ________________ to ____________, 199_
A. Subscriber Network System
1. Number of fiber optic node sections
to be constructed ____________
2. Number of fiber optic node sections
to be activated ____________
Summary
-------
Approximate Aerial Miles to be Constructed ____________
Approximate Underground Miles to be Constructed ____________
Approximate Total Miles to be Constructed ____________
Approximate Occupied Dwelling Units Passed ____________
Percentage (%) of Xxxxxxxxx Xxxx 0 XXXx Passed ____________
-59-
Exhibit E-1 (con't)
-------------------
The Grantee: 21st Century Cable TV, Inc.
Xxxxxxxxx Xxxx 0.
II. Construction Schedule - Major Installations
-60-
EXHIBIT E-3
-----------
CONSTRUCTION TIMETABLE
----------------------
FRANCHISE AREA I
----------------
1. Preconstruction Period
----------------------
The Grantee shall commence construction of its cable television headend
facilities within three (3) months following the Acceptance Date; and shall
commence construction and installation of its strand, and fiber and/or coaxial
cable distribution plant within six (6) months following the Acceptance Date.
2. Projected Occupied Dwellings and Miles
--------------------------------------
The following projections are an integral part of the Grantee's construction
timetable consistent with the graphic representation of that timetable depicted
in this exhibit.
Year of Occupied Dwelling Distribution Average Monthly
Constr. Units Passed Plant Milage Construction Rate
1 64,283 81.12 mi. 6.76 mi.
2 97,309 113.93 mi. 9.494 mi.
3 90,110 117.41 mi. 9.784 mi
4 29,747 45.74 mi. 3.812 mi.
TOTALS 271,449 358.20 mi. 7.462 mi.
MAP
[To Come]
-61-
E-3- I
EXHIBIT E-3
-----------
CONSTRUCTION TIMETABLE
----------------------
[graphic]
-62-
EXHIBIT F
STANDARD CHANNEL ALLOCATION
---------------------------
CHANNEL SERVICE
19 CAC
21 CAC
23 MUTV
25 Local Origination
27 CAC
36 CAC
42 CAC
49 MUTV
51 CAC
53 Leased Access
70 CAC
71 CAC
72 CAC
73 CAC
74 CAC
75 (partial) CAC
-63-
EXHIBIT G
---------
. - LOCAL ORIGINATION
-----------------
(21 st Century letter dated October 24, 1994 to Cable Administrator]
21ST CENTURY CABLE TV., INC.
---------------------------
October 24, 1994
Xx. Xxxxx Xxxxxxxxx HAND DELIVERED
--------------
Cable Administrator
Office of Cable Communications 000 X. Xxxxxxxx Xxxxx 0xx Xxxxx
Xxxxxxx, XX 00000
RE: LOCAL ORIGINATION PROPOSAL
----------------- --------
Dear Xx. Xxxxxxxxx:
21st. Century Cable TV, Inc. ("21st Century") is submitting, as part of its
application for an Area 1 cable television franchise, the following proposal for
support of Local origination in Chicago.
As a new cable franchisee, 21st Century's presence in the marketplace will give
Local origination an incremental increase in funding and other tangible benefits
which will further the City's goal of, "maximizing new opportunities for access
to information, and increased communication among and within Chicago's diverse
neighborhoods, and other social and economic benefits throughout the City." This
goal complements well the city's overall desire that cable television serve "as
a means to improve communications between and among the citizens and public
institutions of the City and as a vehicle for the participation of all segments
of the City,, including minorities, in the economic opportunities created
thereby."
-64-
Additionally, 21st Century embraces the Chicago Cable Commission's Resolution
#454 which states, "that Local Origination supplement the other locally produced
programming (public, governments, and commercial/leased access) .... and
increase the public's choice of programming and xxxxxx community pride and
cultural diversity .... and be directed or geared to the City of Chicago and its
residents .... and be produced by City residents or business entities located in
the City of Chicago .... and designed specifically for City residents .... and
relates to local (Chicago) subjects and/or interests."
I. MISSION STATEMENT
-----------------
21st Century's interpretation of the mission of Local origination in
Chicago is both compatible and parallel with the aforementioned goals
set forth by the City of Chicago and Chicago Cable Commission.
Xx. Xxxxx Xxxxxxxxx
October 24, 1994
Page Two
It is 21st Century's belief that. the 24-hour nonalphanumeric Local
Origination channel on its system be reserved exclusively for
programming produced by Chicago producers and businesses. This
channel should function as an "incubator" in which aspiring local
producers can hone and develop their skills and talents, as wel-I as
e)fdhange -ideas" and Viewpoints. The Local Origination program
should give Chicago residents, including minorities and women, access
to modern studio facilities and related production and editing
equipment which might not otherwise be available.
It is absolutely imperative that Local Origination programming mirror
the broad interests and cultural diversity of Chicago's ethnic
neighborhoods, which greatly contribute to its stature as a world
class city.
in concert with publicly conceived, ethnically sensitive and
professionally administered policies and procedures, Local Origination
should create improved communication, substantial economic benefits
and myriad career opportunities for all Chicagoans.
II. CAPITAL FUNDING
---------------
21st century's capital "funding proposal for Local Origination it both
straightforward and equitable.
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of the total 1,019,380 households in the City's five cable franchise
areas, Cable Area I contains 271,449 homes. 21st Century's funding is
based upon the prorata share those Area 1 homes comprise of all
Chicago households divided by two. This halving reflects the fact
that 21st century will not enjoy a monopoly and must share its
potential customer universe with an established, preexisting Area 1
franchisees This number is then multiplied times the total Local,
Origination financial commitment made jointly by the two current
franchisees.
The 21st Century Local Origination funding formula is as follows:
271,449 Area 1 homes / 1,019,380 total homes / 2 Area 1 franchise holders X
---------------------------------------------------------------------------
S6 million original joint L.O. commitment
-----------------------------------------
$798,865.00
Xx. Xxxxx Xxxxxxxxx
October 240 1994
.Page Three
21st Century will remit the $798,865.00 in funding for Local
Origination directly to the City of Chicago in fifteen equal annual
payments of $53,258-00. 21st Century requests that the City insure
that these monies represent a full incremental increase over the
current funding level.
Further, 21st Century requests that the Cable Administrator and
Chicago Cable Commission be given sole authority to identify the
specific uses (i.e., cameras, editing equipment, etc.) for this new
funding in order to generate the maximum benefit for the Local
Origination program, its participating local producers and ethnic
neighborhoods.
III. LOCAL ORIGINATION WORKSHOPS
---------------------------
In addition to the aforementioned capital funding for Local
Origination, 21st Century shall organize and fund 60 top-quality
production workshops designed to develop and expand the talents and
skills of local Chicago producers. Topics such as lighting, camera
operation, set design, script writing, casting, editing, and other
creative aspects of production will be addressed.Conducted on a
quarterly basis by locally and nationally recognized career
professionals, these 21st Century Local Origination workshops will be
open to all interested local producers at no charge. In addition to
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the above referenced topics, these seasoned industry veterans will
share a wealth of motivating and insightful personal experiences.
21st Century shall insure that individuals recruited to conduct its
Local Origination seminars shall also equitably represent Chicago's
ethnic communities. Commitments to conduct four (4) workshops each
have already be obtained by 21st Century from a nationally acclaimed
African-American male film director and an Emmy and Peabody Award-
winning female communications and production company president.
Similar commitments from highly qualified Hispanic and Asian
professionals will be announced in the near future by 21st Century.
Xx. Xxxxx Xxxxxxxxx
October 24, 1994
Page Four
IV. LOCAL ORIGINATION PROGRAM ADMINISTRATION
----------------------------------------
In light of the preexisting Local origination joint venture agreement
between the two current f ranchisees which provides for specified
periods of reciprocal administrative -- responsibility through at
least 1997, 21st Century hereby commits to its full prorata
administrative responsibility of the Local Origination program in a
timeframe and scope to be determined by and acceptable to the City.
Please feel free to contact me if further clarification or additional
information is desired.
Respectfully,
Xxxxx X. Xxxxxxxx
President & CEO
GWM/lal
cc: Xxxxxxx Xxxxxx Xxx Xxxxxx Xxxxx Xxxxxx
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RECEIPT OF DOCUMENT ACKNOWLEDGED:
1994
Xxxxx Xxxxxxxxx DATE
Cable Administrator
office of Cable Communications
City of Chicago
EXHIBIT H
-------
CHICAGO ACCESS CORPORATION PEG CAPITAL
--------------------------------------
21st CENTURY MANDATORY PEG ACCESS PAYMENT
(March 1, 1994 letter to Cable Administrator]
March 10 1994
Xx. Xxxxx Xxxxxxxxx
Cable Administrator
City,,of Chicago
Re: CHICAGO ACCESS- CORPORATION (CAC) FUNDING AND CHANNEL CAPACITY
--------------------------------------------------------------
Dear Xx. Xxxxxxxxx:
Throughout the past months and, in particular, during December, 01 1994, 21st
Century Cable TV, Inc. ("21st Century") participated in a dialoque with the
Chicago Access Corporation's ("CAC") executive director and attorney relating
yments the payments based an gross revenues and capi a payments which 21st
Century would make to CAC.
Specifically, 21st Century proposed to make an initial payment of $129,000
within six months of the grant of a franchise and an additional $100,000 within
twelve months at said grant. We believe our initial payment would therefore be
regarded as $223,000. in addition,, we committed to contribute It of our .gross
revenue to CAC an an annual basis which payments in the aggregate
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we projected would total $60,850,,972 during the franchise period. After our
first year of operation and in each of the next four successive years (i.e.
throuqh year five), we proposed to pay CAC $100,000 per year to be used for
capital improvements. Thereafter and throughout the term of our franchise, we
proposed to pay CAC $50,OOO year to be used for capital improvements. This
committment in the aggregate, we beleive, far exceeds what should reasonably be
expected from 21st century considering that the initial capital costs of
establishing CAC's facilities were already paid for by the two companies who
have enjoyed a monopoly over the last ten years.
At the conclusion of our discussions,, we were informsd by CAC's counsel that
CAC did not wish to negotiate with us regarding the amount of our initial
payment and, the amounts of our annual payments were not based on gross
revenues. Instead, CAC said we should negotiate those amounts with the City
Council.
21st Century has been an record since the fil'ing of our' cable Franchise
Application that we would negotiate a11 contributions to CAC with the City
Council or its designee.
XX. Xxxxx Gallaqher
March, 1994
Page Two
Since these discussions with representatives of the CAC were
cordial and we thought, mutually beneficial, 21st Century
was
shocked by the harsh, politically-charged rhetoric contained the
unsigned commentss which CAC filed with your office this February.
CAC did not have the courtesy to send us a copy of their Comments even
though this document, both in form and
substance, deviates substantially from the agreement we
believed that we had in good faith reached-vith CAC.
21st Century is providing you with this information so
that you will understand why we did not give you a formal proposal with respect
to funding CAC. Since our funding apparently is still an issue with CAC and
possibly you, please consider this letter as a supplement to our franchise
Application. With respect to funding CAC, 2lst Century makes the following
proposal
A. Funding
1. Initial Payment 21st Century proposes to pay CAC
$225,000 within the first twelve months after issuance
of its franchise.
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2. Percentage of Annual Gross Cable Revenue
21st Century has since its November 3, 1992 Cable Franchise
Application stated that it would pay it of its annual gross cable
---
revenues to CAC. That position will shortly be memorialized in a
contract between CAC and 21st Century.
3. Contributions of Funds for Studios, Equipment and Technical
-----------------------------------------------------------
Assistance
----------
21st Century has proposed to pay CAC $100,000 during
years two through five after the grant of a franchise and $50,000
per year thereafter for this purpose.
B. Channel Capacity
In its November 5. 1993 Cable Franchise Application (Page IX-1)
and in its September 5,. 1993 Preliminary Report Analysis &
Response (Paqe IX), 21st Century committed to make 10% of its
channel capacity or 11.6. channels available to CAC. 21st
Century assumed since CAC would not be able to use all 11.6
channels because it would not be offering more proqramming to
21st Century customers than to Chicago Cable or Prime Cable of
Chicago customers that 21st Century could utilize the unused
capacity with CAC permission.
We are writing to make it clear as possible that 21st Century without
reservation has dedicated 11.6 channels on its subscriber network system, free
of charge, f or the exclusive use and control of CAC.
With the exception of SEction A., Paragraph 2 (Percentage of Gross Cable
REvenues) herein, the funding to support 21st Century's CAC proposal is
contained in the $3,400,000 line item (Miscellaneous Franchise Obligations) of
Section IV-Financial, Pages IV-10 and IV-24a. submitted in our January 24, 1994
Supplemental Information.
21st Century hopes that this letter makes our position with respect to funding
CAC and use and control of 11.6 channels by CAC perfectly clear. If you have
any further questions, please contract us immediately. We request that you send
a copy of this letter to CAC so that if it has any further questions, it may
also contact us directly
Respectfully,
Xxxxx X. Xxxxxxxx
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President & CEO
RECEIPT ACKNOWLEDGED AND CERTIFIED:
EXHIBIT I
---------
MUNICIPAL UTILIZATION
---------------------
SUBSCRIBER NETWORK SYSTEM
-------------------------
1. Channel Commitments - The Grantee shall provide, free of charge, two (2)
-------------------
local government access channels on its subscriber network system for the
exclusive use and control of the City and other -local government agencies
designated by the. City. Said channels shall be administered by the City.
2. Service Outlets - Pursuant and in addition to Section 4-280-260(C) of the
---------------
Cable Ordinance, the Grantee shall provide, free of charge, one bidirectional
fiber optic service outlet for regular subscriber service to each of the
institutions and such other buildings used for governmental purposes as may be
designated by the City in areas which are passed by the Grantee's subscriber
network system.
3. Access to The Grantee's Facilities - The Grantee shall permit the City and
----------------------------------
other local government agencies designated by the City to use its studio,
facilities and equipment for municipal access programming. The Grantee shall
also provide direct audio and video feed capability between the municipal access
studios and facilities and its cable television system.
4. Staff - During the term of this Agreement, the Grantee shall provide, at a
minimum, for one (1) full-time skilled employee to staff the municipal access
studios and facilities, operate such studios and facilities, and create, produce
and cablecast quality municipal access programming under the direction of the
City. The Grantee employee shall be made available to the City within thirty
(30) days following the effective date of this Agreement, and work during the
hours and at the sites designated by the City and be competent, trained, and
knowledgeable in all aspects of cable television production and programming.
5. Municipal Cable/Technical Assistance - The Grantee shall provide to the
------------------------------------
City 2,000 hours of engineering consultation services without charge during the
15 year term of the franchise. The 2,000 hours of consultation services shall
be equally divided among the 15 years of the franchise; provided, however, that
if the City does not fully utilize its total hours of such engineering
consultation services in any one (1) year, any unused such services shall be
carried forward to the next year.
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6. Municilial Cable Access Maintenance Fund - Commencing on the Acceptance
----------------------------------------
Date of the Agreement, the Grantee shall on request by the City on an annual
basis provide $10,000.00 to the City for the maintenance and operation of the
municipal access studios, facilities and equipment.
Exhibit J
---------
EQUAL EMPLOYMENT OPPORTUNITY/ AFFIRMATIVE ACTION PLAN
--------------------------- -----------
The City and the Grantee recognize that in order to ensure the participation of
minorities' and women in the Grantees work force that the Grantee must take
affirmative action to maximiz equal employment opportunities for minorities and
women. To this end, the Grantee, pursuant to Section 23.2 of the Agreement,
shall develop and file an Equal Employment Opportunity/Affirmative Action Plan
(the "EEO/AA Plan") with the Cable Comniission for approval within ninety (90)
days after the Date of Acceptance. For purposes of this Exhibit J and Section
23 of the Agreement, all general population and labor force statistics shall be
detived from the latest U.S. Census Data.
1. EEO/AA Plan
-----------
The Grantee's EEO/AA Plan shall contain:
A. A workforce profile that indicates the number of individual positions by job
title of each of the following job categories:
1. Officials and Managers/Technical/Professional;
2. Sales;
3. Office and Clerical;
4. Craftsmen;
5. Operatives;
6. Laborers; and
7. Service workers.
This workforce profile shall also indicate the levels by grade or pay scale of
the various positions within each job category.
B. Specific, numerical tive action goals. Such goals shall be set by;
I . -Multiplying established percentages for each group in the
appropriate job
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category, by;
2. The number of positions (whether filled or vacant) indicated
in each job category; and
3. Subtracting the members of each group presently included in
the Grantee's workforce in each job category.
C. A description of the Grantee's EEO/AA Plan that demonstrates the Grantee's
commitment to maximizing the employment opportunities of minorities and women in
its workforce.
The Grantee's EEO/AA Plan shall be disseminated both internally and externally
and appropriately reflected in the Granteies:
1) Employee and Supervisory Manuals;
2) Training and Employment Materials;
3) Employment notices which set forth the rights of an employee
if he/she believes that he/she has been discriminated against;
4) Job application forms in bold type; and
5) Contracts with its Contractors and Subcontractors.
Also indicative of the Grantees efforts to disseminate its policy
shall be the featuring of minorities and women in advertisements,
posters or other public relations materials.
D. A description of personnel practices and procedures that will by used by
the Grantee to: 1) eliminate artificial barriers or other impediments to full
utilization of minorities and females and 2) ensure that the Grantee's policies,
procedures or practices are both neutral and nondiscriminatory on their face and
administered in a fair manner. This description shall provide an analysis of
personnel practices and procedures and include, but not be limited to, a general
description of the following:
1) The Grantee's selection process, including, but not limited
to, job descriptions, job titles, employee requirements,
application forms, interview procedures;
2) The Grantees transfer, evaluation, and promotion practices;
3) Salaries, fiinge benefits and other forms of compensation;
4) Accesubifity of the Grantee!s facilities or equipment to
handicapped persons, and
5) Seniority practices.
E. The designation of a senior company official who shall have full
responsibility for the development, implementation and monitoring of the
Grantee's EEO/AA policies and programs.
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This official shall be given adequate personnel and financial resources to
conduct the Grantee's EEO/AA policies and programs. The title of this official
shall appear in all materials relating to the Grantee's EEO/AA Plan.
F. A description of the procedures to be used by the Grantee to inform all of
its personnel that successfid implementation of and compliance with the
Grantee's EEO/AA policies and programs will be an essential element in
performance evaluation and promotion.
G. A description of a systematic, affirmative action recruitment program to be
used by the Grantee to attract minority and female applicants to the Grantees
workforce. Such description shall also identify applicant sources in the City's
labor force. The Grantee may rely on personnel resource organizations to obtain
data on current and potential applicant sources. Nfinority and women's
organizations and colleges with a significant proportion of minority and female
students may also provide such recruitment information. Techniques to recruit
potential applicants may include:
1) Placing job announcements/advertisements in newspapers;
2) On-site visits at minority and womens colleges;
3) Contacting and sending job announcements to minority and
women's professional organizations and civil rights, legal and
conununity organizations;
4) Attendance at special career programs at local high schools
and colleges or participating in conventions or meetings
sponsored by civil rights or public interest organizations; and
5) Announcing employment opportunities on radio and TV on both
minority and non-minority stations.
established and implemented by the Grantee to satisfy the employment
requirements set forth herein and in Section 23 of the Agreement.
1. A description of the Grantees internal audit and monitoring system that
must be integrated with the Grantee's normal personnel, budgetary and management
systems and used to conduct an analysis of each aspect of the Grantee's EEO/AA
policies and programs and to measure the effectiveness of this program. This
description shall include, but not be limited to:
1) A procedure for monitoring vacancies created by new hiring,
expansion, promotion, attrition or termination to assess
opportunities for meeting its E4ual Employment Opportunity and
Affirmative Action goals.
2) A procedure for assess'ng the usefulness of various
recruitment sources and techniques.
11. Underutilization Analysis
-------------------------
Subsequent to submission of its EEO/AA Plan, the Grantee shall be required to
conduct, on
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an annual basis, a statistical analysis pursuant to guidelines established by
the Cable Commission to determine whether minorities or women are underutilized
in the Grantee's workforce in any job category. Generally, this analysis shall
consist of a comparison of the projected annual, numerical affin,native action
goals of the Grantee and the actual representation of minorities and females in
the Grantee's workforce.
Exhibit K
---------
MBE AND WBE PLANS
-----------------
The City recognizes that (i) minority and women-owned businesses have
historically been underutilized in the cable television industry; (ii) the
minority and female populations comprise substantially more than half of the
general population of the City; (iii) there are a significant number of
qualified minority and women-owned businesses located within the City and (iv)
by providing opportunities to such minority and women-owned businesses, The
Grantee shall assist in increasing the participation of minority and women-owned
businesses in the cable television industry. To this end, the Grantee, pursuant
to Section 24.2 and 3 of the Agreement, shall develop separate NLBE' and
WBE'Plans.
I. MBE/WME Plans
-------------
Both the NME and WBE Plans of the Grantee shall contain:
A. A description of the Grantee's internal MBE/WBE policy that demonstrates
the Grantee conunitment to maximizing the participation of minority and women-
owned businesses located in the City in the construction, installation,
maintenance and operation of its cable television system. This policy shall be
dissen-dnated both internally and externally and be reflected in all of the
Grantee's contracts. Indicative of the Grantee's efforts to disseminate this
policy shall be:
1) Timely notice of the Grantees intent to award contracts to
the n-dnority and female business communities, MBE/WBE assistance
agencies and other MBE/WBE-related organizations;
2) Advertising in publications having significant circulation
among minorities and/or females;
3 Sponsoring conferences to advertise the Grantees MBE/WBE
policies and to explain the procedures for MBE/WBE participation;
4) Maintaining systematic contacts with the minority and female
business communities, MBE/WBE assistance agencies, MBE/WBE
contractor associations and other minority and female
organizations to encourage referrals of qualified MBE/WBE;
5) Commuricating the Grantees MBE/WBE policies to all existing
Contractors and subcontractors and requesting MBE/WBE referrals
for future considerations.
The designation of a senior company official who shall have full responsibility
for the development, implementation and monitoring of the Grantee's MBE/WBE
programs. This official shall be given adequate personnel and financial
resources to conduct such programs. The title of this official shall appear in
all of the Grantees materials relating to MBE/WBE.
-75-
C. A description of specific programs including those programs set forth
in Section XIVof the Grantee's Appfication that will be established and
implemented by the Grantee to meet its required MBE and WBE goals and to ensure
the participation of MBE/WBEs in the construction, installation, maintenance and
operation of its cable television system.
D. A description of specialized programs that the Grantee may, at its
option, establish and implement to meet its required MBE and WBE goals and to
ensure the participation of MBEs/WBEs in the construction, installation,
maintenance and operation of the Grantee's cable television system such as:
1) Set-asides for MBE/XXX;
2) Joint venture arrangements between MBE/WBEs and other firms;
3) Sole source contracts with capable, qualified MBEs/ WBES;
4) Division of contracts to facilitate greater MBE/WBE
participation;
5) Accelerated or pro-mted payment plans and pro-rated delivery
schedules in order to minimize the cash flow problems of
MBE/WBEs;
6) Purchasing supplies and/or leasing the required equipment for
a job and then subcontracting with MBEs/WBEs only for the
expertise required to perform the job;and
7) Revolving loan funds.
Also indicative of the Grantee's efforts to meet its MBE/WBE goals shall be: a)
the deposit of funds in minority or women-owned banks; b) bonding, management
and technical assistance;
c) the dissemination of infomational materials; d) the sponsoring of seminars
and workshops-, and e) advising MBE/WBEs on organizational and contractual
requirements, bid specifications, contracting schedules and procurement
procedures.
E. A description of the categories and dollar values of all contracts to be
awarded by the Grantee.
F. A description of the categories and dollar values of all contracts that
should be excluded from the total dollar value of contracts to be awarded by the
Grantee because participation of MBE/WBEs would not be practically possible such
as factory direct purchases, purchases of sateuite-delivered services and
purchases of materials or equipment from a sole source of supply. These
exclusions must be justified by the Grantee in this description and are subject
to Cable Commission approval.
G. A description of the s internal audit and monitoring system that must be
integrated with the Grantee!s normal personnel, budgetary and management systems
and used for purposes of measuring the effectiveness of the Grantees MBE/WBE
programs. Said description shall:
1) Set forth specifically the steps the Grantee will take to identify
and award contracts to MBEs and WBES;
2) Detad the methods the Grantee will use for monitoring its MBE/WBE
programs;
3) Be consistent with the MBE/WBE counting methods set forth below:
a) The total dollar value of the contract awarded to the MBE/WBE
is counted toward the applicable MBE/WBE goals.
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b) The total dollar value of a contract with an MBE/WBE owned and
controlled by both minority males and non-minority females is counted
towards MBE or WBE goals respectively, in proportion to the percentage of
ownership and co ntrol of each group in the business.
c) The total dollar value of a contact with an MBE-owned and controlled by
minority women is counted towards either the applicable MBE goal or the WBE
goal, but not toward botil The Grantee may choose the goal to which the
contract value is applied.
d) The portion of the total dollar value of a contract with an eligible
joint venture that is equal to the percentage of ownership and control of
the MBE/WBE partner in the joint venture may be counted towards the
applicable MBE/WBE goals.
e) Only expenditures to MBE/WBEs that perform a "commercially useful
function" in the performance of a conma may be counted towards the
applicable MBE/WBE goals. An MBE/WBE is considered to perform a
"commercially useful function" if it is responsible for the execution of a
distinct element in the performance of a contract and carries out its
responsibilities by actively performing, managing and supervising the job.
f) The portion of the total dollar value of a sub-contract performed by an
MBE/WBE is counted towards the applicable MBE/WBE goals.
g) Materials and supplies obtained from MBE/WBE suppliers and manufacturers
may be counted towards the applicable MBE/WBE goals, provided that the
MBE/WBE assumes the actual and contractual responsibility for the provision
of materials or supplies. In cases where the MBE/WBE exercises the
exclusive role of a distributor, broker or agent for the obtaining of
materials or supplies, then only the commission, markup or fee earned by the
MBE/WBE may be counted towards the appficable MBE/WBE goals.
K- 6
EXHIBIT L
---------
PLAN OF INTERCONNECTION
-----------------------
(To Come - per Section 15.3 -
due 90 days after Acceptance Date]
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