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HomeMy WebLinkAbout1988 City of Ithaca Cable Ordinance r t ~�'�O�1TNq� CV OAPoR��O�� CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK '14BBO OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 July 27, 1988 Daniel J. Danser, Vice President American Television Communications 160 Inverness Drive W. Englewood, CO 80112 Re: Ithaca Cable Ordinance Dear Dan: I am herewith enclosing a redraft of the City of Ithaca' s Cable Ordinance in accordance with the "Master Copy Initialed Pursuant to Agreement in Principle, December 2, 1987. " I have attempted to make the appropriate changes according to that master copy. What follows is a summary of the changes made broken down section by section. Also, how do we stand on getting a stipulation for submission to the FCC on rate regulation? SECTION 1 PURPOSE I have not made any changes to this section. SECTION 2 TITLE OF ORDINANCE I have not made any changes to this section. SECTION 3 DEFINITIONS At first I was going to make changes to conform the definitions in the ordinance to the definitions already agreed to in the franchise, but in reviewing the ordinance it seems as though different terms may be used because of the generic quality of the ordinance. I was reluctant to eliminate- definitions and thereby remove them from your consideration. Therefore, I have left all of the definitions in adding only the definition for access channels that we added to the franchise. I would appreciate your comments as to definitions we should add or delete from this section. SECTION 4 GRANT OF FRANCHISE I have retained the original language in Sections A. B, and C. I did not add the language to Section C which has been added to the franchise as I was not sure that the language was appropriate to the ordinance. I have deleted Section D and have retained in full Section E, relettering in Section D. Again, I have included language which was stricken from the franchise in this new Section D. Section 4. 2 and Section 4. 3 have remained the same. I have not made any changes to Section 4. 4 as the original language seemed appropriate for the ordinance. I have changed the language in 4 . 5 to remove the words "herein or" and changing them to "into by. " I have removed Sections 4 .7 and 4. 12 and renumbered the other sections accordingly. Under Section 4. 15, I have removed the last line of Subsection A and stricken the appropriate language in Subsection B. I have made the changes in Subsection C and D; E, F and G remain the same. I have taken out Subsection H, made the amendments to Subsection I and relettered it H. SECTION 5 REGULATION OF FRANCHISE I have made the three word changes under Section 5. 2. I have moved Subsections 7 and 9 under Section 5.2, but in reviewing my notes I am not sure whether those subsections should not be included. I have made the wording changes in Sections 5. 3 and 5. 4, and 5. 5 remains unchanged. I have made the changes to Section 5. 6 as agreed to but left in the reference to the letter of credit as this ordinance applies generally to all franchises. Under Section 5. 6, Subsection 5 has been eliminated. Section 5.7 is unchanged. Section 5. 8 has been removed. The time period in Section 5. 9 has been changed, and the further wording changes have been made to Section 5. 9. Sections 5. 10 and 5. 11 remain the same. Section 5. 12 has been removed. Sections 5. 13 and 5. 14 remain the same and are merely renumbered. I have made the wording changes to Section 5. 15 and 5. 16. I left Section 5. 17 as we had it in the original as it seemed appropriate to maintain this language in the ordinance. Under Section 5. 21, I added the language in parenthesis. Under Section 5. 24, I removed the last sentence. I made the change indicated to Sections 5. 26 and 5. 27. ti SECTION 6 BONDS, INSURANCE AND INDEMNIFICATION The language in 6. 1 remains the same except with the addition of the word "lawful" in Subsection B1 and the deletion of Subsection B2(c) . I kept the language in Section 6.2 and tried to tailor it so as to accommodate the current franchise. Under Section 6. 6 , I made the appropriate wording changes. 2 - SECTION 7 SUBSCRIBER AND USER RIGHTS I made the wording changes agreed to in Sections 7.1, 7. 2 and 7.7. Only the first sentence in Section 7. 10 was retained Sections 7. 11, 7. 12, 7. 14, 7. 15 and 7. 16 were eliminated. I made the appropriate wording changes in Sections 7. 17 , 7.18 and 7. 19. Sections 7. 20 and 7. 21 were eliminated. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS I made the appropriate deletion in Section 8.3 and the addition in 8.8. I also made the corrections noted in Section 8. 12, 8. 13 and 8.15. SECTION 9 MAINTENANCE AND INSPECTION No changes made in this Section. SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT No changes were made in Section 10. SECTION 11 BOOKS, RECORDS AND REPORTS I made changes to Sections 11. 2B and D. I also relettered D to C, as there was no Subsection C in the document. I made changes to Subsection E which seemed to be consistent with the franchise and left in the language regarding rates to apply to franchises generally. I also made changes to Subsections F and G and changes to Section 11. 3. I eliminated Subsection B of 11.3. SECTION 12 MISCELLANEOUS PROVISIONS I did not make any changes to these sections. Thank you for your attention to these matters. Yo s ver truly, 1 h Nash Ci A orney RWN:blh Enclosures 3 - r� CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 148SO OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 MEMORANDUM TO: John Gutenberger, Mayor All Aldermen FROM: RW City Attorney DATE: Au ust 31, 1988 RE: Cable Ordinance Changes As you know, I believe it is very important to adopt, as soon as possible, a revised Cable Ordinance in compliance with the Agreement' in Principle signed December 2, 1987. I have included in the agenda for the September 7th Common Council meeting the present proposed revised Ordinance. The changes made to the earlier adopted Ordinance are set out in my letter of July 27, 1988 to Dan Danser and my memo of August 26, 1988 to Dick Booth. Please let me know if you have any questions regarding the present Ordinance. RWN:blh enclosure cc: Thys Van Cort, Planning Director ti'��OTI i �• i Ab CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 MEMORANDUM TO: Richard Booth, Chairman of Charter and Ordinance FROM: Ralph Nash, City Attorney ,l,Q DATE: August 26, 1988 RE: Cable TV Ordinance ACC advised today that they would accept the Cable Ordinance as amended by me and submitted to your Committee a couple of months ago with the following changes: 1. P. 16 Section 5. 6; 3rd line after word violation insert word "and" 2 . P. 20 Unnumbered language above section 5.10 delete word "state" ; P. 26 (B) and (G) change wording "Unless otherwise provided the franchise" to "To the extent provided in the franchise" ; 4. P. 31 Renumber section 7. 18 - 7. 21 to section 7. 13 - 7. 16; 5. P. 38 (C) make same change as number ( 3 ) above; 6. P. 38 (D) ( 4) change "If the City regulates. . . " to "In the event that the City is asked to approve any rate increase. . . " ; 7. P. 39 (E) (2) beginning of 7th line insert the word "subject" . t I have enclosed another draft of the ordinance incorporating these changes for your review. I am hopeful of being able to take final action at the September Council meeting in order to achieve final settlement of the Cable Franchise. RWN:blh enclosure CABLE COMMUNICATIONS ORDINANCE CITY OF ITHACA, NEW YORK DRAFT #8 July 31, 1987 / nlka4/ TABLE OF CONTENTS FOR CITY OF ITHACA'S ORDINANCE SECTION PAGE Section 1 Purpose. . . . . . . . . . . . . . . . . . . . . 1 Section 2 Title of Ordinance . . . . . . . . . . . . . . . 2 Section 3 Definitions. . . . . . . . . . . . . . . . . . 2 Section 4 Grant of Franchise . . . . . . . . . . . . . . . 8 4.1 Grant of Franchise . . . 8 4.2 Use of Public Streets and Ways 10 4.3 Use of Grantee Facilities. . . . . . . . . . . . 10 4.4 Franchise Territory. . . . . . . . . . . . . . . 10 4.5 Term of Franchise. . . . . . . . . . . . . . 10 4.6 Franchise Required . . . . . . . . . . . . . . . 10 4.7 Police and Regulatory Powers Reserved. . . . . . 11 4.8 City's Right to Perform Public Works . . . . . . 11 4.9 Emergency Removal of Plant . . . . . . . . . . . 11 4.10 Removal and Relocation . . . . . . . . . . . . . 11 4. 11 Removal or Abandonment . . . . . 11 hi 4.12 Time is of the Essence to ts Ordinance . . . . 12 4.13 No Waiver of Rights. . . . . . . . . . . . . 12 4.14 Limitation on Use of Financial Commitments . . . 12 4:15 Transfer of Ownership or Control . . . . . . 12 Section 5 Regulations of Franchise . . . . . . . . . . . . 14 5.1 General. . . . . . . . . . . . . . . . . . . 14 5.2 Regulatory Authority . . 14 5.3 Performance Evaluation . . . . . . . . . . . . . 15 5.4 Response to City Inquiries . . . . . . . . . . . 16 5.5 Quality of Service . . . . . . . . . . . . . . . 16 5.6 Liquidated Damages . . . . . . . . . . . . . . . 16 5.7 Consumer Remedies. . . . . . . . . . . . . . . . 17 5.8 Revocation of Franchise. . . . . . . . . . . . . 19 5.9 * Determination of Breach. . . . . . . . . . . . . 19 5.10 Non-Exclusivity of Remedy. . . . . . . , . . . . 20 5.11 Jurisdiction . . . . . . . . . . . . . . . . . . 21 TABLE OF CONTENTS FOR CITY OF ITHACA'S ORDINANCE (CONTINUED) SECTION PAGE 5.12 Right to Purchase . . . . . . . . . . . . . . . 21 5.13 Notification. . . . . . . . . . . . . . . . . . 22 5.14 Free Connections. . . . . . . . . . . . . . . . 22 5.15 Publication and Non-Discrimination. . . . . . . 22 5.16 Credit for Service Interruption . . . . . . . . 22 5.17 Rate Regulation . . . . . . . . . . . . . . . . 22 5. 18 Franchise Fee Entitlement . . . . . . . . . . . 23 5.19 Payment . . . . . . . . . . . . . . . . . . 23 5.20 Franchise and Renewal Expense Reimbursement . . . . . . . . . . . . . . . 23 5.21 Affiliates' Use ofSystem . . . . . . . . . . . 23 5.22 Late Payment. . . . . . . . . . . . . . . . . . 23 5.23 Recomputation . . . . . . . . . . . . . . . . . 23 5.24 Right of Inspection of Records. . . . . . . . . 24 5.25 Right of Inspection of Construction . . . . . . 24 5.26 Right of Inspection of Property . . . . . . . . 24 5.27 Franchise Renewal . . . . . . . . . . . . . . . 24 Section 6 Bonds, Insurance, and Indemnification . 24 6.1 Performance Bond and Letter of Credit . . . . . 24 6.2 Liability and Insurance . . . . . . . . . . . . 27 6.3 General Liability Insurance . . . . . . . . . . 28 6.4 Automobile Liability Insurance. . . . . . . . . 29 6.5 Worker's Compensation and Employer's Liability Insurance . . . . . . . . . . . . . . 29 6.6 Indemnification . . . . . . . . . . . . . . 29 Section 7 Subscriber and User Rights. . 30 7.1 Subscriber 'Solicitation . . . . . . . . . . . . 30 7.2 Sales Information . . . 30 7.3 Billing Practices Information . . 30 7.4 Notice of Installation. . . . . . . . . . . . 30 7.5 ' Business Office . . . . . . . . . .. . . . . . 31 7.6 Notice of Complaint Procedure . . . . . . . . . 31 7.7 Response to Service Complaint . . . . . . . 31 7.8 Unresolved Complaints . . . . . . . . . . . . . 31 \,/ TABLE OF CONTENTS FOR CITY OF ITHACA'S ORDINANCE (CONTINUED) SECTION PAGE 7 .9 Notice of Public Meeting . . . . . . . . . 31 7. 10 Subscriber Privacy Information . . . . . . . . 32 7. 11 Monitoring 32 7 . 12 Polling by Cable 33 7.13 People Meter • . . . . . . . . . . . . . . 33 7.14 Distribution of Subscriber information . . . . 33 7.15 Information with Respect to Viewing Habits and Subscription Decisions . . . . . . . . . . 33 7.16 Subscriber and User Contracts. . . . . . . . . 34 7 . 17 Converters . . . . . . . . . . . . . . . . . 34 7.18 Internal Wiring. . . . . . . . . . . . . . . . 35 7 . 19 Remote Controls. . . . . . . . . . 35 7.20 Subscriber Access to Personally Identifiable Information. . . . . . . . . . . . . . . . 35 7.21 Subscriber Information to be Destroyed . . . . 35 7.22 Public, Educational and Municipal Access . . . 35 7 .23 Local Origination. . . . . . . . . . . . . . . 35 Section 8 Design and Construction Provisions . . . . . . 35 8. 1 Location of Cable Communications Systems . . . 36 8 .2 Disconnection and Relocation . . . . . . . . . 36 8.3 Private Property . . . . . . . . . . . . . . . 36 8.4 Repairs and Restorations . . . . . . . . . . . 36 8.5 Tree Trimming. . . . . . . . . . . . . . . . 36 8.6 Underground Facilities . . . . . . . . . . 37 8.7 City Property. . . . . . 37 8.8 Temporary Relocation . . . . . . . . . . . . . 37 8.9 City Maps. . . . . . . . . . . . . . . . . . . 37 8.10 Construction Notice. . . . . . . . . . . . . . 37 8.11 Safety and Construction Standards. . . . . . . 37 8.12 Contractors and Subcontractors . . . . . 38 8.13 Construction Plan Approval . . . . . . . 38 8.14 ' Equipment Changes. . . . . . . . . . . . . . . 39 8.15 Extension of Service . . . . . . . . . . . . . 39 8.16 Erection, Removal and Common Use of Poles. . . 39 8.17 Right to Inspection of Construction. . . . . . 39 8.18 Construction Reporting Requirements. . . . . . 40 8.19 Inspection . . . . . . . . . . . . . . . . . . 40 8.20 Initial Performance Test . . . . . . . . . . . 40 8.21 Annual Performance Test. . . . . . . . . . . 40 - TABLE OF CONTENTS FOR CITY OF ITHACA'S ORDINANCE (CONTINUED) SECTION PAGE Section 9 Maintenance and Inspection . . . . . . . . . . 40 9.1 General. . . . . . . . . . . . . . . . . . . . 40 9.2 Maintenance Log. . . . . . . . . . . . . . . 40 9.3 Service Interruption . . . . . . . . . . . . . 40 9.4 Radiation Monitoring . . . . . . . . . . . . . 41 Section 10 Employment, Training and Procurement . . . . . 41 10. 1 Equal Employment Opportunity and Affirmative Action Programs. . . . . . . . . . 41 10.2 Employment Policy. . . . . . . . . . . . . 41 Section 11 Books, Records and Reports . . . . . . . . . . 41 11.1 Books and Records Available to the Grantor . . 41 11.2 Reports Required . . . . . . . . . . . . . . . 42 11.3 Records Required . . . . . . . . . . . . . . . 43 Section 12 Miscellaneous Provisions . . . . . . . . . . . 44 12 . 1 Captions . . . . . . . . . • . . . . . . . . 44 12.2 Severability . . . . . . . . . . . . . . . 44 12.3 Grandfather Rights . . . . . . . . . . . . . . 44 12.4 Notice . . . . . . . . . . . . . . . . . . . . 44 12.5 Force Majeure. . 45 12.6 Failure of City to Enforce this Franchise, No Waiver of the Terms Thereof . . . . . . . . 45 `/ DRAFT #8 July 31, 1987 ITHACA, NEW YORK ORDINANCE S TION 1 PURPOSE The City of Ithaca finds that the development of Cable Commu 'cations has the potential of having great benefit and impact pon the people of Ithaca. Because of the complex and ra 'dly changing technology - associated with cable communica 'ons, . the City further finds that the public convenienc safety and general welfare can best be served by establis 'ng regulatory powers which should be vested in the City or s ch persons as the City shall designate. It is the intent of this Ordinance and subsequent amendments to provide for an specify the means to attain the best possible public i terest and public purpose in these matters and any Franchise issued pursuant to this Ordinance shall be deemed to include t ' s finding as an integral part thereof. Further, it is . ecognized that Cable Communications Systems have the capaci y to provide not only entertainment and information service to the City's residents, but can provide a variety of inte active communications services to institutions and individ ls. Many of these services involve City agencies and other public institutions, by providing governmental, a cational or health care communications. For these purposes, the fo owing goals underlie the regulations contained herein: (a) Communications services sho ld be available to the maximum number of City resid ts. (b) The Cable Communications Syste should be capable of accommodating both the pres t and reasonably foreseeable future communications eeds of City. (c) The Cable Communications System sho d be improved and upgraded if necessary during a Franchise term so that the new facilities neces ry for the operation of this system shall be in grated to the maximum extent possible with existing facilities. (d) Any Cable Communications System authorized b this _ Ordinance and the Franchise shall be respon 'ble to the needs and interests of the local commune y, and shall provide a wide diversity of informati n sources and services to the public. (e) That the public, educational, and governmental needs for access to the Cable Communications stem are met. SECTION 2 TI OF ORDINANCE This Ordinance sha be known and may be cited as "Ithaca Cable Communications egulatory Ordinance, " and it shall become a part of the Ordina es of the City. This Ordinance shall take effect a be in force from and after its passage and publication. That all Ordinances or parts of Ordinances in onflict with the provisions of this Ordinance are hereby repeal SECTION 3 DEFINITIONS �4e+L all ";44 s V0+ vak For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3. 1 ADDITIONAL SERVICES means programming or services for which an additional charge is made beyond the charge for Basic Subscriber Services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per- view program, interactive services, and any other service utilizing any facility or equipment of a Cable Communications System operating pursuant to a Franchise granted under this Ordinance. 3 .2 AFFILIATE means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, control or a controlling interest in the Grantee; (b) each person in which the Grantee has, directly or indirect yI control or a controlling - interest; (c) each office, director, general partner, joint venturer or joint ventui-ee partner, of the Grantee; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to the Grantee by common ownership, common management, or common control; provided AFFILIATE shall in no event mean: (a) the City; (b) any duly authorized PEG Access Organization; _ 2 (c) any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or (d) any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated person by reason of owning controlling interest in, being owned by, or being under common control with, the Grantee. 3.3 BASIC SUBSCRIBER RADIO SERVICE means such audio services as the re-transmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC. 16W 3.4 BASIC SUBSCRIBER TELEVISION SERVICES means the definition promulgated by the . Federal C unications Commission, or if such definition is not fo thcoming from the Federal Communications Commission it hall mean all subscriber services provided by the Grant in one or more service tiers, including the delivery of roadcast signals, public, educational and governmental access channels, and local origination channels, covered by the regular monthly charge paid by all subscribers to a particular service tier including subscriber terminal charges and related deposits. 3.5 CABLE COMMUNICATIONS SYSTEM, also referred to as "system, " means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does .not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any Public-Rights-of-Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or • (d) any facilities of any electric utility used solely for operating its electric utility systems. 3.6 CITY means the City of Ithaca, New York. 3.7 CHANNEL means a sl* MegaheFts ' i-a frequency _ band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. 3 3.8 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3.9 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession. 3. 10 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3.11 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3. 12 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. 3.13 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. 3.14 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations. 3. 15 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 3.16 DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal. 3.17 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL means any channel where educational programs are the only designated use. The educational access channel(s) shall only be used for non-commercial purposes. 3.18 FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. 4 3. 19 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3.20 FRANCHISE means a Franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the Franchise granted, including referenced specifications, Franchise proposal, applications and other related material. Any Franchise granted pursuant to this Ordinance grants the nonexclusive rights to construct, operate and maintain a Cable Communications System along the Streets and Public Grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. 3.21 F CHISE AREA means the entire Cit eGruea //r a%lr. 3.22 FRANCHISE FEE means the perce�itage, as specified -155 of the Grantee's gross revenues from all sources payable in exchange for the rights gr ted pursuant to this Ordinance and the Franchise 0- 3.23 3.23 FRANCHISEE OR GRANTEE means -t:i ' natural person(s) , partnership(s) , domestic or ePcPI- foreign corporations(s) , as joint venture(s) , or organization(s) of any kind which has been legallyranted a Franchise by the City, and its lawful successor, �ansferee or,Xssignee. 3.24 GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government use. The aeaL access channel(s) shall only be used for non-commercial purpose (?) 3.25 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction.. 3.26 GROSS ANNUAL REVENUES means all revenue derived directly or indirectly by the Grantee, and revenue derived directly or . indirectly through services provided via the Cable Communications System by Grantee's affiliates -uhaldia=i65 ;n �, ah tha Cr- ntas ti,� �;,,��..; i ; ,,+e,-oma+9� ey(k%A o. (%af, wl�i 3.27 INQUIRY BY SUBSCRIBER means a request for general Vy1V; J a information about the Grantee's operation, services, �+k61,-tL0C programming, and/or rates. 3.28 INSTALLATION shall mean the connection of the QrnS'ra�►K�►.a5 system from feeder cable to subscribers' terminals. 5 ' � u 3.29 INSTITUTIONAL SERVICE means -etch video, audio, data and other services provided to institutional users on - - an individual application basis . These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions v te-?' residential subscribers. G"'.kfoq- 3.30 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the Grantee, at rates in accordance with the Cable Act. %kwN 3.31 LOCAL ORIGINATION A programming produced piaFebas by the Grantee (e.g. , advertisements, news, programming with advertising) which is under the control of the Grantee. Local origination is specifically not to be construed as public, governmental, or educational access. 3.32 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 3.33 MONITORING means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever. 3.34 NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers. 3.35 PERSON means an individual, partnership, association, organization, corporation or any lawful successor ansferee of said individual, partnership, association, organization or corporation. 3.36 PLANT MILE means a linear mile of st -a-a ''ea cable as measured on the street of""easement from pole to pole or pedestal to pedestal. or 3.37 PROGRAMMER means any person or entity who or which produces or otherwise provides program material or (ki"AcS use information for transmission by video, audio, digital or aother storage metrecordednals, either live or f rom, traces �P°�'� ( media, to or subscribers by means of the Cable '• Communications System. 3.38 PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL or COMMUNITY CHANNEL means any channel designated or — dedicated from use by the general public or noncommercial organizations which is made available for use without charge on a first-come, first-served, nondiscriminatory basis. The 6 public access channel(s) shall only be used for non- commercial purposes. 3.39 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. 3.40 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC GROUNDS means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public-rights-of-way or hereafter held by the City which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Cable Company Communications System. No reference herein, or in any Franchise, to the "Streets and Public Grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the right and power to give. 3.41 c REASONABLE NOTICE shall be written notice addressed either party at its principal office within the City or such other office as the Grantee has designated to the City as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than ten (10) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. 3.42 RESIDENT means any person residing in the City as otherwise defined by applicable law. 3.43 RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. C14, 3.44 SALE shall include any sale, exchange, barter. offer forR a?r_—Z ' ^ 3.45 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. 3.46 SERVICE AREA means the entire geographic area within the Franchise territory. 3.47 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 7 3.48 STATE means the state of New York. 3.49 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3.50 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other System Facilities located outside the City limits. 3.51 TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, Use ScG s+o+ merger, consolidation or otherwise, of five percent (5%) or more at one time of the ownership or controlling interest in the Cable Communications System, or twenty percent (20%) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. 3.52 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers. 3.53 UPSTREAM SIGNAL means a signal originating from a terminal to another point in the Cable Communications System including video, audio or digital signals for either programs or other uses such as security alert services, etc. 3.54 USER means a person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. SECTION 4 GRANT OF FRANCHISE _ 4. 1 GRANT OF FRANCHISE 8 61C A. GRANT OF AUTHORITY. Pursuant to the authority of the harter of the City and subject to the terms and L)' yLcL�; conditi s set forth herein, the Common. Council of the City of Ithaca an grant revocable and non-exclusive Franchises, acting pursu t to the City' s applicable Charter provisions, Ordinances, ru and regulations to construct and operate a Cable Communicati s System in, under, over, along, across or upon the Streets nd Public Grounds within the City of Ithaca for the pu ose of reception, transmission, collection, amplificatio origination, distribution or redistribution of a audio, [eo, data, or other signals and for the development of broadba telecommunication services in accordance with the laws of th City of Ithaca, the State of New York, and United States o erica. In the event that City shall grant to the Gra - ee a nonexclusive, revocable Franchise to construct, opera and maintain a Cable Communications System within the Cit said Franchise shall constitute both a right and an obligat n to provide the services of a Cable Communications System a regulated by the provisions of this Ordinance anti the Franc h e. The Franchise shall include by reference those provisions the Grantee's proposal that are finally negotiated and acce ed by the City and Grantee. B. NON-INTERFERENCE. In exercising rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons , interfere with any installations of the City, any public utility serving the City or any other person permitted to use the Streets and Public Grounds nor unnecessarily hinder or obstruct the free use of the Streets and Public Grounds . The grant of one: Franchise does not (�- establish priority for use over the other present or future permit or Franchise holders or the City' s own use of the Streets and Public Grounds . The Common Council of the City shall at all times control the distribution of space in, over, under or across all Streets or Public Grounds and occupied by the Cable Communications System. All rights granted for the construction and operation of the Cable Communications System shall be subject to the continuing right of the Common Council to require such reconstruction, relocation, change of discontinuance of the appliances used by the Cable Communications System in the streets, alleys, avenues, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. C. NON-EXCLUSIVITY. Any Franchise is non-exclusive and shall not affect the right of the Common Council to grant to any other person a grant or right to occupy or use Kthe streets or portions thereof, for the construction and y _ operation of a Cable Communications System within the City _ lor the right of the City to permit the use of the Streets or Public Grounds or of the City for any purpose whatever. No privilege or power of eminent domain is bestowed on Grantee by the grant of a Franchise. ;P �Y ,� sL ;S Sf0.&„1, ov% 4tr %j "or. �'t�aor�.S� � rk grA,.le,e y4• f j,�„e,M, 41 � c L.cLCE��k _- CW c � Inu.c Hi. r15L.� � w'~P'Y)�,a;.� 8k�� � S �h �<<H o� l.o►-��7a:,c� �f_2 \ • _ ENT OF CONFLICT. In the event of conflict etween the terms and con is Ordinance and the Franchise, the Ordinance shall control . E. COMPLIANCE WITH CITY ORDINANCES. ny---Fise y t e de he f fe t:___. Nothing .- in the Franchise shall be deemed to V waive the requiremnts of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4.2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and' maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within Grp the City such wires, cables, conductors, ducts, conduits, �C vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances. 4.3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4.4 FRANCHISE TERRITORY. The Franchise territory see aw shall be the entire City for which a Franchise is granted under authority of this agreement. The 3.Z l , 3•x(0 service area shall be the entire territory defined in the Franchise. 4.5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided heeei% w in the Franchise. The value of the Franchise at the end of the term sha4 be zero and no property right shall be conferred the Franchise itself. bi 4.6 FRANCHISE REQUIRED. No Cable Communications © System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 10 i. 7 POLICE AND REGULATORY POWERS RESERVED. Grantee shall comp 'th all applicable laws, Ordinances and regulations enacte City pursuant to any lawful use of such power. Any confli ween the terms of this Ordinance or the Franchise and any pr or future lawful exercise of the City's police and regulatory po hall be resolved in favor of the latter. 4.8 CITY'S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this- Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or carry on, directly or indirectly, any public works or G public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. 4.9 EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it ' shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the Cable Communications System, the City shall have the right to do so at the sole cost and expense of Grantee. 4.10 REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property. Restoration shall be made in as good a condition or better. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. 4. 11 REMOVAL OR ABANDONMENT. Upon termination of the Franchise by passage of time or otherwise, and unless Grantee transfers the Cable Communications System to a subsequent Grantee approved by the Common Council, Grantee shall remove its supporting structures poles, transmission and distribution systems, and all other appurtenances from the Streets and Public Grounds and shall restore the areas to as good a condition or better. Such removal shall be made so as not to conflict with public health, safety or convenience. Removal shall be completed within twelve (12) months after such termination. At that time the City may - deem any property not removed as having been abandoned. - Such property may then by removed at the option of the City at Grantee's expense less any recoverable salvage value. X-zl- 11 Ir , 4. 12 TIME IS OF THE ESSENCE TO THIS ORDINANCE. Whenever the Ordinance shall set forth any time for any act to be performed by or on behalf of the Grantee, such time j' shall be deemed of the essence. NO WAIVEROF RIGHTS. No course of dealing between the a and the City nor any delay on the part of the City in exercl rights hereunder shall operate as a waiver of any such rights a City or acquiescence in the actions of the Grantee in co d tion of. such rights except to the extent expressly waiveyor expressly provided for in the Franchise. 4 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial ents obtained by the Grantee which have been confirmed to pursuant to the Franchise shall be used solely in Gonne i with the construction, operation or maintenance of the Cab a unications System or the Grantee's performance of the terms, o ' ons, and conditions of this Ordinance and the Franchise. q,134.15 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership v or other means without the prior consent of the CityQ than oniy under sueh senditiene as the City may 0-stabl-igh -oK B. TRANSFER OF CONTROL OR OWNERSHIP. The Grantee shall promptly notify the City of any actual or proposed G� change in, o of of - the Grantee. -1018trei" as _ 5 n, c u workin r control in whatever m Ise A re uttab resump Ion a . a rans er o confrol has occurred shal ise upon the disposal by the Grantee, directly or indirect by gift, assignment, voluntary sale, merger, consolidation or o ise, of five percent (5%) or more at one time of the owners r controlling interest in the system, or twenty percent (20% ulatively over the term of the' Franchise of such interests a corporation, partnership, limited partnership, trust or ass tion, or person or group of persons acting in concert. C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantees City consent will not be _ unreasonably withheld. For the purpose of determining _ whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the 12 tea 3&,6.9 Grantee shall assist the City in any sucinquiry. 4*;4 VFailure to provide all transfer related information requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during 1� the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such transfer, after considering the legal, financials character, technical a• d other public interest qualifications of the applicants e satisfactory, the City will transfer and assign the rights and obligations of such Franchise as in the public interest. ' The consent of the City to such transfer shall not be unreasonably withheld. E. NO WAIVER OF RIGHTS. The consent or approval of the City to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the b streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the Franchise. F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the Franchise prior to completion of construction of the proposed system. G. FRANCHISE SIGNATORY. Any approval by the City of transfer or ownership or control shall be contingent upon () the prospective controlling party becoming a signatory to the Franchise. n RIC_HT_OF F T • U The City_ reserves the P right of firs in any _sale, transfer, lease, assignment__or dis_posal of _ S' r �y J I. TIMEFRAME. The City shall act o?9 a request to transfer the Franchise and Sestlee within c x—+6+ 0 (4a_y S. tea- of the Grantee's •presentat of n to the Common Council requesting a transfer or assignment. The City's approval of 13 � u Zany transfer or assignment shall not be deemed an approval of the purchase price. •SECTION 5 'REGULATION OF FRANCHISE 5.1 GENERAL. The City shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable law. This authority shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise granted hereunder, and to carry- out the City's responsibility with regard to cable communications. The City may from time to time adopt such reasonable rules and regulations that it may deem necessary in the exercise of its municipal powers. 5.2 REGULATORY AUTHORITY. The City shall have the responsibility for the administration and enforcement of this Ordinance and the Franchise, including but not limited to the following duties, powers and authority which may be delegated at its discretion: (1) To administer and/or enforce all provisions of the Ordinance, and any Franchise granted hereunder. (2) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the Franchise or any applicable law . or regulation to correct the service deficiencies.' (3) To represent the City's interest before local, state or federal government agencies in cable communications matters. Nod ..cw4.V.H,� rlw•. bt- (4) To receive, evaluate and file all data and reports required by this Ordinance and to rule on such matters as appropriate un er the Ordinance and State and Federal law or r gulation. The City is hereby authorized to re ire adjustment to any fee, bond or insurance coverage or amount or charge contained herein annually ^e-ands r-a33*7 without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjustment. Inflation shall be calculated in accordance with the regional Consumer Price Index. (5) To inspect at any time all construction, _ installation, and ongoing operation of the Cable Communications System, and to make such tests as it C deems necessary to 14 ensure compliance with the rtGsoa�Sl.� V`�"w terms of this Ordinance, and the Franchise and other applicable laws and regulations . (6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. s and regulations applicable to tfie Terms of tfiis Or�Ic "finance or _ (8) To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. ( or Grantee's process for ha�ilin�citizen complaints a in ppect and anaryze t; rec�tds {elated to -s�ich comp afin (10) To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and recommendations thereto. 11) To monitor Grantee's adherence to operational standards and service requirements. 5.3 PERFORMANCE EVALUATION. The City and Grantee shall, at the discretion of the City, hold annual performance evaluation sessions. All such evaluation sessions shall be open to the public. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance, Grantee compliance with this Ordinance and the Franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, and judicial and FCC filings. Grantee shall notify its subscribers of all * evaluation sessions by announcement on at least one channel of its Cable Communications System between the hours of seven (7) p.m. and nine (9) p.m. , for five (5) consecutive days preceding each session. e"k, okue,r During review and evaluatio4 , Grantee Ashall fully cooperate with and shall provide such — information and documents as # s—� � may reasonably need to perform its review. &,C%,% 15 ruu) to RESPONSE CITY INQUIRIES S. I;L act rdance with the terms of the__Franchise, the Cites may, 4t aP_y- time, make inquirie _ rned with the management .. and affairs _ the Cable— Communicati tem. Grantee_ shall re!ond to such inquiries in a timely fashion. 5.5 QUALITY OF SERVICE. Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require Grantee to test, analyze, and report on the performance of the Cable Communications System. Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: (1) the nature of the complaint or problem which precipitated the special tests; (2) the system component or area tested; (3) the equipment used and procedures employed in testing; (4) the method, if any, in which such complaint or problem was resolved; and (5) any other information pertinent to said tests and analysis which may be required. The City may require that tests be supervised or conducted by a City staff member or a professional engineer who is not an employee or agent of the Grantee. Grantee shall reimburse the City for the costs of such engineer if the tests performed shows that the quality of service is below the standards set forth in this Ordinance or the Franchise. 5. 6 LIQUIDATED DAMAGES. For the violation of any of the llowing provisions of this Ordinance, the City shall notify Grantee in writing of the violation a f , the Grantee shall be allowed not less tha�thirty- (3�0 ays,: or such greater amount of time as the Citfy, correct such violation. Withrespect t 'on itU41aals. In the eve the Grantee fails to correct the violation, the City wi be entitled to collect Seo ° j� liquidated damages according to t schedule listed below. gsred�,)ad Such liquidated damages if not paid b e Grantee shall be chargeable, to the extent available, o r of credi ��� - C'l or bond tendered by Grantee within the afores erio of time. These liquidated damages shall be in addi to and not a limitation upon the other penal provisions o his 16 W dinance, including penalties or revocation, or other st utorily or judicially imposed penalties or remedies . 1) For failure to complete construction and installation in accordance with the Franchise, $ 6:6 O er day. 4,0 a, (2) F failure to submit reports or supply data in acc dance with this Ordinance, $$1�.00 per day for each y that such noncompliance 6�htinues. /000 (3) For fail a to test, analyze and report on the performanc of the Cable Communications System in 1� accordance w'th this Ordinance above, per �} \\ day for each day, or part thereof, ta 00 t"" such noncompliance co tinues. (4) For failure to pro 'de the capital equipment, and facilities, and sery es for public, educational and governmental acce s, as specified in the Franchise, $-10-,0 0 per , or part thereof, that such noncompliance continu 5 O° (5) F fa' lure o m e t ely applications, e ' str t on r an oth il' g wit the J app op is a ve m to u ty ori ' es y $10 0 p day per filing from ime due until restored. The City retains the right, at its sole tion, to reduce or waive any of the above-listed penalti where extenuating circumstances or conditions beyond the ntrol (� of the Grantee are deemed to exist. The Common Counc or its designee shall determine the City's willingness to reduce or waive any of the above-listed penalties. 5.7 CONSUMER REMEDIES. In order to promote compliance wit his Ordinance and the Franchise, cable communications subscri rs =,resthe Franchise shall have the following rights an in addition to any other remedies which may be availa a as a matter of law or equity to subscribers or others affec by the acts or omissions of the cable company. For examp this section is not meant to limit remedies available to subscribers under applicable laws governing consumer fraud to limit remedies which may be available if as a consequen of the acts or omissions of the Grantee a resident loses u ' lity services. Similarly, the remedies specified are not mea to limit any authority subscribers may have to enforce other rms of the Franchise against the Grantee. This section is in addition to any damage remedies or _ other action which the City may take pursuant to ' s rights under the Franchise, or pursuant to its general olive powers, or in the exercise of its rights under le 17 W onsumer Ordinances or regulations which exist now or may be a opted during the term of this Ordinance. , (1) If the Grantee fails within ten days to pay a submitted repair bill on any damage it causes to property (including damage which occurs during the course of stringing or burying cable or repairing cable) , the owner of the property shall be entitled to recover treble damages, and in any vent no less than $100, for the period when the p operty remains in such unrepaired or unsafe co dition in twenty-four (24) hours after causing suc property to be damaged or after creating the unsa condition. The Grantee shall be deemed to have ft the property in an unrepaired or unsafe conditi n if the Grantee fails to repair damage to the prop rty or to eliminate the unsafe condition. (2) If the Gr tee fails to provide any notice which may be requ'red by the City, the subscriber shall be entitled to recover treble damages for such failure. (3) If the Grantee iolates the privacy rights of any subscriber the bscriber shall be entitled to receive treble da ges, and in any event no less than $500, for each such violation. (4) In any event where a City determines that the Grantee has improperl discriminated in its rates and charges for service, the City after giving the Grantee notice of Hearin and an opportunity to be heard, shall identify the applicable non- discriminatory rate; the ubscribers which have been adversely affected the discrimination shall be entitled to a ref un equal to treble any amounts paid over the non-dis iminatory rate plus interest at the prime rate.. (5) The Grantee shall keep a record of the date and time it receives requests for service which require it to obtain access to a home of a subscriber or potential subscriber, d shall also keep a record of the appointments ma a with such subscriber or potential subscribers to provide service. Any occasion on which the Gra ee or its agent does not cancel the appointment with the subscriber and fails to arrive at the horn of the subscriber or potential subscriber dura g the _ appointment period shall be considered a issed _ appointment. The subscriber or pote tial subscriber with whom the appointments were mi sed shall be entitled to $50 damages for a ch appointment missed. 18 (6) If the Grantee fails to substantially follow the procedures for disconnecting a subscriber,. .as . riet forth in this Ordinance and/or the Franchise, the ubscriber who was improperly terminated shall be e 'tled to receive treble damages. (7) If a c le subscriber does not receive service for more th a four hour period, the affected subscriber hall be entitled to recover treble damages. In addition to the f egoing, if any subscriber is required to bring judicial p ceedings to enforce his/her rights and remedies set forth erein, and is ultimately successful in such judicial oceedings, then that subscriber is entitled to recover al reasonable attorney's fees and expenses incurred in the osecution of such judicial proceedings as fixed by the Court. Notwithstanding anything herein to the contrary, if the Gran a notifies the subscriber in writing not less than ten day before the initial appearance in any judicial proceeding th it will not use an attorney in that proceeding, and therea er does not use an attorney, then the subscriber should t be entitled to recover any attorney fees and expenses. CATION OF FRANCHISE. In the event of breach of this Ordinance anchise by Grantee, the Common Council shall have the right ke the Grantee's Franchise. 5.9 DETERMINATION OF BREACH. In the event that the City has reason to believe that Grantee has defaulted in the performance of any provision of this Ordinance or the Franchise except as excused by force majeure, the City shall notify Grantee in writing of the provision or provisions which the City be Teves may be in default. Grantee shall have days from -the receipt of such notice to: ixLv 134) (i) respond to the City in writing, contesting the Grantor's assertion of default and providing such information or documentation as may be necessary 0K or.; (ii) to cure any such default or, in the event that, by nature of the default, such default cannot be cured within such thirty (30) day period',�to take reasonable steps to cure the default and diligently continue such efforts until said default is cured. Grantee shall report to the City in writing, at thirty (30) day interval£ as _ the Grantee's efforts, indicating the steps taken by Grantee to cure the default and reporting Grantee's progress until such default is cured. t 19 f, � In the event Grantee fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing the Grantee may be heard and after which the City shall specify the complaint against the Grantee; thereafter the City shall appoint an impartial person to act as factfinder who shall fix a date for a hearing at which evidence shall be received and a record(0 Wce&rVow kept of evidence of the complaint. The factfinder shall Vlk;S Wo�ICS\ report in writing to both parties with his or her findings .l of fact. The Common Council shall make a finding of violation or no violation based on those findings. fin--tire ty shall 6�/' �thether or not Grantee i.s—i �»•'- of.,, any provi i a–of this _ --Ari__ or `- tGe. In the event the City after such hearing determines that Grantee is in default of any such provision of this Ordinance or the Franchise, the City may also determine to pursue any or all of the following remedies: (a) foreclose on all or any part of the security provided pursuant to this Ordinance, including without limitation the performance bond and/or the letter of credit; provided, however, the foreclosure shall be in such amount as the City reasonably determines is necessary to remedy the default and shall include payment of all City expenses incurred in connection with the fact- finding hearing. (b) commence an action at law for monetary damages, including the expenses of the fact-finding Ihearing. declare the Franchise to be revoked subject to e 5.8 above and order Grantee to commence the remo f the Cable Communications System i immediately or t erate with the City, or any i such agency or person rized or directed by the City to operate the Ca Communications System for a one year period, in mai. ing the continuity of service; and (d) seek specific performance of any provision, which reasonably lends itself to such remedy, as an lalternative to damages. The Grantee may seek recourse as available by law or state regulation. 5. 10 NON-EXCLUSIVITY OF REMEDY. No decision by the _ City to invoke any remedy under this Ordinance or under any statute, law or Ordinance shall preclude the availability of any other such remedy. 20 IVB 5.11 JURISDICTION. Exclusive jurisdiction and venue over any dispute, action or suit arising therefrom shall be in any court of appropriate subject_ matter jurisdiction located in the State of New York and the parties by this instrument subject themselves to the personal jurisdiction of said court for the entry of any judgment and for the resolution of any dispute, action, or suit arising in connection with the entr of uch judgment. 5.12 RIGHT To PURCHASE. In the event of expiration, to ination, denial or renewal, or revocation of any Fra hise granted hereto or foreclosure or other judicial sale f the Cable Communications System the City shall have the ri t to purchase the Cable Communications System at its fair maket value determined on the basis of the Cable Communica ions System valued as a going concern but with no value alio ted to the Franchise itself. Fair market value hall not i clude any right or privilege granted by this Ordinance or a Franchise. (a) If t City elects to purchase the Cable Communi tions System upon the occurrence of any of the events set forth in the preceding paragraph, Grantee shall promptly execute all . ._, appropriate documents to transfer title to the City, and all assign all other contracts, leases, licens s, permits and any other rights necessary to mai tain continuity of service to the public. Grantee hall cooperate with the City or such agency or pe on authorized or directed by the City to opera a the Cable Communications System for a reaso ble temporary period, in maintaining the conti ity of service. Nothing herein is intended as a waiver of any rights the City may have. (b) - During such reasonable mporary period of continued operation subsequent to revocation under this Section, Grantee shall of sell, assign, transfer, or lease to any o er person, any portion of the Cable Communication System used by it in its operations including par of the Cable Communications System rented, leas or lease- purchased from others by Grantee witho t the prior consent of the City. (c) If the City acquires ownership of th Cable Communications System or effects a trans er of ownership of the Cable Communications Syst to another person, any such acquisition or tran fer - shall be at an equitable price. 21 5.13 NOTIFICATION. Grantee shall file with the City schedules which shall describe all services offered by Grantee, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, Grantee shall file with the City all changes in services, all rates and charges of any kind, and all terms and conditions relating thereto thirty (30) days prior to all such changes. No rates or charges shall be effective except as they appear on a schedule so filed. 5.14 FREE CONNECTIONS. Grantee shall provide upon request and free of charge the drops set forth in the Franchise. Grantee shall discuss the location of each connection with the proper officials of each such institution receiving free connection. 5.15 PUBLICATIONAll rates for subscriber services and ,.le sing of channels shall be publish e _ _ t�� sha 1 be available mon request Buri g business hours C a� ran siness office ani all other _faci�ities. 17othing in Ibis 0 in all b construed t6 proTii5it the reduction or waiver of charges tractin subscribers, ( ?) or tie estab ishment ocharges an rate s s thea vary wi --volume or nature of usage or programs. 5.16 CREDIT FOR SERVICE INTERRUPTION. In the event that Grantee's service to any subscriber or user of leased channel space is interrupted for twenty-four (24) or more consecutive hours, Grantee shall,—:L4; addition to f_Yt4k7egrant expeditiously such subscriber or user a pro-rata credit. 5.17 RATE REGULATION. To the extent that Federal or State law or regulation may now, or as the same may hereafte be amended to, authorize the City to regulate the rates for particular service tiers, service packages, equipment, or ny other services provided by the Grantee, the City shall h e the right to exercise rate regulation to41 v�8 the full extent au orized by law for the first tier of o�,���„ service. For other ti s of service that may be included in the Basic Subscriber Tel ' sion Service, for which the City 4""5,0�' shall have the right to ex e ise rate regulation, the City and the Grantee shall negotia the rate for the -- service. When exercising rate regulation, he City shall consider, along with any other information deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: t ability of the Grantee to render Cable Communications Syst service; the _ efficiency of the Grantee; the quality of a service offered by the Grantee; the fair value cost of a Cable Communications System less depreciation; a fair r e of return over the life of the Franchise with respect to 22 tee's investment; the financial commitments required to meet erms of this Ordinance and the Franchise; the extent to whi antee has adhered to the terms of this Ordinance; fairness City residents, subscribers and users. The approval by t 't of any purchase price herein shall not obligate the City sider that purchase price as the fair value cost for rate regu urposes or otherwise. The City may retain rate consultants a deems appropriate. 5. 18 FRANCHISE FEE ENTITLEMENT. The City of Ithaca shall be entitled to receive from Grantee a Franchise fee of five percent (5%) of Grantee's Gross City Revenue. 5. 19 PAYMENT. The Franchise fee established in 5.19 above shall be tendered as follows: (i) Five percent (5%) of Grantee's Gross City Revenue for successive three (3) month periods tendered within forty-five (45) days after each such period. Said periods shall commence upon the execution of a Franchise granted pursuant to this Ordinance. 20 FRANCHISE fD RENEWAL EXPENSE REIMBURSEMENT. Grantee is d reimburse the City for the expenses of the franchising an 1 processes such as consultants fees, which are incidental to a ent of the or or Franchise. These requirements or char all not be considered part of the Franchise fee. 21 AFFILIATES' USE OF SYSTEM. To the extent necessary vent Grantee from diverting revenues from the operation of able Communications System from Grantee tQQ Affiliates to detriment of�the e City, Affilia esJ shall be permitted to ' lize Cable Communications System only if a Franchise n City revenues derived therefrom is paid. 5.22 LATE PAYMENT. In the event that the fees herein required are not tendered on or before the dates fixed in this Ordinance, interest due on such fee shall accrue from the date due at an annual rate of three percent (3%) above the prime rate or rates of interest, at the City's primary o+ depository/ y� bank. ,lam v-5 5.23 RECOMPUTATION. Tender or acceptance of any Jtopayment shall not be construed as an accord that the amount paid is correct, nor shall such acceptance of payment be construed as a release of any claim the City of Ithaca may have for additional sums including interest payable under this Ordinance or the Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor chosen by the City, which shall be based on a fiscal 23 1 "v 0 year and shall occur in no event later than one (1) year after the fees are tendered with respect to such fiscal year. If, after audit and recomputation, an unpaid fee is owed to the City, such fee shall be paid within thirty (30) days after audit and recomputation and the Grantee shall pay the costs of the audit. The interest on such unpaid fee shall be charged from the due date at an annual rate of three percent (3%) above the prime rate or rates of interest at the City's primary depository bank during the period that such unpaid amount is owed. 5.24 RIGHT OF INSPECTION OF RECORDS. The City shall have the right to inspect all books, records, reports, maps, plans, financial statements, and other like materials of the Grantee as provided in this Ordinance, at any time during normal business hours. ate' ------ 5.25 ever e5.25 RIGHT OF INSPECTION OF CONSTRUCTION. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Ordinance and other pertinent provisions of law. 5.26 RIGHT OF INSPECTION OF PROPERTY. At all reasonable times and for the purpose- of enforcement of this v Ordinance and the Franchise, Grantee shall permit any duly authorized representative of the ity, of all franchising property, together with any (? ppurtenant property ot Grantee si uated within the City and y4 5 `'r'.(�`'� outside of the City if it is utilized in the operation of a^� the City's Cable Communications System. 5.27 FRANCHISE RENEWAL. Upon completion of the term of any Franchise grailtpd under this Ordinance, the City may In 14 -- r_ T- grant or deny renewal of the Franchise of the Grantee in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws. SECTION 6 - BONDS, INSURANCE, AND INDEMNIFICATION. 6.1 PERFORMANCE BOND AND LETTER OF CREDIT. A. PERFORMANCE BOND. Not later than forty-five (45) days after the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its — cost and expense, and file with the City, a corporate surety bond in an amount specified in the Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the 24 Franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation of this Ordinance. B. CONDITIONS. The performance bond shall provide the following conditions: 1aw� (1) There shall be recoverable by the ity jointly and severally from the principal and surety, any and all fines and penalties due to the City and any and all damages, losses, co s, and expenses suffered or incurred by the ty resulting from the failure of the Grantee to faithfully comply with the provisions of thi Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims due the City as resulting from judicial action; pay any claims, (� liens or taxes due the City which arise by reason l� of the construction, operation, maintenance or repair of the Cable Communications System. Such losses, costs and expenses shall include but not be limited to attorney's fees and other associated expenses. The total amount of the bond shall be forfeited in of the City in the event: 6� (a) The Gr a abandons the Cable Communications l� System at a time during the term of the Franchise or any ension thereto; (b) The Grantee assigns the Fr ise without the express written consent of the or D ( d. C. REDUCTION OF BOND. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the Grantee shall be . without prejudice to the . Grantee's subsequent applications or to the City's right to require the full bond at any time thereafter. However, no application shall be made by the Grantee within one (1) year of any prior application. LETTER OF CREDIT. In addition to the performance bond requii suant to paragraph A above, the City may, in its discretion, r the Grantee to obtain, maintain and file with the City an irre letter of credit from a financial institution licensed to do u in the State in an amount specified in the Franchise, naming t as 25 ' 1 1" iciary. The form and contents of such letter of credit shall be d by the City and shall be released only upon expiration of hise or upon the replacement of the letter of credit by a suc Grantee. Failure to obtain the letter of credit within the timZ71s ed herein shall constitute a violation of this Ordinance. CONDITIONS. The City may draw upon the letter of credit ifantee fails to: faithfully comply with the provisions of this ance and the Franchise; comply with all orders, permits and 'ves of any City agency or body having jurisdiction over its a r defaults; pay fees due to the City; or pay any claims, liens axes due the City which arise by reason of the construction, tion, maintenance or repair of the Cable Communications System. Q� F. USE OF PERFORMANCE BOND(5) AND LETTER OF 4m4w / Prior to drawing upon the letter of credit =?' the performance bond for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due and the Grantee shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within thirty (30) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond. G. NOTIFICATION. Within three �(3) days of a withdrawal from the --ttar- - -- c' itL. performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. H. REPLENISHMENT OF LETTER OFEREDIT--A . PERFORMANCE BOND. No later. than thirty (30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph F above, the Grantee shall replenish the let -sr of crre performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this Ordinance. I. NON-RFNEWAL, ALTERATION OR CANCELLATION OF -ep-zz^a:E9? eiRl PERFO CE BOND. The performance -bond required herein shall be in a form satisfactory to the City and shall require thirty (30) days written notice to the City of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, _ pay all premiums for, and file with the City, written _ evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the City or the Grantee of any notice of cancellation. 26 J. To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. K. The City shall not seek recovery from the Performance Bond or the Letter of Credit until it has provided the Grantee with thirty (30) days to cure any default. 6.2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later than sixty (60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constit/ a ViqTlatiola pf thi Or finance. ve B. Any insurance policy obtains by the Grantee in compliance with this Section shall be filed and maintained with the City Clerk during the term of the Franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder for damages . D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney's tees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to 27 J. To offset the effects of inflation the amounts of the bond ani--letter az Q-rzy provided for herein, are subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. R. The City shall not seek recov ry from the Performance Bond until it has provided the Grantee with thirty (30) days to cure any default. 6.2 LIABILITY AND INSURANCE. Prior to commencement of construction, but in no event la han sixty (60) days after the effective date of the Franchise thereafter continuously throughout the duration of the Fran and any extensions or renewals thereof, the Grantee shall h to the City, certificates of insurance, approved by the for all types of insurance required under this Section. re to furnish said certificates of insurance in a timely r shall constitute a violation of this Ordinance. ny insurance policy obtained by the Grantee in compliance wi ection shall be filed and maintained (� with the City Clerk durin rm of the Franchise, and J may be changed from time to time lect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder for damages. D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and ' all lawsuits, claims, demands, liabilities, losses and expenses, including court costs _ and reasonable attorney's zees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to 27 a 40420..0P have Arisen out f or connection with the work covered by thi Agree ent. The foregoing indemnity /� shall apply exc pt 44 such injury, death or damage is (,! caused by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder. F. All insurance policies under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by the State. ny time during the term of 'the Franchise, the City may re ues e Grant e��kha1 co ly with such request, to n e t Cit as a am insured forall inrr�� rance icies wr' under e 'ons of this Ordinalice or the Franchise. H. To of f set the of f ects of inflation and to ref lect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. 6.3 GENERAL LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of: (1) $500,000 for property damage per occurrence; (2) $1,000,000 for property damage aggregate; - (3) $1,000,000 for personal bodily injury to any one person; and (4) $2,000,000 bodily injury aggregate per single accident or occurrence. (7) Such general liability insurance must includ coverage for all of the following: comprehensive €ate premises- operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 28 W 6.4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall aintain, and by its acceptance of any Franchise granted ereunder specifically agrees that it will maintain hroughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the fminimum amount of: (1) $1,000,000 for bodily injury and consequent death per occurrency; (2) $1,000,000 for bodily injury and consequent death to any one person; and (3) $500,000 for property damage per occurrence. 6.5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker's Compensation and employer's liability, valid in the State, in the minimum amount of: (1) Statutory limit for Worker's Compensation. (2) $100,000 for employer's liability. 6. 6 INDEMNIFICATION A. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions, and City employees against any and all claims, suits., actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith) : (1) To persons o�property, lia any w4rarising 4X whele or- Ie—per?'out of or through the acts or omissions of Grantee, its servants, agents or employees. (2) Arising out of any claim for invasion by the Grantee, its servants, agents, or employees of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation. (3) Arising out of Grantee's failure to comply with the provisions of any federal, state, or local _ statute, Ordinance, or regulation applicable to Grantee in its business hereunder. 29 1 B. The foregoing indemnity is conditioned upon the following: . The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suite, or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and participating in the defense of any litigation by its own counsel its sole cost and expense. SECTION 7 SUBSCRIBER AND USER RIGHTS 7.1 SUBSCRIBER SOLICITATION. Each representative or employee of the Grantee, entering upon private property shall be required to wear an employee identification card issued by Grantee and bearing a pictureof said 6�i representative.an ray ' - at' in—a—manner—�aicu"ted rPGicl to reach is in areas advance of such pdd�lc��C suc s� s 7.2 SALES INFORMATION. Gr tee shall provide to all subscribers annually and all rospective subscribers or users with complete written informa on concerning all services and rates upon solicitation of service and prior to the consummation of any agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee's least costly service. Such information shall be written in plain English and shall include but v shall not be . limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cable service(s) and the cost for hooking up Mcg such VCRrc_ �',rt� 7.3 BILLING PRACTICES INFORMATION. Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in plain English. 7.4 NOTICE OF INSTALLATION. Grantee shall inform all persons in advance of the date and approximate time its employee or agents shall enter onto such person's property for the purpose of installing cable communications service. 30 7.5 BUSINESS OFFICE. Grantee shall maintain and operate within the City of Ithaca a business office for the purpose of receiving and resolving all complaints, including without limitation, those regarding service, equipment malfunctions or billing and collection disputes. The business office shall have a publicly listed local telephone number and shall be open for both telephone and walk-in business. Grantee shall provide all subscribers or users with at least thirty (30) days prior written notice of a change in business office hours. 7.6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. ccs scan. 00 p;Ocl V,Cx4h/2_ 7 .7 RESPONSE SERVICE COMPLAINT. The Grantee shall respond to reques for repair service no later than the next business d _ _ _ cted upon y. Gra-tee -Tali c ther s. Grantee shall-7 keep a record 1 such complaints n provide the record „, (7 to the City as requ W be re in our een (14)—calendar days,, Gran ee all to w provide +-be su scri e user an a maintainon a (24) ie ec nicians to rep ges aff gibers. 7 .8 UNRESOLVED COMPLAINTS. Should a subscriber or user a an unresolved complaint after the fourteen (14) day perio escribed in Section 7.7 above regarding cable communications erations or any other complaint concerning I or r rights under this Ordinance or the Franchise, the subsc ' er or user shall be entitled to file his complaint with th City, which shall have primary responsiblity for the con uing administration of this Ordinance and the Franchise d the implementation of complaint procedures. A represent 've of Grantee shall be available thereafter to meet jointly 'th the City and the affected subscriber or user, within thir (30) days after said subscriber or user has filed the comp 'nt, to fully discuss and resolve the matter. If the matte cannot be resolved, the City may use judicial proceedings to esolve the matter, all judgments and costs for attorney's fees ' ll be paid by the Grantee. 7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System — is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two (2) successive 31 weeks, the first publication being not less than fourteen (14) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one (1) channel of the Cable Communications System between .the hours of seven (7) p.m. and nine (9) p.m. , for four (4) consecutive days during each such week. 7.10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at 6 K al times protect the privacy of subscribers as provided in STET this rdinance and other applicable Federal, State and Local laws t the time of entering into an agreement to provide ny cab l service or other service to a subscriber, and at least once a year thereafter, Grantee shall provide notice in the form f- a separate written statement to subscribers which clearly d conspicuously informs the subscriber of: (1) the pri cy rights of the subscriber and the limitations placed upon. Grantee with regard to this Ordinan and all other applicable Federal, State, and Loc a subscriber privacy provisions; (2) the nature of per nally identifiable information collected or to be llected with respect to the subscriber and the n ure of the use of such information; (3) the nature, frequency, a purpose of any disclosure which may be made such information, including an identification o. the types of persons to whom the disclosure may made; (4) the period during which such informati might be maintained by the cable operator; (5) the times and place at which the subscribe may have access to such information in accordance 'th this Ordinance and other applicable Federa State, and Local law. 7.11 MONITORING. Neither Grantee or its agents nor the or its agents, except for valid law enforcement purposes, all tap or monitor, arrange for the tapping or monitoring, o ermit any other person to tap or monitor, any cable line, s' al, input device, or subscriber outlet or receiver for any urpose, without the prior written authorization of the affe d subscriber or user, provided, however, that Grantee m conduct system-wide or individually addressed "sweeps" ely for the purpose of verifying system integrity, check* for illegal taps, - controlling return-path transmission, o billing for pay - services. Grantee shall report to the affec parties and all appropriate authorities any instances of mo . oring or tapping of the Cable Communications System, or a part 32 e th reof, of which it has knowledge, whether or not such act vity has been authorized by Grantee. Grantee shall not reco d or retain any information transmitted between a subsc iber or user and any third party, except as required for la ul business purposes. 7.1 POLLING BY CABLE. No poll or other upstream response f a subscriber or user shall be conducted or obtained u ess the program of which the upstream response is a part shall contain an explicit disclosure of the nature, purp a and prospective use of the results of the poll or upst am response, or unless the program has an information, en ertainment or educational function which is self-evident. rantee or its agents shall release the results of upst am responses only in the aggregate and without individua references, unless so authorized in writing by the subs ibex. 7.13 PEOPLE ME R. No people meter shall be used (:::w::ithout the express wri ten consent of the subscriber. S� 7.14 DISTRIBUTION SUBSCRIBER INFORMATION. Grantee and its agents or employe , shall not provide to any third party, data identifying or esignating any subscriber either by name or address except s necessary to render a cable service or other service pro ided by the cable operator to the subscriber, unless the Grantee first notifies the subscriber of such intended use and the subscriber fails to timely object to such use. All ance or authorization by a subscriber for such uses may be w thdrawn at any time by the subscriber or user by providing w itten notice to Grantee. Grantee shall provide an annual rivacy notice to each subscriber or user regarding the ubscriber's or user's right to withdraw the allowance or uthorization. In no event shall such allowance or authoriz ion be obtained as a condition of service or continuation thereof, except as necessary to adequately provide particu r services. This Section shall not apply to written su scriber and user contracts . filed with Grantee as provided in Section 7.16 elow. 7.15 INFORMATION WITH RESPECT TO VIEWI G HABITS AND UBSCRIPTION DECISIONS. Grantee or its agents or employees hall not make available to any third party, i cluding the ity, information concerning the viewing abits or ubscription package decision of any individual ubscriber r household without obtaining the subscriber prior itten consent. If a court authorizes or orde s such isclosure, Grantee shall notify the subscriber wi hin a _ easonable time prior to such disclosure. For any so t of _ ransmission to emanate from a subscriber's residenc or ubscriber household, the subscriber must take some posi 've a tion to activate such transmission. In the event e s rvice requested by the subscriber by its nature involve 33 he transfer of information or data from the subscriber or h usehold, including without limitation, security services or data transfer, the ordering of the service shall be . deem d to include the grant of permission by the subscriber or ho ehold for the making available of such information to n such p ties as is necessary for the provision of the service. Written permission shall be obtained from the subscriber rior to further dissemination or distribution by Grantee of ch information. 7.16 SUB RIBER AND USER CONTRACTS. It is stipulated and agreed by G ntee that Sections 7. 10, 7.11, 7.12, 7.13 and 7.14 above hall be enforceable directly by every aggrieved subscribe or user and by every aggrieved person seeking to become a ubscriber or user. The City includes the above referenced ections as part of this Ordinance pursuant to both its governmental obligations to the residents and institution of Ithaca, including actual and potential subscribers and ers, and as the representatives of such actual and potential subscribers or users. To this end, Grantee agreed to inclu the following provision in every contract or agreement between Grantee and any subscriber or user: The subscriber/user as pa of this contract, has certain rights of priv cy prohibiting the unauthorized monitoring of se vice and publication of personal information under a control of (Name of Grantee) , including wit out limitation, information regarding program selections or service uses. (Name of Grante shall make available upon the request of the s scriber/user further description of said rights as established in its Ordinance and Franchise with t City of Ithaca. Grantee further agrees that it will not alle a or ontent that any actual or potential subscriber or use may of enforce the above referenced Sections by reason of 1 ck f privity. 7.17 CONVERTERS. Grantee shall utilize state-of-the- art converters. Grantee shall make converters available to subscribers for rent or purchase. Grantee shall allow subscribers to purchase or rent converters from other vendors. Grantee shall provide detailed � ,. f rmat'o written in "plain English" to consumers aj �� �e = `' e on the items necessary for converter compa-EiSiMlity with Grantee's Cable Communications System. 10 4ftbscribers shall theFe has beea w=ji=-j—destrue-tlen 9r- meagre—sauzerl grass a6911geage- of th' s b •L. Y 34 0 �.S �l'6ti V� ��-�v����c�� ���.�•c�-ifC�- IZ1-t�'1 7 . 18 INTERNAL WIRIindors Grantee shall install and/or ma tain internal wiringr 'subscriber Grantee• may own the 'nternal wiring or, the subscr' ers discretion, the subsc 'ber may own thwiring. Grantee shall allow subscri rs or other to install, own, and/or maintain ternal wiring. l 7.19 MOTE CONTROLS. Grantee shall make remote control units vailable to subscribers to purchase or rent. Grantee shall a ow subscribers to purchase or rent remote control units fr other vendors. Grantee may provide remote control unit to subscribers at no charge as a part of its package of se ices. Grantee shall provide detailed information written in " lain English" to consumers and.-alk �� sellers of remote cont is on the items necessary for compatibility with Grante 's Cable Communications System. Subscribers shall only be re ired to replace remote control units rented from the Grant e if there has been willful destruction or damage caused by the gross negligence of the subscriber. 7.20 SUBSCRIBER ACCESS TO RSONALLY IDENTIFIABLE INFORMATION. Each subscriber shall provided access to all personally identifiable informat n regarding such Via/) subscriber that Grantee collects or main ins or allows to be collected or maintained, and such , sub riber shall be provided the opportunity to correct any rror in such information. 7.21 SUBSCRIBER INFORMATION TO BE DESTRO D. Any information concerning individual subscriber viewin habits or responses, except for information for billing pu oses, shall be destroyed within sixty (60) days. Informatio for billing purposes shall be kept for seven (7) years and t en destroyed unless otherwise required to be kept by law. 7.22 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. 7.23 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS — 35 8.1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communi-cations System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places. The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City pursuant to local regulation, provided, however, Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8.2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of . its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8.3 PRIVATE PROPERTY. Grantee shall .be subject to all laws, ordinances or regulations regard' (private property or.—FacJ"at' the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair ' or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications System at its sole cost and expense. 8.4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8.5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, '- cables, or other structures as approved by the City. 36 �� 8. 6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the telephone and electric . utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and/or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable) . 8.7 CITY PROPERTY. Where any damages or alterations occur to the City's water, sewage or drainage lines or to any other municipal structures in the streets during the construction due to the presence, negligence, operation or maintenance of the Cable Communications System, the sole cost of such repairs including all services and materials will be billed to the Grantee and these charges shall be paid within 60 days of receipt of notice or the City may foreclose on performance bonds, or invoke other appropriate sanctions provided for in this Ordinance. 8.8 TEMPORARY RELOCATION. Grantee shall temporarily raise or lower its wires or other equipment upon the reasonable request of any person, including without limitation, a person holding a building moving permit issued by the City. The expense of such raising or lowering shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given reasonable notice necessary to maintain continuity of service. This provision shall not apply to requests by the City for which movement there shall not be a charge by the Grantee. . 8.9 CITY MAPS. The City ..does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public-rights-of- ways, where necessary, the location shall be verified by excavation. 8.10 CONSTRUCTION NOTICE. Grantee shall give appropriate • notice to the City and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than seven (7) days before such commencement. 8. 11 SAFETY AND CONSTRUCTION STANDARDS. The construction, installation, operation, maintenance, and/or - removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards. 37 Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State, and Municipal Construction Requirements, including FCC Rules and Regulations Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8. 12 CONTRACTORS AND SUBCONTRACTORS. All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be s"el�nc -ae e e3- `- responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantee's Cable Communications System. 8. 13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or . installation by the Grantee of any towers, poles, underground conduits, or fixtures for use in.—.oma connection with initial construction, rebuild, -Gt--upgradof f a the Cable Communications System under this Ordinance, he Grantee shall make available for City approval a concise description of the facilities proposed to be erected or nstalle�- -a. g Age .ago: " if reqvt4ra with a map and plans indicating the proposed location o a ilities . Approval by the City shall S not be unreasonably withhe be completed in a timely mana,��r�� �r e Grantee shall allow a City selected engineer to inspe such information, maps and plans for five business a� days, in the Grantee's office. Prior to the five days, the Grantee shall give - the City thirty (30) days prior notice The Grantee shall accommodate reasonable scheduling modifications. If the Grantee makes a material'' change in any part of the system design, the City shall be -notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee's office r of Public Works No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until 38 I� i approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8. 14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified - in the Franchise, (e.g. , amplifiers, cable, antennas) . 8.15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial (3Kestablishments within thirty (30) days of a request for such service and the receipt of any applicable City, State, Federal and utility company permits, aid of ter'-dS.O. or' O J MM` x.11 C,% EpH I��H� &Ca is 40 twxA QK%..Z 11$ . 8.16 1ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to j make use of the poles or other wire-holding structures of a the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly { interfere with the Grantee's operation. f 8.17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at any all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide — access to all equipment records, and other materials and information necessary for such inspections and tests. 39 8. 18 CONSTRUCTION REPORTING REQUIREMENTS. A. Within thirty (30) days of the granting of a Franchise pursuant to this Ordinance, the Grantee shall have applied for any necessary agreements, licenses, or certifications ,/ shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process. 8.19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8.20 INITIAL PERFORMANCE TEST. Initial proof of performance testing shall occur within sixty (60) days prior to the commencement of the Cable Communications System service to each section of the City as set forth in the Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test shall be borne solely by Grantee. 8.21 ANNUAL PERFORMANCE TEST. Performance requirements and standards specified in the Franchise, shall be measured annually to ensure compliance with same. The costs of such tests shall be borne by Grantee. SECTION 9 MAINTENANCE AND INSPECTION 9 . 1 GENERAL. Grantee shall maintain wires, cables and all other real and personal property and facilities constituting the Cable Communications System in good condition, order and repair at all times during the term of the Franchise. 9.2 MAINTENANCE LOG. Grantee shall maintain an annual log showing the date, approximate time and duration, type and probable cause of all Cable Communications System outages, whole or partial, due to causes other than routine testing or maintenance. The entries in such log shall be retained by Grantee for one (1) additional year and shall be subject to inspection and copying by the City or its designee during Grantee's regular business hours upon reasonable request. 9.3 SERVICE INTERRUPTION. Except where there exists an emergency situation necessitating a more expeditious procedure, Grantee may interrupt service for the purpose of repairing, upgrading or testing the Cable Communications 40 �W System, only during periods of minimum use, and only after a minimum of twenty-four (24) hours notice to affected subscribers. 9.4 RADIATION MONITORING. Radiation monitoring shall be conducted by all maintenance technicians on an ongoing basis. The results of said monitoring shall be made available to the City upon request. SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10.1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR 76.311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. 10.2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and j various minority groups to advance and win promotions in all categories of employment. As part of its obligation under Section 10.1 above, Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the Cable Communications System minorities and females as set forth in the Franchise. Grantee shall submit to the City annual EEO . reports required by the Federal Communications Commission. SECTION 11 BOOKS, RECORDS, AND REPORTS 11.1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR. A. BOOKS AND RECORDS. The City reserves the right to inspect all pertinent books, records, maps, plans; financial statements and other like material, of the Grantee, upon reasonable notice and during normal business hours. B. AVAILABILITY OF RECORDS. If any of such maps or records are not kept in the City, or upon notice the Grantee is unable to provide the records in the City, and if the _ City shall determine that an examination of such maps or _ records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by Grantee. 41 6 11.2 REPORTS REQUIRED. The Grantee shall file with the City: A. REGULATORY COMMUNICATIONS. All reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. B. FACILITIES REPORT. An annual report setting forth the physical miles of plant construction and plant in oper • 'on during the fiscal yearoshall be sebmritted to-_ e-- lay-stem "as built" maps filed with the City's Cable Co 'cations System. The Grantee's schedule of charges, contract application forms of regular subscriber service policy regar i the processing of subscriber complaints, delinquent subscri disconnect and reconnect procedures and any other terms and ditions adopted as the Grantee's policy in connection with i subscribers shall be filed with the City and conspicuously sted in the Grantee's local office. All such terms and itions, including schedule of charges, must have been filed re ations, terms and conditions shall not be in conflict with the ovisions hereof or applicable state and federal laws, ruor regulations. C? D. PROOF OF BONDS AND INSURANCE. Grantee shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium acid all policies of insuranCe rPgii i rP_cj by th i E)rdinenee,nr cerfT—eopies biter __f w and written notice of payment oar?required premium. o . E. FINANCIAL AND OWNERSHIP REPORTS. The following financial reports specified in the Franchise shall be submitted annually t the City. o0(��C-g (1) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the Franchise of five percent (5%) or more. e ort on the amount of stock issued,, if any; the amou ditional cash paid in the number and par value of s tstanding; and the amount and character of indebte ne , n ; and the dividends declared. (3) A report on the placement of any limited - partnership offering, if any, including the amount -- subscribed and the amount paid in. 42 (4 If the City regulates rates, the Grantee shall ovide an annual, system-wide and City-only, cer ' ied financial report from the previous calenda ear, including year-end balance sheet; income sta ent showing subscriber revenue from each category o service and every source of non- subscriber revenue, ine item operating expenses, capital expenditures statement, depreciation expense, interest expen and taxes paid; p statement of sources and app ations of funds; and depreciation schedule. . a City-only statements shall be on an allocated b ' s and the Grantee shall provide the City wi the assumptions utilized in making the allocations. (5) An annual, City-only, certified income statement. (6) An annual list of officers and members of the Board of Grantee's and of any parent corporation. i F. OPERATIONAL REPORTS. The following system and operational reports shall be submitted annually to the City: (a) A report on the system's technical tests and measurements as set forth herein. n annual summary of the previous year's ti including, but not limited to, (J subscriber for each category of service 5 offered including nu f pay units sold, new services offered, and the cha and extent of the service rendered to ther users, o stem. o5 L a � ��� ;ice( Vo �:6�6j f p 1,oli�.� y (3) An annual summary of service requests and complaints received and handled. . (4) An annual summary of the number of outages. i a of liquidated damages and other penalties outstanding Qp pai . S(u0J� adC4) vhaOj A"Ail '- cwL�.rPrctkt5 G. ADDITIONAL PORTS. The Grantee shall pia a &5 furnish City at , A -jrwith respect to its operation, affairs, transactions or t , as may be reasonably necessary and appropriate to the pe nce of any of the rights, functions_ or duties of the City in tion with this Ordinance or the Franchise. 11.3 RECORDS REQUIRED. �j A. MANDATORY RECORDS. The Grantee shall at all times maintain: 43 V"` w L V v (1) A record of all complaints received and interruptions or degradation of service experienced for the precedingeriod prior to a performance reviewTc�,y,5;��cw� � ,A- 5��.=t '�. d i2c�, (2) A full and complete set of plans, records and "as built" maps showing the exact location of all Cable C installed or in use in the City, exclusive of subscriber service drops. ORDS. The City may impose reasonable requests for additiona in ords and documents from time to time. SECTION 12 MISCELLANEOUS PROVISIONS 12. 1 CAPTIONS. The captions to sections throughout the Franchise are intended solely to facilitate reading and reference to the sections and provisions of the Franchise. O Such captions shall not affect the meaning or interpretation of this Ordinance. 12.2 SEVERABILITY. If any section, sentence, paragraph, term or provision of this Ordinance is determined to be illegal, invalid or unconstitutional, by any court of Ocompetent jurisdiction upon final adjudication or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect. 12.3 GRANDFATHER RIGHTS. Nothing contained in this Ordinance shall be construed to deprive Grantee or the City of any "grandfather" rights in any future amendments to any statute or regulation. Any Franchises granted hereunder shall be governed by the terms of this Ordinance as i existed at the time the Franchise is signed. Franchise, however, shall be subject to such regulations the City finds necessary to adopt in the exercise of%its police power, provided that such regulations are reasonable and do not materially conflict with the privileges granted in the Franchise- 12.4 NOTICE. Every notice to be served upon the City shall be sent by certified mail, postage prepaid, to the City. Every notice to be served upon Grantee shall be sent by certified mail, postage prepaid, to Grantee at its Ithaca — office. 44 12.5 FORCE MAJEURE. If by reason of force majeure either party is unable in whole or in part to carry out its obligations hereunder, - said party shall not be deemed .in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State of New York or any of their departments, agencies, political subdivision, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions. .6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO WAIVER OF ARMS THEREOF. The Grantee shall not be excused from comp yin any of the terms and conditions of this Ordinance or Franchise failure of the City upon any one or more occasions to insis or to seek compliance with any such terms or conditions. 1 45 ORDINANCE NO. 88- AN ORDINANCE AMENDING CHAPTER 64 ENTITLED "CABLE COMMUNICATIONS" OF THE CITY OF ITHACA MUNICIPAL CODE. BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New York, as follows: Section 1. That Chapter 64 entitled "CABLE COMMUNICATIONS" of the Ithaca Municipal Code is amended to read in its entirety as attached hereto. Section 2. This ordinance shall take effect immediately and in accordance with law upon publication of a notice as provided in section 3.11 (B) of the Ithaca City Charter. DRAFT #8 July 31, 1987 June 15, 1988 ITHACA, NEW YORK ORDINANCE SECTION 1 PURPOSE The City of Ithaca finds that the development of Cable Communications has the potential of having great benefit and impact upon the people of Ithaca. Because of the complex and rapidly changing technology associated with cable communications, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. It is the intent of this Ordinance and , subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any Franchise issued pursuant to this Ordinance shall be deemed to include this finding as an integral part thereof. Further, it is recognized that Cable Communications Systems have the capacity to provide not only entertainment and information services to the City' s residents, but can provide a variety of interactive communications services to institutions and individuals. Many of these services involve City agencies and other public institutions, by providing governmental, educational or health care communications. For these purposes, the following goals underlie the regulations contained herein: (a) Communications services should be available' to the maximum number of City residents. (b) The Cable Communications System should be capable of accommodating both the present and reasonably foreseeable future communications needs of City. (c) The Cable Communications System should be improved and upgraded if necessary during the Franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities. (d) Any Cable Communications System authorized by this Ordinance and the Franchise shall be responsible to the needs and interests of the local community, and shall provide a wide diversity of information sources and services to the public. (e) That the public, educational, and governmental needs for access to the Cable Communications System are met. SECTION 2 TITLE OF ORDINANCE This Ordinance shall be known and may be cited as "Ithaca Cable Communications Regulatory Ordinance," and it shall become a part of the Ordinances of the City. This Ordinance shall take effect and be in force from and after its passage and publication of a notice as provided by section 3 . 11 of the Ithaca City Charter. That all Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 3 DEFINITIONS For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3 .1 ACCESS CHANNELS means channels ( 6MHz each) set aside for public use, education use or governmental uses with no charge for usage by ACC. Access channels designed for public use shall be available on a nondiscriminatory basis. 3 . 2 ADDITIONAL SERVICES means programming or services for which an additional charge is made beyond the charge for Basic Subscriber Services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per-view program, interactive services, and any other service utilizing any facility or equipment of a Cable Communications System operating pursuant to a Franchise granted under this Ordinance. 3 . 3 AFFILIATE means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, control or a controlling interest in the Grantee; (b) each person in which. the Grantee has, directly or indirectly, control or a controlling interest; (c) each office, director, general partner, joint venturer or joint venturee partner, of the Grantee; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to the Grantee by common ownership, common management, or common control; provided AFFILIATE shall in no event mean: 2 (a) the City; (b) any duly authorized PEG Access Organization; (c) any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or (d) any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated person by reason of owning controlling interest in, being owned by, or being under common control with, the Grantee. 3 .4 BASIC SUBSCRIBER RADIO SERVICE means such audio services as the re-transmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC. 3 .4 BASIC SUBSCRIBER TELEVISION SERVICES means the definition promulgated by the Federal Communications Commission, or if such definition is not forthcoming from the Federal Communications Commission it shall mean all subscriber services provided by the Grantee in one or more service tiers, including the delivery of broadcast signals, public, educational and governmental access channels, and local origination channels, covered by the regular monthly charge paid by all subscribers to a particular service tier including subscriber terminal charges and related deposits. 3 .5 CABLE COMMUNICATIONS SYSTEM, also referred to as "system, " means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control. equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any Public-Rights-of-Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (d) any facilities of any electric utility used solely for operating its electric utility systems. 3 .6 CITY means the City of Ithaca, New York. 3 3 .7 CHANNEL means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. 3 .8 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3 . 9 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection. with a business, trade or profession. 3. 10 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3 .11 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3 .12 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. 3 .13 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. 3 .14 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations. 3 .15 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 3.16 DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal. 3 .17 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL means any channel where educational programs are the only designated use. The educational access channel( s) shall only be used for non-commercial purposes. 3. 18 FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. 4 3 . 19 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3 .20 FRANCHISE means a Franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the Franchise granted, including referenced specifications, Franchise proposal, applications and other related material. Any Franchise granted pursuant to this Ordinance grants the nonexclusive rights to construct, operate and maintain a Cable Communications System along the Streets and Public Grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. 3.21 FRANCHISE AREA means the entire City. 3 . 22 FRANCHISE FEE means the percentage, as specified by the City, of the Grantee' s gross revenues from all sources payable in exchange for the rights granted pursuant to this Ordinance and the Franchise Agreement. 3 .23 FRANCHISEE OR GRANTEE means the natural person(s) , partnership(s) , domestic and foreign corporations(s) , association(s) , joint venture(s) , or organization( s) of any kind which has been legally granted a Franchise by the City, and its lawful successor, Transferee or Assignee. 3 . 24 GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government use. The municipal access channel(s) shall only be used for non-commercial purposes. 3 .25 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction. 3.26 GROSS ANNUAL REVENUES means all revenue derived directly or indirectly by the Grantee, and revenue derived directly or indirectly through services provided via the Cable Communications System by Grantee' s affiliates and subsidiaries in which the Grantee has a financial interest. 3 .27 INQUIRY BY SUBSCRIBER means a request for general information about the Grantee's operation, services, programming, and/or rates. 3.28 INSTALLATION shall mean the connection of the system from feeder cable to subscribers' terminals. 5 3 . 29 INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions to residential subscribers. 3 .30 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the Grantee, at rates in accordance with the Cable Act. 3 . 31 LOCAL ORIGINATION means programming produced or purchased by the Grantee (e.g. , advertisements, news, programming with advertising) which is under the control of the Grantee. Local origination is specifically not to be construed as public, governmental, or educational access. 3 . 32 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 3 .33 MONITORING means observing a communications signal, or the absence of a signal, where the observer is not. a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever. 3 . 34 NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers. 3.35 PERSON means an individual, partnership, association, organization, corporation or any lawful successor Transferee of said individual, partnership, association, organization or corporation. 3 . 36 PLANT MILE means a linear mile of strand-bearing cable as measured on the street of easement from pole to pole or pedestal to pedestal. 3 . 37 PROGRAMMER means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of the Cable Communications System. 3 . 38 PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL or COMMUNITY CHANNEL means any channel designated or dedicated from use by the general public or noncommercial organizations which is made available for use without charge on a first-come, first-served, nondiscriminatory basis. The public access channel(s) shall only be used for non- commercial purposes. 6 3. 39 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. 3.40 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC GROUNDS means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public-rights-of-way or hereafter held by the City which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Cable Company Communications System. No reference herein, or in any Franchise, to the "Streets and Public Grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. 3 .41 REASONABLE NOTICE shall be written notice addressed by either party at its principal office within the City or such other office as the Grantee has designated to the City as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than ten (10) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. 3 .42 RESIDENT means any person residing in the City as otherwise defined by applicable law. 3 . 43 RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. 3 . 44 SALE shall include any sale, exchange, barter or offer for sale. 3 .45 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. 3 . 46 SERVICE AREA means the entire geographic area within the Franchise territory. 3 . 47 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 3 .48 STATE means the state of New York. 7 3 . 49 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3 . 50 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other System Facilities located outside the City limits. 3. 51 TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of five percent (5%) or more at one time of the ownership or controlling interest in the Cable Communications System, or twenty percent ( 20%) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. 3 .52 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers. 3 .53 UPSTREAM SIGNAL means a signal originating from a terminal to another point in the Cable Communications System including video, audio or digital signals for either programs or other uses such as security alert services, etc. 3 .54 USER means a person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. SECTION 4 GRANT OF FRANCHISE 4.1 GRANT OF FRANCHISE 8 A. GRANT OF AUTHORITY. Pursuant to the authority of the Charter of the City and subject to the terms and conditions set forth herein, the Common Council of the City of Ithaca can grant revocable and non-exclusive Franchises, acting pursuant to the City's applicable Charter provisions, Ordinances, rules and regulations to construct and operate a Cable Communications System in, under, over, along, across or upon the Streets and Public Grounds within the City of Ithaca for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of a audio, video, data, or other signals and for the development of broadband telecommunication services in accordance with the laws of the City of Ithaca, the State of New York, and United States of America. In the event that City shall grant to the Grantee a nonexclusive, revocable Franchise to construct, operate, and maintain a Cable Communications System within the City, said Franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as regulated by the provisions of this Ordinance and the Franchise. The Franchise shall include by reference those provisions of the Grantee's proposal that are finally negotiated and accepted by the City and Grantee. B. NON-INTERFERENCE. In exercising rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons, interfere with any installations of the City, any public utility serving the City or any other person permitted to use the Streets and Public Grounds nor unnecessarily hinder or obstruct the free use of the Streets and Public Grounds. The grant of one Franchise does not establish priority for use over the other present or future permit or Franchise holders or the City' s own use of the Streets and Public Grounds. The Common Council of the City shall at all times control the distribution of space in, over, under or across all Streets or Public Grounds and occupied by the Cable Communications System. All rights granted for the construction and operation of the Cable Communications System shall be subject to the continuing right of the Common Council to require such reconstruction, relocation, change of discontinuance of the appliances used by the Cable Communications System in the streets, alleys, avenues, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. C. NON-EXCLUSIVITY. Any Franchise is non-exclusive and shall not affect the right of the Common Council to grant to any other person a grant or right to occupy or use the streets or portions thereof, for the construction and operation of a Cable Communications System within the City or the right of the City to permit the use of the Streets or Public Grounds or of the City for any purpose whatever. No privilege or power of eminent domain is bestowed on Grantee by the grant of a Franchise. 9 D. COMPLIANCE WITH CITY ORDINANCES. Any Franchise granted by the City is hereby made subject to the general Ordinance provisions now in effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4.2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances. 4. 3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4. 4 FRANCHISE TERRITORY. The Franchise territory shall be the entire City, or portions thereof, for which a franchise is granted under authority of a franchise agreement. The service area shall be the entire territory defined in the franchise agreement. 4.5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided in the Franchise. The value of the Franchise at the end of the term shall be zero and no property right shall be conferred by the Franchise itself. 4.6 FRANCHISE REQUIRED. No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 4.7 CITY'S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or 10 carry on, directly or indirectly, any public works or public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. 4. 8 EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the Cable Communications System, the City shall have the right to do so at the sole cost and expense of Grantee. 4.9 REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property. Restoration shall be made in as good a condition or better. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. 4.10 REMOVAL OR ABANDONMENT. Upon termination of the Franchise by passage of time or otherwise, and unless Grantee transfers the Cable Communications System to a subsequent Grantee approved by the Common Council, Grantee shall remove its supporting structures poles, transmission and distribution systems, and all other appurtenances from the Streets and Public Grounds and shall restore the areas to as good a condition or better. Such removal shall be made so as not to conflict with public health, safety or convenience. Removal shall be completed within twelve (12) months after such termination. At that time the City may deem any property not removed as having been abandoned. Such property may then by removed at the option of the City at Grantee's expense less any recoverable salvage value. 4.11 NO WAIVER OF RIGHTS. No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contravention of such rights except to the extent expressly waived by the City or expressly provided for in the Franchise. 11 4.12 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to the Franchise shall be used solely in connection with the construction, operation or maintenance of the Cable Communications System or the Grantee's performance of the terms, obligations, and conditions of this Ordinance and the Franchise. 4.13 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City. B. TRANSFER OF CONTROL OR OWNERSHIP. The Grantee shall promptly notify the City of any actual or proposed change in control of the Grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantee. City consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry. Failure to provide all transfer related information reasonably requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such 12 transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant is satisfactory, the City will transfer and assign the rights and obligations of such Franchise as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld. E. NO WAIVER OF RIGHTS. The consent or approval of the City to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the Franchise. F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the Franchise prior to completion of construction of the proposed system. G. FRANCHISE SIGNATORY. Any approval by the City of transfer or ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the Franchise. H. TIMEFRAME. The City shall act on a request to transfer the Franchise within 120 days of the Grantee' s presentation to the Common Council requesting a transfer or assignment. The City' s approval of any transfer or assignment shall not be deemed an approval of the purchase price. SECTION 5 REGULATION OF FRANCHISE 5.1 GENERAL. The City shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable law. This authority shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise granted hereunder, and to carry- out the City' s responsibility with regard to cable communications. The City may from time to time adopt such reasonable rules and regulations that it may deem necessary in the exercise of its municipal powers. 5.2 REGULATORY AUTHORITY. The City shall have the responsibility for the administration and enforcement of this Ordinance and the Franchise, including but not limited to the following duties, powers and authority which may be delegated at its discretion: ( 1) To administer and/or enforce all provisions of the Ordinance, and any Franchise granted hereunder. 13 ( 2) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the Franchise or any applicable law or regulation to correct the service deficiencies. ( 3) To represent the City' s interest before local, state or federal government agencies in cable communications matters. ( 4) To receive, evaluate and file all data and reports required by this Ordinance and to rule on such matters as appropriate under the Ordinance and State and Federal law or regulation. The City is hereby authorized to require adjustment to any fee, bond or insurance coverage or amount or charge contained herein not more frequently than bi- annually without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjust- ment. Inflation shall be calculated in accordance with the regional Consumer Price Index. ( 5) To inspect at any time all construction, installation, and ongoing operation of the Cable Communications System, and to make such tests as it reasonably deems necessary to ensure compliance with the terms of this Ordinance, and the Franchise and other applicable laws and regulations. (6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. (7) To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. ( 8) To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and recommendations thereto. (9) To monitor Grantee's adherence to operational standards and service requirements. 14 5. 3 PERFORMANCE EVALUATION. The City and Grantee shall, at the discretion of the City, hold annual performance evaluation sessions. All such evaluation sessions shall be open to the public. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited. to system performance, Grantee compliance with this Ordinance and the Franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, and judicial and FCC filings. Grantee shall notify its subscribers of all evaluation sessions by announcement on at least one channel of its Cable Communications System between the hours of seven (7) p.m. and nine (9) p.m. , for five ( 5) consecutive days preceding each session. During review and evaluation Grantee and the. City shall fully cooperate with each other and shall provide such information and documents as each may reasonably need to perform its review. 5. 4 RESPONSE TO CITY INQUIRIES. In accordance with the terms of this Ordinance and the Franchise, the City may, at any time, make reasonable inquiries concerned with the management and affairs of the Cable Communications System. Grantee shall respond to such inquiries in a timely fashion. 5.5 QUALITY OF SERVICE. Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require Grantee to test, analyze, and report on the performance of the Cable Communications System. Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: (1) the nature of the complaint or problem which precipitated the special tests; ( 2) the system component or area tested; (3) the equipment used and procedures employed in testing; ( 4) the method, if any, in which such complaint or problem was resolved; and ( 5) any other information pertinent to said tests and analysis which may be required. 15 The City may require that tests be supervised or conducted by a City staff member or a professional engineer who is not an employee or agent of the Grantee. Grantee shall reimburse the City for the costs of such engineer if -the tests performed shows that the quality of service is below the standards set forth in this Ordinance or the Franchise. 5.6 LIQUIDATED DAMAGES. For the violation of any of the following provisions of this Ordinance, the City shall notify the Grantee in writing of the violation, the Grantee shall be allowed riot less than thirty ( 30) days, or such greater amount of time as the City may specify, to correct such violation. In the event the Grantee fails to correct the violation, the City will be entitled to collect liquidated damages according to the schedule listed below. Such liquidated damages if not paid by the Grantee, shall be chargeable, to the extent available, to the letter of credit or bond tendered by Grantee within the aforesaid period of time. These liquidated damages shall be in addition to and not a limitation upon the other penal provisions of this Ordinance, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies. ( 1) For failure to complete construction and installation in accordance with the Franchise, $1.00.00 per day. ( 2) For failure to submit reports or supply data in accordance with this Ordinance, $10.00 per day for each day that such noncompliance continues. ( 3) For failure to test, analyze and report on the performance of the Cable Communications System in accordance with this Ordinance above, $25.00 per day for each day, or part thereof, that such noncompliance continues. ( 4) For failure to provide the capital equipment, and facilities, and services for public, educational and governmental access, as specified in the Franchise, $75.00 per day, or part thereof, that such noncompliance continues. The City retains the right, at its sole option, to reduce or waive any of the above-listed penalties where extenuating circumstances or conditions beyond the control of the Grantee are deemed to exist. The Common Council or its designee shall determine the City' s willingness to reduce or waive any of the above-listed penalties. 16 5.7 CONSUMER REMEDIES. In order to promote compliance with this Ordinance and the Franchise, cable communications subscribers under the Franchise shall have the following rights and remedies in addition to any other remedies which may be available as a matter of law or equity to subscribers or others affected by the acts or omissions of the cable company. For example, this section is not meant to limit remedies available to subscribers under applicable laws governing consumer fraud or to limit remedies which may be available if as a consequence of the acts or omissions of the Grantee a resident loses utility services. Similarly, the remedies specified are not meant to limit any authority subscribers may have to enforce other terms of the Franchise against the Grantee. This section is in addition to any damages, remedies or other action which the City may take pursuant to its rights under the Franchise, or pursuant to its general police powers, or in the exercise of its rights under cable consumer Ordinances or regulations which exist now or may be adopted during the term of this Ordinance. ( 1) If the Grantee fails within ten days to pay a submitted repair bill on any damage it causes to property (including damage which occurs during the course of stringing or burying cable or repairing cable) , the owner of the property shall be entitled to recover treble damages, and in any event no less than $100, for the period when the property remains in such. unrepaired or unsafe condition. The Grantee shall be deemed to have left the property in an unrepaired or unsafe condition if the Grantee fails to repair damage to the property or to eliminate the unsafe condition within 24 hours after causing such property to be damaged or after creating the unsafe condition. ( 2) If the Grantee fails to provide any notice which may be required by the City, the subscriber shall be entitled to recover treble damages for such failure. ( 3) If the Grantee violates the privacy rights of any subscriber the subscriber shall be entitled to receive treble damages, and in any event no less than $500, for each such violation. ( 4) In any event where the City determines that the Grantee has improperly discriminated in its rates and charges for service, the City after giving the Grantee notice of Hearing and an opportunity to be heard, shall identify the applicable non- 17 discriminatory rate; the subscribers which have been adversely affected by the discrimination shall be entitled to a refund equal to treble any amounts paid over the nondiscriminatory rate plus interest at the prime rate. ( 5) The Grantee shall keep a record of the date and time it receives requests for service which require it to obtain access to the home of a subscriber or potential subscriber, and shall also keep a record of the appointments made with such subscriber or potential subscribers to provide service. Any occasion on which the Grantee or its agent does not cancel the appointment with the subscriber and fails to arrive at the home of the subscriber or potential subscriber during the appointment period shall be considered a missed appointment. The subscriber or potential subscriber with whom the appointments were missed shall be entitled to $50 damages for each appointment missed. ( 6) If the Grantee fails to substantially follow the procedures for disconnecting a subscriber, as set forth in this Ordinance and/or the Franchise, the subscriber who was improperly terminated shall be entitled to receive treble damages. (7) If a cable subscriber does not receive service for more than a four hour period, the affected subscriber shall be entitled to recover treble damages. In addition to the foregoing, if any subscriber is required to bring judicial proceedings to enforce his/her rights and remedies set forth herein, and is ultimately successful in such judicial proceedings, then that subscriber is entitled to recover all reasonable attorney' s fees and expenses incurred in the prosecution of such judicial proceedings as fixed by the Court. Notwithstanding anything herein to the contrary, if the Grantee notifies the subscriber in writing not less than ten days before the initial appearance in any judicial proceeding that it will not use an attorney in that proceeding, and thereafter does not use an attorney, then the subscriber should not be entitled to recover any attorney fees and expenses. 5.8 DETERMINATION OF BREACH. In the event that the City has reason to believe that Grantee has defaulted in the performance of any provision of this Ordinance or the Franchise 18 except as excused by force majeure, the City shall notify Grantee in writing of the provision or provisions which the City believes may be in default. Grantee shall have thirty ( 30) days from the receipt of such notice to: (i) respond to the City in writing, contesting the Grantor' s assertion of default and providing such information or documentation as may be necessary or; (ii) to cure any such default or, in the event that, by nature of the default, such default cannot be cured within such thirty ( 30) day period to take reasonable steps to cure the default and diligently continue such efforts until said default is cured. Grantee shall report to the City in writing, at thirty ( 30) day intervals as the Grantee' s efforts, indicating the steps: taken by Grantee to cure the default and reporting Grantee' s progress until such default is cured. In the event Grantee fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing the Grantee may be heard and after which the City shall specify the complaint against the Grantee; thereafter the City shall appoint an impartial person to act as factfinder who shall fix a date for a hearing at which evidence shall be received and a record kept of evidence of the complaint. The factfinder shall report in writing to both parties with his or her findings of fact. The Common Council shall make a finding of violation or no violation based on those findings. In the event that the City determines that Grantee is in default of any such provision of this ordinance or the Franchise, the City may also determine to pursue any or all of the following remedies: (a) foreclose on all or any part of the security provided pursuant to this ordinance, including without limitation the performance bond and/or the letter of credit; provided, however, the foreclosure shall be in such amount as the City reasonably determines is necessary to remedy the default and shall include payment of all City expenses incurred in connection with the fact- finding hearing. (b) commence an action at law for monetary damages, including the expenses of the fact-finding hearing. (c) declare the Franchise to be revoked and order Grantee to commence the removal of the Cable Communications System immediately or to cooperate 19 with the City, or any such agency or person authorized or directed by the City to operate the Cable Communications System for a one year period, in maintaining the continuity of service; and (d) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. The Grantee may seek recourse as available by law or state regulation. 5.10 NON-EXCLUSIVITY OF REMEDY. No decision by the City to invoke any remedy under this Ordinance or under any statute, law or Ordinance shall preclude the availability of any other such remedy. 5.11 JURISDICTION. Exclusive jurisdiction and venue over any dispute, action or suit arising therefrom shall be in any court of appropriate subject matter jurisdiction located in the State of New York and the parties by this instrument subject themselves to the personal jurisdiction of said court for the entry of any judgment and for the resolution of any dispute, action, or suit arising in connection with the entry of such judgment. 5.12 NOTIFICATION. Grantee shall file with the City schedules which shall describe all services offered by Grantee, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, Grantee shall file with the City all changes in services, all rates and charges of any kind, and all terms and conditions relating thereto thirty ( 30) days prior to all such changes. No rates or charges shall be effective except as they appear on a schedule so filed. 5. 13 FREE CONNECTIONS. Grantee shall provide upon request and free of charge the drops set forth in the Franchise. Grantee shall discuss the location of each connection with the proper officials of each such institution receiving free connection. 5.14 PUBLICATION. All rates for subscriber services and leasing of channels shall be published. A written schedule of all rates shall be available upon request during business hours at Grantee's business office and all other facilities. Nothing in this Ordinance shall be construed to prohibit the reduction or waiver of charges for attracting subscribers, or the establishment of charges and rate schedules that may vary with volume or nature of usage or programs. 20 5. 15 CREDIT FOR SERVICE INTERRUPTION. In the event that Grantee' s service to any subscriber or user of leased channel space is interrupted for twenty-four ( 24) or more consecutive hours, Grantee shall, in addition to any remedy set forth in section 5.7, grant expeditiously such subscriber or user a pro-rata credit. 5.16 RATE REGULATION. To the extent that Federal or State law or regulation may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law for the first tier of service. For other tiers of service that may be included in the Basic Subscriber Television Service, for which the City shall have the right to exercise rate regulation, the City and the Grantee shall negotiate the rate for the service. When exercising rate regulation, the City shall consider, along with any other information it deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: the ability of the Grantee to render Cable Communications System service; the efficiency of the Grantee; the quality of the service offered by the Grantee; the fair value cost of the Cable Communications System less depreciation; a fair rate of return over the life of the Franchise with respect to Grantee' s investment; the financial commitments required to meet the terms of this Ordinance and the Franchise; the extent to which Grantee has adhered to the terms of this Ordinance; fairness to City residents, subscribers and users. The approval by the City of any purchase price herein shall not obligate the City to consider that purchase price as the fair value cost for rate regulation purposes or otherwise. The City may retain rate consultants as it deems appropriate. 5. 17 FRANCHISE FEE ENTITLEMENT. The City of Ithaca shall be entitled to receive from Grantee a Franchise fee of five percent ( 5%) of Grantee' s Gross City Revenue. 5.18 PAYMENT. The Franchise fee established in 5. 19 above shall be tendered as follows: (i) Five percent ( 5%) of Grantee's Gross City Revenue for successive three ( 3 ) month periods tendered within forty-five ( 45) days after each such period. Said periods shall commence upon the execution of a Franchise granted pursuant to this Ordinance. 21 5.19 FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT. Grantee is required to reimburse the City for the expenses of the franchising and renewal processes such as consultants fees, which are incidental to enforcement of the Ordinance or Franchise. These requirements or charges shall not be considered part of the Franchise fee. 5.20 AFFILIATES' USE OF SYSTEM. To the extent necessary to prevent Grantee from diverting revenues from the operation of the Cable Communications System from Grantee to Affiliates to the detriment of the City, Affiliates (excluding any affiliate which provides a national or regional programming service) shall be permitted to utilize the Cable Communications System only if a Franchise fee on City revenues derived therefrom is paid. 5.21 LATE PAYMENT. In the event that the fees herein required are not tendered on or before the dates fixed. in this Ordinance, interest due on such fee shall accrue from the date due at an annual rate of three percent ( 3%) above the prime rate or rates of interest, at the City' s primary depository bank. 5.22 RECOMPUTATION. Tender or acceptance of any payment shall not be construed as an accord that the amount paid is correct, nor shall such acceptance of payment be construed as a release of any claim the City of Ithaca may have for additional sums including interest payable under this Ordinance or the Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor chosen by the City, which shall be based on a fiscal year and shall occur in no event later than one ( 1) year after the fees are tendered with respect to such fiscal year. If, after audit and recomputation, an unpaid fee is owed to the City, such fee shall be paid within thirty (30) days after audit and recomputation and the Grantee shall pay the costs of the audit. The interest on such unpaid fee shall be charged from the due date at an annual rate of three percent (3%) above the prime rate or rates of interest at the City' s primary depository bank during the period that such unpaid amount is owed. 5.23 RIGHT OF INSPECTION OF RECORDS. The City shall have the right to inspect all books, records, reports, maps, plans, financial statements, and other like materials of the Grantee as provided in this Ordinance, at any time during normal business hours. 5.24 RIGHT OF INSPECTION OF CONSTRUCTION. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Ordinance and other pertinent provisions of law. 22 5. 25 RIGHT OF INSPECTION OF PROPERTY. At all reasonable times and for the purpose of enforcement of this Ordinance and the Franchise, Grantee shall permit examination by any duly authorized representative of the City, of all cable communication system and facilities together with any appurtenant property of Grantee situated within the City and outside of the City if it is utilized in the operation of the City' s Cable Communications System. 5.26 FRANCHISE RENEWAL. Upon completion of the term of any Franchise granted under this Ordinance, the City may grant or deny renewal of the Franchise of the Grantee in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws. SECTION 6 BONDS, INSURANCE, AND INDEMNIFICATION. 6.1 PERFORMANCE BOND AND LETTER OF CREDIT. A. PERFORMANCE BOND. Not later than forty-five ( 45) days after the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the Franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation of this Ordinance. B. CONDITIONS. The performance bond shall provide the following conditions: ( 1) There shall be recoverable by the City jointly and severally from the principal and surety, any and all fines and penalties due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Grantee to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all lawful orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims due the City as resulting from judicial action; pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. Such losses, costs and expenses shall include but not be limited to attorney' s fees and other associated expenses. 23 ( 2) The total amount of the bond shall be forfeited in favor of the City in the event: (a) The Grantee abandons the Cable Communications System at any time during the term of the Franchise or any extension thereto; (b) The Grantee assigns the Franchise without the express written consent of the City; or C. REDUCTION OF BOND. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the Grantee shall be without prejudice to the Grantee's subsequent applications or to the City' s right to require the full bond at any time thereafter. However, no application shall be made by the Grantee within one ( 1) year of any prior application. D. LETTER OF CREDIT. In addition to the performance bond required pursuant to paragraph A above, the City may, in its discretion, require the Grantee to obtain, maintain and file with the City an irrevocable letter of credit from a financial institution licensed to do business in the State in an amount specified in the Franchise, naming the City as beneficiary. The form and contents of such letter of credit shall be approved by the City and shall be released only upon expiration of the Franchise or upon the replacement of the letter of credit by a successor Grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a violation of this Ordinance. E. CONDITIONS. The City may draw upon the letter of credit if the Grantee fails to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. F. USE OF PERFORMANCE BOND AND LETTER OF CREDIT. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due and the Grantee shall have thirty ( 30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within thirty ( 30) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond. 24 G. NOTIFICATION. Within three ( 3) days of a withdrawal from the letter of credit or performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. H. REPLENISHMENT OF LETTER OF CREDIT AND PERFORMANCE BOND. No later than thirty (30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph F above, the Grantee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this Ordinance. I. NON-RENEWAL, ALTERATION OR CANCELLATION OF LETTER OF CREDIT OR PERFORMANCE BOND. The performance bond and. letter of credit required herein shall be in a form satisfactory to the City and shall require thirty ( 30) days written notice to the City of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty ( 30) days following receipt by the City or the Grantee of any notice of cancellation. J. To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three ( 3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. K. The City shall not seek recovery from the Performance Bond or the Letter of Credit until it has provided the Grantee with thirty ( 30) days to cure any default. 6.2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later than sixty ( 60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this ordinance. 25 B. Unless otherwise provided in the franchise agreement any insurance policy obtained by the Grantee in compliance with this Section shall be filed and maintained with the City Clerk during the term of the Franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed. to or limit the liability of the Grantee under any Franchise issued hereunder for damages. D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney' s fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this Agreement. The foregoing indemnity shall apply except to the extent such injury, death or damage is caused by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder. F. All insurance policies provided under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by the State. G. Unless otherwise provided in the franchise agreement at any time during the term of the Franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this Ordinance or the Franchise. H. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three ( 3) year 26 period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. 6.3 GENERAL LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of: ( 1) $500,000 for property damage per occurrence; ( 2) $1,000,000 for property damage aggregate; ( 3 ) $1,000,000 for personal bodily injury to any one person; and ( 4) $2,000,000 bodily injury aggregate per single accident or occurrence. Such general liability insurance must include coverage for all of the following: comprehensive premises- operations, explosion and collapse hazard, underground. hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 6. 4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: ( 1) $1,000,000 for bodily injury and consequent death per occurrency; ( 2) $1,000,000 for bodily injury and consequent death to any one person; and ( 3) $500,000 for property damage per occurrence. 6. 5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker's Compensation and employer' s liability, valid in the State, in the minimum amount of: ( 1) Statutory limit for Worker' s Compensation. (2) $100,000 for employer' s liability. 27 6. 6 INDEMNIFICATION A. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions, and City employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith) : (1) To persons or property, arising out of or through the acts or omissions of Grantee, its servants, agents or employees. ( 2) Arising out of any claim for invasion by the Grantee, its servants, agents, or employees of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation. ( 3) Arising out of Grantee' s failure to comply with the provisions of any federal, state, or local statute, Ordinance, or regulation applicable to Grantee in its business hereunder. B. The foregoing indemnity is conditioned upon the following: The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the City from cooperating with. Grantee and participating in the defense of any litigation by its own counsel its sole cost and expense. SECTION 7 SUBSCRIBER AND USER RIGHTS 7. 1 SUBSCRIBER SOLICITATION. Each representative or employee of the Grantee, entering upon private property shall be required to wear an employee identification card. issued by Grantee and bearing a picture of said representative. 7. 2 SALES INFORMATION. Grantee shall provide to all subscribers annually and all prospective subscribers or users with complete written information concerning all services and rates available to such subscriber upon solicitation of service and prior to the consummation of any 28 agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee's least costly service. Such information shall be written in plain English and shall include but shall not be limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cable service(s) and the cost for hooking up such VCRs. 7.3 BILLING PRACTICES INFORMATION. Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in plain English. 7.4 NOTICE OF INSTALLATION. Grantee shall inform all persons in advance of the date and approximate time its employee or agents shall enter onto such person's property for the purpose of installing cable communications service. 7. 5 BUSINESS OFFICE. Grantee shall maintain and operate within the City of Ithaca. a business office for the purpose of receiving and resolving all complaints, including without limitation, those regarding service, equipment malfunctions or billing and collection. disputes. The business office shall have a publicly listed local telephone number and shall be open for both telephone and walk-in business. Grantee shall provide all subscribers or users with at least thirty ( 30) days prior written notice of a change in business office hours. 7 .6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. 7.7 RESPONSE TO SERVICE COMPLAINT. The Grantee shall respond to requests for repair service no later than the next business day. System outages, whole or partial, shall be acted upon as soon as practicable. Grantee shall keep a record of all such complaints in compliance with state law and provide the record to the City as requested. 29 7.8 UNRESOLVED COMPLAINTS. Should a subscriber or user have a complaint which is unresolved after fourteen (14) days after notifying grantee thereof, the subscriber or user shall be entitled to file his complaint with the City, which shall have primary responsibility for the continuing administration of this ordinance and the Franchise and the implementation of complaint procedures. A representative of Grantee shall be available thereafter to meet jointly with the City and the affected subscriber or user, within thirty ( 30) days after said subscriber or user has filed the complaint, to fully discuss and resolve the matter. If the matter cannot be resolved, the City may use judicial proceedings to resolve the matter; all judgments and costs for attorney' s fees will be paid by the Grantee. 7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two ( 2) successive weeks, the first publication being not less than fourteen ( 14) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one ( 1) channel of the Cable Communications System between the hours of seven (7) p.m. and nine ( 9) p.m. , for four (4) consecutive days during each such week. 7 .10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at all times protect the privacy of subscribers as provided in this Ordinance and other applicable Federal, State and Local laws. 7.11 PEOPLE METER. No people meter shall be used without the express written consent of the subscriber. 7 .12 CONVERTERS. Grantee shall utilize state-of-the- art converters. Grantee shall make converters available to subscribers for rent or purchase. Grantee shall allow subscribers to purchase or rent converters from other vendors. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of converters on the items necessary for converter compatibility with Grantee' s Cable Communications System. Subscribers shall not be required to replace damaged converters rented from the Grantee if the damage resulted from fire, flood, earthquake, or other natural disaster or act of God. 30 7.18 INTERNAL WIRING. Grantee shall install and/or maintain internal wiring for subscribers. As of March 1, 1989, Grantee may own the internal wiring or, at the subscribers discretion, the subscriber may own the wiring. Grantee shall allow subscribers or other vendors to install, own, and/or maintain internal wiring. Any subscriber, who duly notifies Grantee within the time period reasonably established and advertised by Grantee, may acquire ownership of the internal wiring at his/her premises without charge. In the event of signal leakage grantee may terminate service consistent with Federal law. 7. 19 REMOTE CONTROLS. Grantee shall make remote control units available to subscribers to purchase or rent. Grantee shall allow subscribers to purchase or rent remote control units from other vendors. Grantee may provide remote control units to subscribers at no charge as a part of its package of services. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of remote controls on the items necessary for compatibility with Grantee' s Cable Communications System. Subscribers shall not be required to replace damaged remote control units rented from the Grantee if the damaged resulted from fire, flood, earthquake, or natural disaster or act of God. 7.20 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. 7. 21 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS 8. 1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communications System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places. The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City 31 pursuant to local regulation, provided, however, Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8.2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8.3 PRIVATE PROPERTY. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications. System at its sole cost and expense. 8. 4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8.5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as approved by the City. 8.6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the telephone and electric utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and/or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable) . 32 8.7 CITY PROPERTY. Where any damages or alterations occur to the City's water, sewage or drainage lines or to any other municipal structures in the streets during the construction due to the presence, negligence, operation or maintenance of the Cable Communications System, the sole cost of such repairs including all services and materials will be billed to the Grantee and these charges shall be paid within 60 days of receipt of notice or the City may foreclose on performance bonds, or invoke other appropriate sanctions provided for in this Ordinance. 8.8 TEMPORARY RELOCATION. Grantee shall temporarily raise or lower its wires or other equipment upon the reasonable request of any person, including without limitation, a person holding a building moving permit issued by the City. The expense of such raising or lowering shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given reasonable notice necessary to maintain continuity of service. This provision shall not apply to requests by the City for City purposes for which movement there shall not be a charge by the Grantee. 8. 9 CITY MAPS. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public-rights-of- ways, where necessary, the location shall be verified by excavation. 8.10 CONS`T'RUCTION NOTICE. Grantee shall give appropriate notice to the City and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than seven (7) days before such commencement. 8.11 SAFETY AND CONSTRUCTION STANDARDS. The construction, installation, operation, maintenance, and/or removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards. Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State, and Municipal Construction Requirements, including FCC Rules and Regulations 33 Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8.12 CONTRACTORS AND SUBCONTRACTORS. All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantee's Cable Communications System. 8. 13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or installation by the Grantee of any towers, poles, underground conduits, or fixtures for use in connection with initial construction, rebuild, upgrade or line extension of the Cable Communications System under this Ordinance, the Grantee shall make available for City approval a concise description of the facilities proposed to be erected or installed, including strand maps, if required, together with a map and plans indicating the proposed location of all such facilities. Approval by the City shall not be unreasonably withheld and shall be completed in a timely manner. For the rebuild the Grantee shall allow a City selected engineer to inspect such information, maps and plans for five business days in the Grantee' s office. Prior to the five days, the Grantee shall give the City thirty ( 30) days prior notice that such information will be available. The Grantee shall accommodate reasonable scheduling modifications. If the Grantee makes a material change in any part of the system design, the City shall be notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee's office. No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8.14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified in the Franchise, (e.g. , amplifiers, cable, antennas) . 8.15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial establishments within thirty (30) days of a request for such service and the receipt of any applicable City, State, Federal and utility company permits, and of permission from any landlord or other person controlling access to such premises. 34 8. 16 ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to make use of the poles or other wire-holding structures of the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee' s operation. 8 .17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at any time all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and tests. 8.18 CONSTRUCTION REPORTING REQUIREMENTS. A. Within thirty ( 30) days of the granting of a Franchise pursuant to this Ordinance, the Grantee shall. have applied for any necessary agreements, licenses, or certifications shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process. 35 8 .19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8.20 INITIAL PERFORMANCE TEST. Initial proof of performance testing shall occur within sixty (60) days prior to the commencement of the Cable Communications System service to each section of the City as set forth in the Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test shall be borne solely by Grantee. 8.21 ANNUAL PERFORMANCE TEST. Performance requirements and standards specified in the Franchise, shall be measured annually to ensure compliance with same. The costs of such tests shall be borne by Grantee. SECTION 9 MAINTENANCE AND INSPECTION 9. 1 GENERAL. Grantee shall maintain wires, cables and all other real and personal property and facilities constituting the Cable Communications System in good condition, order and repair at all times during the term of the Franchise. 9.2 MAINTENANCE LOG. Grantee shall maintain an annual log showing the date, approximate time and duration, type and probable cause of all Cable Communications System outages, whole or partial, due to causes other than routine testing or maintenance. The entries in such log shall be retained by Grantee for one ( 1) additional year and shall be subject to inspection and copying by the City or its designee during Grantee's regular business hours upon reasonable request. 9. 3 SERVICE INTERRUPTION. Except where there exists an emergency situation necessitating a more expeditious procedure, Grantee may interrupt service for the purpose of repairing, upgrading or testing the Cable Communications System, only during periods of minimum use, and only after a minimum of twenty-four (24) hours notice to affected subscribers. 9. 4 RADIATION MONITORING. Radiation monitoring shall be conducted by all maintenance technicians on an ongoing basis. The results of said monitoring shall be made available to the City upon request. 36 SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10.1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR 76.311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. 10.2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and various minority groups to advance and win promotions in all categories of employment. As part of its obligation under Section 10.1 above, Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the Cable Communications System minorities and females as set forth in the Franchise. Grantee shall submit to the City annual EEO reports required by the Federal Communications Commission. SECTION 11 BOOKS, RECORDS, AND REPORTS 11. 1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR. A. BOOKS AND RECORDS. The City reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like material, of the Grantee, upon reasonable notice and during normal business hours. B. AVAILABILITY OF RECORDS. If any of such maps or records are not kept in the City, or upon notice the Grantee is unable to provide the records in the City, and if the City shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by Grantee. 11.2 REPORTS REQUIRED. The Grantee shall file with the City: A. REGULATORY COMMUNICATIONS. All reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission. (FCC) related to the City of Ithaca. 37 B. FACILITIES REPORT. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the City. Such report shall also contain any revisions to the system "as built" maps filed with the City, and copies of all materials required by the franchise to be given to subscribers. C. PROOF OF BONDS AND INSURANCE. Unless otherwise provided in the franchise agreement Grantee shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this Ordinance, or certified copies thereof, and written notice of payment or required premium. D. FINANCIAL AND OWNERSHIP REPORTS. The following financial reports specified in the Franchise shall be submitted annually to the City. ( 1) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the. Franchise of five percent ( 5%) or more. ( 2) A copy of franchisee's annual report. ( 3) A report on the placement of any limited partnership offering, if any, including the amount subscribed and the amount paid in. ( 4) If the City regulates rates, the Grantee shall provide an annual, system-wide and City-only, certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non- subscriber revenue, line item operating expenses, capital expenditures statement, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule. The City-only statements shall be on an allocated basis and the Grantee shall provide the City with the assumptions utilized in making the allocations. ( 5) An annual, City-only, certified income statement. ( 6) An annual list of officers and members of the Board of Grantee's and of any parent corporation. 38 E. OPERATIONAL REPORTS. The following system and operational reports shall be submitted annually to the City: ( 1) The Grantee shall provide the City with a copy of it' s annual performance testing results as sub- mitted to the FCC. ( 2) An annual summary of the previous year's activities including, but not limited to, subscriber totals for each category of service offered including number of pay units sold, new services offered, and the character and extent of the service rendered to other users of the system, to Grantee' s need to protect proprietary infor- mation. ( 3) An annual summary of service requests and complaints received and handled. ( 4) An annual summary of the number of outages. ( 5) An annual summary of liquidated damages and other penalties outstanding or paid. ( 6) An annual summary of all reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. F. ADDITIONAL INFORMATION. The Grantee shall furnish to the City such additional information and records with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the City in connection with this Ordinance or the Franchise. 11.3 RECORDS REQUIRED. A. MANDATORY RECORDS. The Grantee shall at all times maintain: ( 1) A record of all complaints received and interruptions or degradation of service experienced for the preceding period prior to a performance review, consistent with the state law and regulation. ( 2) A full and complete set of plans, records and "as built" maps showing the exact location of all cable installed or in use in the City, exclusive of subscriber service drops. 39 SECTION 12 MISCELLANEOUS PROVISIONS 12. 1 CAPTIONS. The captions to sections throughout the Franchise are intended solely to facilitate reading and reference to the sections and provisions of the Franchise. Such captions shall not affect the meaning or interpretation of this Ordinance. 12. 2 SEVERABILITY. If any section, sentence, paragraph, term or provision of this Ordinance is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction upon final adjudication or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect. 12.3 GRANDFATHER RIGHTS. Nothing contained in this Ordinance shall be construed to deprive Grantee or the City of any "grandfather" rights in any future amendments to any statute or regulation. Any such Franchise, however, shall be subject to such regulations the City finds necessary to adopt in the exercise of its police power, provided that such regulations are reasonable and do not materially conflict with the privileges granted in the Franchise. 12. 4 NOTICE. Every notice to be served upon the City shall be sent by certified mail, postage prepaid, to the City. Every notice to be served upon Grantee shall be sent by certified mail, postage prepaid, to Grantee at its Ithaca office. 12.5 FORCE MAJEURE. If by reason of force majeure either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State of New York or any of their departments, agencies, political subdivision, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions. 12.6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO WAIVER OF THE TERMS THEREOF. The Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 40 DRAFT #8 July 31, 1987 ITHACA, NEW YORK ORDINANCE SECTION 1 PURPOSE The City of Ithaca finds that the development of Cable Communications has the potential of having great benefit and impact upon the people of Ithaca. Because of the complex and rapidly changing technology associated with cable communications, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such persons as the City shall designate. It is the intent of this Ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any Franchise issued pursuant to this Ordinance shall be deemed to include this finding as an integral part thereof. Further, it is recognized that Cable Communications Systems have the capacity to provide not only entertainment and information services to the City's residents, but can provide a variety of interactive communications services to institutions and individuals . Many of these services involve City agencies and other public institutions, by providing governmental, educational or health care communications. For these purposes, the following goals underlie the regulations contained herein: (a) Communications services should be available to the maximum number of City residents. (b) The Cable Communications System should be capable of accommodating both the present and reasonably foreseeable future communications needs of City. (c) The Cable Communications System should be improved and upgraded if necessary during the Franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities . (d) Any Cable Communications System authorized by this Ordinance and the Franchise shall be responsible to the needs and interests of the local community, and shall provide a wide diversity of information sources and services to the public. r ` (e) That the public, educational, and governmental needs for access to the Cable Communications System are met. SECTION 2 TITLE OF ORDINANCE This Ordinance shall be known and may be cited as "Ithaca Cable Communications Regulatory Ordinance, " and it shall become a part of the Ordinances of the City. This Ordinance shall take effect and be in force from and after its passage and publication. That all Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 3 DEFINITIONS For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 4-.T 3`LADDITIONAL SERVICES means programming or services for which an additional charge is made beyond the charge for Basic Subscriber Services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per- view program, interactive services, and any other service utilizing any facility or equipment of a Cable Communications System operating pursuant to a Franchise granted under this Ordinance. NAFFILIATE means each person who falls into one or more of the following categories : (a) each person having, directly or indirectly, control or a controlling interest in the Grantee; (b) each person in which the Grantee has, directly or indirectly, control or a controlling . interest; (c) each officer, director, general partner, joint venturer or joint venturee partner, of the Grantee; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to the Grantee by common ownership, common management, or common control; provided AFFILIATE shall in no event mean: (a) the City; (b) any duly authorized PEG Access Organization; 3,14 xr5s C#Aj � means dq45 C�mN� � sej aslwe 4f p4h'c act edw4�' k use, CAAnnij5 W£sl n 1�-�rt,6/1� uSe. 5A&11 ava,l�l�T e� a 107 �O'r- Aksis 1M r���?�nr y : � � 7 (c) any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or (d) any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated person by reason of owning controlling interest in, being owned by, or being under common control with, the Grantee. 3�3 BASIC SUBSCRIBER RADIO SERVICE means such audio services as the re-transmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC. I,< 3-4 BASIC SUBSCRIBER TELEVISION SERVICES means the definition promulgated by the Federal Communications Commission, or if such definition is not forthcoming from the Federal Communications Commission it shall mean all subscriber services provided by the Grantee in one or more service tiers, including the delivery of broadcast signals, public, educational and governmental access channels, and local origination channels, covered by the regular monthly charge paid by all subscribers to a particular service tier including subscriber terminal charges and related deposits. �Ap 3-.-5 CABLE COMMUNICATIONS SYSTEM, also referred to as "system, " means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities uses any Public-Rights-of-Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (d) any facilities of any electric utility used solely for operating its electric utility systems . 3.-' 3-.-6 CITY means the City of Ithaca, New York. 3� CHANNEL means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. 3 �.y 3-r8 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. �,./0 3�9 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession. qi, ) 1 3-k0 COMMON COUNCIL means the mayor and council of the City of Ithaca. 33 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. x, 13 3-.-t2 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. J, 11 3-.1:1 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control . ,�,1< 3-374 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations . 1.10 3--±-5 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 1.17 }f DROP shall mean a sQRwial connection from feeder cable to the subscriber/user television set, radio or other terminal. 3--L7 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL means any channel where educational programs are the only designated use. The educational access channel(s) shall only be used for non-commercial purposes . �. 11 3-.478 FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. 4 3-, 9 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3,1,1 3 l"0 FRANCHISE means a Franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the Franchise granted, including referenced specifications, Franchise proposal, applications and other related material. Any Franchise granted pursuant to this Ordinance grants the nonexclusive rights to construct, operate and maintain a Cable Communications System along the Streets and Public Grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. 3,2-2 3-.Z1 FRANCHISE AREA means the entire City. -;,13 321.2 FRANCHISE FEE means the percentage, as specified by the City, of the Grantee's gross revenues from all sources payable in exchange for the rights granted pursuant to this Ordinance and the Franchise Agreement. -�,m- 3.--9"3 FRANCHISEE OR GRANTEE means the natural person(s) , partnership(s) , domestic and foreign corporations(s) , association(s) , joint venture(s) , or organization(s) of any kind which has been legally granted a Franchise by the City, and its lawful successor, Transferee or Assignee. q,257 3-rr GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government use. The municipal access channel(s ) shall only be used for non-commercial purposes . '9.2_0 3�5 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction. 1-7,1 a-.-z-16 GROSS ANNUAL REVENUES means all revenue derived directly or indirectly by the Grantee, and revenue derived directly or indirectly through services provided via the Cable Communications System by Grantee's affiliates and subsidiaries in which the Grantee has a financial interest. ,i, A 3�Z7 INQUIRY BY SUBSCRIBER means a request for general information about the Grantee's operation, services, programming, and/or rates. q. z9 3�_ $ INSTALLATION shall mean the connection of the system from feeder cable to subscribers ' terminals . 5 3-r2'9' INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users on an individual application basis . These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions to residential subscribers. -3.31 3-x3'0 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the Grantee, at rates in accordance with the Cable Act. e-60S 3.�3 LOCAL ORIGINATION A programming produced or purchased by the Grantee (e.g. , advertisements, news, programming with advertising) which is under the control of the Grantee. Local origination is specifically not to be construed as public, governmental, or educational access. �.)3 4:3-$ LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. ;4 3-43 MONITORING means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever. AS 3,34 NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers . S_3( 3 . 35 PERSON means an individual, partnership, association, organization, corporation or any lawful successor Transferee of said individual, partnership, association, organization or corporation. 3,3'7 -3—. 3-6 PLANT MILE means a linear mile of strand-bearing cable as measured on the street of easement from pole to pole or pedestal to pedestal. �i M a:3a PROGRAMMER means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of the Cable Communications System. ';.31 3—. 3-$- PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL or COMMUNITY CHANNEL means any channel designated or dedicated from use by the general public or noncommercial organizations which is made available for use without charge on a first-come, first-served, nondiscriminatory basis . The 6 public access channel(s) shall only be used for non- commercial purposes. 3 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. .Z.t( 3- 4 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC GROUNDS means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public-rights-of-way or hereafter held by the City which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Cable Company Communications System. No reference herein, or in any Franchise, to the "Streets and Public Grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. 3,4-2, 3-,4-1 REASONABLE NOTICE shall be written notice addressed by either party at its principal office within the City or such other office as the Grantee has designated to the City as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than ten (10) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. 3:4Q RESIDENT means any person residing in the City as otherwise defined by applicable law. ;44 RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. 3.fc ,1. SALE shall include any sale, exchange, barter or offer for sale. 3 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. h q-7 3.4 SERVICE AREA means the entire geographic area within the Franchise territory. 3 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 7 3- 8 STATE means the state of New York. �01 3-49 SUBSCRIBER means- any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3,�1 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other S�stem Facilities located outside the City limits. 31 ; TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of five percent (5%) or more at one time of the ownership or controlling interest in the Cable Communications System, or twenty percent (20%) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. 3.0 3-:-5-2 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers . 3,�4 3�3 UPSTREAM SIGNAL means a signal originating from a terminal to another point in the Cable Communications System including video, audio or digital signals for either programs_ gr other uses such as security alert services, etc. 5-4 USER means a person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. SECTION 4 GRANT OF FRANCHISE 4 . 1 GRANT OF FRANCHISE 8 A. GRANT OF AUTHORITY. Pursuant to the authority of the Charter of the City and subject to the terms and conditions set forth herein, the Common Council of the City of Ithaca can grant revocable and non-exclusive Franchises, acting pursuant to the City' s applicable Charter provisions, Ordinances, rules and regulations to construct and operate a Cable Communications System in, under, over, along, across or upon the Streets and Public Grounds within the City of Ithaca for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of a audio, video, data, or other signals and for the development of broadband telecommunication services in accordance with the laws of the City of Ithaca, the State of New York, and United States of America. In the event that City shall grant to the Grantee a nonexclusive, revocable Franchise to construct, operate, and maintain a Cable Communications System within the City, said Franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as regulated by the provisions of this Ordinance and the Franchise. The Franchise shall include by reference those provisions of the Grantee's proposal that are finally negotiated and accepted by the City and Grantee. B. NON-INTERFERENCE. In exercising rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons, interfere with any installations of the City, any public utility serving the City or any other person permitted to use the Streets and Public Grounds nor unnecessarily hinder or obstruct the free use of the Streets and Public Grounds . The grant of one Franchise does not establish priority for use over the other present or future permit or Franchise holders or the City's own use of the Streets and Public Grounds . The Common Council of the City shall at all times control the distribution of space in, over, under or across all Streets or Public Grounds and occupied by the Cable Communications System. All rights granted for the construction and operation of the Cable Communications System shall be subject to the continuing right of the Common Council to require such reconstruction, relocation, change of discontinuance of the appliances used by the Cable Communications System in the streets, alleys, avenues, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. C. NON-EXCLUSIVITY. Any Franchise is non-exclusive and shall not affect the right of the Common Council to grant to any other person a grant or right to occupy or use the streets or portions thereof, for the construction and operation of a Cable Communications System within the City or the right of the City to permit the use of the Streets or Public Grounds or of the City for any purpose whatever. No privilege or power of eminent domain is bestowed on Grantee by the grant of a Franchise. 9 hrOtAgialan thm _terms and conditions of this—Orli azi�� ani t-�re . - V, COMPLIANCE WITH CITY ORDINANCES. Any Franchise grand by the City is hereby made subject to the general Ordinance provisions now in effect and hereafter made effective. Nothing- in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4.2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances . 4 . 3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4 .4 FRANCHISE TERRITORY. The Franchise territory shall be the entire City, or portions thereof, for which a Franchise is granted under authority of this agreement. The service area shall be the entire territory defined in the Franchise. 4.5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided k-ar�!a o in the Franchise. The value of the Franchise at the end of the term shall be zero and no property right shall be conferred from the Franchise itself. by 4 . 6 FRANCHISE REQUIRED. No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 10 II laws, CITY'S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this- Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or carry on, directly or indirectly, any public works or public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the Cable Communications System, the City shall have the right to do so at the sole cost and expense of Grantee. 11 4-.1-0- REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property. Restoration shall be made in as good a condition or better. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. If/0 -1 REMOVAL OR ABANDONMENT. Upon termination of the Franchise by passage of time or otherwise, and unless Grantee transfers the Cable Communications System to a subsequent Grantee approved by the Common Council, Grantee shall remove its supporting structures poles, transmission and distribution systems, and all other appurtenances from the Streets and Public Grounds and shall restore the areas to as good a condition or better. Such removal shall be made so as not to conflict with public health, safety or convenience. Removal shall be completed within twelve ( 12) months after such termination. At that time the City may deem any property not removed as having been abandoned. Such property may then by removed at the option of the City at Grantee's expense less any recoverable salvage value. 11 r �h-r�11 lam a� •�' -� the Pf:cPn[�e 4..1.3 NO WAIVER OF RIGHTS. No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contravention of such rights except to the extent expressly waived by the City or expressly provided for in the Franchise. LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to the Franchise shall be used solely in connection with the construction, operation or maintenance of the Cable Communications System or the Grantee's performance of the terms, obligations, and conditions of this Ordinance and the Franchise. q;►3 Q-f5 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City, an - p B. TRANSFER OF CONTROL OR OWNERSH The Grantee shall promptly - notify the City 0!,14A. actual or proposed change inft by any AT of-,,. control of the Grantee. The word "control" as used herein is. not limited to major stockholders but includes actual working control in whatever manner exercised. r-A�ultf =1 rar�.sai�mr� i_nn t}iat a trancfor r r vvu .i i has r rbythe cyateffl, or - , r or Otiltaw , Tt7�- -1 7R�r i-n rsr ria+- +�nr t rtt=ttud , P C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantee* City consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest 'qualifications of the prospective controlling party, and the 12 .e Grantee shall assist the City in any such inquiry. fie. Grantee-94tall-'` s-i --- --of aay-tEaasfe-a3P �ailure to provide all transfer related informationeques ed by the City as part of said inquiry shall be grodnds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such transfer, after considering the legal, financial*, character, technical° and other public interest qualifications of the applicant1ae satisfactory, the City will transfer and assign the rights and obligations of such Franchise as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld. E. NO WAIVER OF RIGHTS . The consent or approval of the City to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the Franchise. F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the Franchise prior to completion of construction of the proposed system. G. FRANCHISE SIGNATORY. Any approval by the City of transfer or ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the Franchise. ^f tea c j,�+ ct,^uld the City X. TIMEFRAME. The City shall act on a request to transfer the Franchise - within si� /020 dAl5 -re&nt-11-6 of the Grantee's presentation to the Common Council requesting a transfer or assignment. The City' s approval of 13 any transfer or assignment shall not be deemed an approval of the purchase price. -SECTION 5 REGULATION OF FRANCHISE 5. 1 GENERAL. The City shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable law. This authority shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise granted hereunder, and to carry- out the City's responsibility with regard to cable communications. The City may from time to time adopt such reasonable rules and regulations that it may deem necessary in the exercise of its municipal powers. 5 .2 REGULATORY AUTHORITY. The City shall have the responsibility for the administration and enforcement of this Ordinance and the Franchise, including but not limited to the following duties, powers and authority which may be delegated at its discretion: ( 1) To administer and/or enforce all provisions of the Ordinance, and any Franchise granted hereunder. (2) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the Franchise or any applicable law or regulation to correct the service deficiencies . (3) To represent the City's interest before local, state or federal government agencies in cable communications matters . mf more- iT A +hm bl (4) To receive, evaluate and file 1 Idata and reports required by this Ordinance nd to rule on such matters as appropriate un r the Ordinance and State and Federal law or r gulation. The City is hereby authorized to re ire adjustment to any fee, bond or insurance coverage or amount or charge contained herein annually without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjustment. Inflation shall be calculated in accordance with the regional Consumer Price Index. (5) To inspect at any time all construction, installation, and ongoing operation of the Cable Communications System, and to make such tests as itv deems necessary to ensure compliance with the r�S6►t�6� 14 terms of this Ordinance, and the Franchise and other applicable laws and regulations. (6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. (9) --Te=mealteE 6 aatee-lsfexv hand11 -ag ems+ :- t d—*s—su P-h taiP t 2 To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and \ recommendations thereto. c11 To monitor Grantee's adherence to operational standards and service requirements . 5 .3 PERFORMANCE EVALUATION. The City and Grantee shall, at the discretion of the City, hold annual performance evaluation sessions . All such evaluation sessions shall be open to the public. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance, Grantee compliance with this Ordinance and the Franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, and judicial and FCC filings. Grantee shall notify its subscribers of all evaluation sessions by announcement on at least one channel of its Cable Communications System between the hours of seven (7) p.m. and nine (9 ) p.m. , for five (5) consecutive days preceding each session. OadA)r ung * During review and evaluation Grantee shall fully cooperate with thP it-mr and shall provide such information and documents as t4--�ty may reasonably need to perform its review. SCK 15 t 5.4 RESPONSE T CITY INQUIRIES. In accordance with the terms of this O finance and the Franchise, the City may, at any time, make inquiries concerned with the management and affairs of the Cable Communications System. Grantee shall respond to such inquiries in a timely fashion. 5 .5 QUALITY OF SERVICE. Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require Grantee to test, analyze, and report on the performance of the Cable Communications System. Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: ( 1) the nature of the complaint or problem which precipitated the special tests; (2) the system component or area tested; (3) the equipment used and procedures employed in testing; (4) the method, if any, in which such complaint or problem was resolved; and (5) any other information pertinent to said tests and analysis which may be required. The City may require that tests be supervised or conducted by a City staff member or a professional engineer who is not an employee or agent of the Grantee. Grantee shall reimburse the City for the costs of such engineer if the tests performed shows that the quality of service is below the standards set forth in this Ordinance or the Franchise. 5 . 6 LIQUIDATED DAMAGES . For the violation of any of the following provisions of this Ordinance, the City shall notify the Grantee in writing of the violation and except finutow, the Grantee shall be allowed not less than thirty. (30) days, or such greater amount of time as the City may specify, to correct such violation. Wi-tlr—rgsp0 c t In the event the Grantee fails to correct the violation, the City will be entitled to collect liquidated damages according to the schedule listed below. Such liquidated damages if not paid by the Grantee, shall be chargeable, to the extent available, to the letter of credit or bond tendered by Grantee within the aforesaid period of time. These liquidated damages shall be in addition to and not a limitation upon the other penal provisions of this 16 Ordinance, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies. ( 1) For failure to complete construction and installation in accordance with the Franchise, per day. (2) For failure to submit reports or supply data in accordance with this Ordinance, $&6-00-- per day for each day that such noncompliance continues. Ki/ Qd (3) For failure to test, analyze and report on the performance of the Cable Communications System in accordance with this Ordinance above, $��U per day for each day, or part thereof, t;�a such noncompliance continues . '"ZS.&0 (4) For failure to provide the capital equipment, and facilities, and services for public, educational and governmental access, as specified in the Franchise, $480-:010-per day, or part thereof, that such noncompl' ance continues . 75.Q O arri c+roti nn or any n-Fber f3.113'3g ?,�^SC1Ylrl ^tP �OVPT'T1 iTLPnta� e�-1������aZ• n„�-},r,r;+; o ` 96 z ,isovetere _ The City retains the right, at its sole option, to reduce or waive any of the above-listed penalties where extenuating circumstances or conditions beyond the control of the Grantee are deemed to exist. The Common Council or its designee shall determine the City's willingness to reduce or waive any of the above-listed penalties. 5 .7 CONSUMER REMEDIES. In order to promote compliance with this Ordinance and the Franchise, cable communications subscribers under the Franchise shall have the following rights and remedies in addition to any other remedies which may be available as a matter of law or equity to subscribers or others affected by the acts or omissions of the cable company. For example, this section is not meant to limit remedies available to subscribers under applicable laws governing consumer fraud or to limit remedies which may be available if as a consequence of the acts or omissions of the Grantee a resident loses utility services . Similarly, the remedies specified are not meant to limit any authority subscribers may have to enforce other terms of the Franchise against the Grantee. This section is in addition to any damages, remedies or other action which the City may take pursuant to its rights under the Franchise, or pursuant to its general police powers, or in the exercise of its rights under cable 17 consumer Ordinances or regulations which exist now or may be adopted during the term of this Ordinance. (1) If the Grantee fails within ten days to pay a submitted repair bill on any damage it causes to property (including damage which occurs during the course of stringing or burying cable or repairing cable) , the owner of the property shall be entitled to recover treble damages, and in any event no less than $100, for the period when the property remains in such unrepaired or unsafe condition in twenty-four (24) hours after causing such property to be damaged or after creating the unsafe condition. The Grantee shall be deemed to have left the property in an unrepaired or unsafe condition if the Grantee fails to repair damage to the property or to eliminate the unsafe condition. (2 ) If the Grantee fails to provide any notice which may be required by the City, the subscriber shall be entitled to recover treble damages for such failure. (3) If the Grantee violates the privacy rights of any subscriber the subscriber shall be entitled to receive treble damages, and in any event no less than $500, for each such violation. (4) In any event where the City determines that the Grantee has improperly discriminated in its rates and charges for service, the City after giving the Grantee notice of Hearing and an opportunity to be heard, shall identify the applicable non- discriminatory rate; the subscribers which have been adversely affected by the discrimination shall be entitled to a refund equal to treble any amounts paid over the non-discriminatory rate plus interest at the prime rate. (5) The Grantee shall keep a record of the date and time it receives requests for service which require it to obtain access to the home of a subscriber or potential subscriber, and shall also keep a record of the appointments made with such subscriber or potential subscribers to provide service. Any occasion on which the Grantee or its agent does not cancel the appointment with the subscriber and fails to arrive at the home of the subscriber or potential subscriber during the appointment period shall be considered a missed appointment. The subscriber or potential subscriber with whom the appointments were missed shall be entitled to $50 damages for each appointment missed. 18 ( 6) If the Grantee fails to substantially follow the procedures for disconnecting a subscriber, as set forth in this Ordinance and/or the Franchise, the subscriber who was improperly terminated shall be entitled to receive treble damages . (7) If a cable subscriber does not receive service for more than a four hour period, the affected subscriber shall be entitled to recover treble damages. In addition to the foregoing, if any subscriber is required to bring judicial proceedings to enforce his/her rights and remedies set forth herein, and is ultimately successful in such judicial proceedings, then that subscriber is entitled to recover all reasonable attorney's fees and expenses incurred in the prosecution of such judicial proceedings as fixed by the Court. Notwithstanding anything herein to the contrary, if the Grantee notifies the subscriber in writing not less than ten days before the initial appearance in any judicial proceeding that it will not use an attorney in that proceeding, and thereafter does not use an attorney, then the subscriber should not be entitled to recover any attorney fees and expenses. C laret ehi-&e. S0 rr.9 DETERMINATION OF BREACH. In the event that the City has reason to believe that Grantee has defaulted in the performance of any provision of this Ordinance or the Franchise except as excused by force majeure, the City shall notify Grantee in writing of the provision or provisions which the City believes may be in default. Grantee shall have days from the receipt of such notice to: N"rfi� so (i) respond to the City in writing, contesting the Grantor's assertion of default and providing such information or documentation as may be necessary or; to cure any such default or, in the event that, by nature of the default, such default cannot be cured within such thirty (30) day period to take reasonable steps to cure the default and diligently continue such efforts until said default is cured. Grantee shall report to the City in writing, at thirty (30) day intervals as the Grantee's efforts, indicating the steps taken by Grantee to cure the default and reporting Grantee's progress until such default is cured. 19 In the event Grantee fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing the Grantee may be heard and after which the City shall specify the complaint against the Grantee; thereafter the City shall appoint an impartial person to act as factfinder who shall fix a date for a hearing at which evidence shall be received and a record kept of evidence of the complaint. The factfinder shall report in writing to both parties with his or her findings of fact. The Common Council shall make a finding of violation or no violation based on those findings . ane 1 = -: sa■ y� 03=d �y_l fy �y�y p �• ' U1V11 4"' a as set th 1-H the notice., In the event the City after such hearing determines that Grantee is in default of any such provision of this Ordinance or the Franchise, the City may also determine to pursue any or all of the following remedies: (a) foreclose on all or any part of the security provided pursuant to this Ordinance, including without limitation the performance bond and/or the letter of credit; provided, however, the foreclosure shall be in such amount as the City reasonably determines is necessary to remedy the default and shall include payment of all City expenses incurred in connection with the fact- finding hearing. (b) commence an action at law for monetary damages, including the expenses of the fact-finding hearing. (c) declare the Franchise to be revoked Section e and order Grantee to commence the removal of the Cable Communications System immediately or to cooperate with the City, or any such agency or person authorized or directed by the City to operate the Cable Communications System for a one year period, in maintaining the continuity of service; and (d) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages . The Grantee may seek recourse as available by law or stnt'urregulation. 5a NON-EXCLUSIVITY OF REMEDY. No decision by the City to invoke any remedy under this Ordinance or under any statute, law or Ordinance shall preclude the availability of any other such remedy. 20 �4' . 11 JURISDICTION. Exclusive jurisdiction and venue over any dispute, action or suit arising therefrom shall be in any court of appropriate subject matter jurisdiction located in the State of New York and the parties by this instrument subject themselves to the personal jurisdiction of said court for the entry of any judgment and for the resolution of any dispute, action, or suit arising in connection with the entry of such judgment. , termin ion, denial or renewal, or revocation of any Franchis granted hereto or foreclosure or other judicial sale of t e Cable Communications System the City shall have the right purchase the Cable Communications System at its fair market value determined on the basis of the Cable Communication System valued as a going concern but with no value allocate to the Franchise itself. Fair market value shall not incl u e any right or privilege granted by this Ordinance or the ranchise. (a) If the ity elects to purchase the Cable Communicati ns System upon the occurrence of any of the ev nts set forth in the preceding paragraph, G ntee shall promptly execute all appropriated uments to transfer title to the City, and sha 1 assign all other contracts, leases, licenses permits and any other rights necessary to main in continuity of service to the public. Grantee s 11 cooperate with the City or such agency or per n authorized or directed by the City to opera t the Cable Communications System for a reason le temporary period, in maintaining the Contin 'ty of service. Nothing herein is intended as a aiver of any rights the City may have. (b) During such reasonable emporary period of continued operation subsequen to revocation under this Section, Grantee shall not sell, assign, transfer, or lease to any her person, any portion of the Cable Communicati s System used by it in its operations including pa is of the Cable Communications System rented, le ed or lease- purchased from others by Grantee wit out the prior consent of the City. (c) If the City acquires ownership of the Cable Communications System or effects a tr nsfer of ownership of the Cable Communications S stem to another person, any such acquisition or ansfer shall be at an equitable price. 21 s,t 3 NOTIFICATION. Grantee shall file with the City schedules which shall describe all services offered by Grantee, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, Grantee shall file with the City all changes in services, all rates and charges of any kind, and all terms and conditions relating thereto thirty (30) days prior to all such changes . No rates or charges shall be effective except as they appear on a schedule so filed. 12- � 5--t'4 FREE CONNECTIONS. Grantee shall provide upon request and free of charge the drops set forth in the Franchise. Grantee shall discuss the location of each connection with the proper officials of each such institution receiving free connection. 4,45- PUBLICATION Ai; flISeRIMINATI8 . All rates for subscriber services and leasing of channels shall be published and non A written schedule of all rates shall be available upon request during business hours at Grantee's business office and all other facilities. Nothing in this Ordinance shall �e construed to prohibit the reduction or waiver of charges Zt& attracting subscribers, or the establishment of charges and rate schedules that may vary wit volume or nature of usage or programs. Ot 5- - 6 CREDIT FOR SERVICE INTERRUPTION. In the event that Grantee's service to any subscriber or user of leased channel space is interrupted for twenty-four (24) or more consecutive hours, Grantee shall, in addition to any remedy set forth in section 5 .7 , grant expeditiously such subscriber or user a pro-rata credit. C�� � RATE REGULATION. To the extent that Federal or State law or regulation may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law for the first tier of service. For other tiers of service that may be included in the Basic Subscriber Television Service, for which the City shall have the right to exercise rate regulation, the City and the Grantee shall negotiate the rate for the service. When exercising rate regulation, the City shall consider, along with any other information it deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: the ability of the Grantee to render Cable Communications System service; the efficiency of the Grantee; the quality of the service offered by the Grantee; the fair value cost of the Cable Communications System less depreciation; a fair rate of return over the life of the Franchise with respect to 22 Grantee's investment; the financial commitments required to meet the terms of this Ordinance and the Franchise; the extent to which Grantee has adhered to the terms of this Ordinance; fairness to City residents, subscribers and users. The approval by the City of any purchase price herein shall not obligate the City to consider that purchase price as the fair value cost for rate regulation purposes or otherwise. The City may retain rate consultants as it deems appropriate. 5•�(P 5--Y� FRANCHISE FEE ENTITLEMENT. The City of Ithaca shall be entitled to receive from Grantee a Franchise fee of five percent (5%) of Grantee's Gross City Revenue. S 5-.1.9 PAYMENT. The Franchise fee established in 5. 19 above shall be tendered as follows: (i) Five percent (5%) of Grantee's Gross City Revenue for successive three (3) month periods tendered within forty-five (45) days after each such period. Said periods shall commence upon the execution of a Franchise granted pursuant to this Ordinance. 5-. FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT. Grantee is required to reimburse the City for the expenses of the franchising and renewal processes such as consultants fees, which are incidental to enforcement of the Ordinance or Franchise. These requirements or charges shall not be considered part of the Franchise fee. 5r-4-1 AFFILIATES' USE OF SYSTEM. To the extent necessary to prevent Grantee from diverting revenues from the operation of the Cable Communications System from Grantee to Affiliates to the detriment of the City, Affiliates shall be permitted to utilize the Cable Communicatio System only if a Franchise fee on City revenues deriv therefrom is paid. Ai 5r2s1 LATE PAYMENT: the eve t that t e ees her 1 9 required are not tendered on or before the dates fixed in this Ordinance, interest due on such fee shall accrue from the date due at an annual rate of three percent (3%) above the prime rate or rates of interest, at the City's primary depository bank. 5---2'3 RECOMPUTATION. Tender or acceptance of any payment shall not be construed as an accord that the amount paid is correct, nor shall such acceptance of payment be construed as a release of any claim the City of Ithaca may have for additional sums including interest payable under this Ordinance or the Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor chosen by the City, which shall be based on a fiscal 23 year and shall occur in no event later than one ( 1) year after the fees are tendered with respect to such fiscal year. If, after audit and recomputation, an unpaid fee is owed to the City, such fee shall be paid within thirty (30) days after audit and recomputation and the Grantee shall pay the costs of the audit. The interest on such unpaid fee shall be charged from the due date at an annual rate of three percent (3%) above the prime rate or rates of interest at the City's primary depository bank during the period that such unpaid amount is owed. 5-*�4 RIGHT OF INSPECTION OF RECORDS. The City shall have the right to inspect all books, records, reports, maps, plans, financial statements, and other like materials of the Grantee as provided in this Ordinance, at any time during normal business hours. Gra said rerzrd"n 5 2-5 RIGHT OF INSPECTION OF CONSTRUCTION. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Ordinance and other pertinent provisions of law. 5--2�6 RIGHT OF INSPECTION OF PROPERTY. At all reasonable times and for the purpose of enforcement of this Ordinance and the Franchise, Grantee shall permit examination by any duly authorized representative of the City, of alloY�1,, together with any appurtenant property of Grantee situ ed within the City and outside of the City if it is utilize in the operat' pn of the City's Cable Communications System. jl�ce►�1nu�nu L4 5- &Z �a FRANCHISE RENEWAL. s -at I^n r. Upon completion of the term of any Franchise granted under this Ordinance, the City may in itsgrant or deny renewal of the Franchise of the Grantee in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws . SECTION 6 BONDS, INSURANCE, AND INDEMNIFICATION. 6. 1 PERFORMANCE BOND AND LETTER OF CREDIT. A. PERFORMANCE BOND. Not later than forty-five (45) days after the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the 24 Franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation of this Ordinance. B. CONDITIONS. The performance bond shall prow de the following conditions: fa (1) There shall be recoverable by the Ci y jointly and severally from the principal and rety, any and all fines and penalties due to e City and any and all damages, losses, cos s, and expenses suffered or incurred by the C ty resulting from the failure of the Grantee to and/ comply with the provisions of thi Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims due the City as resulting from judicial action; pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. Such losses, costs and expenses shall include but not be limited to attorney's fees and other associated expenses. (2) The total amount of the bond shall be forfeited in favor of the City in the event: (a) The Grantee abandons the Cable Communications System at any time during the term of the Franchise or any extension thereto; (b) The Grantee assigns the Franchise without the express written consent of the City; j&r- C. REDUCTION OF BOND. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the Grantee shall be without prejudice to the . Grantee's subsequent applications or to the City's right to require the full bond at any time thereafter. However, no application shall be made by the Grantee within one ( 1 ) year of any prior application. D. LETTER OF CREDIT. In addition to the performance bond required pursuant to paragraph A above, the City may, in its discretion, require the Grantee to obtain, maintain and file with the City an irrevocable letter of credit from a financial institution licensed to do business in the State in an amount specified in the Franchise, naming the City as 25 beneficiary. The form and contents of such letter of credit shall be approved by the City and shall be released only upon expiration of the Franchise or upon the replacement of the letter of credit by a successor Grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a violation of this Ordinance. E. CONDITIONS. The City may draw upon the letter of credit if the Grantee fails to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. F. USE OF PERFORMANCE BOND AND LETTER OF CREDIT. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due and the Grantee shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within thirty (30) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond. G. NOTIFICATION. Within three (3) days of a withdrawal from the letter of credit or performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. H. REPLENISHMENT OF LETTER OF CREDIT AND PERFORMANCE BOND. No later than thirty (30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph F above, the Grantee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this Ordinance. I. NON-RENEWAL, ALTERATION OR CANCELLATION' OF LETTER OF CREDIT OR PERFORMANCE BOND. The performance bond and letter of credit required herein shall be in a form satisfactory to the City and shall require thirty (30) days written notice to the City of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the City or the Grantee of any notice of cancellation. 26 J. To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. K. The City shall not seek recovery from the Performance Bond or the Letter of Credit until it has provided the Grantee with thirty ( 30) days to cure any default. 6.2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later than sixty (60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violat' on of t is Ordina ce. � io die e� po v)6& ivt & yfamc feew 4 B. Any insurance policy obtained by the Grantee in compliance with this Section shall be filed and maintained with the City Clerk during the term of the Franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder for damages . D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney's tees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to 27 have risen out of or in connection with the work covered by this Agreement. The foregoing indemnity shall apply except if such injury, death or damage is caused directly by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder. F. All insurance policies provided under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by th State. t l° I 6 �t'h✓t til dY u c•�u�e � G. At any tim during the term of he Franchise, the City may request and the Grantee shall comply with such request, to name the City as an -additional named insured for all insurance policies written under the provisions of this Ordinance or the Franchise. H. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. 6.3 GENERAL LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of: ( 1) $500, 000 for property damage per occurrence; (2) $1, 000,000 for property damage aggregate; (3) $1,000, 000 for personal bodily injury to any one person; and (4) $2, 000,000 bodily injury aggregate per single accident or occurrence. Such general liability insurance must include coverage for all of the following: comprehensive form, premises- operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 28 6.4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: (1) $1, 000, 000 for bodily injury and consequent death per occurrency; (2 ) $1, 000, 000 for bodily injury and consequent death to any one person; and (3) $500,000 for property damage per occurrence. 6.5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker's Compensation and employer's liability, valid in the State, in the minimum amount of: (1) Statutory limit for Worker's Compensation. (2) $100, 000 for employer's liability. 6 . 6 INDEMNIFICATION A. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions, and City employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith) : or ( 1) To persons of property, arising in- wh�l � Y �urt out of or through the acts or omissions of Grantee, its servants, agents or employees. (2) Arising out of any claim for invasion by the Grantee, its servants, agents, or employees of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation. (3) Arising out of Grantee's failure to comply with the provisions of any federal, state, or local statute, Ordinancepf, or regulation applicable to Grantee in its business hereunder. 29 B. The foregoing indemnity is conditioned upon the following: The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suite or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and participating in the defense of any litigation by its own counsel its sole cost and expense. 41 SECTION 7 SUBSCRIBER AND USER RIGHTS 7 . 1 SUBSCRIBER SOLICITATION. Each representative or employee of the Grantee, entering upon private property shall be required to wear an employee identification card issued by Grantee and bearing a picture of said representative. its s u +- roma i eas o 7 .2 SALES INFORMATION. rantee shall provide to all subscribers annually and a prospective subscribers or users w-i . complete writ n information concerning all services and rates upon solicitation of service and prior to the consummation of any agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee's least costly service. Such information shall be written in plain English and shall include but shall not be limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cable service(s) and the cost for hooking up such VCRs . 7 . 3 BILLING PRACTICES INFORMATION. Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in plain English. 7 .4 NOTICE OF INSTALLATION. Grantee shall inform all persons in advance of the date and approximate time its employee or agents shall enter onto such person's property for the purpose of installing cable communications service. 30 7 .5 BUSINESS OFFICE. Grantee shall maintain and operate within the City of Ithaca a business office for the purpose of receiving and . resolving all complaints, including without limitation, those regarding service, equipment malfunctions or billing and collection disputes. The business office shall have a publicly listed local telephone number and shall be open for both telephone and walk-in business . Grantee shall provide all subscribers or users with at least thirty (30) days prior written notice of a change in business office hours. 7 . 6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. 500q QS f W)e, 7 .7 RESPONSE 0 SERVICE COMPLAINT. The Grantee shall respond to reque s for repair service no later than the next business d System outages, whole or partial, shal Iii /a►1Ce be acted upon wAS0,Q tee shall Ja�J keep a record of all such complaints;h=dprovi�dethe record to the City as requested. resA Ate-Pee—r -j--eleda STs, G�� t�®—tel p maintain_an & Wg •31T fn„r_(24) hr-op- ,- r", $�es azS L'CV 1.111 7 .8 UNRESOLVED COMPLAINTS. J Should a subscriber or user have an- complaint! grind �aA�,. ;h,,,a ;n Seed&&--7 .T--a�e;re j? p c str�srr;hP s s wig t� „ndAF thi R or-dinaneA RT-an-e�, the subscriber or user shall be entitled to file his complaint with the City, which shall have primary responsiblity for the continuing administration of this Ordinance and the Franchise and the implementation of complaint procedures. A representative of Grantee shall be available thereafter to meet jointly with the City and the affected subscriber or user, within thirty (30) days after said subscriber or user has filed the complaint, to fully discuss and resolve the matter. If the matter cannot be resolved, the City may use judicial proceedings to resolve the matter; all judgments and costs for attorney's fees will be paid by the Grantee. 7 . 9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two (2) successive 31 weeks, the first publication being not less than fourteen (14) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one ( 1) channel of the Cable Communications System between the hours of seven (7 ) p.m. and nine (9 ) p.m. , for four (4) consecutive days during each such week. 7 . 10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at all times protect the privacy of subscribers as provided in this Ordinance and other applicable Federal, State and Local laws. At t a 1 , o a s ep w i w rly and Cunsplruously i er of: the privacy rights of the subscriber and the limitations placed upon Grantee with regard to is Ordinance and all other applicable Federal, St te, and Local subscriber privacy provisions; (2) the n ure of personally identifiable information collect or to be collected with respect to the subscribe and the nature of the use of such information, (3) the nature, requency, and purpose of any disclosure which may be made of such information, including an id tification of the types of persons to whom the isclosure may be made; (4) the period during whic such information might be maintained by the cable o erator; (5) the times and place at whi h the subscriber may have access to such informati in accordance with this Ordinance and other a licable Federal, State, and Local law. 7 . 11 M ITORING. Neither Grantee or its agents nor the City or i s agents, except for valid law enforcement purposes, shall ap or monitor, arrange for the tapping or monitoring, or p mit any other person to tap or monitor, any cable line, si nal, input device, or subscriber outlet or receiver for an purpose, without the prior written authorization of the fected subscriber or user, provided, however, that Grant may conduct system-wide or individually addressed eeps" solely for the purpose of verifying system integri , checking for illegal taps, controlling return-path tra mission, or billing for pay services. Grantee shall repo to the affected parties and all appropriate authorities any instances of monitoring or tapping of the Cable Communications System, or any part 32 thereof, of which it has knowledge, whether or not such activity h s been authorized by Grantee. Grantee shall not record or etain any information transmitted between a subscriber o user and any third party, except as required for lawful bus'ness purposes . 7 . 12 POLL G BY CABLE. No poll or other upstream response of a s scriber or user shall be conducted or obtained unless th program of which the upstream response is a part shall ntain an explicit disclosure of the nature, purpose and rospective use of the results of the poll or upstream res onse, or unless the program has an information, entertainm nt or educational function which is self-evident. Grantee r its agents shall release the results of upstream res onses only in the aggregate and without individual refer ces, unless so authorized in writing by the subscriber. 7.1i 7•rl3 PEOPLE METER. No people meter shall be used without the express written consent of the subscriber. 7 . 14 DI RIBUTION OF SUBSCRIBER INFORMATION. Grantee and its agents r employees, shall not provide to any third party, data iden ' fying or designating any subscriber either by name or addre s except as necessary to render a cable service or other s rvice provided by the cable operator to the subscriber, u less the Grantee first notifies the subscriber of such i tended use and the subscriber fails to timely object to such use. Allowance or authorization by a subscriber for such us may be withdrawn at any time by the subscriber or user by oviding written notice to Grantee. Grantee shall provide annual privacy notice to each subscriber or user rega ing the subscriber' s or user's right to withdraw the al wance or authorization. In no event shall such allowance authorization be obtained as a condition of service or c tinuation thereof, except as necessary to adequately prove e particular services. This Section shall not apply to ritten subscriber and user contracts . filed with Grantee a provided in Section 7 . 16 below. 7 . 15 INFORMATION WITH RESPE TO VIEWING HABITS AND SUBSCRIPTION DECISIONS. Grantee or its agents or employees shall not make available to any thi d party, including the City, information concerning the viewing habits or subscription package decision of any ' ndividual subscriber or household without obtaining the subscriber's prior written consent. If a court authori s or orders such disclosure, Grantee shall notify the s scriber within a reasonable time prior to such disclosure. For any sort of transmission to emanate from a subscribe 's residence or subscriber household, the subscriber must to a some positive action to activate such transmission. In the event the service requested by the subscriber by its n ture involves 33 the trans er of information or data from the subscriber or household, including without limitation, security services or data t nsfer, the ordering of the service shall be deemed to in lude the grant of permission by the subscriber or household or the making available of such information to such parties as is necessary for the provision of the service. Writ en permission shall be obtained from the subscriber prio to further dissemination or distribution by Grantee of such i formation. 7 . 16 SUBSCRI R AND USER CONTRACTS. It is stipulated and agreed by Gran e that Sections 7 . 10, 7. 11, 7 . 12, 7 . 13 and 7 . 14 above sh 1 be enforceable directly by every aggrieved subscriber r user and by every aggrieved person seeking to become a s bscriber or user. The City includes the above referenced ections as part of this Ordinance pursuant to both its governmental obligations to the residents and institutio s of Ithaca, including actual and potential subscribers and users, and as the representatives of such actual and potent. 1 subscribers or users. To this end, Grantee agreed to in ude the following provision in every contract or agreem nt between Grantee and any subscriber or user: The subscriber/user part of this contract, has certain rights of privacy prohibiting the unauthorized monitorin of service and publication of personal information under the control of (Name of Grantee) , includi g without limitation, information regarding rogram selections or service uses. (Name o Grantee) shall make available upon the request of the subscriber/user further description of said rights as established in its Ordinance and Franch• se with the City of Ithaca. Grantee further agrees that it w 1 not allege or content that any actual or potential subs iber or user may not enforce the above referenced Sections reason of lack of privity. 7,1Z *-.-1-7 CONVERTERS. Grantee shall utilize state-of-the- art converters. Grantee shall make conv ters a a.lable to subscribers for rent or purchase. Gra ee shall allow subscribers to purchase or rent converte from other vendors . Grantee shall provide detailed information written in "plain English" to consumers and sellers of converters on the items necessary for converter compatibility with Grantee's Cable Communications System. Subscribers shall only--}-e- daMA t " "• r• no's• be i �eftot, d � d��'� �0 J,d r�� o� � �,13 .2.48r- INTERNAL WIRING. Grantee shall install and/or maintain internal wiring for subscribers. Grantee may own the internal wiring or, at the subscribers discretion, the subscriber may own the wiring. Grantee shall allow subscribers or other vendors o inii 11, wn, nd/or' maintain in rnal wi ing S��I �' �:{to 10 f�i�r ace►'�r �L EMOTE ONTROLS. Grantee s all ma a re ot� ' it. control units available to subscribers to purchase or r Grantee shall allow subscribers to purchase or rent remote control units from other vendors. Grantee may provide remote control units to subscribers at no charge as a part of its package of services . Grantee shall provide detailed information written in "plain English" to consumers and a47i- (� sellers of remote controls on the items necessary for a compatibility with Grantee's Cable Communications System. Subscribers shall only be required to replace remote control units rented from the Grantee if there has been willful destruction or damage caused by the gross negligence of the subscriber. INFe scriber sha all +-hat !'rantAa -ol l eets or fftet+nte+n5 or-._��SATS t� p r un i i4.*€ermatieft -eeneernifl.Ej b -Cri viewing .habition for bil:l±ny � , oye wi in sixrr str . 745' ,W-� PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. '.3 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS 35 `��-r1K l v11 ✓I tef" t�l 8. 1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communications System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places . The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City pursuant to local regulation, provided, however, Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8.2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8.3 PRIVATE PROPERTY. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications System at its sole cost and expense. 8.4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8 .5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as approved by the City. 36 8 . 6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the telephone and electric utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and/or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable) . 8.7 CITY PROPERTY. Where any damages or alterations occur to the City's water, sewage or drainage lines or to any other municipal structures in the streets during the construction due to the presence, negligence, operation or maintenance of the Cable Communications System, the sole cost of such repairs including all services and materials will be billed to the Grantee and these charges shall be paid within 60 days of receipt of notice or the City may foreclose on performance bonds, or invoke other appropriate sanctions provided for in this Ordinance. 8.8 TEMPORARY RELOCATION. Grantee shall temporarily raise or lower its wires or other equipment upon the reasonable request of any person, including without limitation, a person holding a building moving permit issued by the City. The expense of such raising or lowering shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given reasonable notice necessary to maintain continuity of service. This provision shall not apply to requests by the City for which movement there shall not be a charge by the Grantee �r C� plkrpo se s 8 .9 CITY MAPS. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures . In public-rights-of- ways, where necessary, the location shall be verified by excavation. 8 . 10 CONSTRUCTION NOTICE. Grantee shall give appropriate notice to the City and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than seven (7) days before such commencement. 8 . 11 SAFETY AND CONSTRUCTION STANDARDS. The construction, installation, operation, maintenance, and/or removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards . 37 t J Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State, and Municipal Construction Requirements, including FCC Rules and Regulations Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8. 12 CONTRACTORS AND SUBCONTRACTORS. All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be s responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantee' s Cable Communications System. 8 . 13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or installation by the Grantee of any towers, 01' >Ne poles, underground conduits, or fixtures for use connection with initial construction, rebuild, arr upgrade of the Cable Communications System under this Ordinance, the Grantee shall make available for City approval a concise description of the facilities proposed to be erected or installed, includings, if required, together with a map and plans indicating the proposed location of all such facilities. proval by the City shall not be unreasonably withheld and hall be completed in a timely manner. S*"0.qd, k"r6 �(*v f l� ie Grantee shall allow a City selected engineer to inspect such information, maps and plans for five business days in the Grantee's office. Prior to the five days,, the Grantee shall give the City thirty (30) days prior notice?In 4 The Grantee shall accommodate reasonable scheduling V)jjt be f modifications . If the Grantee makes a material change in Q,da,j IQL any part of the system design, the City shall be notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee's office 4 Fri—tee—eRt-ers ' , the Grant 51 No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until 38 approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8 . 14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified in the Franchise, (e.g. , amplifiers, cable, antennas) . 8. 15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial establishments within thirty (30) days of a request for such service and the receipt of any applicable City, State, Federa ano, utilityjcmypny permits taof pOU'ViS �laidlort orow enAc b (64"44 a. 8. 16 ERECTIOS, REMOVAL AND COMMON USF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to make use of the poles or other wire-holding structures of the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee's operation. 8. 17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at anytime all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and tests . 39 8. 18 CONSTRUCTIONtREPORTING REQUIREMENTS. A. Within irty (30) days of the granting of a Franchise pursua to this Ordinance, the Grantee shall have applied for ny necessary agreements, licenses, or certifications shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process . 8. 19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8 .20 INITIAL PERFORMANCE TEST. Initial proof of performance testing shall occur within sixty (60) days prior to the commencement of the Cable Communications System service to each section of the City as set forth in the Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test shall be borne solely by Grantee. 8.21 ANNUAL PERFORMANCE TEST. Performance requirements and standards specified in the Franchise, shall be measured annually to ensure compliance with same. The costs of such tests shall be borne by Grantee. SECTION 9 MAINTENANCE AND INSPECTION 9 . 1 GENERAL. Grantee shall maintain wires, cables and all other real and personal property and facilities constituting the Cable Communications System in good condition, order and repair at all times during the term of the Franchise. 9 . 2 MAINTENANCE LOG. Grantee shall maintain an annual log showing the date, approximate time and duration, type and probable cause of all Cable Communications System outages, whole or partial, due to causes other than routine testing or maintenance. The entries in such log shall be retained by Grantee for one ( 1 ) additional year and shall be subject to inspection and copying by the City or its designee during Grantee's regular business hours upon reasonable request. 9 . 3 SERVICE INTERRUPTION. Except where there exists an emergency situation necessitating a more expeditious procedure, Grantee may interrupt service for the purpose of repairing, upgrading or testing the Cable Communications 40 AUG Q 1987 System, only during periods of minimum use, and only after a minimum of twenty-four (24) hours notice to affected subscribers . 9 .4 RADIATION MONITORING. Radiation monitoring shall be conducted by all maintenance technicians on an ongoing basis. The results of said monitoring shall be made available to the City upon request. SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10 . 1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR_ 76.311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. 10.2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and various minority groups to advance and win promotions in all categories of employment. As part of its obligation under Section 10. 1 above, Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the Cable Communications System minorities and females as set forth in the Franchise. Grantee shall submit to the City annual EEO reports required by the Federal Communications Commission. SECTION 11 BOOKS, RECORDS, AND REPORTS 11 . 1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR. A. BOOKS AND RECORDS. The City reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like material, of the Grantee, upon reasonable notice and during normal business hours . B. AVAILABILITY OF RECORDS . If any of such maps or records are not kept in the City, or upon notice the Grantee is unable to provide the records in the City, and if the City shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by Grantee. 41 r 11 .2 REPORTS REQUIRED. The Grantee shall file with the City: A. REGULATORY COMMUNICATIONS. All reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commi sn, bell' (FCC) related to the City of Ithac ,�, r �G � a D� "'moir,�A S OS G✓t�rS B. FACILITIES REPORT. An annual report settin forth the physical miles of plant construction and p ant in operation during the fiscal year shall be submitte to the City. Such report shall also contain any revision to the system "as built" maps filed with the City T�"^ f'rant-cn�c cnhAri.,10 ..�) ,.•, .. --_ c regu ar subscriber se P / d sand r.ec a s a op a as e's witby pos a in l��al cam€-icP` A_] t such des ��d eead��e�re ,• a , an hereof o 1.7.cahle—�tt'F c aiiu i v .,—��AA r„1 P or requlatie l Ae- e, f0V1,dd C ,Z- PROOF OF BONDS AND INSURANCE. Grantee shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this Ordinance, or certified copies thereof, and written notice of payment 10' required premium. Of FINANCIAL AND OWNERSHIP REPORTS. The following financial reports specified in the Franchise shall be submitted annually to the City. ( 1) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the Franchise of five percent 5$) or more. o� ann r �. (2) Y; the and nue--n -_shaxs eut.�+ igT—ash amn„nt ara ..,,aractz of indebtedness, if ant, th ed. (3) A report on the placement of any limited partnership offering, if any, including the amount subscribed and the amount paid in. 42 �, �.��,� �►,�tt�G,9�.� is aske�v��r��e �tit� r� incre�.ae, (4) I the r;+ r�����, the Grantee shall provide an annual, system-wide and City-only, certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non- subscriber revenue, line item operating expenses, capital expenditures statement, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule. The City-only statements shall be on an allocated basis and the Grantee shall provide the City with the assumptions utilized in making the allocations . (5) An annual, City-only, certified income statement. (6) An annual list of officers and members of the Board of Grantee's and of any parent corporation. IF. OPERATIONAL REPORTS. The following system and operational reports shall be submitted- annually jt9 the Ci y• 1N ` a o ,f aphua. f mkhlu_ - �// �,� of ''fest '� .— �8 r Q S SLt tuJOW' (2 ) An annual summary of the previous ar y 's activities including, but not limited to, subscriber totals for each category of service offered including number of pay units sold, new services offered, and the character and extent of the ,se rt � � vice re deed other u ers of ���hhe s7stemy ne,e�pie � (3) An annual summary of service requests and complaints received and handled. (4) An annual summary of the number of outages. (5) An annual summary of liquidated damages and other penalt' es outsta ding or aid. A� an i o au r `►re ar Vd441t ' G. ADDITIONAL REPORTS. TGraPkt( s i� ee �11 � furnish to the City , such additional raperts with respect to its operation, affairs, transactions property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or dutie of the City in connection with this Ordinance or the Franch i,n�� ' '• �r��� 11 . 3 RECORDS REQUIRED. A. MANDATORY RECORDS. The Grantee shall at all times maintain:. ( 1) A record of all complaints received and interruptions or degradation of service experienced for the preceding period pr or to performance review, cMQS m�lkmi 4iA�h (2 ) A full and complete set of plants, records and "as built" maps showing the exact location of all c0able installed or in use in the City, exclusive of subscriber service drops. 13. 4nab_le r , SECTION 12 MISCELLANEOUS PROVISIONS 12. 1 CAPTIONS. The captions to sections throughout the Franchise are intended solely to facilitate reading and reference to the sections and provisions of the Franchise. Such captions shall not affect the meaning or interpretation of this Ordinance. 12 .2 SEVERABILITY. If any section, sentence, paragraph, term or provision of this Ordinance is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction upon final adjudication or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect. 12 . 3 GRANDFATHER RIGHTS. Nothing contained in this Ordinance shall be construed to deprive Grantee or the City of any "grandfather" rights in any future amendments to any statute or regulation. s e%lstea a} the ti:me the --Fra rehls Any such Franchise, however, shall be subject to such regulations the City finds necessary to adopt in the exercise of -. its police power, provided that such regulations are reasonable and do not materially conflict with the privileges granted in the Franchise. 12 .4 NOTICE. Every notice to be served upon the City shall be sent by certified mail, postage prepaid, to the City. Every notice to be served upon Grantee shall be sent by certified mail, postage prepaid, to Grantee at its Ithaca office. 44 f. 12 .5 FORCE MAJEURE. If by reason of force majeure either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State of New York or any of their departments, agencies, political subdivision, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions. 12 . 6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO WAIVER OF THE TERMS THEREOF. The Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 45 yc�qltp?EO`00 CITY OF ITHACA l oe EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE' 272-1713 CITY ATTORNEY CODE 607 September 22, 1988 Daniel J. Danser, Vice President American Television Communications 160 Inverness Drive West Englewood, CO 80112 Re: Ithaca Cable Ordinance Dear Dan: The latest draft of the Cable Ordinance was reviewed by the Charter and Ordinance Committee of Common Council on September 15, 1988. As an outgrowth of that review I would make two proposals: 1. The current draft of the Ordinance retains the definition of "transfer" under Section 3 . 51 but deletes reference to this word in Section 4. 13 (B) . We would propose to add to Section 4. 13(B) the sentence "Change in control means transfer. " 2. Council members were concerned that deletion of some sections of the Ordinance would not imply a legislative expression of denial. I have drafted the enclosed memo to deny this implication, which memo would be included in the minutes of Councils actual consideration of the proposed amendments. Please let me know if you have any concerns regarding these matters. Common Council will consider passage of the Cable Ordinance amendments at its regularly scheduled meeting on Wednesday, October 5th. Yo eery truly, `Zc Ral W Nash City At orney RWN:blh enc. cc: Michael Withiam Charter & Ordinance Committee Members Jean Rice �1T �'. IM a_ S CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY CODE 607 MEMORANDUM TO: Mayor Gutenberger All Alcjermen FROM: Ra ash, City Attorney DATE: September 22, 1988 RE: Cable Ordinance Amendments The proposed Cable Ordinance Amendments were reviewed by the Charter and Ordinance Committee of Common Council on September 15, 1988. Certain provisions are being deleted from the Ordinance by these proposed amendments. This memo will confirm the intention of the Committee and myself as legal counsel that the following deletions were made only in order to make the Ordinance neutral with regard to the items in question and not to indicate a legislative denial of their provisions: Former Section 4 .7 "Police and Regulatory Powers Reserved. " Former Section 5. 12 "Right to Purchase. " Section 5. 2 "Regulatory Authority" - Former Subdivision (7) regarding promulgation of rules and regulations applicable to the terms of the Ordinance and Franchise. RWN:blh enc. cc: Jean Rice 1 14 . CHARTER AND ORDINANCE COMMITTEE - AGENDA ITEM - 14 . 9 ORDINANCE NO. 88- AN ORDINANCE AMENDING CHAPTER 64 ENTITLED "CABLE COMMUNICATIONS" OF THE CITY OF ITHACA MUNICIPAL CODE. BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New York, as follows: Section 1. That Chapter 64 entitled "CABLE COMMUNICATIONS" of the Ithaca Municipal Code is amended to read in its entirety as attached hereto. Section 2. This ordinance shall take effect immediately and in accordance with law upon publication of a notice as provided in section 3 . 11 (B) of the Ithaca City Charter. DRAFT #8 July 31, 1987 June 15, 1988 - August 26, 1988 ITHACA, NEW YORK ORDINANCE SECTION 1 PURPOSE The City of Ithaca finds that the development of Cable Communications has the potential of having great benefit and impact upon the people of Ithaca. Because of the complex and rapidly changing technology associated with cable communications, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in . the City or such persons as the City shall designate. It is the intent of this Ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any Franchise issued pursuant to this Ordinance shall be deemed to include this finding as an integral part thereof. Further, it is recognized that Cable Communications Systems have the capacity to provide not only entertainment and information services to the City's residents, but can provide a variety of interactive communications services to institutions and individuals. Many of these services involve City agencies and other public institutions, by providing governmental, educational or- health care communications. For these purposes, the following goals underlie the regulations contained herein: (a) Communications services should be available to the maximum number of City residents. (b) The Cable Communications System should be capable of accommodating both the present and reasonably foreseeable future communications needs of City. (c) The Cable Communications System should be improved and upgraded if necessary during the Franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities. (d) Any Cable Communications System authorized by this Ordinance :and the Franchise shall be responsible to the needs and interests of the local community, and shall provide a wide diversity of information sources and services to the public. t � T J (e) That the public, educational, and governmental needs for access to the Cable Communications System are met. _ SECTION 2 TITLE OF ORDINANCE This Ordinance shall be known and may be cited as "Ithaca Cable Communications Regulatory Ordinance, " and it shall become a part of the Ordinances of the City. This Ordinance shall take effect and be in force from and after its passage and publication of a notice as provided by section 3 .11 of the Ithaca City Charter. That all Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 3 DEFINITIONS For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3. 1 ACCESS CHANNELS means channels (6MHz each) set aside for public use, education use or governmental uses with no charge for usage by ACC. Access channels designed for public use shall be available on a nondiscriminatory basis. 3 . 2 ADDITIONAL SERVICES means programming or services for which an additional charge is made beyond the charge for Basic Subscriber Services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per-view program, interactive services, and any other service utilizing any facility or equipment of a Cable Communications System operating pursuant to a Franchise granted under this Ordinance. 3 . 3 AFFILIATE means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, control or a controlling interest in the Grantee; (b) each person in which the Grantee has, directly or indirectly, control ora controlling interest; (c) each office, director, general partner, joint venturer or joint venturee partner, of the Grantee; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to the Grantee by common ownership, common management, or common control; provided AFFILIATE shall in �no event mean: 2 5 t Y � (a) the City; (b) any duly authorized PEG Access Organization; (c) any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or (d) , any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated person by reason of owning controlling interest in, being owned by, or being under common control with, the Grantee. 3 . 4 BASIC SUBSCRIBER RADIO SERVICE means such audio services as the re-transmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC. 3 . 4 BASIC SUBSCRIBER TELEVISION SERVICES means the definition promulgated by the Federal Communications Commission, or if such definition *is not forthcoming from the Federal Communications Commission it shall mean all subscriber services provided by the Grantee in one or more service tiers, including the delivery of broadcast signals, public, educational and governmental access channels, and local origination channels, covered by the regular monthly charge paid by all subscribers to a particular service tier including subscriber terminal charges and related deposits. 3 . 5 CABLE COMMUNICATIONS SYSTEM, also referred to as "system, " means a facility, consisting of a ,set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such _ facility or facilities uses any Public-Rights-of-Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (d) any facilities of any electric utility used solely for operating its electric utility systems. 3 . 6 CITY means the City of Ithaca, New York. 3 t 3 .7 CHANNEL means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. a 3 . 8 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3 . 9 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession. 3 . 10 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3.11 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3.12 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. 3. 13 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. 3 .14 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations. 3 . 15 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 3 . 16 DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal. 3 . 17 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL means any channel where educational programs are the only designated use. The educational access channel(s) shall only be used for non-commercial purposes. 3 . 18 FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. 4 3 . 19 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3.20 FRANCHISE means a Franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the Franchise granted, including referenced specifications, Franchise proposal, applications and other related material. Any Franchise granted pursuant to this Ordinance grants the nonexclusive rights to construct, operate and maintain a Cable Communications System along the Streets and Public Grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. 3 . 21 FRANCHISE AREA means the entire City. 3 .22 FRANCHISE FEE means the percentage, as specified by the City, of the Grantee's gross revenues from all sources payable in exchange for the rights granted pursuant to this Ordinance and the Franchise Agreement. 3. 23 FRANCHISEE OR GRANTEE means the natural person(s) , partnership(s) , domestic and foreign corporations(s) , association(s) , joint venture(s) , or organization(s) of any kind which has been legally granted a Franchise by the City, and its lawful successor, Transferee or Assignee. 3 . 24 GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government use. The municipal access channel(s) shall only be used for non-commercial purposes. 3 . 25 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction. 3 . 26 GROSS ANNUAL REVENUES means all revenue derived directly or indirectly by the Grantee, and revenue derived directly or indirectly through services provided via the Cable Communications System by Grantee's affiliates and subsidiaries in which the Grantee has a financial interest. 3 . 27 INQUIRY BY SUBSCRIBER means a request for general information about the Grantee's operation, services, programming, and/or rates. I 3 . 28 INSTALLATION shall mean the connection of the system from feeder cable to subscribers' terminals. 5 • f 3 . 29 INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not - limited to, one-way video, two-way video, audio or digital signals among institutions to residential subscribers. 3 . 30 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the Grantee, at rates in accordance with the Cable Act. 3 . 31 LOCAL ORIGINATION means programming produced or purchased by the Grantee (e.g. , advertisements, news, programming with advertising) which is under the control of the Grantee. Local origination is specifically not to be construed as public, governmental, or educational access. 3 . 32 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 3 . 33 MONITORING means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever. 3 . 34 NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers. 3 . 35 PERSON means an individual, partnership, association, organization, corporation or any lawful successor Transferee of said individual, partnership, association, organization or corporation. 3 . 36 PLANT MILE means a linear mile of strand-bearing cable as measured on the street of easement from pole to pole or pedestal to pedestal. 3 . 37 PROGRAMMER means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of the Cable Communications System. 3 . 38 PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL or COMMUNITY CHANNEL means any channel designated or dedicated from use by the general public or noncommercial organizations which is made available for use without charge on a first-come;: first-served, nondiscriminatory basis. The public access channel(s) shall only be used for non- commercial purposes. 6 t 3 . 39 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. _ 3 . 40 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC GROUNDS means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public-rights-of-way or hereafter held by the City which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Cable Company Communications System. No reference herein, or in any Franchise, to the "Streets and Public Grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. 3 . 41 REASONABLE NOTICE shall be written notice addressed by either party at its principal office within the City or such other office as the Grantee has designated to the City as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than ten ( 10) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. 3 . 42 RESIDENT means any person residing in the City as otherwise defined by applicable law. 3 . 43 RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. 3 . 44 SALE shall include any sale, exchange, barter or offer for sale. 3 . 45 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, . colleges and universities, both public and private. 3 . 46 SERVICE AREA means the entire geographic area within the Franchise territory. 3 . 47 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 3 .48 STATE means the state of New York. 7 3 . 49 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3 . 50 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other System Facilities located outside the City limits. 3 . 51 TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of five percent (5%) or more at one time of the ownership or controlling interest in the Cable Communications System, or twenty percent ( 20%) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. 3 . 52 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers. 3 . 53 UPSTREAM SIGNAL means a signal originating from a terminal to another point in the Cable Communications System including video, audio or digital signals for either programs or other uses such as security alert services, etc. 3 .54 USER means a person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. SECTION 4 GRANT OF FRANCHISE 4 . 1 GRANT OF FRANCHISE 8 e A. GRANT OF AUTHORITY. Pursuant to the authority of the Charter of the City and subject to the terms and conditions set forth herein, the Common Council of the City of Ithaca can grant revocable and non-exclusive Franchises, acting pursuant to the City's applicable Charter provisions, Ordinances, rules and regulations to construct and operate a Cable Communications System in, under, over, along, across or upon the Streets and Public Grounds within the City of Ithaca for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of a audio, video, data, or other signals and for the development of broadband telecommunication services in accordance with the laws of the City of Ithaca, the State of New York, and United States of America. In the event that City shall grant to the Grantee a nonexclusive, revocable Franchise to construct, operate, and maintain a Cable Communications System within the City, said Franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as regulated by the provisions of this Ordinance and the Franchise. The Franchise shall include by reference those provisions of the Grantee's proposal that are finally negotiated and accepted by the City and Grantee. B. NON-INTERFERENCE. In exercising rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons, interfere with any installations of the City, any public utility serving the City or any other person permitted to use the Streets and Public Grounds nor unnecessarily hinder or obstruct the free use of the Streets and Public Grounds. The grant of one Franchise does not establish priority for use over the other present or future permit or Franchise holders or the City's own use of the Streets and Public Grounds. The Common Council of the City shall at all times control the distribution of space in, over, under or across all Streets or Public Grounds and occupied by the Cable Communications System. All rights granted for the construction and operation of the Cable Communications System shall be subject to the continuing right of the Common Council to require such reconstruction, relocation, change of discontinuance of the appliances used by the Cable Communications System in the streets, alleys, avenues, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. C. NON-EXCLUSIVITY. Any Franchise is non-exclusive and shall not affect the right of. the Common Council to grant to any other person a grant or right to occupy or use the streets or portions thereof, for the construction and operation of a Cable Communications System within the City or the right of the City to permit the use of the Streets or Public Grounds or of the City for any purpose whatever. No privilege or power of eminent domain is bestowed on Grantee by the grant of a Franchise. 9 D. COMPLIANCE WITH CITY ORDINANCES. Any Franchise granted by the City is hereby made subject to the general Ordinance provisions now in effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4. 2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances. 4 . 3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4 . 4 FRANCHISE TERRITORY. The Franchise territory shall be the entire City, or portions thereof, for which a franchise is granted under authority of a franchise agreement. The service area shall be the entire territory defined in the franchise agreement. 4 . 5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided in the Franchise. The value of the Franchise at the end of the term shall be zero and no property right shall be conferred by the Franchise itself. 4 . 6 FRANCHISE REQUIRED. No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 4 .7 CITY'S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or 10 � t carry on, directly or indirectly, any public works or public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. 4. 8 EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the Cable Communications System, the City shall have the right to do so at the sole cost and expense of Grantee. 4. 9 REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property. Restoration shall be made in as good a condition or better. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. 4 .10 REMOVAL OR ABANDONMENT. Upon termination of the Franchise by passage of time or otherwise, and unless Grantee transfers the Cable Communications System to a subsequent Grantee approved by the Common Council, Grantee shall remove its supporting structures poles, transmission and distribution systems, and all other appurtenances from the Streets and Public Grounds and shall restore the areas to as good a condition or better. Such removal shall be made so as not to conflict with public health, safety or convenience. Removal shall be completed within twelve (12) months after such termination. At that time the City may deem any property not removed as having been abandoned. Such property may then by removed at the option of the City at Grantee's expense less any recoverable salvage value. 4.11 NO WAIVER OF RIGHTS. No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contravention of such rights except to the extent expressly waived by the City or expressly provided for in the Franchise. 11 4 . 12 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to the Franchise shall ' be used solely in connection with the construction, operation or maintenance of the Cable Communications System or the Grantee' s performance of the terms, obligations, and conditions of this Ordinance and the Franchise. 4. 13 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City. B. TRANSFER OF CONTROL OR OWNERSHIP. The Grantee shall promptly notify the City of any actual or proposed change in control of the Grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantee. City consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry. Failure to provide all transfer related information reasonably requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such 12 transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant is satisfactory, the City will transfer and assign the rights and obligations of such Franchise as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld. E. NO WAIVER OF RIGHTS. The consent or approval of the City to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the Franchise. F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the Franchise prior to completion of construction of the proposed system. G. FRANCHISE SIGNATORY. Any approval by the City of transfer or ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the Franchise. H. TIMEFRAME. The City shall act on a request to transfer the Franchise within 120 days of the Grantee' s presentation to the Common Council requesting a transfer or assignment. The City's approval of any transfer or assignment shall not be deemed an approval of the purchase price. SECTION 5 REGULATION OF FRANCHISE 5 . 1 GENERAL. The City shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable law. This authority shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise granted hereunder, and to carry- out the City' s responsibility with regard to cable communications. The City may from time to time adopt such reasonable rules and regulations that it may deem necessary in the exercise of its municipal powers. 5. 2 REGULATORY AUTHORITY. The City shall have the responsibility for the administration and enforcement of this Ordinance and the Franchise, including but not limited to the following duties, powers and authority which may be delegated at its discretion: ( 1) To administer and/or enforce all provisions of the Ordinance, and any Franchise granted hereunder. 13 T ( 2) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the - Franchise or any applicable law or regulation to correct the service deficiencies. ( 3 ) To represent the City' s interest before local, state or federal government agencies in cable communications matters. ( 4) To receive, evaluate and file all data and reports required by this Ordinance and to rule on such matters as appropriate under the Ordinance and State and Federal law or regulation. The City is hereby authorized to require adjustment to any fee, bond or insurance coverage or amount or charge contained herein not more frequently than bi- annually without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjust- ment. Inflation shall be calculated in accordance with the regional Consumer Price Index. ( 5) To inspect at any time all construction, installation, and ongoing operation of the Cable Communications System, and to make such tests as it reasonably deems necessary to ensure compliance with the terms of this Ordinance, and the Franchise and other applicable laws and regulations. (6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. (7) To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. ( 8) To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and recommendations thereto. ( 9) To monitor Grantee' s adherence to operational standards and service requirements. 14 5. 3 PERFORMANCE EVALUATION. The City and Grantee shall, at the discretion of the City, hold annual performance evaluation sessions. All such evaluation - sessions shall be open to the public. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance, Grantee compliance with this Ordinance and the Franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, and judicial and FCC filings. Grantee shall notify its subscribers of all evaluation sessions by announcement on at least one channel of its Cable Communications System between the hours of seven (7) p.m. and nine ( 9) p.m. , for five ( 5) consecutive days preceding each session. During review and evaluation Grantee and the City shall fully cooperate with each other and shall provide such information and documents as each may reasonably need to perform its review. 5.4 RESPONSE TO CITY INQUIRIES. In accordance with the terms of this Ordinance and the Franchise, the City may, at any time, make reasonable inquiries concerned with the management and affairs of the Cable Communications System. Grantee shall respond to such inquiries in a timely fashion. 5. 5 QUALITY OF SERVICE. Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require Grantee to test, analyze, and report on the performance of the Cable Communications System. Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: ( 1) the nature of the complaint or problem which precipitated the special tests; ( 2) the system component or area tested; ( 3 ) the equipment used and procedures employed in testing; ( 4 ) the method, if any, in which such complaint or problem was resolved; and ( 5) any other information pertinent to said tests and analysis which may be required. 15 The City may require that tests be supervised or conducted by a City staff member or a professional engineer who is not an employee or agent of the Grantee. Grantee shall reimburse the City for the costs of such engineer if the tests performed shows that the quality of service is below the standards set forth in this Ordinance or the Franchise. 5. 6 LIQUIDATED DAMAGES. For the violation of any of the following provisions of this Ordinance, the City shall notify the Grantee in writing of the violation, and the Grantee shall be allowed not less than thirty (30) days, or such greater amount of time as the City may specify, to correct such violation. In the event the Grantee fails to correct the violation, the City will be entitled to collect liquidated damages according to the schedule listed below. Such liquidated damages if not paid by the Grantee, shall be chargeable, to the extent available, to the letter of credit or bond tendered by Grantee within the aforesaid period of time. These liquidated damages shall be in addition to and not a limitation upon the other penal provisions of this Ordinance, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies. (1 ) For failure to complete construction and installation in accordance with the Franchise, $100. 00 per day. ( 2) For failure to submit reports or supply data in accordance with this Ordinance, $10. 00 per day for each day that such noncompliance continues. ( 3 ) For failure to test, analyze and report on the performance of the Cable Communications System in accordance with this Ordinance above, $25. 00 per day for each day, or part thereof, that such noncompliance continues. (4) For failure to provide the capital equipment, and facilities, and services for public, educational and governmental access, as specified in the Franchise, $75.00 per day, or part thereof, that such noncompliance continues. The City retains the right, at its sole option, to reduce or waive any of the above-listed penalties where extenuating circumstances or conditions beyond the control of the Grantee are deemed to exist. The Common Council or its designee shall determine the City's willingness to reduce or waive any of the above-listed penalties. 16 5.7 CONSUMER REMEDIES. In order to promote compliance with this Ordinance and the Franchise, cable communications subscribers under the Franchise shall have the following rights and remedies in addition to any other remedies which may be available as a matter of law or equity to subscribers or others affected by the acts or omissions of the cable company. For example, this section is not meant to limit remedies available to subscribers under applicable laws governing consumer fraud or to limit remedies which may be available if as a consequence of the acts or omissions of the Grantee a resident loses utility services. Similarly, the remedies specified are not meant to limit any authority subscribers may have to enforce other terms of the Franchise against the Grantee. This section is in addition to any damages, remedies or . other action which the City may take pursuant to its rights under the Franchise, or pursuant to its general police powers, or in the exercise of its rights under cable consumer Ordinances or regulations which exist now or may be adopted during the term of this Ordinance. ( 1) If the Grantee fails within ten days to pay a submitted repair bill on any damage it causes to property (including damage which occurs during the course of stringing or burying cable or repairing cable) , the owner of the property shall be entitled to recover treble damages, and in any event no less than $100, for the period when the property remains in such unrepaired or unsafe condition. The Grantee shall be deemed to have left the property in an unrepaired or unsafe condition if the Grantee fails to repair damage to the property or to eliminate the unsafe condition within 24 hours after causing such property to be damaged or after creating the unsafe condition. (2) If the Grantee fails to provide any notice which may be required by the City, the subscriber shall be entitled to recover treble damages for such failure. ( 3 ) If the Grantee violates the privacy rights of any subscriber the subscriber shall be entitled to receive treble damages, and in any event no less than $500, for each such violation. ( 4) In any event where the City determines that the Grantee has improperly discriminated in its rates and charges for service, the City after giving the Grantee notice of Hearing and an opportunity to be heard, shall identify the applicable non- 17 discriminatory rate; the subscribers which have been adversely affected by the discrimination shall be entitled to a refund equal to treble any amounts paid over the nondiscriminatory rate plus interest at the prime rate. ( 5) The Grantee shall keep a record of the date and time it receives requests for service which require it to obtain access to the home of a subscriber or potential subscriber, and shall also keep a record of the appointments made with such subscriber or potential subscribers to provide service. Any occasion on which the Grantee or its agent does not cancel the appointment with the subscriber and fails to arrive at the home of the subscriber or potential subscriber during the appointment period shall be considered a missed appointment. The subscriber or potential subscriber with whom the appointments were missed shall be entitled to $50 damages for each appointment missed. ( 6) If the Grantee fails to substantially follow the procedures for disconnecting a subscriber, as set forth in this Ordinance and/or the Franchise, the subscriber who was improperly terminated shall be entitled to receive treble damages. (7 ) If a cable subscriber does not receive service for more than a four hour period, the affected subscriber shall be entitled to recover treble damages. In addition to the foregoing, if any subscriber is required to bring judicial proceedings to enforce his/her rights and remedies set forth herein, and is ultimately successful in such judicial proceedings, then that subscriber is entitled to recover all reasonable attorney's fees and expenses incurred in the prosecution of such judicial proceedings as fixed by the Court. Notwithstanding anything herein to the contrary, if the Grantee notifies the subscriber in writing not less than ten days before the initial appearance in any judicial proceeding that it will not use an attorney in that proceeding, and thereafter does not use an attorney, then the subscriber should not be entitled to recover any attorney fees and expenses. 5. 8 DETERMINATION OF BREACH. In the event that the City has reason to believe that Grantee has defaulted in the performance of any provision of this Ordinance or the Franchise 18 except as excused by force majeure, the City shall notify Grantee in writing of the provision or provisions which the City believes may be in default. Grantee shall have thirty ( 30) days from the receipt of such notice to: (i) respond to the City in writing, contesting the Grantor's assertion of default and providing such information or documentation as may be necessary or; (ii) to cure any such default or, in the event that, by nature of the default, such default cannot be cured within such thirty ( 30) day period to take reasonable steps to cure the default and diligently continue such efforts until said default is cured. Grantee shall report to the City in writing, at thirty ( 30) day intervals as the Grantee' s efforts, indicating the steps taken by Grantee to cure the default and reporting Grantee' s progress until such default is cured. In the event Grantee fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing the Grantee may be heard and after which the City shall specify the complaint against the Grantee; thereafter the City shall appoint an impartial person to act as factfinder who shall fix a date for a hearing at which evidence shall be received and a record kept of evidence of the complaint. The factfinder shall report in writing to both parties with his or her findings of fact. The Common Council shall make a finding of violation or no violation based on those findings. In the event that the City determines that Grantee is in default of any such provision of this Ordinance or the Franchise, the City may also determine to pursue any or all of the following remedies: (a) foreclose on all or any part of the security provided pursuant to this Ordinance, including without limitation the performance bond and/or the letter of credit; provided, however, the foreclosure shall be in such amount as the City reasonably determines is necessary to remedy the default and shall include payment of all City expenses incurred in connection with the fact- finding hearing. (b) commence an action at law for monetary damages, including the expenses of the fact-finding hearing. (c) declare the Franchise to be revoked and order Grantee to commence the removal of the Cable Communications System immediately or to cooperate 19 with the City, or any such agency or person authorized or directed by the City to operate the Cable Communications System for a one year period, in maintaining the continuity of service; and (d) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. The Grantee may seek recourse as available by law or regulation. 5.10 NON-EXCLUSIVITY OF REMEDY. No decision by the City to invoke any remedy under this Ordinance or under any statute, law or Ordinance shall preclude the availability of any other such remedy. 5. 11 JURISDICTION. Exclusive jurisdiction and venue over any dispute, action or suit arising therefrom shall be in any court of appropriate subject matter jurisdiction located in the State of New York and the parties by this instrument subject themselves to the personal jurisdiction of said court for the entry of any judgment and for the resolution of any dispute, action, or suit arising in connection with the entry of such judgment. 5 . 12 NOTIFICATION. Grantee shall file with the City schedules which shall describe all services offered by Grantee, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, Grantee shall file with the City all changes in services, all rates and charges of any kind, and all terms and conditions relating thereto thirty ( 30) days prior to all such changes. No rates or charges shall be effective except as they appear on a schedule so filed. 5. 13 FREE CONNECTIONS. Grantee shall provide upon request and free of charge the drops set forth in the Franchise. Grantee shall discuss the location of each connection with the proper officials of each such institution receiving free connection. 5.14 PUBLICATION. All rates for subscriber services and leasing of channels shall be published. A written schedule of all rates shall be available upon request during business hours at Grantee' s business office and all other facilities. Nothing in this Ordinance shall. be construed to prohibit the reduction or waiver of charges for attracting subscribers, or the establishment of charges and rate schedules that may vary with volume or nature of usage or programs. 20 5. 15 CREDIT FOR SERVICE INTERRUPTION. In the event that Grantee's service to any subscriber or user of leased channel space is interrupted for twenty-four ( 24) or more - consecutive hours, Grantee shall, in addition to any remedy set forth in section 5.7 , grant expeditiously such subscriber or user a pro-rata credit. 5. 16 RATE REGULATION. To the extent that Federal or State law or regulation may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law for the first tier of service. For other tiers of service that may be included in the Basic Subscriber Television Service, for which the City shall have the right to exercise rate regulation, the City and the Grantee shall negotiate the rate for the service. When exercising rate regulation, the City shall consider, along with any other information it deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: the ability of the Grantee to render Cable Communications System service; the efficiency of the Grantee; the quality of the service offered by the Grantee; the fair value cost of the Cable Communications System less depreciation; a fair rate of return over the life of the Franchise with respect to Grantee's investment; the financial commitments required to meet the terms of this Ordinance and the Franchise; the extent to which Grantee has adhered to the terms of this Ordinance; fairness to City residents, subscribers and users. The approval by the City of any purchase price herein shall not obligate the City to consider that purchase price as the fair value cost for rate regulation purposes or otherwise. The City may retain rate consultants as it deems appropriate. 5. 17 FRANCHISE FEE ENTITLEMENT. The City of Ithaca shall be entitled to receive from Grantee a Franchise fee of five percent ( 5%) of Grantee 's Gross City Revenue. 5.18 PAYMENT. The Franchise fee established in 5.19 above shall be tendered as follows: (i) Five percent (5a) of Grantee' s Gross City Revenue for successive three ( 3 ) month periods tendered within - forty-five ( 45) days after each such period. Said periods shall commence upon the execution of a Franchise granted pursuant to this Ordinance. 21 5. 19 FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT. Grantee is required to reimburse the City for the expenses of the franchising and renewal processes such as consultants fees, which are incidental to enforcement of the Ordinance or Franchise. These requirements or charges shall not be considered part of the Franchise fee. 5. 20 AFFILIATES' USE OF SYSTEM. To the extent necessary to prevent Grantee from diverting revenues from the operation of the Cable Communications System from Grantee to Affiliates to the detriment of the City, Affiliates (excluding any affiliate which provides a national or regional programming service) shall be permitted to utilize the Cable Communications System only if a Franchise fee on City revenues derived therefrom is paid. 5. 21 LATE PAYMENT. In the event that the fees herein required are not tendered on or before the dates fixed in this Ordinance, interest due on such fee shall accrue from the date due at an annual rate of three percent (3%) above . the prime rate or rates of interest, at the City' s primary depository bank. 5. 22 RECOMPUTATION. Tender or acceptance of any payment shall not be construed as an accord that the amount paid is correct, nor shall such acceptance of payment be construed as a release of any claim the City of Ithaca may have for additional sums including interest payable under this Ordinance or the Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor chosen by the City, which shall be based on a fiscal year and shall occur in no event later than one (1) year after the fees are tendered with respect to such fiscal year. If, after audit and recomputation, an unpaid fee is owed to the City, such fee shall be paid within thirty (30) days after audit and recomputation and the Grantee shall pay the costs of the audit. The interest on such unpaid fee shall be charged from the due date at an annual rate of three percent ( 3%) above the prime rate or rates of interest at the City' s primary depository bank during the period that such unpaid amount is owed. 5. 23 RIGHT OF INSPECTION OF RECORDS. The City shall have the right to inspect all books, records, reports, maps, plans, financial statements, and other like materials of the Grantee as provided in this Ordinance, at any time during normal business hours. 5. 24 RIGHT OF INSPECTION OF CONSTRUCTION. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Ordinance and other pertinent provisions of law. 22 5. 25 RIGHT OF INSPECTION OF PROPERTY. At all reasonable times and for the purpose of enforcement of this Ordinance and the Franchise, Grantee shall permit examination by any duly authorized representative of the City, of all cable communication system and facilities together with any appurtenant property of Grantee situated within the City and outside of the City if it is utilized in the operation of .the City' s Cable Communications System. 5. 26 FRANCHISE RENEWAL. Upon completion of the term of any Franchise granted under this Ordinance, the City may grant or deny renewal of the Franchise of the Grantee in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws. SECTION 6 BONDS, INSURANCE, AND INDEMNIFICATION. 6 .1 PERFORMANCE BOND AND LETTER OF CREDIT. A. PERFORMANCE BOND. Not later than forty-five (45) days after the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the Franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation of this Ordinance. B. CONDITIONS. The performance bond shall provide the following conditions: ( 1) There shall be recoverable by the City jointly and severally from the principal and surety, any and all fines and penalties due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Grantee to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all lawful orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims due the City as resulting from judicial action; pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or - repair of the Cable Communications System. Such losses, costs and expenses shall include but not be limited to attorney' s fees and other associated expenses. 23 ( 2) The total amount of the bond shall be forfeited in favor of the City in the event: (a) The Grantee abandons the Cable Communications System at any time during the term of the Franchise or any extension thereto; (b) The Grantee assigns the Franchise without the express written consent of the City; or C. REDUCTION OF BOND. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the Grantee shall be without prejudice to the Grantee' s subsequent applications or to the City' s right to require the full bond at any time thereafter. However, no application shall be made by the Grantee within one ( 1) year of any prior application. D. LETTER OF CREDIT. In addition to the performance bond required pursuant to paragraph A above, the City may, in its discretion, require the Grantee to obtain, maintain and file with the City an irrevocable letter of credit from a financial institution licensed to do business in the State in an amount specified in the Franchise, naming the City as beneficiary. The form and contents of such letter of credit shall be approved by the City and shall be released only upon expiration of the Franchise or upon the replacement of the letter of credit by a successor Grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a violation of this Ordinance. E. CONDITIONS. The City may draw upon the letter of credit if the Grantee fails to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. F. USE OF PERFORMANCE BOND AND LETTER OF CREDIT. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due and the Grantee shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within thirty (30) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond. 24 C ' G. NOTIFICATION. Within three (3) days of a withdrawal from the letter of credit or performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. H. REPLENISHMENT OF LETTER OF CREDIT AND PERFORMANCE BOND. No later than thirty (30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph F above, the Grantee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this Ordinance. I. NON-RENEWAL, ALTERATION OR CANCELLATION OF LETTER OF CREDIT OR PERFORMANCE BOND. The performance bond and ' letter of credit required herein shall be in a form satisfactory to the City and shall require thirty (30) days written notice to the City of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty ( 30) days following receipt by the City or the Grantee of any notice of cancellation. J. To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three (3) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. K. The City shall not seek recovery from the Performance Bond or the Letter of Credit until it has provided the Grantee with thirty ( 30) days to cure any default. 6. 2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later than sixty ( 60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise ' and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this Ordinance. 25 y B. To the extent provided in the franchise agreement any insurance policy obtained by the Grantee in compliance with this Section shall be filed and maintained with the City Clerk during the term of the Franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder -for damages. D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney' s fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this Agreement. The foregoing indemnity shall apply except to the extent such injury, death or damage is caused by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder. F. All insurance policies provided under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by the State. G. To the extent provided in the franchise agreement at any time during the term of the Franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this Ordinance or the 'Franchise. H. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three ( 3 ) year 26 i > period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. 6. 3 GENERAL LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of: (1) $500,000 for property damage per occurrence; ( 2) $1,000,000 for property damage aggregate; ( 3 ) $1,000,000 for personal bodily injury to any one person; and ( 4) $2,000, 000 bodily injury aggregate per single accident or occurrence. Such general liability insurance must include coverage for all of the following: comprehensive premises- operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 6 . 4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: ( 1) $1,000,000 for bodily injury and consequent death per occurrency; ( 2 ) $1,000,000 for bodily injury and consequent death to any one person; and ( 3 ) $500,000 for property damage per occurrence. 6. 5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker' s Compensation and employer's liability, valid in the State, in the minimum amount of: ( 1) Statutory limit for Worker's Compensation. (2) $100,000 for employer' s liability. 27 a i 6. 6 INDEMNIFICATION A. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions, and City employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith) : ( 1) To persons or property, arising out of or through the acts or omissions of Grantee, its servants, agents or employees. ( 2) Arising out of any claim for invasion by the Grantee, its servants, agents, or employees of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation. ( 3 ) Arising out of Grantee' s failure to comply with the provisions of any federal, state, or local statute, Ordinance, or regulation applicable to Grantee in its business hereunder. B. The foregoing indemnity is conditioned upon the following: The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and participating in the defense of any litigation by its own counsel its sole cost and expense. SECTION 7 SUBSCRIBER AND USER RIGHTS 7.1 SUBSCRIBER SOLICITATION. Each representative or employee of the Grantee, entering upon private property shall be required to wear an employee identification card issued by Grantee and bearing a picture of said representative. 7 .2 SALES INFORMATION. Grantee shall provide to all subscribers annually and all prospective subscribers or users with complete written information concerning all services and rates available to such subscriber upon solicitation of service and prior to the consummation of any 28 agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee ' s least costly service. Such information shall be written in plain English and shall include but shall not be limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cable, service(s) and the cost for hooking up such VCRs. 7.3 BILLING PRACTICES INFORMATION. Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in plain English. 7. 4 NOTICE OF INSTALLATION. Grantee shall inform all persons in advance of the date and approximate time its employee or agents shall enter onto such person' s property for the purpose of installing cable communications service. 7. 5 BUSINESS OFFICE. Grantee shall maintain and operate within the City of Ithaca a business office for the purpose of receiving and resolving all complaints, including without limitation, those regarding service, equipment malfunctions or billing and collection disputes. The business office shall have a publicly listed local telephone number and shall be open for both telephone and walk-in business. Grantee shall provide all subscribers or users with at least thirty ( 30) days prior written notice of a change in business office hours. 7. 6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. 7 .7 RESPONSE TO SERVICE COMPLAINT. The Grantee shall respond to requests for repair service no later than the next business day. System outages, whole or partial, shall be acted upon as soon as practicable. Grantee shall keep a record of all such complaints in compliance with state law and provide the record to the City as requested. 29 7.8 UNRESOLVED COMPLAINTS. Should a subscriber or user have a complaint which is unresolved after fourteen ( 14) days after notifying grantee thereof, the subscriber or user shall be entitled to file his complaint with the City, which shall have primary responsibility for the continuing administration of this Ordinance and the Franchise and the implementation of complaint procedures. A representative of Grantee shall be available thereafter to meet jointly with the City and the affected subscriber or user, within thirty ( 30) days after said subscriber or user has filed the complaint, to fully discuss and resolve the matter. If the matter cannot be resolved, the City may use judicial proceedings to resolve the matter; all judgments and costs for attorney' s fees will be paid by the Grantee. 7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two (2) successive weeks, the first publication being not less than fourteen ( 14) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one ( 1) channel of the Cable Communications System between the hours of seven (7) p.m. and nine ( 9) p.m. , for four (4) consecutive days during each such week. 7. 10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at all times protect the privacy of subscribers as provided in this Ordinance and other applicable Federal, State and Local laws. 7. 11 PEOPLE METER. No people meter shall be used without the express written consent of the subscriber. 7 .12 CONVERTERS. Grantee shall utilize state-of-the- art converters. Grantee shall make converters available to - subscribers for rent or purchase. Grantee shall allow subscribers to purchase or rent converters from other vendors. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of converters on the items necessary for converter compatibility with Grantee' s Cable Communications System. ' Subscribers shall not be required to replace damaged converters rented from the Grantee if the damage resulted from fire, flood, earthquake, or other natural disaster or act of God. 30 7. 13 INTERNAL WIRING. Grantee shall install and/or maintain internal wiring for subscribers. As of March 1, 1989, Grantee may own the internal wiring or, at the subscribers discretion, the subscriber may own the wiring. Grantee shall allow subscribers or other vendors to install, own, and/or maintain internal wiring. Any subscriber, who duly notifies Grantee within the time period reasonably established and advertised by Grantee, may acquire ownership of . the internal wiring at his/her premises without charge. In the event of signal leakage grantee may terminate service consistent with Federal law. 7.14 REMOTE CONTROLS. Grantee shall make remote control units available to subscribers to purchase or rent. Grantee shall allow subscribers to purchase or rent remote control units from other vendors. Grantee may provide remote control units to subscribers at no charge as a part of its package of services. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of remote controls on the items necessary for compatibility with Grantee's Cable Communications System. Subscribers shall not be required to replace damaged remote control units rented from the Grantee if the damaged resulted from fire, flood, earthquake, or natural disaster or act of God. 7.15 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. 7. 16 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS 8. 1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communications System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places. The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City 31 pusuant to local regulation, provided, however, 'Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8. 2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost , and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8. 3 PRIVATE PROPERTY. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications System at its sole cost and expense. 8. 4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8. 5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as approved by the City. 8. 6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the telephone and electric utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and/or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable) . 32 8. 7 CITY PROPERTY. Where any damages or alterations occur to the City' s water, sewage or drainage lines or to any other municipal structures in the streets during the construction due to the presence, negligence, operation or maintenance of the Cable Communications System, the sole cost of such repairs including all services and materials will be billed to the Grantee and these charges shall be paid within 60 days of receipt of notice or the City may foreclose on performance bonds, or invoke other appropriate sanctions provided for in this Ordinance. 8. 8 TEMPORARY RELOCATION. Grantee shall temporarily raise or lower its wires or other equipment upon the reasonable request of any person, including without limitation, a person holding a building moving permit issued by the City. The expense of such raising or lowering shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given reasonable notice necessary to maintain continuity of service. This provision shall not apply to requests by the City for City purposes for which movement there shall not be a charge by the Grantee. 8. 9 CITY MAPS. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public-rights-of- ways, where necessary, the location shall be verified by excavation. 8 . 10 CONSTRUCTION NOTICE. Grantee shall give appropriate notice to the City and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than seven (7) days before such commencement. 8. 11 SAFETY AND CONSTRUCTION STANDARDS. The construction, installation, operation, maintenance, and/or removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards. Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State, and Municipal Construction Requirements, including FCC Rules and Regulations 33 � 9 Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8.12 CONTRACTORS AND SUBCONTRACTORS. All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantee s Cable Communications System. 8. 13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or installation by the Grantee of any towers, poles, underground conduits, or fixtures for use in connection with initial construction, rebuild, upgrade or line extension of the Cable Communications System under this Ordinance, the Grantee shall make available for City approval a concise description of the facilities proposed to be erected or installed, including strand maps, if required, together with a map and plans indicating the proposed location of all such facilities. Approval by the City shall not be unreasonably withheld and shall be completed in a timely manner. For the rebuild the Grantee shall allow a City selected engineer to inspect such information, maps and plans for five business days in the Grantee's office. Prior to the five days, the Grantee shall give the City thirty ( 30) days prior notice that such information will be available. The Grantee shall accommodate reasonable scheduling modifications. If the Grantee makes a material change in any part of the system design, the City shall be notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee's office. No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8.14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified in the Franchise, (e.g. , amplifiers, cable, antennas) . 8.15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial establishments within thirty ( 30) days of a request for such service and the receipt of any applicable City, State, Federal and utility company permits, and of permission from any landlord or other person controlling access to such premises. 34 V 8.16 ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the - public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to make use of the poles or other wire-holding structures of the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee's operation. 8 .17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at any time all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and tests. 8. 18 CONSTRUCTION REPORTING REQUIREMENTS. A. Within thirty (30) days of the granting of a Franchise pursuant to this Ordinance, the Grantee shall have applied for any necessary agreements, licenses, or certifications shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process. 35 8. 19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of ' Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8.20 INITIAL PERFORMANCE TEST. Initial proof of performance testing shall occur within sixty ( 60) days prior to the commencement of the Cable Communications System service to each section of the City as set forth in the Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test shall be borne solely by Grantee. 8. 21 ANNUAL PERFORMANCE TEST. Performance requirements and standards specified in the Franchise, shall be measured annually to ensure compliance with same. The costs of such tests shall be borne by Grantee. SECTION 9 MAINTENANCE AND INSPECTION 9.1 GENERAL. Grantee shall maintain wires, cables and all other real and personal property and facilities constituting the Cable Communications System in good condition, order and repair at all times during the term of the Franchise. 9.2 MAINTENANCE LOG. Grantee shall maintain an annual log showing the date, approximate time and duration, type and probable cause of all Cable Communications System outages, whole or partial, due to causes other than routine testing or maintenance. The entries in such log shall be retained by Grantee for one ( 1) additional year and shall be subject to inspection and copying by the City or its designee during Grantee's regular business hours upon reasonable request. 9. 3 SERVICE INTERRUPTION. Except where there exists an emergency situation necessitating a more expeditious procedure, Grantee may interrupt service for the purpose of repairing, upgrading or testing the Cable Communications System, only during periods of minimum use, and only after a minimum of twenty-four ( 24) hours notice to affected subscribers. 9.4 RADIATION MONITORING. Radiation monitoring shall be conducted by all maintenance technicians on an ongoing basis. The results of said monitoring shall be made available to the City upon request. 36 r 3 SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10. 1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR 76.311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity . Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. 10. 2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and various minority groups to advance and win promotions in all categories of employment. As part of its obligation under Section 10. 1 above, Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the Cable Communications System minorities and females as set forth in the Franchise. Grantee shall submit to the City annual EEO reports required by the Federal Communications Commission. SECTION 11 BOOKS, RECORDS, AND REPORTS 11.1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR. A. BOOKS AND RECORDS. The City reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like material, of the Grantee, upon reasonable notice and during normal business hours. B. AVAILABILITY OF RECORDS. If any of such maps or records are not kept in the City, or upon notice the Grantee is unable to provide the records in the City, and if the City shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by Grantee. 11.2 REPORTS REQUIRED. The Grantee shall file with the City: A. REGULATORY COMMUNICATIONS. All reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. 37 ` r B. FACILITIES REPORT. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the City. Such report shall also contain any revisions to the system "as built" maps filed with the City, and copies of all materials required by the franchise to be given to subscribers. C. PROOF OF BONDS AND INSURANCE. To the extent provided in the franchise agreement Grantee shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this Ordinance, or certified copies thereof, and written notice of payment or required premium. D. FINANCIAL AND OWNERSHIP REPORTS. The following financial reports specified in the Franchise shall be submitted annually to the City. (1) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the Franchise of five percent (5%) or more. ( 2) A copy of franchisee's annual report. ( 3 ) A report on the placement of any limited partnership offering, if any, including the amount subscribed and the amount paid in. ( 4) In the event that the City is asked to approve any rate increase, the Grantee shall provide an annual, system-wide and City-only, certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non-subscriber revenue, line item operating expenses, capital expenditures statement, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule. The City-only statements shall be on an allocated basis and the Grantee shall provide the City with with the assumption utilized in making the allocations. (5) An annual, City-only, certified income statement. ( 6) An annual list of officers and members of the Board of Grantee's and of any parent corporation. 38 E. OPERATIONAL REPORTS. The following system and operational reports shall be submitted annually to the City: ( 1) The Grantee shall provide the City with a copy of it' s annual performance testing results as sub- mitted to the FCC. ( 2) An annual summary of the previous year's activities including, but not limited to, subscriber totals for each category of service offered including number of pay units sold, new services offered, and the character and extent of the service rendered to other users of the system, subject to Grantee's need to protect proprietary information. ( 3 ) An annual summary of service requests and complaints received and handled. ( 4) An annual summary of the number of outages. ( 5) An annual summary of liquidated damages and other penalties outstanding or paid. (6) An annual summary of all reports required by or voluntarily submitted to the ' New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. F. ADDITIONAL INFORMATION. The Grantee shall furnish to the City such additional information and records with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the City in connection with this Ordinance or the Franchise. 11.3 RECORDS REQUIRED. A. MANDATORY RECORDS. The Grantee shall at all times maintain: (1) A record of all complaints received and interruptions or degradation of service experienced for the preceding period prior to a performance review, consistent with the state law and regulation. ( 2) A full and complete set of plans, records and "as built" maps showing the exact location of all cable installed or in use in the City, exclusive of subscriber service drops. 39 r "• s SECTION 12 MISCELLANEOUS PROVISIONS 12. 1 CAPTIONS. The captions to sections throughout the Franchise are intended solely to facilitate reading and reference to the sections and provisions of the Franchise. Such captions shall not affect the meaning or interpretation of this Ordinance. 12. 2 SEVERABILITY. If any section, sentence, paragraph, term or provision of this Ordinance is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction upon final adjudication or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect. 12. 3 GRANDFATHER RIGHTS. Nothing contained in this Ordinance shall be construed to deprive Grantee or the City of any "grandfather" rights in any future amendments to any statute or regulation. Any such Franchise, however, shall be _ subject to such regulations the City finds necessary to adopt in the exercise of its police power, provided that such regulations are reasonable and do not materially conflict with the privileges granted in the Franchise. 12. 4 NOTICE. Every notice to be served upon the City shall be sent by certified mail, postage prepaid, to the City. Every notice to be served upon Grantee shall be sent by certified mail, postage prepaid, to Grantee at its Ithaca office. 12. 5 FORCE MAJEURE. If by reason of force majeure either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State of New York or any of their departments, agencies, political subdivision, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions. 12. 6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO WAIVER OF THE TERMS THEREOF. The Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 40 �RATEO CITY OF ITHACA 10B EAST GREEN STREET ITHACA, NEW YORK 14850 OFFICE OF TELEPHONE: 272-1713 CITY ATTORNEY MEMORANDUM CODE 607 TO: Charter and Ordinance Committee Members FROM: RaZt'ash, City Attorney DATE: Se tember 22, 1988 RE: Cable Ordinance Amendments The following is a list of items discussed in reference to review of the proposed amendments at your meeting on September 15, 1988: 1. Under Section 4 . 1 "Grant of Franchise, " old Subdivision (D) "In the Event of Conflict" it was decided by the Committee to provide a letter from legal counsel denying any negative implication in delet- ing this provision. Attached is a proposed memo in this regard. 2. Under Section 4. 13 (B) "Transfer of Control or Ownership," it was decided by the Committee to provide that the words "change in control" mean "transfer, " which is defined under Section 3 . 51. I have checked this with Jean Rice' s office and they have expressed approval. I will also advise ACC of this desired change. 3. Relative to old Section 4.13(H) "Right of First Purchase," a motion was made to restore this provision. The motion was not seconded. 4. Under Section 5. 2 "Regulatory Authority" it was decided by the Committee to provide a letter from legal counsel denying any negative implication in deleting old subdivision (7 ) dealing with promulgation. Attached is a proposed memo in this regard. 5. Sections following deleted Section 5. 8 "Revocation of Franchise" were to be renumbered accordingly. 6. I was to gain an explanation of the parenthentical phrase "ex- cluding any affiliate which provides a national or regional pro- gramming service. " I have been advised by Jean Rice' s office that the intention was to exclude franchise fees being paid on payments from ACC to Homebox (for example) for a programming service, but not to exclude payments by subscribers to ACC for providing such programming service. For all other services, excluding programming services, fees paid to ACC for use of cable line would be subject to franchise fee. Charter and Ordinance Committee Members September 22, 1988 Page 2 7. Under Section 6. 6(B) the word "at" was to be inserted in the next to last line of this provision between the words "counsel" and "its. " 8. Under Section 7.2 the word "with" was to be deleted in the third line between the words "users" and "complete. " 9. The Committee noted that Section 7.7 "Response to Service Complaint" and Section 7. 8 "Unresolved Complaints" seemed not to agree as the 14 day provision was removed from Section 7.7 but not from Section 7. 8. In reviewing this matter and the latest draft of Section 7. 8, I believe that this latest draft properly expressed the wording for this section. I have enclosed a copy of this draft. I believe that it was intended to retain the 14 day period in Section 7. 8 for vesting jurisdiction. 10. Concern was expressed by the Committee regarding the deletion of the subscriber privacy sections of the Ordinance. I indicated that the intention of the negotiating committee was to rely on federal and state cable privacy provisions. I am enclosing for your reference a copy of the federal statutory privacy provisions. 11. Under Section 8. 18 "Construction Reporting Requirements" Sub- division (A) the word "and" was to be inserted in the fourth line between the words "certifications" and "shall. " 12. Under Section 11.2 "Reports Required" , Subdivision (C) "Proof of Bonds and Insurance" in the last line the word "or" is to be changed to "of. " Please let me know if you believe any matters have been omitted. RWN:blh enc. cc: Jean Rice ORDINANCE NO. 88- AN ORDINANCE AMENDING CHAPTER 64 ENTITLED "CABLE COMMUNICATIONS" OF THE CITY OF ITHACA MUNICIPAL CODE. BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New York, as follows: Section 1. That Chapter 64 entitled "CABLE COMMUNICATIONS" of the Ithaca Municipal Code is amended to read in its entirety as attached hereto. Section 2. This ordinance shall take effect immediately and in accordance with law upon publication of a notice as provided in section 3 .11 (B) of the Ithaca City Charter. DRAFT #8 July 31, 1987 June 15, 1988 August 26, 1988 ITHACA, NEW YORK ORDINANCE SECTION 1 PURPOSE The City of Ithaca finds that the development of Cable Communications has the potential of having great benefit and impact upon the people of Ithaca. Because of the complex and rapidly changing technology associated with cable communications, the City further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in . the City or such persons as the City shall designate. It is the intent of this Ordinance and subsequent amendments to provide for and specify the means to attain the best possible public interest and public purpose in these matters and any Franchise issued pursuant to this Ordinance shall be deemed to include this finding as an integral part thereof. Further, it is recognized that Cable Communications Systems have the capacity to provide not only entertainment and information services to the City' s residents, but can provide a variety of interactive communications services to institutions and individuals. Many of these services involve City agencies and other public institutions, by providing governmental, educational or- health care communications. For these purposes, the following goals underlie the regulations contained herein: (a) Communications services should be available to the maximum number of City residents. (b) The Cable Communications System should be capable of accommodating both the present and reasonably foreseeable future communications needs of City. (c) The Cable Communications System should be improved and upgraded if necessary during the Franchise term so that the new facilities necessary for the operation of this system shall be integrated to the maximum extent possible with existing facilities. (d) Any Cable Communications System authorized by this Ordinance and the Franchise shall be responsible to the needs and interests of the local community, and shall provide a wide diversity of information sources and services to the public. i (e) That the public, educational, and governmental needs for access to the Cable Communications System are met. SECTION 2 TITLE OF ORDINANCE This Ordinance shall be known and may be cited as "Ithaca Cable Communications Regulatory Ordinance," and it shall become a part of the Ordinances of the City. This Ordinance shall take effect and be in force from and after its passage and publication of a notice as provided by section 3 . 11 of the Ithaca City Charter. That all Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 3 DEFINITIONS For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 3. 1 ACCESS CHANNELS means channels ( 6MHz each) set aside for public use, education use or governmental uses with no charge for usage by ACC. Access channels designed for public use shall be available on a nondiscriminatory basis. 3. 2 ADDITIONAL SERVICES means programming or services for which an additional charge is made beyond the charge for Basic Subscriber Services, including, but not limited to, movies, concerts, variety acts, sporting events, pay-per-view program, interactive services, and any other service utilizing any facility or equipment of a Cable Communications System operating pursuant to a Franchise granted under this Ordinance. 3. 3 AFFILIATE means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, control or a controlling interest in the Grantee; (b) each person in which the Grantee has, directly or indirectly, control or a controlling interest; (c) each office, director, general partner, joint venturer or joint venturee partner, of the Grantee; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to the Grantee by common ownership, common management, or common control; provided AFFILIATE shall in no event mean: 2 (a) the City; (b) any duly authorized PEG Access Organization; (c) any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or (d) • any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated person by reason of owning controlling interest in, being owned by, or being under common control with, the Grantee. 3 . 4 BASIC SUBSCRIBER RADIO SERVICE means such audio services as the re-transmission of broadcast FM radio signals, shortwave, weather, news, time and other similar audio services and the transmission of cablecast (nonbroadcast) radio signals as permitted by the FCC. '-3 . 4 BASIC SUBSCRIBER TELEVISION SERVICES means the definition promulgated by the Federal Communications Commission, or if such definition 'is not forthcoming from the Federal Communications Commission it shall mean all subscriber services provided by the Grantee in one or more service tiers, including the delivery of broadcast signals, public, educational and governmental access channels, and local origination channels, covered by the regular monthly charge paid by all subscribers to a particular service tier including subscriber terminal charges and related deposits. 3 .5 CABLE COMMUNICATIONS SYSTEM, also referred to as "system, " means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (a) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (b) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management, unless such , facility or facilities uses any Public-Rights-of-Way; (c) a facility of a common carrier which is subject, in whole or in part, to the provision of Title II of the Cable Act, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (d) any facilities of any electric utility used solely for operating its electric utility systems. 3 . 6 CITY means the City of Ithaca, New York. 3 3 .7 CHANNEL means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. 3 . 8 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3 . 9 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession. 3. 10 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3 . 11 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3 . 12 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. 3 . 13 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. 3 .14 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations. 3 . 15 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 3 .16 DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal. 3 . 17 EDUCATIONAL CHANNEL OR EDUCATIONAL ACCESS CHANNEL means any channel where educational programs are the only designated use. The educational access channel(s) shall only be used for non-commercial purposes. 3 . 18 FAIR MARKET VALUE means the price that a willing buyer would pay to a willing seller for a going concern based on the system valuation prevailing in the industry at the time. 4 3 . 19 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3 . 20 FRANCHISE means a Franchise contract entered into voluntarily by the Grantee, containing the specific provisions of the Franchise granted, including referenced specifications, Franchise proposal, applications and other related material. Any Franchise granted pursuant to this Ordinance grants the nonexclusive rights to construct, operate and maintain a Cable Communications System along the Streets and Public Grounds within all or a specified area in the City. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of the City. 3 . 21 FRANCHISE AREA means the entire City. 3 .22 FRANCHISE FEE means the percentage, as specified by the City, of the Grantee' s gross revenues from all sources payable in exchange for the rights granted pursuant to this Ordinance and the Franchise Agreement. 3 . 23 FRANCHISEE OR GRANTEE means the natural person(s) , partnership(s) , domestic and foreign corporations(s) , association(s) , joint venture(s) , or organization(s) of any kind which has been legally granted a Franchise by the City, and its lawful successor, Transferee or Assignee. 3 .24 GOVERNMENT CHANNEL OR GOVERNMENT ACCESS CHANNEL means any channel specifically designated or dedicated for government use. The municipal access channel(s) shall only be used for non-commercial purposes. 3 . 25 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction. 3 .26 GROSS ANNUAL REVENUES means all revenue derived directly or indirectly by the Grantee, and revenue derived directly or indirectly through services provided via the Cable Communications System by Grantee 's affiliates and subsidiaries in which the Grantee has a financial interest. 3 . 27 INQUIRY BY SUBSCRIBER means a request for general information about the Grantee' s operation, services, programming, and/or rates. 3 . 28 INSTALLATION shall mean the connection of the system from feeder cable to subscribers' terminals. 5 3 . 29 INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users on an individual application basis. These may include, but are not limited to, one-way video, two-way video, audio or digital signals among institutions to residential subscribers. 3. 30 LEASED ACCESS CHANNEL, or COMMERCIAL ACCESS CHANNEL means any channel designated or dedicated for use by persons unaffiliated with the Grantee, at rates in accordance with the Cable Act. 3 . 31 LOCAL ORIGINATION means programming produced or purchased by the Grantee (e.g. , advertisements, news, programming with advertising) which is under the control of the Grantee. Local origination is specifically not to be construed as public, governmental, or educational access. 3 . 32 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 3 . 33 MONITORING means observing a communications signal, or the absence of a signal, where the observer is not a party to the communication, whether the signal is observed by visual or electronic means, for any purpose whatsoever. 3. 34 NARROWCASTING shall mean the ability to distribute cable programming to a particular segment or segments of the cable subscribers. 3 . 35 PERSON means an individual, partnership, association, organization, corporation or any lawful successor Transferee of said individual, partnership, association, organization or corporation. 3 . 36 PLANT MILE means a linear mile of strand-bearing cable as measured on the street of easement from pole to pole or pedestal to pedestal. 3 . 37 PROGRAMMER means any person or entity who or which produces or otherwise provides program material or information for transmission by video, audio, digital or other signals, either live or from recorded traces or other storage media, to users or subscribers by means of the Cable Communications System. 3. 38 PUBLIC ACCESS CHANNEL, COMMUNITY ACCESS CHANNEL or COMMUNITY CHANNEL means any channel designated or dedicated from use by the general public or noncommercial organizations which is made available for use without charge on a first-come,' first-served, nondiscriminatory basis. The public access channel(s) shall only be used for non- commercial purposes. 6 3 . 39 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. 3 . 40 PUBLIC-RIGHTS-OF-WAY or STREETS AND PUBLIC GROUNDS means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways, utility easements or other public-rights-of-way or hereafter held by the City which shall entitle the City and the Company to the use thereof for the purpose of installing and maintaining the Cable Company Communications System. No reference herein, or in any Franchise, to the "Streets and Public Grounds" shall be deemed to be a representation or guarantee by the City that its title to any property is sufficient to permit its use for such purpose, and the Grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the City as the City may have the undisputed right and power to give. 3 .4.1 REASONABLE NOTICE shall be written notice addressed by either party at its principal office within the City or such other office as the Grantee has designated to the City as the address to which notice shall be transmitted to it, which notice shall be certified and postmarked not less than ten ( 10) business days prior to that day in which the party giving such notice shall commence any action which requires the giving of notice. 3 .42 RESIDENT means any person residing in the City as otherwise defined by applicable law. 3 . 43 RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an individual dwelling unit where the service is not to be utilized in connection with a business, trade or profession. 3 . 44 SALE shall include any sale, exchange, barter or offer for sale. 3 . 45 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. 3 . 46 SERVICE AREA means the entire geographic area within the Franchise territory. 3 . 47 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 3. 48 STATE means the state of New York. 7 3 . 49 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3 . 50 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other System Facilities located outside the City limits. 3 . 51 TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of five percent (5%) or more at one time of the ownership or controlling interest in the Cable Communications System, or twenty percent (20%) cumulatively over the term of the Franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. 3 . 52 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers. 3.53 UPSTREAM SIGNAL means a signal originating from a terminal to another point in the Cable Communications System including video, audio or digital signals for either programs or other uses such as security alert services, etc. 3 . 54 USER means a person or organization utilizing channel or equipment and facilities for purpose of producing and/or transmission of material, as contrasted with receipt thereof in a subscriber capacity. SECTION 4 GRANT OF FRANCHISE 4.1 GRANT OF FRANCHISE 8 i A. GRANT OF AUTHORITY. Pursuant to the authority of the Charter of the City and subject to the terms and conditions set forth herein, the Common Council of the City of Ithaca can grant revocable and non-exclusive Franchises, acting pursuant to the City's applicable Charter provisions, Ordinances, rules and regulations to construct and operate a Cable Communications System in, under, over, along, across or upon the Streets and Public Grounds within the City of Ithaca for the purpose of reception, transmission, collection, amplification, origination, distribution or redistribution of a audio, video, data, or other signals and for the development of broadband telecommunication services in accordance with the laws of the City of Ithaca, the State of New York, and United States of America. In the event that City shall grant to the Grantee a nonexclusive, revocable Franchise to construct, operate, and maintain a Cable Communications System within the City, said Franchise shall constitute both a right and an obligation to provide the services of a Cable Communications System as regulated by the provisions of this Ordinance and the Franchise. The Franchise shall include by reference those provisions of the Grantee's proposal that are finally negotiated and accepted by the City and Grantee. B. NON-INTERFERENCE. In exercising rights pursuant hereto, Grantee shall not endanger or interfere with the lives of persons, interfere with any installations of the City, any public utility serving the City or any other person permitted to use the Streets and Public Grounds nor unnecessarily hinder or obstruct the free use of the Streets and Public Grounds. The grant of one Franchise does not establish priority for use over the other present or future permit or Franchise holders or the City' s own use of the Streets and Public Grounds. The Common Council of the City shall at all times control the distribution of space in, over, under or across all Streets or Public Grounds and occupied by the Cable Communications System. All rights granted for the construction and operation of the Cable Communications System shall be subject to the continuing right of the Common Council to require such reconstruction, relocation, change of discontinuance of the appliances used by the Cable Communications System in the streets, alleys, avenues, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. C. NON-EXCLUSIVITY. Any Franchise is non-exclusive and shall not affect the right of the Common Council to grant to any other person a grant or right to occupy or use the streets or portions thereof, for the construction and operation of a Cable Communications System within the City or the right of the City to permit the use of the Streets or Public Grounds or of the City for any purpose whatever. No privilege or power of eminent domain is bestowed on Grantee by the grant of a Franchise. 9 D. COMPLIANCE WITH CITY ORDINANCES. Any Franchise granted by the City is hereby made subject to the general Ordinance provisions now in effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4.2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances. 4. 3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4. 4 FRANCHISE TERRITORY. The Franchise territory shall be the entire City, or portions thereof, for which a franchise is granted under authority of a franchise agreement. The service area shall be the entire territory defined in the franchise agreement. 4. 5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided in the Franchise. The value of the Franchise at the end of the term shall be zero and no property right shall be conferred by the Franchise itself. 4.6 FRANCHISE REQUIRED. No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 4.7 CITY'S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or 10 carry on, directly or indirectly, any public works or public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. 4. 8 EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the Cable Communications System, the City shall have the right to do so at the sole cost and expense of Grantee. 4. 9 REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property. Restoration shall be made in as good a condition or better. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. 4 .10 REMOVAL OR ABANDONMENT. Upon termination of the Franchise by passage of time or otherwise, and unless Grantee transfers the Cable Communications System to a subsequent Grantee approved by the Common Council, Grantee shall remove its supporting structures poles, transmission and distribution systems, and all other appurtenances from the Streets and Public Grounds and shall restore the areas to as good a condition or better. Such removal shall be made so as not to conflict with public health, safety or convenience. Removal shall be completed within twelve (12) months after such termination. At that time the City may deem any property not removed as having been abandoned. Such property may then by removed at the option of the City at Grantee's expense less any recoverable salvage value. 4.11 NO WAIVER OF RIGHTS. No course of dealing between the Grantee and the City nor any delay on the part of the City in exercising any rights hereunder shall operate as a waiver of any such rights of the City or acquiescence in the actions of the Grantee in contravention of such rights except to the extent expressly waived by the City or expressly provided for in the Franchise. 11 4. 12 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to the Franchise shall be used solely in connection with the construction, operation or maintenance of the Cable Communications System or the Grantee' s performance of the terms, obligations, and conditions of this Ordinance and the Franchise. 4. 13 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City. B. TRANSFER OF CONTROL OR OWNER P. The Grantee shall promptly notify the City of actual or proposed change in control of the Grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantee. City consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry. Failure to provide all transfer related information reasonably requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such 12 transfer, after considering the legal, financia character, technical and other public interest qualificati s of the applicant is satisfactory, the City will transfer and assign the rights and obligations of such Franchise as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld. E. NO WAIVER OF RIGHTS. The consent or approval of the City to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of the Franchise. F. NO TRANSFER PRIOR TO COMPLETION OF CONSTRUCTION. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the Franchise prior to completion of construction of the proposed system. G. FRANCHISE SIGNATORY. Any approval by the City of transfer or ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the Franchise. H. TIMEFRAME. The City shall act on a request to transfer the Franchise within 120 days of the Grantee' s presentation to the Common Council requesting a transfer or assignment. The City's approval of any transfer or assignment shall not be deemed an approval of the purchase price. SECTION 5 REGULATION OF FRANCHISE 5. 1 GENERAL. The City shall exercise appropriate regulatory authority under the provisions of this Ordinance and applicable law. This authority shall be vested in the Common Council or its designee to provide day-to-day administration and enforcement of the provisions of this Ordinance and any Franchise granted hereunder, and to carry- out the City' s responsibility with regard to cable communications. The City may from time to time adopt such reasonable rules and regulations that it may deem necessary in the exercise of its municipal powers. 5. 2 REGULATORY AUTHORITY. The City shall have the responsibility for the administration and enforcement of this Ordinance and the Franchise, including but not limited to the following duties, powers and authority which may be delegated at its discretion: ( 1 ) To administer and/or enforce all provisions of the Ordinance, and any Franchise granted hereunder. 13 ( 2 ) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the Franchise or any applicable law or regulation to correct the service deficiencies. (3 ) To represent the City's interest before local, state or federal government agencies in cable communications matters. ( 4) To receive, evaluate and file all data and reports required by this Ordinance and to rule on such matters as appropriate under the Ordinance and State and Federal law or regulation. The City is hereby authorized to require adjustment to any fee, bond or insurance coverage or amount or charge contained herein not more frequently than bi- annually without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjust- ment. Inflation shall be calculated in accordance with the regional Consumer Price Index. ( 5) To inspect at any time all construction, installation, and ongoing operation of the Cable Communications System, and to make such tests as it reasonably deems necessary to ensure compliance with the terms of this Ordinance, and the Franchise and other applicable laws and regulations. ( 6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. (7) To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. ( 8) To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and recommendations thereto. ( 9) To monitor Grantee' s adherence to operational standards and service requirements. 14 1 5. 3 PERFORMANCE EVALUATION. The City and Grantee shall, at the discretion of the City, hold annual performance evaluation sessions. All such evaluation sessions shall be open to the public. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to system performance, Grantee compliance with this Ordinance and the Franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, Franchise fees, penalties, free or discounted services, applications of new technologies, and judicial and FCC filings. Grantee shall notify its subscribers of all evaluation sessions by announcement on at least one channel of its Cable Communications System between the hours of seven (7) p.m. and nine (9 ) p.m. , for five ( 5) consecutive days preceding each session. During review and evaluation Grantee and the City shall fully cooperate with each other and shall provide such information and documents as each may reasonably need to perform its review. 5.4 RESPONSE TO CITY INQUIRIES. In accordance with the terms of this Ordinance and the Franchise, the City may, at any time, make reasonable inquiries concerned with the management and affairs of the Cable Communications System. Grantee shall respond to such inquiries in a timely fashion. 5. 5 QUALITY OF SERVICE. Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require Grantee to test, analyze, and report on the performance of the Cable Communications System. Grantee shall fully cooperate with the City in performing such testing and shall prepare the results and a report, if requested, within thirty (30) days after notice. Such report shall include the following information: ( 1) the nature of the complaint or problem which precipitated the special tests; (2) the system component or area tested; ( 3 ) the equipment used and procedures employed in testing; ( 4) the method, if any, in which such complaint or problem was resolved; and ( 5) any other information pertinent to said tests and analysis which may be required. 15 The City may require that tests be supervised or conducted by a City staff member or a professional engineer who is not an employee or agent of the Grantee. Grantee shall reimburse the City for the costs of such engineer if the tests performed shows that the quality of service is below the standards set forth in this Ordinance or the Franchise. 5. 6 LIQUIDATED DAMAGES. For the violation of any of the following provisions of this Ordinance, the City shall notify the Grantee in writing of the violation, and the Grantee shall be allowed not less than thirty ( 30) days, or such greater amount of time as the City may specify, to correct such violation. In the event the Grantee fails to correct the violation, the City will be entitled to collect liquidated damages according to the schedule listed below. Such liquidated damages if not paid by the Grantee, shall be chargeable, to the extent available, to the letter of credit or bond tendered by Grantee within the aforesaid period of time. These liquidated damages shall be in addition to and not a limitation upon the other penal provisions of this Ordinance, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies. (1 ) For failure to complete construction and installation in accordance with the Franchise, $100.00 per day. ( 2) For failure to submit reports or supply data in accordance with this Ordinance, $10. 00 per day for each day that such noncompliance continues. ( 3 ) For failure to test, analyze and report on the performance of the Cable Communications System in accordance with this Ordinance above, $25.00 per day for each day, or part thereof, that such noncompliance continues. (4) For failure to provide the capital equipment, and facilities, and services for public, educational and governmental access, as specified in the Franchise, $75.00 per day, or part thereof, that such noncompliance continues. The city retains the right, at its sole option, to reduce or waive any of the above-listed penalties where extenuating circumstances or conditions beyond the control of the Grantee are deemed to exist. The Common Council or its designee shall determine the City's willingness to reduce or waive any of the above-listed penalties. 16 5.7 CONSUMER REMEDIES. In order to promote compliance with this Ordinance and the Franchise, cable communications subscribers under the Franchise shall have the following rights and remedies in addition to any other remedies which may be available as a matter of law or equity to subscribers or others affected by the acts or omissions of the cable company. For example, this section is not meant to limit remedies available to subscribers under applicable laws governing consumer fraud or to limit remedies which may be available if as a consequence of the acts or omissions of the Grantee a resident loses utility services. Similarly, the remedies specified are not meant to limit any authority subscribers may have to enforce other terms of the Franchise against the Grantee. This section is in addition to any damages, remedies or - other action which the City may take pursuant to its rights under the Franchise, or pursuant to its general police powers, or in the exercise of its rights under cable consumer Ordinances or regulations which exist now or may be adopted during the term of this Ordinance. ( 1 ) If the Grantee fails within ten days to pay a submitted repair bill on any damage it causes to property (including damage which occurs during the course of stringing or burying cable or repairing cable) , the owner of the property shall be entitled to recover treble damages, and in any event no less than $100, for the period when the property remains in such unrepaired or unsafe condition. The Grantee shall be deemed to have left the property in an unrepaired or unsafe condition if the Grantee fails to repair damage to the property or to eliminate the unsafe condition within 24 hours after causing such property to be damaged or after creating the unsafe condition. (2) If the Grantee fails to provide any notice which may be required by the City, the subscriber shall be entitled to recover treble damages for such failure. ( 3 ) If the Grantee violates the privacy rights of any subscriber the subscriber shall be entitled to receive treble damages, and in any event no less than $500, for each such violation. ( 4) In any event where the City determines that the Grantee has improperly discriminated in its rates and charges for service, the City after giving the Grantee notice of Hearing and an opportunity to be heard, shall identify the applicable non- 17 discriminatory rate; the subscribers which have been adversely affected by the discrimination shall be entitled to a refund equal to treble any amounts paid over the nondiscriminatory rate plus interest at the prime rate. ( 5) The Grantee shall keep a record of the date and time it receives requests for service which require it to obtain access to the home of a subscriber or potential subscriber, and shall also keep a record of the appointments made with such subscriber or potential subscribers to provide service. Any occasion on which the Grantee or its agent does not cancel the appointment with the subscriber and fails to arrive at the home of the subscriber or potential subscriber during the appointment period shall be considered a missed appointment. The subscriber or potential subscriber with whom the appointments were missed shall be entitled to $50 damages for each appointment missed. ( 6) If the Grantee fails to substantially follow the procedures for disconnecting a subscriber, as set forth in this Ordinance and/or the Franchise, the subscriber who was improperly terminated shall be entitled to receive treble damages. (7) If a cable subscriber does not receive service for more than a four hour period, the affected subscriber shall be entitled to recover treble damages. In addition to the foregoing, if any subscriber is required to bring judicial proceedings to enforce his/her rights and remedies set forth herein, and is ultimately successful in such judicial proceedings, then that subscriber is entitled to recover all reasonable attorney's fees and expenses incurred in the prosecution of such judicial proceedings as fixed by the Court. Notwithstanding anything herein to the contrary, if the Grantee notifies the subscriber in writing not less than ten days before the initial appearance in any judicial proceeding that it will not use an attorney in that proceeding, and thereafter does not use an attorney, then the subscriber should not be entitled to recover any attorney fees and expenses. 5. 8 DETERMINATION OF BREACH. In the event that the City has reason to believe that Grantee has defaulted in the performance of any provision of this Ordinance or the Franchise 18 except as excused by force majeure, the City shall notify Grantee in writing of the provision or provisions which the City believes may be in default. Grantee shall have thirty ( 30) days from the receipt of such notice to: ( i) respond to the City in writing, contesting the Grantor' s assertion of default and providing such information or documentation as may be necessary or; (ii) to cure any such default or, in the event that, by nature of the default, such default cannot be cured within such thirty ( 30) day period to take reasonable steps to cure the default and diligently continue such efforts until said default is cured. Grantee shall report to the City in writing, at thirty ( 30) day intervals as the Grantee' s efforts, indicating the steps taken by Grantee to cure the default and reporting Grantee' s progress until such default is cured. In the event Grantee fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing the Grantee may be heard and after which the City shall specify the complaint against the Grantee; thereafter the City shall appoint an impartial person to act as factfinder who shall fix a date for a hearing at which evidence shall be received and a record kept of evidence of the complaint. The factfinder shall report in writing to both parties with his or her findings of fact. The Common Council shall make a finding of violation or no violation based on those findings. In the event that the City determines that Grantee is in default of any such provision of this Ordinance or the Franchise, the City may also determine to pursue any or all of the following remedies: (a) foreclose on all or any part of the security provided pursuant to this Ordinance, including without limitation the performance bond and/or the letter of credit; provided, however, the foreclosure shall be in such amount as the City reasonably determines is necessary to remedy the default and shall include payment of all City expenses incurred in connection with the fact- finding hearing. (b) commence an action at law for monetary damages, including the expenses of the fact-finding hearing. (c) declare the Franchise to be revoked and order Grantee to commence the removal of the Cable Communications System immediately or to cooperate 19 y with the City, or any such agency or person authorized or directed by the City to operate the Cable Communications System for a one year period, in maintaining the continuity of service; and (d) seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. The Grantee may seek recourse as available by law or regulation. NON-EXCLUSIVITY OF REMEDY. No decision by the City to invoke any remedy under this Ordinance or under any statute, law or Ordinance shall preclude the availability of any oer such remedy. f /19 5-% I JURISDICTION. Exclusive jurisdiction and venue over any dispute, action or suit arising therefrom shall be in any court of appropriate subject matter jurisdiction located in the State of New York and the parties by this instrument subject themselves to the personal jurisdiction of said court for the entry of any judgment and for the resolution of any dispute, action, or suit arising in connection with the entry of such judgment. : ;,t 5-.-T2 NOTIFICATION. Grantee shall file with the City schedules which shall describe all services offered by Grantee, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, Grantee shall file with the City all changes in services, all rates and charges of any kind, and all terms and conditions relating thereto thirty ( 30) days prior to all such changes. No rates or charges shall be effective except as they appear on a schedule so filed. 51 iZ gn-1-3 FREE CONNECTIONS. Grantee shall provide upon request and free of charge the drops set forth in the Franchise. Grantee shall discuss the location of each connection with the proper officials of each such institution receiving free connection. (t',13 5-v-1-4 PUBLICATION. All rates for subscriber services and leasing of channels shall be published. A written schedule of all rates shall be available upon request during business hours at Grantee' s business office and all other facilities. Nothing in this Ordinance shall be construed to prohibit the reduction or waiver of charges for attracting subscribers, or the establishment of charges and rate schedules that may vary with volume or nature of usage or programs. 20 5 CREDIT FOR SERVICE INTERRUPTION. In the event that Grantee's service to any subscriber or user of leased channel space is interrupted for twenty-four ( 24) or more consecutive hours, Grantee shall, in addition to any remedy set forth in section 5.7 , grant expeditiously such subscriber or user a pro-rata credit. 4.15 5h6 RATE REGULATION. To the extent that Federal or State law or regulation may now, or as the same may hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by the Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law for the first tier of service. For other tiers of service that may be included in the Basic Subscriber Television Service, for which the City shall have the right to exercise rate regulation, the City and the Grantee shall negotiate the rate for the service. When exercising rate regulation, the City shall consider, along with any other information it deems necessary or appropriate, the following factors in approving or disapproving a rate increase request: the ability of the Grantee to render Cable Communications System service; the efficiency of the Grantee; the quality of the service offered by the Grantee; the fair value cost of the Cable Communications System less depreciation; a fair rate of return over the life of the Franchise with respect to Grantee's investment; the financial commitments required to meet the terms of this Ordinance and the Franchise; the extent to which Grantee has adhered to the terms of this Ordinance; fairness to City residents, subscribers and users. The approval by the City of any purchase price herein shall not obligate the City to consider that purchase price as the fair value cost for rate regulation purposes or otherwise. The City may retain rate consultants as it deems appropriate. Ali FRANCHISE FEE ENTITLEMENT. The City of Ithaca shall be entitled to receive from Grantee a Franchise fee of five percent ( 5%) of Grantee's Gross City Revenue. 5.18 PAYMENT. The Franchise fee established in 5.19 above shall be tendered as follows: (i) Five percent (5%) of Grantee's Gross City Revenue for successive three ( 3 ) month periods tendered within forty-five ( 45) days after each such period. Said periods shall commence upon the execution of a Franchise granted pursuant to this Ordinance. 21 5.1,9FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT. Grant6e is required to reimburse the City for the expenses of the franchising and renewal processes such as consultants fees, which are incidental to enforcement of the Ordinance or Franchise. These requirements or charges shall not be considered part of the Franchise fee. 5. AFFILIATES' USE OF SYSTEM. To the extent necessary to prevent Grantee from diverting revenues from the operation of the Cable Communications System from Grantee to Affiliates to the detriment of the City, Affiliates (excluding any affiliate which provides a national or regional programming service) shall be permitted to utilize the Cable Communications System only if a Franchisee fee on City revenues derived therefrom is paid. 511 LATE PAYMENT. In the event that the fees herein required are not tendered on or before the dates fixed in this Ordinance, interest due on such fee shall accrue from the date due at an annual rate of three percent ( 3%) above _ the prime rate or rates of interest, at the City' s primary depository bank. 5._ 2 RECOMPUTATION. Tender or acceptance of any payment shall not be construed as an accord that the amount paid is correct, nor shall such acceptance of payment be construed as a release of any claim the City of Ithaca may have for additional sums including interest payable under this Ordinance or the Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor chosen by the City, which shall be based on a fiscal year and shall occur in no event later than one (1) year after the fees are tendered with respect to such fiscal year. If, after audit and recomputation, an unpaid fee is owed to the City, such fee shall be paid within thirty (30) days after audit and recomputation and the Grantee shall pay the costs of the audit. The interest on such unpaid fee shall be charged from the due date at an annual rate of three percent ( 3%) above the prime rate or rates of interest at the City's primary depository bank during the period that such unpaid amount is owed. 5-.-1-3 RIGHT OF INSPECTION OF RECORDS. The City shall have the right to inspect all books, records, reports, maps, plans, financial statements, and other like materials of the Grantee as provided in this Ordinance, at any time during normal business hours. 5 -24 RIGHT OF INSPECTION OF CONSTRUCTION. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Ordinance and other pertinent provisions of law. 22 5. 25 RIGHT OF INSPECTION OF PROPERTY. At all reasonable times and for the purpose of enforcement of this Ordinance and the Franchise, Grantee shall permit examination by any duly authorized representative of the City, of all cable communication system and facilities together with any appurtenant property of Grantee situated within the City and outside of the City if it is utilized in the operation of _the City' s Cable Communications System. 5.26 FRANCHISE RENEWAL. Upon completion of the term of any Franchise granted under this Ordinance, the City may grant or deny renewal of the Franchise of the Grantee in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws. SECTION 6 BONDS, INSURANCE, AND INDEMNIFICATION. 6. 1 PERFORMANCE BOND AND LETTER OF CREDIT. A. PERFORMANCE BOND. Not later than forty-five (45) days after the effective date of the Franchise, the Grantee shall obtain and maintain during the entire term of the Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the Franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the Franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation of this Ordinance. B. CONDITIONS. The performance bond shall provide the following conditions: ( 1) There shall be recoverable by the City jointly and severally from the principal and surety, any and all fines and penalties due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Grantee to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all lawful orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; pay any claims due the City as resulting from judicial action; pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. Such losses, costs and expenses shall include but not be limited to attorney' s fees and other associated expenses. 23 ( 2) The total amount of the bond shall be forfeited in favor of the City in the event: (a) The Grantee abandons the Cable Communications System at any time during the term of the Franchise or any extension thereto; (b) The Grantee assigns the Franchise witho the express written consent of the City; -er- C. REDUCTION OF BOND. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the Grantee shall be without prejudice to the Grantee' s subsequent applications or to the City' s right to require the full bond at any time thereafter. However, no application shall be made by the Grantee within one ( 1) year of any prior application. D. LETTER OF CREDIT. In addition to the performance bond required pursuant to paragraph A above, the City may, in its discretion, require the Grantee to obtain, maintain and file with the City an irrevocable letter of credit from a financial institution licensed to do business in the State in an amount specified in the Franchise, naming the City as beneficiary. The form and contents of such letter of credit . shall be approved by the City and shall be released only upon expiration of the Franchise or upon the replacement of the letter of credit by a successor Grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a violation of this Ordinance. E. CONDITIONS. The City may draw upon the letter of credit if the Grantee fails to: faithfully comply with the provisions of this Ordinance and the Franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the Cable Communications System. F. USE OF PERFORMANCE BOND AND LETTER OF CREDIT. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this Section, the City shall notify the Grantee in writing that payment is due and the Grantee shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within thirty (30 ) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit and the performance bond. 24 G. NOTIFICATION. Within three ( 3 ) days of a withdrawal from the letter of credit or performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. H. REPLENISHMENT OF LETTER OF CREDIT AND PERFORMANCE BOND. No later than thirty ( 30) days after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph F above, the Grantee shall replenish - the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a substantial violation of this Ordinance. I. NON-RENEWAL, ALTERATION OR CANCELLATION OF LETTER OF CREDIT OR PERFORMANCE BOND. The performance bond and letter of credit required herein shall be in a form satisfactory to the City and shall require thirty (30) days written notice to the City of any non-renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty ( 30) days following receipt by the City or the Grantee of any notice of cancellation. J. To offset the effects of inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases at the end of every three ( 3 ) year period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. K. The City shall not seek recovery from the Performance Bond or the Letter of Credit until it has provided the Grantee with thirty (30) days to cure any default. 6. 2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later than sixty ( 60) days after the effective date of the Franchise and thereafter continuously throughout the duration of the Franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this Section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this Ordinance. 25 B. To the extent provided in the franchise agreement any insurance policy obtained by the Grantee in compliance with this Section shall be filed and maintained with the City Clerk during the term of the Franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation. C. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee under any Franchise issued hereunder -for damages. D. The Grantee shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Ordinance or the Franchise. E. The Franchise shall include the provision of the following Hold Harmless clause: The Company agrees to indemnify, save harmless and defend the City, its agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney' s fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this Agreement. The foregoing indemnity shall apply except to the extent such injury, death or damage is caused by the negligence or other fault of the City, its agents, servants, or employees or any other person indemnified hereunder. F. All insurance policies provided under the provisions of this Ordinance or the Franchise shall be written by companies authorized to do business in the State, and approved by the State. G. To the extent provided in the franchise agreement at any time during the term of the Franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this Ordinance or the Franchise. H. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three ( 3 ) year 26 period of the Franchise, applicable to the next three year period, upon the determination of the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. 6. 3 GENERAL LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, general liability insurance insuring the Grantee in the minimum of: ( 1) $500,000 for property damage per occurrence; ( 2) $1,000,000 for property damage aggregate; ( 3 ) $1 ,000,000 for personal bodily injury to any one person; and ( 4) $2,000,000 bodily injury aggregate per single accident or occurrence. Such general liability insurance must include coverage for all of the following: comprehensive premises- - operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury. 6.4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall maintain, and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: ( 1) $1,000,000 for bodily injury and consequent death per occurrency; ( 2) $1,000,000 for bodily injury and consequent death to any one person; and ( 3) $500,000 for property damage per occurrence. 6. 5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. The Grantee shall maintain and by its acceptance of any Franchise granted hereunder specifically agrees that it will maintain throughout the term of the Franchise, Worker's Compensation and employer' s liability, valid in the State, in the minimum amount of: (1) Statutory limit for Worker' s Compensation. (2) $100,000 for employer's liability. 27 6. 6 INDEMNIFICATION A. Grantee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, its officers, boards and commissions, and City employees against any and all claims, suits, actions, liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the City in connection therewith) : ( 1) To persons or property, arising out of or through the acts or omissions of Grantee, its servants, agents or employees. ( 2) Arising out of any claim for invasion by the Grantee, its servants, agents, or employees of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation. ( 3 ) Arising out of Grantee's failure to comply with the provisions of any federal, state, or local statute, Ordinance, or regulation applicable to Grantee in its business hereunder. B. The foregoing indemnity is conditioned upon the following: The City shall give Grantee prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the City from cooperating with Grantee and participating in the defense of any litigation by its own counsel its sole cost and expense. SECTION 7 SUBSCRIBER AND USER RIGHTS 7.1 SUBSCRIBER SOLICITATION. Each representative or employee of the Grantee, entering upon private property shall be required to wear an employee identification card issued by Grantee and bearing a picture of said representative. 7.2 SALES INFORMATION. Grantee shall provide to all subscribers annually and all prospective subscribers or users complete written information concerning all services and rates available to such subscriber upon solicitation of service and prior to the consummation of any 28 agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning Grantee's least costly service. Such information shall be written in plain English and shall include but shall not be limited to the following: all services, tiers, and rates; deposits if applicable; installation costs; additional television set charges; service upgrade or downgrade charges; lockout devices; and information concerning the utilization of video cassette recorders (VCRs) with cables service(s) and the cost for hooking up such VCRs. 7.3 BILLING PRACTICES INFORMATION. Grantee shall inform all subscribers annually and all prospective subscribers or users of complete information respecting billing and collection procedures, procedures for ordering changes in or termination of services, and refund policies, upon solicitation of service and prior to the consummation of any agreement for installation of service. Such information shall be written in plain English. 7. 4 NOTICE OF INSTALLATION. Grantee shall inform all persons in advance of the date and approximate time its employee or agents shall enter onto such person's property for the purpose of installing cable communications service. 7. 5 BUSINESS OFFICE. Grantee shall maintain and operate within the City of Ithaca a business office for the purpose of receiving and resolving all complaints, including without limitation, those regarding service, equipment malfunctions or billing and collection disputes. The business office shall have a publicly listed local telephone number and shall be open for both telephone and walk-in business. Grantee shall provide all subscribers or users with at least thirty ( 30) days prior written notice of a change in business office hours. 7. 6 NOTICE OF COMPLAINT PROCEDURE. Grantee shall periodically, and at various times of the day, present its business office address and publicly listed local telephone number by means of alpha-numeric display on a local origination channel. 7.7 RESPONSE TO SERVICE COMPLAINT. The Grantee shall respond to requests for repair service no later than the next business day. System outages, whole or partial, shall be acted upon as soon as practicable. Grantee shall keep a record of all such complaints in compliance with state law and provide the record to the City as requested. 29 w 7. 8 UNRESOLVED COMPLAINTS. Should a subscriber or user have a complaint which is unresolved after fourteen (14) days after notifying grantee thereof, the subscriber or user shall be entitled to file his complaint with the City, which shall have primary responsibility for the continuing administration of this Ordinance and the Franchise and the implementation of complaint procedures. A representative of Grantee shall be available thereafter to meet jointly with the City and the affected subscriber or user, within thirty ( 30) days after said subscriber or user has filed the complaint, to fully discuss and resolve the matter. If the matter cannot be resolved, the City may use judicial proceedings to resolve the matter; all judgments and costs for attorney' s fees will be paid by the Grantee. 7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two (2) successive weeks, the first publication being not less than fourteen ( 14) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one ( 1) channel of the Cable Communications System between the hours of seven (7) p.m. and nine ( 9) p.m. , for four ( 4) consecutive days during each such week. 7. 10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at all times protect the privacy of subscribers as provided in this Ordinance and other applicable Federal, State and Local laws. 7. 11 PEOPLE METER. No people meter shall be used without the express written consent of the subscriber. 7.12 CONVERTERS. Grantee shall utilize state-of-the- art converters. Grantee shall make converters available to subscribers for rent or purchase. Grantee shall allow subscribers to purchase or rent converters from other vendors. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of converters on the items necessary for converter compatibility with Grantee' s Cable Communications System. Subscribers shall not be required to replace damaged converters rented from the Grantee if the damage resulted from fire, flood, earthquake, or other natural disaster or act of God. 30 7. 13 INTERNAL WIRING. Grantee shall install and/or maintain internal wiring for subscribers. As of March 1, 1989, Grantee may own the internal wiring or, at the subscribers discretion, the subscriber may own the wiring. Grantee shall allow subscribers or other vendors to install, own, and/or maintain internal wiring. Any subscriber, who duly notifies Grantee within the time period reasonably established and advertised by Grantee, may acquire ownership of the internal wiring at his/her premises without charge. In the event of signal leakage grantee may terminate service consistent with Federal law. 7. 14 REMOTE CONTROLS. Grantee shall make remote control units available to subscribers to purchase or rent. Grantee shall allow subscribers to purchase or rent remote control units from other vendors. Grantee may provide remote control units to subscribers at no charge as a part of its package of services. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of remote controls on the items necessary for compatibility with Grantee's Cable Communications System. Subscribers shall not be required to replace damaged remote control units rented from the Grantee if the damaged resulted from fire, flood, earthquake, or natural disaster or act of God. 7. 15 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. 7. 16 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS 8. 1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communications System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places. The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City 31 pusuant to local regulation, provided, however, 'Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8.2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost , and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8. 3 PRIVATE PROPERTY. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications System at its sole cost and expense. 8. 4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8.5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as approved by the City. 8. 6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the telephone and electric utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and/or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable) . 32 r 8.7 CITY PROPERTY. Where any damages or alterations occur to the City' s water, sewage or drainage lines or to any other municipal structures in the streets during the construction due to the presence, negligence, operation or maintenance of the Cable Communications System, the sole cost of such repairs including all services and materials will be billed to the Grantee and these charges shall be paid within 60 days of receipt of notice or the City may foreclose on performance bonds, or invoke other appropriate sanctions provided for in this Ordinance. 8.8 TEMPORARY RELOCATION. Grantee shall temporarily raise or lower its wires or other equipment upon the reasonable request of any person, including without limitation, a person holding a building moving permit issued by the City. The expense of such raising or lowering shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given reasonable notice necessary to maintain continuity of service. This provision shall not apply to requests by the City for City purposes for which movement there shall not be a charge by the Grantee. 8.9 CITY MAPS. The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing substructures. In public-rights-of- ways, where necessary, the location shall be verified by excavation. 8.10 CONSTRUCTION NOTICE. Grantee shall give appropriate notice to the City and residents within a reasonable period of time of proposed construction, excavation, laying or stringing of cable under streets or on poles, but in no event shall such notice be given less than seven (7) days before such commencement. 8.11 SAFETY AND CONSTRUCTION STANDARDS. The construction, installation, operation, maintenance, and/or removal of the Cable Communications System shall meet all of the following safety, construction, and technical specifications and codes and standards. Occupational Safety and Health Administration Regulations (OSHA) National Electrical Code National Electrical Safety Code (NESC) National Cable Television Standard Code AT&T Manual of Construction Procedures (Blue Book) Bell Telephone Systems Code of Pole Line Construction All Federal, State, and Municipal Construction Requirements, including FCC Rules and Regulations 33 Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8. 12 CONTRACTORS AND SUBCONTRACTORS. All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantee s Cable Communications System. 8.13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or installation by the Grantee of any towers, poles, underground conduits, or fixtures for use in connection with initial construction, rebuild, upgrade or line extension of the Cable Communications System under this Ordinance, the Grantee shall make available for City approval a concise description of the facilities proposed to be erected or installed, including strand maps, if required, together with a map and plans indicating the proposed location of all such facilities. Approval by the City shall not be unreasonably withheld and shall be completed in a timely manner. For the rebuild the Grantee shall allow a City selected engineer to inspect such information, maps and plans for five business days in the Grantee' s office. Prior to the five days, the Grantee shall give the City thirty ( 30) days prior notice that such information will be available. The Grantee shall accommodate reasonable scheduling modifications. If the Grantee makes a material change in any part of the system design, the City shall be notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee's office. No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8. 14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified in the Franchise, (e.g. , amplifiers, cable, antennas) . 8.15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial establishments within thirty (30) days of a request for such service and the receipt of any applicable City, State, Federal and utility company permits, and of permission from any landlord or other person controlling access to such premises. 34 8. 16 ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire-holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to make use of the poles or other wire-holding structures of the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee's operation. 8 .17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at any time all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and tests. 8.18 CONSTRUCTI N REPORTING REQUIREMENTS. /44 � A. Within thirty (30) days of the granting of a Franchise pursu nt to this Ordinance, the Grantee shall have applied for any necessary agreements, licenses, or certifications shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process. 35 8.19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8.20 INITIAL PERFORMANCE TEST. Initial proof of performance testing shall occur within sixty ( 60) days prior to the commencement of the Cable Communications System service to each section of the City as set forth in the Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test shall be borne solely by Grantee. 8. 21 ANNUAL PERFORMANCE TEST. Performance requirements and standards specified in the Franchise, shall be measured annually to ensure compliance with same. The costs of such tests shall be borne by Grantee. SECTION 9 MAINTENANCE AND INSPECTION 9.1 GENERAL. Grantee shall maintain wires, cables and all other real and personal property and facilities constituting the Cable Communications System in good condition, order and repair at all times during the term of the Franchise. 9.2 MAINTENANCE LOG. Grantee shall maintain an annual log showing the date, approximate time and duration, type and probable cause of all Cable Communications System outages, whole or partial, due to causes other than routine testing or maintenance. The entries in such log shall be retained by Grantee for one (1) additional year and shall be subject to inspection and copying by the City or its designee during Grantee's regular business hours upon reasonable request. 9.3 SERVICE INTERRUPTION. Except where there exists an emergency situation necessitating a more expeditious procedure, Grantee may interrupt service for the purpose of repairing, upgrading or testing the Cable Communications System, only during periods of minimum use, and only after a minimum of twenty-four ( 24) hours notice to affected subscribers. 9. 4 RADIATION MONITORING. Radiation monitoring shall be conducted by all maintenance technicians on an ongoing basis. The results of said monitoring shall be made available to the City upon request. 36 r � � SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10. 1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity/Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR 76. 311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment/Affirmative Action Opportunities. 10.2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and various minority groups to advance and win promotions in all categories of employment. As part of its obligation under Section 10. 1 above, Grantee shall take affirmative action to employ, during the construction, operation and maintenance of the Cable Communications System minorities and females as set forth in the Franchise. Grantee shall submit to the City annual EEO reports required by the Federal Communications Commission. SECTION 11 BOOKS, RECORDS, AND REPORTS 11.1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR. A. BOOKS AND RECORDS. The City reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like material, of the Grantee, upon reasonable notice and during normal business hours. B. AVAILABILITY OF RECORDS. If any of such maps or records are not kept in the City, or upon notice the Grantee is unable to provide the records in the City, and if the City shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by Grantee. 11.2 REPORTS REQUIRED. The Grantee shall file with the City: A. REGULATORY COMMUNICATIONS. All reports required by or voluntarily submitted to the New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. 37 B. FACILITIES REPORT. An annual report setting forth the physical miles of plant construction and plant in operation during the fiscal year shall be submitted to the City. Such report shall also contain any revisions to the system "as built" maps filed with the City, and copies of all materials required by the franchise to be given to subscribers. C. PROOF OF BONDS AND INSURANCE. To the extent provided in the franchise agreement Grantee shall submit to the City the required performance bond, or a certified copy thereof, and written evidence of payment of required premium, and all policies of insurance required by this Ordinance, or certified copies thereof, and written notice of payment required premium. D. FINANCIAL AND OWNERSHIP REPORTS. The following financial reports specified in the Franchise shall be submitted annually to the City. (1) An ownership report, indicating all persons, who at any time during the preceding year did control or benefit from an interest in the Franchise of five percent ( 5%) or more. (2) A copy of franchisee's annual report. ( 3 ) A report on the placement of any limited partnership offering, if any, including the amount subscribed and the amount paid in. (4) In the event that the City is asked to approve any rate increase, the Grantee shall provide an annual, system-wide and City-only, certified financial report from the previous calendar year, including year-end balance sheet; income statement showing subscriber revenue from each category of service and every source of non-subscriber revenue, line item operating expenses, capital expenditures statement, depreciation expense, interest expense and taxes paid; statement of sources and applications of funds; and depreciation schedule. The City-only statements shall be on an allocated basis and the Grantee shall provide the City with with the assumption utilized in making the allocations. ( 5) An annual, City-only, certified income statement. ( 6) An annual list of officers and members of the Board of Grantee's and of any parent corporation. 38 3 E. OPERATIONAL REPORTS. The following system and operational reports shall be submitted annually to the City: ( 1) The Grantee shall provide the City with a copy of it' s annual performance testing results as sub- mitted to the FCC. ( 2) An annual summary of the previous year's activities including, but not limited to, subscriber totals for each category of service offered including number of pay units sold, new services offered, and the character and extent of the service rendered to other users of the system, subject to Grantee's need to protect proprietary information. (3 ) An annual summary of service requests and complaints received and handled. (4) An annual summary of the number of outages. ( 5) An annual summary of liquidated damages and other penalties outstanding or paid. (6) An annual summary of all reports required by or voluntarily submitted to the ' New York State Commission on Cable Television and the Federal Communications Commission (FCC) related to the City of Ithaca. F. ADDITIONAL INFORMATION. The Grantee shall furnish to the City such additional information and records with respect to its operation, affairs, transactions or property, as may be reasonably necessary and appropriate to the performance of any of the rights, functions or duties of the City in connection with this Ordinance or the Franchise. 11. 3 RECORDS REQUIRED. A. MANDATORY RECORDS. The Grantee shall at all times maintain: (1) A record of all complaints received and interruptions or degradation of service experienced for the preceding period prior to a performance review, consistent with the state law and regulation. ( 2) A full and complete set of plans, records and "as built" maps showing the exact location of all cable installed or in use in the City, exclusive of subscriber service drops. 39 SECTION 12 MISCELLANEOUS PROVISIONS 12. 1 CAPTIONS. The captions to sections throughout the Franchise are intended solely to facilitate reading and reference to the sections and provisions of the Franchise. Such captions shall not affect the meaning or interpretation of this Ordinance. 12.2 SEVERABILITY. If any section, sentence, paragraph, term or provision of this Ordinance is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction upon final adjudication or by any state or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect. 12. 3 GRANDFATHER RIGHTS. Nothing contained in this Ordinance shall be construed to deprive Grantee or the City of any "grandfather" rights in any future amendments to any statute or regulation. Any such Franchise, however, shall be _ subject to such regulations the City finds necessary to adopt in the exercise of its police power, provided that such regulations are reasonable and do not materially conflict with the privileges granted in the Franchise. 12.4 NOTICE. Every notice to be served upon the City shall be sent by certified mail, postage prepaid, to the City. Every notice to be served upon Grantee shall be sent by certified mail, postage prepaid, to Grantee at its Ithaca office. 12. 5 FORCE MAJEURE. If by reason of force majeure either party is unable in whole or in part to carry out its obligations hereunder, said party shall not be deemed in violation or default during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; acts of public enemies; orders of any kind of the government of the United States of America or of the State of New York or any of their departments, agencies, political subdivision, or officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightening; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; and explosions. 12. 6 FAILURE OF CITY TO ENFORCE THE FRANCHISE, NO WAIVER OF THE TERMS THEREOF. The Grantee shall not be excused from complying with any of the terms and conditions of this Ordinance or Franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 40